[2019] KEHC 5686 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT EMBU

SUCCESSION CAUSE NO. 53 OF 2015

IN THE MATTER OF THE ESTATE OF MATI NJOBANO ALIAS JOHN NJIRU NTHOKO (DECEASED)

ANYESE NGUNGI NJERU.....................................APPLICANT

VERSUS

DORIS KARIMI NYAGA...ADMINSTRATOR/RESPONDENT

R U L I N G

A. Introduction

1. This is a ruling the application dated 7th March 2017 brought under Section 71 of the Law of Succession Act,andRules 44 (1) and 73 of the Probate and Administration Rulesseeking for orders that the grant issued on the 21st February 2017 to the respondent be revoked/annulled.

2. The applicant relies on two grounds that: -

a) The proceedings to obtain the grant by the respondent and the subsequent confirmation and the distribution of the estate of the deceased were fraudulent and false as the respondent concealed from court material facts that the applicant was a beneficiary of the estate of the deceased.

b) That the applicant will suffer irreparably and losses if the grant is not revoked.

3. It is the applicant’s case is that the deceased was her brother whereas the respondent their niece and further that the respondent distributed the estate of the deceased to herself and other strangers without consulting the applicant.

4. The parties disposed of the summons by way of written submissions.

B. Applicant’s Submissions

5. The applicant submitted that the respondent was a complete stranger to the deceased’s estate as she was not a dependant as provided in Section 29 of the Law of Succession Act. She further submitted that the respondent move to court to obtain the grant was unlawful and illegal and further that the respondent concealed the existence of the applicant from the court as she gained the grant.

6. She further submitted that the actions by the respondent make her liable for a fine not exceeding ten thousand shillings or a term of imprisonment not exceeding one year as provided under Section 52 of the Law of the Succession Act. She also submitted that no citation forms were served upon her by the respondent as the respondent did not file a citation as required by the law. She relied on the case of Maamun Bin Rashid bin Salim El-Rumhy v Haider Mohamed Bin Rashid El Basamy [1963] EA 438 where the court held that any person applying for a grant in place of a person of superior right to them must cite them.

7. The applicant also submitted that the respondent’s action of involving other parties, who were purchasers of the deceased’s properties, amounted to intermeddling as provided under Section 45 of the Law of Succession Act. She also submitted that she was the nearest in line of consanguinity to the deceased and thus the only one entitled to inherit his estate as provided under Section 39 of the Law of Succession Act.

C. Respondent’s Submissions

8. The respondent on her part submitted that it was the applicant and her co-beneficiaries who through undue influence made her sign the agreement stipulating how the deceased’s estate should be distributed. She further submitted that the application for revocation of grant was an afterthought as it did not show why the confirmed grant should be revoked.

D. Analysis & Determination

9. Issues for determination are as follows: -

i.Whether the grant was obtained fraudulently.

ii.Whether the respondent ranked in priority to the applicant under the law.

10. Section 66 of the Law of Succession Act, provides preference to be given to certain persons to administer deceased’s estate where the deceased died intestate and provides that the court shall, save as otherwise expressly provided, have final discretion as to the person or persons to whom a grant of letters of administration shall issue in the best interest of all concerned. Section 66(a)-(d) provides: -

“66. When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference-

(a)surviving spouse or spouses, with or without association of other beneficiaries;

(b)other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;

(c)the Public Trustee; and

(d)creditors”

11. Part VII, dealing with making of grants under Rule 26(1) and (2) of the Probate and Administration Rules provides: -

“26. (1) Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.

(2) An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.”

12. Under Part V referred under Section 66(b), the persons given priority over an intestate are the surviving spouse and children. That where the intestate has unfortunately left no surviving spouse and children, the provisions of Section 39 of the Law of Succession Act stipulate the net intestate shall devolve up to the kindred of the intestate in manner of order of priority.

13. Section 39(1) and (2) provides –

“39. (1) Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority-

(a)father; or if dead

(b)mother; or if dead

(c)brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none

(d)half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none

(e)the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.

(2) Failing survival by any of the persons mentioned in paragraphs (a) to (e) of subsection (1), the net intestate estate shall devolve upon the State, and be paid into the Consolidated Fund.”

14. In the instant case, it is not disputed that the applicant was the sister of the deceased. Further it is not disputed that the respondent was a niece to the deceased and applicant herein. Therefore, by virtue of Section 66 of the Law of Succession Act and Rule 26(1) and (2) of the Probation and Administration Rules, the applicant ranked in priority to the respondent in seeking grant of letters of administration.

15. If the respondent believed that she had an interest in the deceased’s estate, she ought to have filed a citation against all the known beneficiaries of the deceased’s estate. InMaamun Bin Rashid bin Salim El-Rumhy –vs- Haider Mohamed Bin Rashid El Basamy [1963] EA 438, Pelly Murphy J stated: -

“Any person who has an interest in having an estate administered mayapply for a grant of representation, but if there are persons who have a superior right to obtain the grant, the applicant must cite them calling upon them to apply for the grant. If the person cited fails to apply for a grant or renounce his right to it, the grant may be given to the citor.”

16. Section 76 of the Law of Succession Act is the law applicable for revocation of grant. It provides: -provides: -

“76. A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion-

(a)that the proceedings to obtain the grant were defective in substance;

(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;

(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either-

(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court has ordered or allowed; or

(ii)to proceed diligently with the administration of the estate; or

(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or

(e) that the grant has become useless and inoperative through subsequent circumstances.”

17. The applicant states that the respondent failed to disclose there were other beneficiaries to the estate of the deceased one of them being the applicant. Thus the applicant never participated in the proceedings leading to the confirmation of the grant for she was not aware of the succession cause. The respondent on her part alleges that the applicant and other beneficiaries unduly influenced her to file the cause.

18. It is noted that the Chief’s letter filed in this petition dated 13/2/2014 gave the name of the respondent as the only heir of the deceased. The names listed in Form P&A5 do not include the applicant but the respondent and another person by the name Joseph Njeru Nyaga. There is no record to show that the applicant was present in court on that date when the grant was confirmed or that she was ever notified of the proceedings. It is not in dispute that the respondent obtained the grant through fraud and failure to disclose to the court that she was not a beneficiary or even qualified under Section 66 of the Act to apply for the grant of representation.

19. Section 45of the Law of Succession Actwhich deals with intermeddling which is the unauthorized handling of the property forming the estate of a deceased person without authority. In Gitau & 2 Others v Wandai & 5 Others [1989] KLR 231 (Tanui J) held: -

“Any act done concerning the estate of the deceased by a person whohas not obtained representation amounts to intermeddling with the estate.”

20. In The Matter ofWilson Nzuki Ngolo (deceased) Machakos High Court Probate and Administration Cause Number 152 of 2000 (Mwera J) held that:-

“Only a person who has a grant or other legal authorizationmay handle the property of a deceased person.”

21. For a grant of representation to be valid, it must be regularly obtained. If the grant is obtained by fraudulent means, it is subject to nullification. As such, the respondent in the circumstances outlined herein, intermeddled with the estate of the deceased.

22. The consequence of the fraudulent actions by the respondent means that the consequential sale of and subdivision of the suit land is a nullity for all intents and purposes.

23. It is my finding that the grant issued to the respondent on 21/07/2017 was fraudulently obtained and is hereby revoked. It is further ordered that: -

a) Any sub-division and sale of the deceased’s land LR. Nthawa/Siakago/1599 and Embu/Gangara/73 is hereby nullified and resultant titles cancelled thus reverting to the name of the deceased Mati Njambano alias John Njeru Nthoko.

b) The applicant is hereby appointed the administrator of the deceased’s estate and will proceed to address the distribution taking into consideration all the rightful beneficiaries.

c) That an application for confirmation of grant to be filed within sixty (60) days.

d) That the Director of Criminal Investigations to be served with a copy of this ruling with a view of investigating any fraud or intermeddling or both and prosecuting any person found to have committed an offence.

e) That there shall be no order as to costs.

24. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 10TH DAY OF JULY, 2019.

F. MUCHEMI

JUDGE

In the presence of: -

Both parties present in person