[2022] KEHC 9876 (KLR)

In re Estate of Late Benson Mwangi Macharia alias Mwangi Macharia alias Macharia Benson Mwangi (Deceased) (Succession Cause E024 of 2021) [2022] KEHC 9876 (KLR) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9876 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause E024 of 2021

TM Matheka, J

July 8, 2022

IN THE MATTER OF THE ESTATE OF LATE BENSON MWANGI MACHARIA ALIAS MWANGI MACHARIA ALIAS MACHARIA BENSON MWANGI (DECEASED)

In the matter of

Peter Kiome Kairu

Objector

Ruling

1. Benson Mwangi Macharia alias Macharia Benson Mwangi (deceased) died onOctober 8, 2020.

2. His family, widow and children filed a Petition for Grant of Letters of Administration of estate intestate on March 16, 2020.

3. The Grant of Letters of Administration intestate was made to his widow and daughter, Florence Wangui Mwangi, Lucy Wanjiku Mwangi respectively on April 26, 2021.

4. On March 16, 2022one Peter Kiome Kairu, filed a Chamber Summons brought under Section 63 of the Law of Succession Act and Order 8 rule 3 of the Civil Procedure rules and all enabling Laws of Kenya seeking orders for leave to file his objection out of time.

5. The application is supported by his Affidavit sworn on March 15, 2022, where he depones that the deceased owed him Ksh. 1,700,000/= which he lend him between 2019 and 23rd January 2020 as evidenced by the annexed agreement. He deponed that to secure the loan the deceased had handed over to him the original file to his property LR Nakuru/Municipality Block 1/1231 measuring 0. 0294 Ha.

6. That the petitioners, well aware of his status as a creditor to the estate had failed to list his interest in the Petition as a liability and with respect to this application had failed to notify him when they filed the Petition, and that he had only found out through his own investigations that they had done so, hence the delay in filing his Objection.

7. The application is objected to by one of the administrators Lucy Wanjiku Mwangi. The key objection is that the petitioners had no obligation to inform the applicant or any other creditor personally/individually about the Petition, that the recognized mode of information was the Kenya Gazette, and the Petition was Gazetted via Gazette Notice dated March 18, 2021.

8. That the petitioners were not aware of the alleged loan owed to the applicant, and in any event, the applicant’s claim had not been established to warrant it being listed as a liability as against the estate.

9. That there existed another claim against the estate by Kenya Commercial Bank which also claimed to hold the original title to the same property, as evidenced by the Deed of Assignment of Rental Income dated April 25, 2019which the bank claims to have in its custody.

10. That in the circumstances the application is misconceived as the applicant expects this court to determine the claim and then provide for it, yet this court has the jurisdiction to determine the claim, which ought to be litigated elsewhere.

11. That the Grant of Letters of Administration intestate did not close the door for the applicant as he could always bring his claim against the estate after it had been determined, because as at now the same had not crystalised. That granting him leave now would delay the administration of the estate to the prejudice of the beneficiaries. She annexed the deed from Kenya Commercial Bank (KCB).

12. Parties filed Written Submissions.

Objector’s/Applicant’s Submissions 13. The objector filed his submissions on April 28, 2022.

14. The objector in his submissions reiterated the averments contained in his supporting affidavit sworn on 15th of March, 2022 as set out herein above.

Petitioner’s/Respondent’s Submissions 15. The petitioner filed their submissions onApril 19, 2022.

16. They submitted on two issues. Namely;1. Whether this court is the appropriate forum to determine objector’s interest in the deceased estate; &2. Whether the prayer for leave is sufficiently justified.

17. With regard to the first issue, it was submitted that jurisdiction is everything and without it a court of law has no power to make one more step. In support of this position reliance was placed on the Samuel Kamau Macharia & Another vs Kenya Commercial Bank & 2 others[2012] eKLR.

18. The petitioners Submitted that the objector’s claim as a creditor to the deceased’s estate has not crystalized and ought to be litigated in separate proceedings in which the objector has to prove the existence of the loan and who holds the genuine title to the aforesaid parcel of land between him and Kenya Commercial Bank .

19. The following precedents were set out to guide he court;I.Alexander Mbaka vs Royford Muriuki Rauni & 7 others[2016] eKLR where the court held that;“the role of the family court is well set out in the Act, to ascertain the assets, the liabilities, if any, the beneficiaries and determine the mode of distribution of an estate period. It is only where one has established claim against the estate that has already crystalised that he can litigate it before a family court...”II.In re Estate of Solomon Mwangi Waweru (deceased)[2018]eKLR 13 the court stated:-“…. It is imperative that any adverse claims against the estate of a deceased are determined through settlement or where inapplicable through suits against the administrator(s) of the estate and not through an objection like the one before court.”III.In Re the Estate of Dorcas Wanjiku – (deceased)[2014] eKLR where he court pointed out that creditors ought to wait for the beneficiaries of the estate to apply for the grant failure of which they are entitled to take out citations but where the grant has been issued they should prove their claim to the administrators or move to court as appropriate. -IV.In Re Estate of Joshua A. Visaho (deceased)[2019] eKLR.“Where the court stated that for creditors to qualify to benefit from an deceased’s estate the claims will either be accepted by the administrators or they will have to prove them before a court of law and produce a decree from a court of competent jurisdiction.”

20. On the second issue, the petitioners submitted that the objector failed to file his objection within thirty (30) days specified in the gazette notice concerning this matter. They invited this court to be guided by the court’s decisionIn re Estate of Agnes Ogolla Akoth (deceased)[2016] eKLR where the court underscored the importance of complying with set out provisions on how matters of succession cause can be dealt with. According to the court procedures and rules make things move in an orderly and predictable manner and cannot be wished away.

21. It was their submissions that the Applicant’s allegation that he was unaware of this matter is untenable as he was aware of the deceased’s death as early as 10th March, 2021 since through his advocate he wrote a letter to one of the petitioners Florence Wangui demanding a loan refund from the loan agreement and that his advocate ought to have guided him accordingly.

22. The counsel submitted that the objector still has avenues to ventilate his rights even with maintenance of the status quo and thus does not deserve the discretion of this court. To bolster this position the Respondent relied on the case of In re Esate of Paul Mwangi Kimamo (deceased) [2020] eKLR where the court stated that :-“...The Law of Succession is grafted in such a manner that the obtaining of grant is not an end to an aggrieved party’s rights. One can still challenge the issuance of grant by seeking revocation or annulment under Section 76 of the Probate and Administration Act and if the grant is not yet confirmed, one can file a protest to the mode of distribution. I do not think that the applicant would be prejudiced in any way if leave is not granted because the appellant has other avenues for pursuing her rights. On the other hand, if the court were to grant leave to file an objection, the court would be taking a step two years back...”

Issues for Determination 23. The only issue that stands for determination is whether this court should grant leave to the Applicant to file his objection out of time.

Analysis 24. This application for extension of time is brought under Section 63 of the Law of Succession Act and Order 8 Rule 3 of the Civil Procedure Rules.

25. Order 8 Rule 3 of the Civil Procedure Rules is irrelevant in this proceedings because it is a provision on amendment of pleadings with leave of court. Further Law of Succession Act is self-sufficient. In Josephine Wambui Wanyoike vs Margaret Wanjira Kamau & another [2013] eKLR, the Court of Appeal restated this position thus:“We hasten to add that the Law of Succession Act is a self-sufficient Act of Parliament with its own substantive law and rules of procedure. In the few instances where need to supplement the same have been identified, some specific rules have been directly imported into the Act through its Rule 63(1).”

26. Similarly, section 63 of the Law of Succession Act is inapplicable as it on Grant of administration to universal or residuary legatee.

27. The Application has been brought under the wrong provisions of the law but such an error is curable by Article 159(2) (d) of the Constitution of Kenya 2010 which mandates court to consider substantive justice.

28. Rule 17(1) of the Probate and Administration Rules provides:“Rule 17. Any person who has not applied for a grant to the estate of a deceased and wishes to object to the making of a grant which has been already applied for by another person, may do so by lodging within the period specified in the notice of the application published under Rule 7(4), or such longer period as the court may allow either in the registry in which the pending application has been made or in the principal registry, an objection in Form 76 or 77 in triplicate stating his full name and address for service, his relationship (if any) to the deceased and the grounds of his objection.”

29. In considering the provisions of Rule 17(2) of the Probate and Administration Rules, the court has to take into account Rule 67 on enlargement of time in Succession matters. Rule 67 provides:“Rule 67 Where any period is fixed or granted by these Rules or by an Order of the court for the doing of any act or thing, the court upon request or of its own motion may from time to time enlarge such period notwithstanding that the period originally fixed or granted may have expired.”

30. It is properly captured in the re Estate of Mary Kirugi Mwangi (deceased) [2018] eKLR, Rule 63 of the Probate and Administration Rules allows the application of Order 50 Civil Procedure Rules that deals with enlargement of time. Order 50(6) Civil Procedure Rules provides:“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of time appointed or allowed.”

31. On whether this court is the appropriate forum to determine the objector’s interest in the deceased’s estate, it is evident that the alleged interest that would confirm that he is actually a creditor to estate is contested. The applicant’s interest has not crystallized to assign him the legal space he seeks to enable him be considered a creditor of the estate to warrant his filing of the objection. The fact that there exist two claims to the document he claims is proof that the deceased owed him the money he alleges, is sufficient demonstration that he has not established a claim to warrant the position of an objector.

32. The determination of that issue is not for this court. The authorities cited clearly demonstrates that he still needs to crystalise his claim before he can even bring objection proceedings.

33. As to whether the applicant has established grounds to warrant the leave sought, it is evident that he has been aware of the death of the deceased for a long time, the petition was gazetted in the Kenya Gazette, and in any event his claim is yet to crystalize to warrant entry into the form P & A 5 as a liability against the estate. He ought to deal with those issues first before leave can be granted.

34. In the end, it is my view that the application is without merit and the same is dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED AT NAKURU VIRTUALLY THIS 8TH DAY OF JULY 2022. MUMBUA T. MATHEKA,JUDGECA EdnaMr. Kisila present for Sheth & WathigoM/S Naomi Muriithi & Company Advocates,Advocate for the applicantSheth & Wathigo Advocates