[2023] KEHC 25178 (KLR)

In re Estate of M'Mutea M'Kaaria alias Mutea Kaaria (Deceased) (Miscellaneous Succession Cause E019 of 2022) [2023] KEHC 25178 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25178 (KLR)

Republic of Kenya

In the High Court at Chuka

Miscellaneous Succession Cause E019 of 2022

LW Gitari, J

November 7, 2023

IN THE MATTER OF THE ESTATE OF M’MUTEA M’KAARIA ALIAS MUTEA KAARIA (DECEASED) AND IN THE MATTER OF AN APPLICATION FOR REVOCATION AND/OR ANNULMENT OF GRANTS ISSUED IN CHUKA CHIEF MAGISTRATE’S COURT SUCCESSION CAUSE NO. 295 OF 2016 AND IN RESPECT OF THE DECEASED’S ESTATE L.R. NO. MWIMBI/KIRARO/129

Between

Catherine Mukwanjeru Njagi

Applicant

and

Agnes Karega Kaaria

1st Respondent

Loyford Miriti Kaaria

2nd Respondent

Evelyn Thagaa Kaaria

3rd Respondent

Dennis Munene Njagi

4th Respondent

Assenath Mukwanjeru Julius

5th Respondent

Dillys Gatakaa Kaaria

6th Respondent

Doreen Kageni Julius

7th Respondent

Judgment

1. Before this Court is the application dated 17th October, 2022 seeking the following orders:-a.Spent.b.Spent.c.Spent.d.That the Grant of Letters of Administration Intestate and Certificate of Confirmation of the said Grant issued to the 1st Respondent in Chuka Chief Magistrate’s Court Succession Cause No. 295 of 2016 on 17th January, 2017 and 6th December, 2019 respectively, be revoked and the title deeds issues to the Respondents (1-7) (if any) be cancelled.e.Spent.f.That the cost of this application be provided for.

2. In response to the said application, the 1st Respondent filed the Replying Affidavit sworn by the 1st Respondent on 16th January, 2023 on her own behalf and on behalf of her co-respondents. She deposed that she is the Petitioner herein and the widow of the deceased. That the instant application for revocation and annulment of grant is an afterthought on the part of the Applicant in that one Dennis Munene Njagi is the Applicant’s son and he has been provided for in the grant issued by the court on 8th January, 2022.

3. The 1st Respondent denied that the deceased had bequeathed the Applicant herein a portion measuring 2 Acres. Further, that a keen look at the certificate of confirmation of grant dated 8th January, 2020 shows that one Dennis Munene Njagi has been provided for and he inherits 1. 5 Acres from the deceased’s estate. That the reason for the said distribution of the estate was because the 1st Respondent was apprehensive that if the Applicant was allocated the said portion that her late husband was to inherit from the estate of the deceased, she could go ahead and dispose off the said portion by way of sale as she did to another parcel that her late husband had bought during his lifetime and if she did so then her children would be rendered landless and destitute. According to the 1st Respondent, the deceased herein who died after the Applicant’s husband had given direct orders that the portion that should have gone to the Applicant’s husband could be registered in the name of Dennis Munene Njagii and that this is where the Applicant and her children would live and cultivate. The 1st Respondent thus prayed that instead of revoking the grant, this honourable court should amend and/or rectify the grant to read as follows:LR Mwimbi/Kiraro/129i.Agnes Karega Kaaria – 0. 44 Acresii.Loyford Miriti – 1. 50 Acresiii.Evelyne Thagaa Kaaria – 0. 5 Acreiv.Dennis Munene Njagi – 1. 5Acres jointlyv.Catherine Mukwanjeru Njagi –to hold in trust for the family.vi.Assenath Mukwanjeru Julius – 0. 5 Acresvii.Dillys Gatakaa Kaaria – 0. 5 Acresviii.Doreen Kageni Julius – 0. 5 Acres

4. On 3rd May, 2023, this Court directed the parties to file their submissions and that the Court would rely on the affidavits for any party that would fail to file their submissions as directed. It is only the Applicant/Interested Party that filed her written submissions.

The Submissions 5. The Applicant/Interested Party stated that she was granted 1. 5 Acres from LR No. Mwimbi/Kiraro/129 (the “deceased’s estate”). It was thus her submission that the distribution of the deceased’s estate as sought by the 1st Respondent on her own behalf and on behalf of her co-respondents is appropriate in the circumstances and taking into account of the applicable laws. The Applicant/Interested Party thus prayed that the Certificate of Confirmation of Grant issued in Chuka Chief Magistrate’s Court Succession Cause No. 295 of 2016 be amended and the deceased’s estate be inherited as proposed by the 1st Respondent as the administratix of the deceased’s estate.

Analysis 6. The present Application is brought under the provisions of Section 47 and 76 of the Law of Succession Act, Rules 44 and 73 of the Probate and Administration Rules, Section 68(1) of the Land Registration Act (2012), and Article 159(2)(a), (b) and (e) of the Constitution of Kenya.

7. The issue which arises is the amendment of the certificate of confirmation of grant. As stated, the parties are not opposed to the amendment of the certificate of grant but on the mode of distribution. Under Rule 49 of the Probate and Administration Rules, it is provided:“A person desiring to make an application to the Court relating to the estate of a deceased person for which no provision is made elsewhere in these rules shall file a summons supported if necessary by affidavit.”

8. The rules further provide at Rule 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.”

9. The above rules give a party a freedom to file an application which is not otherwise provided for under the Probate and Administration Rules and affirms the inherent jurisdiction of the Courts to make such orders as may be necessary for the ends of justice. In this case, the Applicant is now seeking to amend the grant and/or rectify the grant to read as listed in paragraph 3 above.

10. I have perused the Certificate of Confirmation of Grant that is dated 8th January, 2020. The amendment sought is for the 1. 5 acres out of the deceased’s estate that was distributed to Dennis Munene Njagi to be held jointly with the Applicant in trust for the family. The amendment would not introduce any new asset and going by the Respondents’ affidavit and the submission by the Applicant, the new distribution of the deceased’s estate is approved by the Applicant and the Respondents. The applicant’s application has been compromised and it would be in the interest of justice that the matter is settled amicably to maintain family harmony and trust.

11. Since there is no dispute in the mode of distribution, I am of the view that the Applicant’s/Interested Party’s application dated 17th October, 2022 should be allowed to include the Applicant as a beneficiary of the 1. 5 Acres that had been allocated to Dennis Munene Njagi from the estate of the deceased and an amended Certificate of Confirmation of Grant be issued.In Conclusion:I find that the application partly succeeds. It is not necessary to revoke the grant. An amendment will resolve the applicant’s issue. I order that the grant shall be amended as follows:-1. Agnes Karega Kaaria - 0. 44 Acres2. Loyford Miriti Kaaria - 1. 50 Acres3. Evelyn Thagaa Kaaria - 0. 5 Acres4. Denis Munene Njagi & - Catherine MukwanjeruNjari - 1. 5 Jointly to hold in trust for the benefit of the family of the late Ephantus Njagi Kaaria.5. Asenath Mukwanjeru Julius - 0. 5 Acres6. Dillys Gatakaa Kaaria - 0. 5 Acres7. Doreen Kageni Julius - 0. 5 AcresThe title deed issued to Denis Munene Njagi shall be cancelled and a fresh title deed bearing the names of Dennis Munene Njagi and Catherine Mukwanjeru shall be issued.I make no orders as to costs as this is a family matter involving members of the same family.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 7TH DAY OF NOVEMBER 2023. L.W. GITARIJUDGE