[2022] KEHC 10181 (KLR)

In re Estate of Lawrence Kimani Khirrecu (Deceased) (Succession Cause 2679 of 1994) [2022] KEHC 10181 (KLR) (Family) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10181 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 2679 of 1994

MA Odero, J

June 17, 2022

Between

Monicah Mukuhi Khirrecu

Applicant

and

James Muigai Khirrecu

Beneficiary

Ruling

1. Before this Court for determination is the Notice of Motion Application dated April 20, 2020by which the Applicant Monicah Mukuhi Khirrecuseeks the following orders:-“1. Spent.2. That this Honourable court be pleased to grant an order of its consent to the sale of the property contained in the rectified letters of administration of the estate of Lawrence Kimani Khirrecu (Deceased) known as LR No. Nairobi 90/153 in Loresho in accordance to section 37 of the Law of Succession Act Cap 160 Laws of Kenya.3. That this Honourable Court be pleased to grant an order of its consent to the sale of the property contained in the rectified letters of administration of the estate of Lawrence Kimani Khirrecu (Deceased) known as Land Reference No. Kajiado/Kaputei-North/15138 in Kitengela in accordance to section 37 of the Law of Succession Act Cap 160 Laws of Kenya.4. That the Objection proceedings brought by the Respondent/Objector in this suit be adjudicated by way of written submissions be determined by this Honourable court.5. That the costs of this Application be provided for.”

2. The application was premised upon sections 1A, 1B of the Civil Procedure Act, Order 1 and 2 of the Civil Procedure Rules, Sections 37 of the Law of Succession Act and was supported by the Affidavit of even date and Further Affidavit sworn by the Applicant.

3. The Respondent James Muigai Khirrecuopposed the application through his Replying Affidavit datedJuly 26, 2021. The application was canvassed by way of written submissions. The Applicant did not file any written submissions but opted instead to rely on the Supplementary Affidavit dated October 21, 2021. The Respondent relied upon his written submissions dated September 8, 2021.

Background 4. This Succession Cause relates to the estate of Lawrence Kimani Khirrecu(hereinafter ‘the Deceased’) who died intestate on November 14, 1998. A copy of the Death Certificate Serial Number 4936 21 is annexed to the Petition for Grant of letters of Administration Intestate dated October 30, 2000.

5. The Deceased who left a sizeable estate was survived by the following–i.Monicah Mukuhi Khirrecu – Widowii.Augustine Ngugi Khirrecu – Soniii.Thomas Kimani Khirrecu – Soniv.Angela Wanjiru Khirrecu – Daughterv.Paul Njoroge Khirrecu – Sonvi.James Muigai Khirrecu – Son

6. Following the demise of the Deceased a Grant of letters of Administration Intestate was on 1st March 2001 issued to Monicah Mukuhi Khirrecu and Augustine Ngugi Khirrecu (the widow and son respectively). Thereafter a certificate of confirmed Grant was issued to the two on May 14, 2003. The Grant has been amended severally with the last amendment being done on October 7, 2020.

7. The Applicant has now brought this present application seeking the consent of court to dispose of two properties, namely –i.L.R No. 90/153 located in the Loresho area of Nairobi County (hereinafter the ‘Loresho Property’); andii.L.R No. Kajiado/Kaputei-North/15138 located in Kitengela (hereinafter the ‘Kitengela Property’).

8. The Applicant further prays that the objection filed by the Respondent be canvassed by way of written submissions.

9. As stated earlier the application was opposed. The Respondent submitted that the signature in the Supporting Affidavit dated April 20, 2020 is Notthe signature of the Applicant. He further submitted that the said Affidavit has not been properly commissioned.

10. The Respondent also submitted that the present application was ‘sub-judice’ as it was similar to the Amended Chamber Summons dated November 18, 2019in response to which he had filed a Preliminary Objection dated June 26, 2020which raised the objection that the Amended Summons seeking consent to sell the Loresho Property was ‘sub-judice’. Both the application and the Preliminary Objection remain unprosecuted. Instead of setting down the Amended summons or the Preliminary Objection for hearing the Applicant instead filed another application seeking consent to sell an additional property.

11. Finally the Respondent averred that the applicant has not come to this court with clean hands given that she had previously attempted to sell the property known as L.R No. Nairobi 90/153 to one Eunice Ruguru Mwangi in April 2019. That the applicant had been paid a deposit of Kshs 6,300,000 for said property but did not conclude the sale causing the said Eunice Ruguru to lodge a caveat as an interested purchaser against the Title to said property.

12. The Respondent accuses the Applicant of wasting the estate by disposing of estate properties to her own benefit and to the benefit of Thomas Khirrecu one of the beneficiaries. That the Applicant is currently receiving rental income to the tune of Kshs 371,000 from three properties.

13. The Respondent avers the Applicant is currently 80 years old and has health problems thus she is not in a position to go about selling properties and re-investing the proceeds. That to allow the current application will be prejudicial to the other beneficiaries of the estate. Accordingly, the Respondent urges that the application be dismissed in its entirety.

Analysis and Determination 14. I have carefully considered the application before this court, the Affidavit filed in reply as well as the written submissions on record. There is no dispute regarding the assets left by the Deceased or the identities of the beneficiaries to the estate.

15. The Respondent challenged the signature purported to be that of the Applicant which appeared on the supporting Affidavit dated April 20, 2020. In her supplementary Affidavit dated October 21, 2021the Applicant insists that the signature on the documents is her signature. No evidence has been adduced to controvert this assertion. There is no report from an expert document-examiner confirming that the signature does not belong to the Applicant. Accordingly, I dismiss this allegation as unproven.

16. Secondly the Applicant contends that the same supporting Affidavit is defective as it was not properly commissioned by a Commissioner of Oaths as required by section 5 of the Oaths and Statutory Declarations Act, Cap 15 Laws of Kenya. I have carefully perused the said supporting Affidavit. I note that though it was signed by the Applicant it has indeed not been commissioned by a Commissioner for Oaths, as required by law. The commissioning of an Affidavit by a Commissioner of Oaths is what confirms that the Deponent appeared before the Commissioner and “swore” or “affirmed” to the veracity of the statements contained in that Affidavit before a legally qualified officer. An Affidavit that is not commissioned is relegated to the position of a mere statement which will require proof of each and every averment contained therein.

17. The failure to commission the Supporting Affidavit may have been an oversight. Although Article 159(2)(d) of the Constitution of Kenya 2010 exhorts court to administer substantive justice “without undue regard to procedural technicalities”, I do not think the failure/omission to have the Affidavit commissioned can be overlooked as a mere technicality. In my view, the supporting Affidavit dated 20th April 2020 is fatally defective.

18. However, for purposes of completeness I will proceed to consider the application on its merits.

19. The Applicant has prayed that the court grant her consent to dispose of the two named properties namely, LR. No. Nairobi 90/153 located in Loresho area of Nairobi and LR. No. Kajiado/Kaputei-North 15/15138 (hereinafter the ‘suit properties’). The Applicant submitted that no prejudice will be suffered by the Respondents if the said properties were disposed and that in fact the beneficiaries will benefit from the proceeds of the sale.

20. In opposing the application seeking consent to sell the suit properties, the Respondent submitted that the proposed sale would not be beneficial to the estate as the Applicant had failed to render account for the proceeds of sale of properties which had been previously sold by herself. The Respondent also points out that the Applicant has failed to seek and obtain the consent of all the adult beneficiaries of the estate as required by section 37 of the Law of Succession Act.

21. In his replying Affidavit the Respondent vide paragraphs 10,11 and 12 averred as follows: -“1. That it is also not fair and right to allow the Applicant to dispose more properties while she has not accounted for those that she has already sold.2. That the grant issued on 14th of November 2006 was erroneously indicated that the 1st Administrator held the properties to the estate absolutely while when giving consent together with the other beneficiaries we consented to a lifetime interest in which case the properties would be held in our trust.3. That unfortunately due to the said error the Applicant has disposed:“Kimbaa/Waguthu/832Kiamba/Ruaka/707Nyandarua/Ndemi/1777Nyandarua/Ndemi/1778Nyandarua/Ndemi/1779Nyandarua/Ndemi/1780Nyandarua/Ndemi/1781Nyandarua/Ndemi/1782Nairobi/Block 116/972Karuri Town Plot No. 50Plot No. 43 Ruaka.”

22. That the above properties were disposed and in turn, the Applicant acquired:“Kajiado/Kaputei-North/15138Kajiado/Kaputei-North/69173Kajiado/Kaputei-North/69174Loitoktok/Emperon/454”

23. I note that vide a Ruling delivered onOctober 7, 2020Hon Justice Dulu, observed that several of the assets which had existed at the time of the death of the deceased had since been sold by the Applicant. In his Ruling the Honourable Judge directed that the Applicant account to the estate for the proceeds of sale of the said properties.

24. In said Ruling Justice Dulu gave orders that the Applicant was deemed to hold the assets as trustee for the other beneficiaries of the estate. The Hon Judge in his Ruling of October 7, 2020rectified the Grant issued to Monica Mukuhi Khirrecu and her Co-Administrator Augustine Ngugi Khirrecu and made the following orders:-“a)A further rectified certificate of confirmed grant do issue with the same assets in the rectified certificate of confirmed grant dated February 25, 2013 with the difference only being that Monica Mukuhi Khirrecu will hold the assets as trustee as ordered by Justice Asenath Ongeri in the ruling of this court of October 11, 2019. ”b)The Applicant Monicah Mukuhi Khiirecu as trustee will have to give an account to all beneficiaries of the estate and file the same in court within 45 days from today on how she has handled all the affairs and assets of the estate.c)……………..” (Own emphasis)

25. The 45 day period provided for in this Ruling has long since lapsed. The Applicant has not provided an account as directed by the court. It is trite that he who comes to equity must come with clean hands. Having failed to render account for the properties already sold the Applicant cannot now approach the court seeking consent to dispose of yet more assets of the estate.

26. The Applicant held the assets as a trustee. As such, she owes the estate a fiduciary duty to account for any proceeds of sale of any of the assets of the estate in line with section 83 of the Law of Succession Act, which sets out the duties of personal representatives to an estate.

27. The Applicant’s failure and unwillingness to account for the proceeds of assets already sold in compliance with the Ruling of October 7, 2020, means that the Applicant cannot be entrusted with the sale of yet more assets. She is clearly not acting in the best interests of the estate and it would be foolhardy of this court to grant the consent now being sought.

28. Moreover the Applicant has not bothered to seek and obtain the consent of all the adult beneficiaries of the estate for sale of more assets as required by law. Section 37 of the Law of Succession Act which provides as follows: -Powers of spouse during life interest“A surviving spouse entitled to a life interest under the provisions of section 35 or 36 of this Act, with the consent of all co-trustees and all children of full age, or with the consent of the court shall, during the period of the life interest, sell any of the property subject to that interest if it is necessary for his own maintenance: Provided that, in the case of immovable property, the exercise of that power shall always be subject to the consent of the court.” (own emphasis)

29. In the case of Re Estate of Doris Wanjiku John Mwigaruri alias Doris Wanjiku (Deceased) [2015] Justice Mativo in observing that the rights of a surviving spouse over state property are not absolute, stated as follows: -“Life interest confers a limited right to the surviving spouse over the state. He or she does not enjoy absolute ownership over the property. They cannot deal with it as if it was their own. By virtue of Section 37 of the Act, a surviving spouse cannot during life interests dispose of any property subject to that life interest without the consent of all the adult children, co-trustees and the court. This is meant to safe guard the interest of the children who are the ultimate beneficiaries of the property the subject of the life interest. It is in this respect that the life interest operates as a trust over the property the subject thereof, a trust held by the surviving spouse for the benefit of the surviving children.” (own emphasis)

30. Moreover as evidenced by Annexture JMK ‘1’ to the Respondents replying Affidavit one of the properties being L.R. 90/153 Nairobi is encumbered by a caveat placed against it by one Eunice Rugeru Mwangi who claims a purchasers interest. This is evidence that an attempt was made to sell this Loresho property without first seeking consent of the court. By this application the Applicant is merely seeking to ‘sanitize’ her illegal actions.

31. The Applicant made no reference to this attempted sale of the property, nor has the Applicant given any account for the Kshs 6. 3 million she received as a down payment from the purported purchaser Eunice Ruguru. The Applicant has come to court seeking to sell this Nairobi property when she had already placed an Advertisement for sale of said property as evidenced by Annexutre JMK ‘2’ to the Respondents Replying Affidavit. This application is an attempt by the Applicant to use the court to rubber stamp what she has already done.

32. Finally, I find no merit in this application. The same amounts to an abuse of court process since the Applicant had filed a similar application dated November 18, 2019which she has failed to prosecute.

33. Accordingly, I decline to grant the consent being sought to dispose the two properties. The Notice of Motion dated April 20, 2020is hereby dismissed in its entirety. By Prayer (4) of this Notice of Motion the Applicant prayed that the objection filed by the Respondent be canvassed by way of written proceeding. She proceeded without awaiting the direction and/or authority of the court the file written submissions dated March 23, 2022.

34. Objection proceedings are in my view substantive proceedings cannot be ordinarily be dealt with through written submissions. It is desirable that parties testify and call witnesses whose evidence will be tested by way of cross-examination. Accordingly, I decline to direct that the objection be canvassed by way of written submissions. Instead I direct that the objection dated January 16, 2020will be heard by way of oral evidence in open court.

35. This being a family matter each side will met its own costs.

DATED IN NAIROBI THIS 17TH DAY OF JUNE, 2022. MAUREEN A. ODEROJUDGE