[2022] KEHC 15880 (KLR)

In re Estate of Margaret Wachuka Mugo (Deceased) (Succession Cause 1099 of 2018) [2022] KEHC 15880 (KLR) (Family) (4 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15880 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 1099 of 2018

MA Odero, J

November 4, 2022

IN THE MATTER OF THE ESTATE OF MARGARET WACHUKA MUGO (DECEASED)

Between

Paulyne Nyambura Mugo

Applicant

and

Anthony Gichuhi Mugo

Respondent

and

James Mugo Mbuthi

Interested Party

Christine Wairimu Mugo

Interested Party

James Mugo Mbuthi

Interested Party

Francis Mwangi Mugo

Interested Party

Caroline Njoki Mugo

Interested Party

Consolata Wanjiku Mugo

Interested Party

Imelda Nyando Amani

Interested Party

Ruling

1. Before this court is the summons for review of orders of confirmation of Grant dated November 15, 2021 by which the applicant Paulyne Nyambura Mugo seeks the following orders:-1. Spent2. That this Honourable court be pleased to grant an order of injunction restraining Anthony Gichuhi Mugo, Francis Mwangi Mugo, Caroline Njoki Mugo, Consolata Wanjiru Mugo And Imelda Nyado Amani their agents, servants and or assigns from leasing, transferring, working, selling, gifting and/or in any way dealing with Parcel of Land Reference Number Dagoretti/Riruta/7421 (portion A of Dagoretti/Riruta/4572).3. That this Honourable court be pleased to review and/or vary the order made on March 3, 2020 distributing the estate of the deceased and confirming the grant of the letters of administration issued on February 27, 2019. 4.That the Administrator be ordered to render a full account of the income of the estate that he has been collecting since February 27, 2019. 5.That leave be granted to the beneficiary/applicant to cite the administrator Anthony Gichuhi Mugo for contempt of the court order issued on March 3, 2020. 6.That Anthony Gichuhi Mugo be removed as an administrator of the estate of the deceased and court do appoint James Mugo Mbuthi to administer and distribute the remaining part of the estate.”

2. The application which was premised upon section 76 d (ii) (iii) of the Law of Succession Act and rule 63 of the Probate and Administration Rules was supported by the Affidavit of even date as well as the Supplementary Affidavit dated jUNE 21, 2022 both sworn by the applicant.

3. The respondent Anthony Gichuhi Mugo opposed the application through the Grounds of Opposition dated February 22, 2022 as well as his Replying Affidavit dated May 2, 2022. The application was canvassed by way of written submissions. The applicant filed the written submissions dated July 1, 2022 whilst the respondent relied upon the submissions dated July 25, 2022.

Background 4. The succession cause relates to the estate of the late Margaret Wachuka Mugo (hereinafter ‘the deceased’) who died intestate on May 10, 2017 at the Nairobi Womens Hospital. A copy of the Death Certificate serial no. xxxxxxx is annexture ‘AGM’ to the petition for Grant of letters of Administration Intestate dated June 26, 2018.

5. According to a letter dated May 17, 2018 written by the chief of Dagoretti Sub-County the deceased was survived by the following persons:-i.Anthony Gichuki Mugo – sonii.Paulyne Nyambura Mugo – daughteriii.Christine Mugo Wairimu – daughteriv.James Mugo Mbuthi – sonv.Francis Mwangi Mugo – sonvi.Caroline Njoki Mugo - daughtervii.Consolata Wanjiku Mugo – Daughterviii.Patrick Kariuki Mugo (deceased) – survived bya.Imelda Myando Amani – widowb.SMK – minorc)MWK – minor

6. The estate of the deceased was said to comprise of the following assets-‘Assets’1. Land parcel Dagoretti/Riruta/4572 ............40,000,000/-2. Land parcel Dagoretti/Riruta/4572 ............30,000,000/-3. Land parcel Dagoretti/Riruta/45778. .........20,000,000/-4. Land parcel Gilgil Plot No. 1952. .. .................1,500,000/-5. Shares Eveready Company6. Shares Barclays Bank7. Kenya Women Finance Trust AccountTotal Estimated Value .............91,500,000/-Liabilities ...................NIL”

7. Following the demise of the deceased her son Anthony Gichuki Mugo (the respondent herein) sought and obtained Grant of letters of Administration Intestate which were issued on February 27, 2019. The grant was duly confirmed on March 3, 2020. The mode of distribution of the estate as consented to by the beneficiaries was set out in the certificate of confirmed grant.

8. The applicant states that she was not consulted and did not participate nor give her consent to the proposed mode of distribution of the estate. That the mode of distribution adopted by the court was skewed in favour of the administrator and benefits some beneficiaries while oppressing, discriminating and disenfranchising others. The applicant further averred that the administrator tagged loan amounts to some of the properties distributed to the applicant and proceeded to collect rental income from the same without accounting for the same.

9. The applicant went on the state that the mode of distribution as adopted by the court pooled some beneficiaries into a trust scheme which the administrator is manipulating and deriving income to the detriment of the other beneficiaries. That LR no Dagoretti/Riruta/7421 which is the portion of Dagoretti/Riruta/4572 is held in trust for all beneficiaries by the administrator yet without the applicants consent the administrator has parted with possession of the same and that some unknown structure is being erected thereon.

10. The applicant complains that whereas on March 3, 2020 the court directed that the estate account should have three (3) signatories, the administrator has in contempt moved to open other accounts to which he is the sole signatory whilst ensuring that no deposits are made into the estate account which has three (3) signatories.

11. Finally the applicant accuses the administrator of failing to diligently proceed with the distribution of the estate. She laments that the mode of distribution adopted by the court on March 3, 2020 has become difficult to implement and in causing acrimony, misunderstanding and bad blood between the beneficiaries. Hence the prayer that the said mode of distribution of the estate be reviewed and/or varied. She prays the current administrator be removed and that one James Mugo Mbuthi be appointed as administrator in his place.

12. As stated earlier the application was opposed. The administrator states that the current application does not meet the criterial for review as provided by rule 63 of the Probate and Administration Rules. That the grounds raised by the Applicant are reserved for either revocation and/or annulment of grant.

13. The administrator contends that the applicant herself refused to participate in the distribution of the estate and that she never wanted the grant to be confirmed. The administrator asserts that he has always run the estate in a professional manner and states that he did render accounts in this matter. The administrator denies all the allegations levelled against him by the applicant and states that having refused to participate in the running of the estate the applicant cannot now claim to have been sidelined. He urges the court to dismiss this application entirely.

Analysis and determination 14. I have considered the application before this court, the Affidavit filed in reply as well as the written submissions filed by the parties.

15. The applicant has sought to have the mode of distribution of the estate as set out in the certificate of confirmed grant dated March 3, 2020 reviewed/or varied. The applicant claims that she did not consent to the mode of distribution as set out in the confirmed grant and further alleges that the said mode of distribution is skewed in favour of the administrator and is discriminatory as against the other beneficiaries. What the applicant is basically asking this court to do is to rectify or amend the certificate of confirmed grant.

16. 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. Section 74 provides as follows: -74. Errors in names and descriptions, or in setting fourth 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.”

17. Rule 43(1) provides as follows:-Where the holder of a 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 or 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.”

18. From the language of section 74 of the Law of Succession Act and rule 43(1) of the Probate and Administration Rules, the scope of ‘rectification’ of Grants of representation is limited to 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. Such other minor errors in that genre can also be rectified through a summons for rectification of grant.

19. The applicant has prayed to have the grant rectified in order to correct the mode of distribution as set out in the confirmed grant. This certainly does not fall under the scope of section 74.

20. The changes being proposed by the applicant are substantial and far reaching. They materially alter/affect the confirmed grant issued by the court. In no way can the proposed amendments be described as minor errors in names and descriptions. This is not a matter which can be dealt with under review for variation of the confirmed grant.

21. The question of when a grant may be rectified has been addressed severally by the courts in Kenya.

22. Similarly in the matter of the estate of Geoffrey Kinuthia Nyamwinga (deceased) [2013] eKLR the court held that:-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 of 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 fact 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 grant. (own emphasis)

23. I do agree with the administrator that the changes being proposed by the applicant cannot be achieved by an application to ‘review’/vary’ the grant. I note that by prayer (6) the applicant seeks the removal of the administrator whom she alleges that he has failed to diligently administer the estate.

24. The removal of an administrator cannot be said to fall under cover of ‘review’ of grant. The applicant must file a substantial summons seeking to revoke the grant issued to the administrator and to set aside the mode of distribution. It amounts to an abuse of court process to file an application for review when in essence what the aplicant is seeking is to overhaul the entire confirmed grant.

25. The applicant has prayed to have ‘Anthony Gichuhi Mugo’ appointed as administrator of the estate in place of the current administrator. There is no indication whether this Anthony Gichuhi is ready and willing to serve as administrator of the estate. The duties and obligations of an administrator of an estate are onerous. One cannot be so appointed unless they willingly and consciously accept the obligations and duties of an administrator.

26. I note that the grant was confirmed after consent was obtained from all beneficiaries. I have perused the ruling dated June 28, 2021 delivered by Hon Justice Muchelule (as he then was) in this same matter where he stated follows:-“In any case, the orders in the certificate of confirmation followed the consent of all the beneficiaries of the estate of the deceased. By the consent, the beneficiaries became contractually obligated to share the estate in the manner contained in the certificate of confirmation. It is trite that a consent order or judgement may only be varied or set aside for fraud, collusion, misrepresentation, or for any reason which would enable the court to set aside an agreement (Brook Bond Liebig (T) Ltd – v – Mallya [1975] EA 266).”

27. I do agree that if the applicant wishes to have the confirmed grant amended and/or altered in any way then she must file a substantive summons to have the Grant which was confirmed on March 3, 2020 set aside. This can only be done after a full hearing at which both the applicant and the administrator will adduce evidence in respect of their positions.

28. Based on the above I decline to grant the prayer for review of the confirmed grant dated March 3, 2020.

29. The applicant has sought to have the administrator file accounts in respect of the estate. Yet she has annexed to her application a Statement of Accounts filed by the administrator Annexture ‘AGM3’ to the administrators Replying Affidavit. If the applicant has any issues with the accounts as filed then she must file the relevant application.

30. In my view this application is a waste of the courts time. If the applicant seeks to have the grant revoked she ought to file a substantive summons seeking to revoke the grant.

31. As things stand there is a grant which was issued on February 27, 2019 and confirmed on March 3, 2020. Unless otherwise ordered by the court the estate is to be distributed in the manner set out in that confirmed grant. I find no merit in this application.

32. Having said that I do grant leave to the applicant to commence contempt proceedings against the administrator if she is of the view that he has violated any of the orders made by the court. In conclusion I decline to allow prayers (2), (3), (4) and (6) of this application. However, I do grant prayer (5) of the application. Each party to meet its own costs.

DATED IN NAIROBI THIS 4TH DAY OF NOVEMBER, 2022. …………………………………..MAUREEN A ODEROJUDGE