[2017] KEHC 1017 (KLR)

REPUBIC OF KENYA

IN THE HICH COURT AT NAIROBI

MILIMANI

SUCCESSION CAUSE NO. 1028 OF 2008

IN THE MATTER OF THE ESTATE OF MICHAEL KAMAU MACHARIA

(DECEASED)

JUDGMENT

Michael Kamau Macharia the Deceased herein died on 19th December 2003.

Joseph Ndung’u and John Kangethe; sons of the Deceased Petitioned for Grant of Letters of Administration Intestate of the Deceased’s Estate. The Petition was accompanied by an Affidavit in Support thereof and Consent to the making of grant of the letters of Administration. According to the Affidavit in Support of the Petition, the Deceased was survived by:

1. MILKA NJANJA KAMAU – WIFE – 78 YEARS

2. LEAH WAITHERA KAMAU – WIFE – 65 YEARS

3. SIMON NDUNGU KAMAU – SON – 54 YEARS

4. RAPHAEL WAMAHIGA –SON – 52 YEARS

5. JOSEPH NDUNGU – SON – 48 YEARS

6. STEPHEN GITAU – SON – 44 YEARS

7. JOHN KANGETHE – SON – 42 YEARS

8. PATRICK GACHARA – SON – 41 YEARS

9. TERESIA WANJIRU – DAUGHTER – 40 YEARS

10. MARGARET NJOKI – DAUGHTER – 48 YEARS

11. MARGARET NJOKI LEPOSO – DAUGHTER – 46 YEARS

The inventory of assets left by the deceased at the time of his demise are:

1. MUGUGA/GITARU/T. 84 ‘B’

2. MUGUGA/MUGUGA/T 333

3. KERICHO/LONDIANI(KIVUNO)BLOCK 4/61

4. KIKUYU/KIKUYU/BLOCK 1/697

The estimated total value of the Estate was Ksh. 500,000/-. The Deceased did not have any liabilities.

The Consent to the making of grant was signed by:

1. MARGARETNJOKI LEPOSO

2. MARGARET NJOKI

3. TERESIA WANJIRU

4. PATRICK GACHARA

5. STEPHEN GITAU

6. RAPHAEL WAMAHIGA

7. SIMON NDUNGU KAMAU

The Grant was issued to the petitioners on 22nd October 2008 by the High Court of Kenya, Nairobi. The Petitioners who were appointed as Administrators of the estate, namely; Joseph Ndungu and Joseph Kangethe; sons of the deceased, then filed Summons for Confirmation of Grant on 2nd August 2010. According to the Affidavit in Support of the Summons, the Estate was to be shared as follows:

1. MUGUGA/GITARU/T. 84 ‘B’ – To Simoni Ndung’u Kamau

2. MUGUGA/MUGUGA/T 333 – To John Kangethe Kamau and Stephen Gitau Kamau

3. KERICHO/LONDIANI(KIVUNO) BLOCK 4/61 – To Teresia Wanjiru Kamau and Raphael Wamahiga Kamau

4. KIKUYU/KIKUYU/BLOCK 1/697 – To Joseph Ndung’u Kamau

The said shares were to devolve to the aforementioned beneficiaries absolutely. Consents to the Confirmation of Grant and the mode of distribution were signed by:

1. MILKA NJANJA KAMAU

2. LEAH WAITHERA KAMAU

3. SIMON NDUNGU KAMAU

4. RAPHAEL WAMAHIGA

5. STEPHEN GITAU

6. PATRICK GACHARA

7. TERESIA WANJIRU

8. MARGARET NJOKI

9. MARGARET NJOKI LEPOSO

The Grant was confirmed on 15thJune 2011. After the Confirmation of Grant, one Margaret Njoki; a beneficiary of the Estate filed Summons for revocation of the confirmed grant 1st September 2016 on grounds that; the Petitioners did not involve the rest of the beneficiaries in filing the Petition, that the consents filed alongside the Petition do not bear the signatures of the beneficiaries and those written consents are forged and that as beneficiaries of the Estate, they did not appear in Court when the Confirmation of the Grant was done. These grounds were reiterated in her Affidavit in Support of the Summons wherein she further added that after the Succession process was completed in Court without their knowledge, one of the Administrators; Joseph Ndung’u Kamau who bequeathed himself KIKUYU/KIKUYU/BLOCK 1/697 absolutely started threatening to evict one Teresia Wanjiru; a beneficiary of the estate who lives on that parcel of land. She prayed that the grant be revoked and all beneficiaries be included in the Succession proceedings.

Joseph Ndung’u Kamau one of the Administrators of the Estate filed his reply to the Summons for Revocation Application. He denied the allegations in the Application. In the alternative, he deposed that the family held several meetings regarding the distribution of the Estate and that the Applicant and the other beneficiaries participated in the entire process. He further deposed that their late father had expressed his wishes on how his Estate should devolve and the said wishes were reduced in writing on 9th June 2000 prior to his death. A copy of the said writing was produced and marked SNK1. He stated that although the said writing did not fulfill the conditions set out for a valid Will, it gave direction on how the Deceased desired his Estate to be distributed and that all the other beneficiaries were satisfied by the distribution of the Estate.

The other beneficiaries also filed their individual Affidavits on 8th November 2016 responding to the Application for Summons for Revocation. Raphael Wamahiga Kamau; brother to the Applicant and a beneficiary to the Estate deponed that the allegations in the Applicants Application contain material falsehood. He stated that they did have meetings as a family to discuss matters of the Estate and that it was true that their late father; the Deceased expressed his wish as to how he wanted his property divided upon his demise and reduced the same to into writing on 9th June 2000 and the fact that the Document did not fulfill the conditions of a valid Will it was immaterial to Succession proceedings. He also averred that all the other beneficiaries were satisfied with the distribution of the estate which was not unfair. The same dispositions were contained verbatim in the Affidavits of John Kangethe Kamau, Stephen Gitau Kamau, Leah Waithera Kamau, Milka Njanja Kamau, Teresia Wanjiru, Patrick Gachara Kamau, Margaret Njoki Leposo and Simon Ndungu Kamau.

Teresia Wanjiru filed another Affidavit wherein she deposed that her previous Affidavit which sought to deny the allegations in the Summons for Revocation Application was signed without her having gone through it and that the part of its contents were false. She denied them having had a meeting before the grant was processed as submitted by the other beneficiaries. She submitted that the authenticity of the purported Will cannot be established and that the said Will sought to disinherit her. She stated that she currently resides in KIKUYU/KIKUYU BLOCK 1/697 with her mother and she has been so residing in that property her entire life and her brother Joseph Ndung’u has been threatening to evict her. She prayed that the contents of her Affidavit dated 7th November 2016 be struck out.

Margaret Njoki, the Applicant in the Summons for Revocation filed her Replying Affidavit on 16th January 2017.

HEARING

On 26th October 2016, the Court heard evidence from the Applicant Margaret Njoki PW1and she reiterated the averments in her Application and those in the Affidavit of Teresia Wanjiru. The evidence by Leah Waithira Kamau PW2 widow of the deceased and DW1 Joseph Ndungu Kamau

DETERMINATION

From the foregoing, the main issue for determination before this Court is whether the Applicant has made her case to warrant the Revocation of the Grant of Letters of Administration issued on 22nd October 2008 and confirmed on 15th June 2011.

Before delving to the issue of Revocation, it is important to firstly note the fact that the Administrators of the Estate and some of the beneficiaries brought it to the attention of the Court that the Deceased had expressed his wish as to how his property should be divided and the same was reduced to writing on 9th June 2000. (A copy of the Document was adduced as evidence and marked SNK1). This Document however does not meet the conditions for a valid Will under Section 5 & 11 of Law of Succession Act .

Section 11 of the Actprovides;

No written will shall be valid unless -

(a) the testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator;

(b) the signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will;

(c) the will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

Guided by the conditions required under the aforementioned section, the Document before this Court does not suffice as a valid Will and Testament due to the fact that it does not comply with the Law. Moreover, it is interesting to note that fact that the although the Administrator knew of the existence of the Document which is purported to have been written by the Deceased prior to his death, the same was not used to apply for grant of Probate with Will attached instead the administrators filed petition for grant of letters of administration intestate. The said Will was produced as an after-thought after the grant of letters of administration was long issued and confirmed. Be as it may, the Document is not valid Will and thus cannot be relied upon to dictate how the property of the Deceased should be divided. Accordingly, it is this Courts position that the Deceased died intestate and thus his property ought to be divided under the Rules of intestacy particularly Section 40 of the Law of Succession Act which governs distribution in a polygamous family set-up.

Now, on the issue of Revocation of Grant of the Letters of Administration, Section 76 of the Law of Succession Act, 2001 provides;

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) …

(d) …

(e) …

The grounds upon which a grant may be revoked or annulled are thus statutory and it is incumbent upon any party filing an application for revocation or annulment of grant to demonstrate the existence of any, some or all of these grounds for the Court to consider. From the Summons for Revocation, the Applicant prayed for the annulment of grant issued and confirmed on the aforementioned dates primarily because she and a majority of the other beneficiaries were not involved in the process of obtaining the grant. Looking at the Petition and the other documents accompanying the Petition, it is clear to this Court that some of the beneficiaries did not sign the consents as required by the Probate and Administration Rules. In addition, from the confirmed grant, it is clear before this Court that most of the beneficiaries were left out in the distribution of the estate and they did not participate in the confirmation of grant proceedings. Some of them did not sign the Consent to the making of grant and the consent to the confirmation of grant. Further, the distribution under the confirmed grant offends the provisions of Section 40 of the Laws of Succession Act, 2001. These glaring irregularities go to the root of the confirmed grant.

Thirdly, Section 66 of Law of Succession Act provides for the beneficiaries to be appointed administrators in line with the surviving beneficiaries. The widows of the deceased are alive and well and were not appointed administrators in order of priority. Curiously, they did not consent to their sons operating as administrators of the estate and do not seem to have been involved in distribution of the estate; rather their respective sons took over and pursued distribution o the estate excluding widows and daughters of the deceased.

Fourthly, Article 27 (3) of the Constitution of Kenya 2010 and Section 35 -40 of Law of Succession Act prescribe to distribution of deceased's estate without discrimination o gender status etc of any beneficiary or dependant as long as they are proved to be beneficiary or dependant of the deceased's estate. Therefore, the sons of the deceased cannot singularly oust the beneficial interests of widows and daughters of the deceased.

DISPOSITION

1. From the pleadings and evidence on record I am satisfied that the grant issued on 22nd October 2008 and confirmed on 15th June 2011 was invalid and defective under Section 76 (a) & (b) of the law of Succession Act and is hereby revoked forthwith.

2. Fresh & new grant is issued in the joint names of the widows of the deceased namely; MILKA NJANJA KAMAU & LEAH WAITHERA KAMAU.

3. They shall file summons for confirmation o grant after consulting and obtaining written consents from ALL beneficiaries to the proposed mode of distribution of the deceased's estate.

4. The beneficiaries aggrieved or not in agreement shall file Protests to be heard and determined by the Court.

5. Each party to bear own costs

DELIVERED SIGNED & DATED IN OPEN COURT ON 10TH NOVEMBER 2017

M.W.MUIGAI

JUDGE