[2023] KEHC 24936 (KLR)

In re Estate of Lawrence Regeru Wambaa (Deceased) (Succession Cause 2051 of 2007) [2023] KEHC 24936 (KLR) (Family) (2 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24936 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 2051 of 2007

EKO Ogola, J

November 2, 2023

IN THE MATTER OF THE ESTATE OF LAWRENCE REGERU WAMBAA (DECEASED)

Between

Beth Wanjiru Kageche

Applicant

and

Emma Muthoni Wambaa

1st Respondent

Alice Wangui Kamande

2nd Respondent

Ruling

1. Before this Court is Summons dated 7th October 2019 where the Applicant prays for the following:-a.That the name of Beth Wanjiru Kageche as Administrator of the Estate of Stephen Kageche Regeru (deceased) ad litem be added to this suit to substitute that of the now deceased herein.b.That the sum due from the deceased's share of the estate in question be paid to the Applicant pending the finalization of the suit and the Petition for full grant of the estate of the late Stephen Kageche Regeruc.That all accounts being managed by Tyson's Limited and the shared property herein be furnished to the Applicant through her advocate on record that was her late husband's advocates on record in the matter.d.That all and any incidental Orders that would accrue to the late Stephen Kageche Regeru be apportioned to the Applicant herein.e.That costs of this Application be in the cause.

2. The Application is anchored on the grounds set out therein and supported by the Affidavit of the Applicant

3. The Applicant deposes that she is the wife of Stephen Kageche Regeru (hereinafter "Mr. Stephen"). That Mr. Stephen was a beneficiary in the estate of the deceased. Mr. Stephen died on the 12th of August 2019 and he was already a beneficiary of the estate of the deceased before his demise and he had been pursuing his inheritance from the estate.

4. The Applicant states that she has experienced difficulties in accessing funds from the estate of the deceased for school-related expenses. She obtained a Limited Grant of Letters of Administration of the Estate of Mr. Stephen ad Litem allowing her to continue with the pending suits on behalf of Mr. Stephen.

5. In response to the application, the 2nd respondent filed Grounds of Opposition and a Replying Affidavit both dated 13th December 2019 opposing the Application on the following grounds:-a.That the Applicant's Application is misconceived, mischievous and frivolous;b.That the Application is incompetent and cannot lie under the ambit of Order 1 Rules 10(2) and Rules 14 of the Civil Procedure Rules;c.That the annexed limited grant ad litem is defective as it was fraudulently obtained by concealing material facts especially that the deceased had another wife and Dependants and/or beneficiaries who had equal right to apply for the said grant and/or whose consent was never obtained when applying for the said Limited Grant of Letters of Administration Ad litemd.That the application lacks cause, merit and the prayer being sought can only be granted upon confirmation of a full grante.That the 2nd Respondent is in the process of making an application to revoke the said Limited Grants of Letters of Administration for the above-stated reasons;f.That the application as filed is vexatious and an abuse of court process.

6. The 2nd respondent's case is that she was married to Mr. Stephen vide Kikuyu Customary Law in 1996 and together they had two children. She averred that in 1999 she moved out of their matrimonial home due to violence caused by Mr. Stephen. It was at this time that the Applicant moved in with Mr. Stephen.

7. The 2nd respondent deposes that Mr. Stephen however continued to provide for her and their children and did not at any time initiate divorce proceedings. She averred that she never re-married and thus she was still considered as Mr. Stephen's wife.

8. According to the 2nd respondent, the Applicant acquired the Grant of Letters of Administration ad litem fraudulently and by concealing material facts.

9. The Applicant filed a Supplementary Affidavit dated 2nd March 2020 in response to the respondent’s averments. The Applicant states that the Application for substitution is made in good faith to substitute her husband in the instant succession. According to the Applicant, she did not block anyone out but since she was the one living with Mr. Stephen together with their children, she laid the application for substitution for the good of her family. According to the Applicant, she was never informed of the existence of the Respondent as a wife or former wife of Mr. Stephen.

10. The Respondent, in turn, filed a further Affidavit dated 25th October 2022 where the 2nd respondent avers that the Grant of Letters of Administration ad litem issued to the Applicant is now overtaken by events after the Applicant obtained a full grant of probate in the estate of Mr. Stephen. The 1st Respondent applied to have the grant revoked and the Grant was stayed pending the hearing of the Application for Revocation.

11. The parties filed written submissions.

Determination 12. I have carefully considered the application, the affidavits and the written submissions availed. The issue arising for determination is whether the substitution orders should be granted.

13. The Applicant seeks to substitute the name of the deceased beneficiary (Stephen Kageche Regeru) with her name in the estate of the deceased person Lawrence Regeru Wambaa. From the proceedings before court, there is a Confirmation of Grant from the estate of the deceased showing that Mr. Stephen was a beneficiary of that estate and it also shows the shares Mr. Stephen was to receive from the estate of the deceased. Unfortunately, Mr. Stephen died before distribution.

14. The Applicant herein is the widow of Mr. Stephen and wishes to be substituted with the deceased beneficiary. The Applicant states that she applied for a Grant of Letter of Administration ad litem to enable her to pursue the succession interests of Mr. Stephen in the estate of the deceased.

15. The Respondent objected to the Application contending that the Applicant was hiding material facts from this court by failing to disclose that Mr. Stephen had another family and that the Applicant is not the only beneficiary of Mr. Stephen. The Respondent contends that the Applicant did not seek any consent from anyone before filing the Application for substitution or even before filing the Application for grant of letters of Administration ad litem. The Respondent further contends that the Grant of letters, Administration ad litem is overtaken by events as the Applicant has already acquired a full grant in the estate of Mr. Stephen.

16. The Applicant has contended that the letters of Grant of Administration ad litem do not relate to the estate of Mr. Stephen but to the estate of the deceased whose succession cause is still ongoing. The wording of the grant ad litem is to the effect that the Applicant shall act as the legal representative of Mr. Stephen limited to the purposes only of continuing to its final determination of Succ. Cause 2051 of 2007 before the High Court at Nairobi and Succ. Cause 336 of 2016 before Senior Principal Magistrate's court at Kikuyu and its incidental suits and also to commencing any suits as may be directed by the courts therein and until further representation. The Grant ad litem is therefore to lapse once the succession cause herein is finally determined.

17. When Mr. Stephen herein died, no other person sought for the substitution. The issues that the respondent has raised are issues relating directly to the estate of Mr. Stephen. The Applicant is seeking to represent the interests of Mr. Stephen as a beneficiary in the current succession cause.

18. In Re Estate of Tuaruchiu Marete (Deceased) [2019] eKLR the court expressed itself as follows:“Whereas a child of the deceased may take the share of his deceased parent directly, but this should be done in clear cases and with much circumspection. Trouble may come when one of the children of the deceased beneficiary takes the whole of the estate of the deceased beneficiary. This is fraught with many dangers. Consider these dilemmas; (1) you may disinherit other dependants of the deceased; (2) the court may not be in a position to identify the rightful beneficiaries of the estate of the deceased beneficiary; (3) the cause does not relate to the deceased beneficiary, thus, the safeguards in law say gazettement of the cause to invite objections may not be available in that kind of transmissions; (4) in case of disputes amongst the beneficiaries of the deceased beneficiary, those may not be resolved in the original cause.”

19. In this case, the Applicant wishes to substitute the deceased beneficiary. From the file, there is evidence that the original deceased died and had properties and beneficiaries. However, there is a possibility that the deceased beneficiaries had more than the Applicant and her children as beneficiaries therefore substituting the deceased beneficiary with the applicant would cause an injustice to the respondent and her family if it is proved that they are beneficiaries of the estate of the deceased beneficiary.

20. In re Estate of Tuaruchiu Marete (supra), the court stated as follows concerning the proper procedure of dealing with the share of a deceased beneficiary:“... many causes being unduly delayed by wrangles amongst the beneficiaries of the estate of the deceased beneficiary. Of significance to note is that the share of the deceased beneficiary belongs to his estate and therefore, to all the beneficiaries of the deceased beneficiary. A more creative way which is supported by law is to indicate that the share shall go to the estate of the deceased to be shared equally by all his children. Such share is held in trust by the administrators of the original cause for transmission to the estate of the deceased beneficiary.”

21. In this matter, there are two Administrators for the estate of the Original deceased. The Administrators are Emma Muthoni Wambaa and Edwin Wambaa. Considering the circumstances surrounding the contention of beneficiaries of the deceased beneficiaries, it is prudent to let the Administrators hold in trust the share of the deceased beneficiary. Once the succession of the Original deceased is determined, the share of the deceased beneficiary will then be divided among his beneficiaries as per what the court will determine in the succession cause for the deceased beneficiary.

22. The Upshot is that the Application for substitution is dismissed. Costs be in the cause.It is so ordered.

DATED AND DELIVERED IN NAIROBI THIS 2ND DAY OF NOVEMBER 2023……………………………………E.K. OGOLAJUDGEIn the presence of:Ms. Akelo for the ApplicantN/A for the RespondentsGisiele Muthoni Court AssistantOGOLA J.