[2022] KEHC 16656 (KLR)

In re Estate of Manunga Kirangi (Deceased) (Succession Cause 521 of 2014) [2022] KEHC 16656 (KLR) (14 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16656 (KLR)

Republic of Kenya

In the High Court at Embu

Succession Cause 521 of 2014

LM Njuguna, J

December 14, 2022

Between

Patricio Njiru Kirangi

Applicant

and

Priscilla Gatui Kirangi

Respondent

Ruling

1. The matters for determination before the court are two applications dated January 17, 2022 and May 24, 2021 wherein the applicant sought for orders inter alia that:i.Spentii.The honourable court be pleased to issue a temporary injunction restraining the respondent, one of the beneficiaries of the estate herein from collecting house rent for Plot No Nthawa/Siakago/22 pending the hearing and determination of the suit herein.iii.The honourable court be pleased to rectify the certificate of confirmation of grant to read as per the schedule in the applicant’s supporting affidavit.iv.Costs of the application be borne by the respondent.

2. The applications are premised on the grounds on their faces and are supported by the affidavits of the applicant.

3. The applicant states that he is the administrator of the estate herein albeit him being a prisoner. That Plot No Nthawa/ Siakago/22 had previously been erroneously distributed in Succession Cause No 952 of 2002 and that the same was rectified and that the respondent has taken the liberty to collect rent emanating from the buildings from the suitland. He urged this court to grant a temporary injunction to stop the respondent from collecting the said rent and further, rectify the grant to read as per the schedule in his supporting affidavit.

4. The respondent via a replying affidavit sworn on June 3, 2022 deposed that the applicant misled this court that there was a family agreement on how to share the estate of the deceased herein. That in the year 1992 or thereabouts, the deceased herein sub divided his 26 acre land, Nthawa/Riandu/312 as follows;i.8 acres of Nthawa/Riandu/2136 given to Patricio Njiru Kirangiii.8 acres of Nthawa/Riandu/2137 given to John Njuki Kirangi.iii.4 acres of Nthawa /Riandu/2134 given to Priscilla Gatui Kirangiiv.6 acres of Nthawa/Riandu/2135 given to Eliminah Muthoni.

5. That the deceased’s family did not have any agreement on how to distribute the estate of the deceased because whatever the deceased had, he personally distributed to his children before his death in 1992. It was her deposition that the deceased sold 6 acres so as to raise money for survey costs and other expenses. She stated that the signature appearing in the said affidavit which is purported to be hers is not hers and that she does not know the alleged advocates and commissioner for oaths who purported to have witnessed her signature. It was her case that she lived with her father on land parcel number Nthawa/Riandu/2134 up to the date of his death in 1992 and he gave this land to her, as she is a single mother of five children who wholly depend on her. That her two brothers Patricio Njiru Kirangi and John Njuki Kirangi were given eight acres each and some other parcels of land for the reason that they are sons, and sons were favoured more than daughters during that time.

6. It was her case that upon the death of the deceased herein, the applicant filed for substitution in place of the deceased in Civil Case No SRMCC No 245 of 1989 at Embu where the deceased had been sued by his brothers over Plot No 22; which his brothers had claimed belonged to their father, Manunga Ngoci (Deceased). The respondent stated that the applicant thus filed Succession Cause No 256 of 1994 at Embu High Court but was jailed before the same could be concluded. That she filed Succession Cause No 521 of 2014 to have the land registered in her name which case was finalized and, the court ordered that she inherits parcel number Nthawa/Riandu/2134 and plot No 22 Siakago Market be followed through Succession Cause No 595 of 2002. That none of the deceased’s family herein supported her financially or otherwise to retrieve Plot No 22 Siakago Market from the estate of Manunga Ngoci. She therefore urged this court to dismiss the prayers by the applicant and instead order that she is the sole owner of Plot No 22 Siakago Market.

7. The court gave directions that the application be canvassed by way of written submissions and both parties complied with the said directions.

8. The applicant submitted that he is oppressed for the reason that the respondent has been trying to take over Plot No Nthawa/ Siakago/22 which belongs to the deceased herein. That in the year 2002, the respondent, John Njuki Kirangi, Kivuria Manunga, William Mugo Manunga and John Njue Manunga succeeded in distributing Plot No Nthawa/Siakago/22 and further to that, a mediation process, Med/No/110 of 2019 contrary to the agreement reached on December 14, 1994 where it was agreed that the said Plot No Nthawa/Siakago/22 should belong to the applicant. He has urged this court to order for rectification of grant to read that the said Plot No Nthawa/ Siakago/22 be transferred into his name as per the said mediation agreement.

9. The respondent on the other hand submitted that the plot in issue was not one of the listed properties in Succession No 952 of 2002 as the same had been alleged to be comprising the estate of Maringa Ngoci (deceased) who was a grandfather to the parties herein. That the respondent solely filed the application dated May 3, 2017 in which she sought among other orders, revocation of the grant issued in Nairobi High Court Succession Cause No 952 of 2002. It was her submission that the said summon for revocation was settled on September 24, 2020 and an order was issued on September 25, 2020 and in reference to order number 5, it was resolved that she collects the money/rent from the premises. It was her case that she should inherit Plot No Nthawa/Siakago/22 for the reason that in the original distribution of her father’s estate, she was discriminated in that, she inherited only 4 acres out of the estate; that she single handedly filed the application for revocation of grant which brought back Plot No Nthawa/Siakago/22 to the estate of the deceased herein and further, she expended money in the process of recovering the said plot.

10. With regard to the mediation report and purported agreement, it was submitted that the purported agreement dated December 14, 1994 is already time barred and therefore, the same is incapable of being implemented; further that, in 1994, she was too young to have capacity to enter into an agreement and by then, the said plot was not in control of the applicant’s family and there is no way an agreement could be reached over a property which was in control of third parties and lastly that the handwritten mediation agreement by the applicant is suspicious for it does not disclose the name of the alleged mediator. On whether the applicant should remain as a sole administrator of the estate herein, it was submitted that the applicant is a convicted murderer and as such, he has no right to administer the estate herein. Reliance was thus placed on Article 24 of theConstitution and Rule 73 of LSA and in the end, she prayed that the applications be dismissed with costs for lack of merit.

11. The court has considered the applications herein and the submissions by the respective parties and this court forms the view that it has been called upon to determine whether the orders sought can issue.

12. Section 47 of the Law of Succession Act vests the court with wide discretion in granting orders to preserve the estate of a deceased person. It provides;'The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.'

13. In the same breadth, Rule 73 of the Probate and Administration Rules provides that: -'73 Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.'

14. Rectification of grants is provided for in section 74 of the Law of Succession Act, Cap 160, Laws of Kenya and Rule 43(1) of the Probate and Administration Rules. Under section 74, errors in names and descriptions, or in setting forth the time and place of the deceased’s death, or the purpose in a limited grant, may be rectified by the court, and the grant of representation, whether before or after confirmation, may be altered and amended accordingly.

15. Rule 43(1) on the other hand provides that :-Where the holder of the grant seeks pursuant to the provisions of section 74 of the Act rectification of an error in the grant as to the names or descriptions of any person or thing or as to the time and place of death of the deceased or, in the case of a limited grant, the purpose for which the grant was made, he shall apply by summons in Form 110 for such rectification through the registry and in the cause in which the grant was made.

16. From the above provisions, it is clear that the power of a court to order rectification of a grant is not general but only limited to instances specified therein. That is; where the errors which are sought to be rectified relate to names or descriptions, or setting out of the time or place of the deceased’s death. [See in the matter of Theestate of Geoffrey Kinuthia Nyamwinga (deceased) [2013] eKLR and also in re Estate of Kathuita Kavira (Deceased) [2019] eKLR].

17. These matters specifically refer to correction of errors which the court may order without changing the substance of the grant. These include errors in names, description of any person or thing or an error as to the time or place of death of the deceased or the purpose for which a limited grant was issued. An error which is envisaged under this section is a mistake which may occur on the face of the grant like typing errors in names of persons or description of person or thing.

18. The issue of rectification of grant has been addressed in various decisions in the High Court which I have considered here as persuasive authorities.In the matter of the Estate of Hasalon Mwangi Kahero [2013] eKLR'An error is essentially a mistake. For the purposes of Section 74 and Rule 43, it must relate to a name or description or time and place of the deceased’s death, or the purpose of a limited grant. Is an omission of a name or in the description of a thing an error? It would be an error if say, a word in the full name of a person is omitted or a word or number or figure in a description is omitted. But where the full name of a person or a full description of a thing or property is omitted, it would be stretching the meaning of the word 'error' too far to say that that would amount to the error or mistake envisaged in Section 74 and Rule 43. '

19. The court has taken the liberty to peruse the record herein and it notes that the applicant seeks to inherit Plot No Nthawa/ Siakago/22 relying on the agreement dated December 14, 1994 while on the other hand, the respondent submitted that the purported agreement is time barred and therefore, the same is incapable of being implemented; that in 1994, the respondent was too young to have had capacity to enter into an agreement and further, the said plot was not in the control of the applicant’s family and there is no way an agreement could be reached over a property which was in control of third parties and lastly that, the handwritten mediation agreement by the applicant is suspicious for it does not disclose the name of the alleged mediator.

20. From the record, it is clear that the disputed Plot No Nthawa/ Siakago/22 was previously registered under the name of Maringa Ngoci (deceased) and via Succession Cause No 521 of 2015, the said land was vacated and that the money collected from the building from July to December, 2020 was to be used by the respondent herein. In my view therefore, the orders sought by the applicant herein to have the grant rectified in order for him to acquire the said Plot No Nthawa/Siakago/22 are not in line with situations that are set out in Section 74 and Rule 43 of the LSA.

21. I find guidance in In the Matter of the Estate of Geoffrey Kinuthia Nyamwinga (Deceased) [2013] eKLR:-'The law on rectification or alteration of grants is Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules. What these provisions mean is that errors may be rectified by the court where they relate to names or descriptions, or setting out the time or place of the deceased’s death. The effect is that the power to order rectification is limited to those situations, and therefore the power given to the court by these provisions is not general.Where a proposed amendment of a grant cannot be dealt with under the provisions of Section 74 of the Law of Succession Act, the applicant ought to approach the court under order 44 of the Civil Procedure Rules. A review under Order 44 of the Civil Procedure Rules may be sought upon discovery of new and important matter or on account of some mistake or error apparent on the face of the record, or for any sufficient reason. The applicant in this case should have moved the court under this provision-Order 44 of the Civil Procedure Rules on account of some mistake or error apparent on the face of the record and on the ground that there exists a sufficient reason for review of the certificate of the confirmation of the grant.'

22. As such, it is my humble view that the orders sought herein, in that regard, are not tenable. On the second limb that this court should order temporary injunction to stop the respondent from collecting rent from Plot No Nthawa/Siakago/22, it is trite that this court is bestowed with wide powers to do what is necessary to ensure that the ends of justice are met. [See Millicent Mbatha Mulavu & another v Annah Ndunge Mulavu & 3 others [2018] eKLR]where the court affirmed that the High Court has powers to issue injunctions for purposes of preserving the estate of a deceased person. It therefore means that this court has jurisdiction to issue orders including the issuance of conservatory orders against the wrongful disposal and/or intermeddling with the estate/free property of the deceased. [See Section 45 of the LSA].

23. In re Estate of Jeremiah Ngiri Kibati (Deceased) [2019] eKLR and Re Estate of Elijah Ngari (Deceased) [2019] eKLR, the court in dealing with the issue of issuance of conservatory orders in succession matters cited with approval the decision of this court in Japhet Kaimenyi M’ndatho v M’ndatho M’mbwiria [2012] eKLR noting that an applicant in an application for preservatory orders: -'Has to satisfy the following conditions: -a.That the suit property is at the risk of being disposed of or alienated or transferred to the detriment of the applicant unless Preservatory orders of inhibition are issued.b.That the refusal to grant orders of inhibition would render the applicant’s suit nugatory.c.That the applicant has arguable case.'

24. Similarly,In the Matter of the Estate of Paulo Kiplagat Boiwo (Deceased) (2012) eKLR, the court while affirming that conservatory orders are similar to injunctive orders noted that applicants have to abide by the conditions set out in the celebrated case of Giella v Cassman Brown (1973) EA 358 namely the applicant must make out a prima facie case and show that they will suffer irreparable loss which loss cannot be compensated by damages and lastly that the balance of convenience should tilt in their favour where doubt exists.[ also See the Court of Appeal decision in Nguruman Limited v Jane Bonde Nielsen and 2 Others NRB CA Civil Appeal No 77 of 2012 [2014] eKLR].

25. What constitutes a prima facie case? The Court of Appeal in Mrao Ltd v First American Bank of Kenya Limited and 2 Others [2003] eKLR explained that it is,'a case in which on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter.'

26. It is apparent then that prima facie case is therefore one that is not frivolous but one which is easily discernable from the pleadings even before the party is heard as it will show a right exists which may be infringed if an injunction is not issued and the onus of establishing the existence of a prima facie case lies with the applicant.

27. Further, In the Nguruman case (supra), the court stated as follows;'On the second factor, that the applicant must establish that he 'might otherwise' suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima facie, the nature and extent of the injury.Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot 'adequately' be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.'

28. In the case herein, the applicant seeks injunctive orders to stop the respondent from collecting rent from Plot No Nthawa/ Siakago/22 alleging that he should be the rightful owner of the said land. He has relied on an agreement entered into December 14, 1994 that he is the rightful owner and that the same should be transferred into his name. Having gone through the record herein, I note that indeed via an order dated, November 28, 2016, this court ordered that Nthawa/Siakago/822 be inherited by the applicant herein while Nthawa/Siakago/2134 be inherited by the respondent. Further, that Plot No 22 be followed through Succession Cause No 952 of 2002 by way of revocation of grant if need be. The respondent has submitted that she inherited 4 acres of land from her father and therefore sought that, she be allowed to inherit Plot No Nthawa/ Siakago/22 for reasons that her brothers inherited 8 acres of land from the estate herein; one Njuki Kirangi, a son of the deceased herein too also corroborated the testimony of the respondent and further stated that he had no objection to the respondent inheriting the Plot No Nthawa/ Siakago/22.

29. As a consequence of the above, has the applicant convinced this court that the suit property is at the risk of being disposed of or alienated or transferred to his detriment of the applicant unless conservatory orders of inhibition are issued? In my view he has not.

30. In the end, I find and hold that the applicant has not satisfied the court that he is deserving of the orders that he has sought in both applications.

31. The applications are hereby dismissed with no order as to costs.

32. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 14TH DAY OF DECEMBER, 2022. L. NJUGUNAJUDGE………………………………….…..………..for the Applicant…………………..………………………….for the Respondent………………………………………..for the Interested Party