[2024] KEHC 3358 (KLR)

In re Estate of M’Muthuri Riuba alias Muthuri Riuba (Deceased) (Succession Cause 559A of 2013) [2024] KEHC 3358 (KLR) (14 March 2024) (Ruling)

Neutral citation: [2024] KEHC 3358 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 559A of 2013

TW Cherere, J

March 14, 2024

IN THE MATTER OF THE ESTATE OF M’MUTHURI RIUBA ALIAS MUTHURI RIUBA (DECEASED)

Between

Moses Kiautha M’Muthuri

1st Petitioner

Samwel Chabari

2nd Petitioner

and

Isabella Kajathi M’Muthuri

1st Protestor

Joseph Murori Muthuri

2nd Protestor

Ruling

1. By summons dated 23rd October, 2023, Protestors/Applicants seek the following orders:1. ….spent2. …….spent3. That the Honourable Court be pleased to revoke the grant of letters of administration intestate issued to Moses Kiautha M’Muthuri and Samwel Chabari and confirmed on 20th December, 20184. That the Honourable court be pleased to appoint Isabella Kajathi M’Muthuri and Joseph Murori Muthuri as administrators of Deceased’s estate5. That the Honourable court be pleased to rectify the grant to have Kaguma Market Plot No. 47B (20x80) distributed to Isabella Kajathi M’Muthuri and Joseph Murori Muthuri

2. The summons is based on grounds among others that:1. Petitioners/Respondents have not distributed the estate2. That the 2nd and 3rd houses were awarded plots Kaguma Market Plot No. 47B (20x80) and Kaguma Market Plot No. 4 (40x80) whereas the children of the 1st house got no plot3. That Protestors/Applicants have discovered that Moses Kiautha M’Muthuri and Francis Mathei M’Muthuri who are children of the 2nd house sold deceased’s Plot No. 176 Section 1 M.N.Kisauni and that the 2nd house is therefore not entitled to another plot

3. The summons is also supported by an affidavit sworn by Isabella Kajathi M’Muthuri and Joseph Murori Muthuri (1st and 2nd Protestor/Applicants respectively) 23rd October, 2023 in which the grounds on the face of the application are reiterated.

4. Annexed to the affidavit is a Certificate of Confirmation of Grant dated 20th December, 2018, two notes relating to Plot No. 176 Section 1 M.N.Kisauni and sale agreement of the said plot dated 03rd August, 2001 executed by the vendors Moses Kiautha M’Muthuri and Francis Mathei M’Muthuri and the purchaser one Mohamed Ahmed Mohamed which reveals that the plot was sold for KES. 400,000/-.

5. By his replying affidavit sworn on 23rd November, 2023, Moses Kiautha M’Muthuri the 1st Petitioner/Respondent opposed the summons mainly on the ground that the delay in distributing the estate is attributable to the Protestors/Applicants who have declined to pay their share of survey fees. He additionally avers that the consent that led to the distribution of the estate, which was signed by all beneficiaries among them the Protestors/Applicants contains a clause that the 1st Protestor/Applicant was to receive KES. 200,000/- from the proceeds of sale of Plot No. 176 Section 1 M.N.Kisauni which has been paid as a benefit to the 1st house. Annexed to the affidavit is the consent dated 21st November, 2018.

6. By supplementary affidavit sworn on 16th February, 2024, Protestors/Applicants deny that they have refused to pay survey fees. They also deny that the sum of KES. 200,000/- from the proceeds of sale of Plot No. 176 Section 1 M.N.Kisauni have been paid to the 1st Protestor/Applicant.

Analysis and Determination 7. I have carefully considered the affidavit evidence on record and the issues for determination are as follows:1. Whether a case has been made for revocation of the grant of letters of administration intestate issued to Moses Kiautha M’Muthuri and Samwel Chabari and confirmed on 20th December, 20182. Whether a case has been made for appointment of Isabella Kajathi M’Muthuri and Joseph Murori Muthuri as administrators of Deceased’s estate3. Whether a case has been made for rectification of the grant to have Kaguma Market Plot No. 47B (20x80) distributed to Isabella Kajathi M’Muthuri and Joseph Murori Muthuri

8. The provisions of Section 83 of the Law of Succession Act Cap concerning the duties of administrators was enunciated in Re Estate of Wilfred Munene Ngumi (deceased) [2020] eKLR where the court stated:“Section 83(g) of the Act mandates administrators of an estate to, within six months of confirmation of grant or longer period as the court may allow, complete the administration of the estate, and to produce to the court a full and accurate account of the complete administration.…” .

9. By failing to transmit the estate to the beneficiaries, the Petitioners/ Respondents have acted contrary to the provisions of Section 83 (g) of the Act and this no doubt has prejudiced the beneficiaries who have a legitimate expectation to receive their share of the Deceased’s estate as ordered by the court.

10. Whereas there is no tangible evidence to demonstrate that Protestors/Applicants have declined to pay survey fees, the delay to distribute the estate cannot be wholly distributed to the Petitioners/Respondents for there existed an error ion the Certificate of Confirmation of Grant which the court by an order dated 29th November, 2023 ordered rectified.

11. I have perused the rectified grant dated 29th November, 2023 and I have noticed that the error concerning the description of LR. ABOTHUGUCHI/L.KAONGO/791 appears not to have been rectified and the court directs that the error be rectified to enable the Petitioners/Respondents fully distribute the estate without further delay.

12. From the foregoing therefore, I find that no case has been made for revocation of the grant of letters of administration intestate issued to Moses Kiautha M’Muthuri and Samwel Chabari and confirmed on 20th December, 2018 and for appointment of Isabella Kajathi M’Muthuri and Joseph Murori Muthuri as administrators of Deceased’s estate

13. Concerning distribution of Kaguma Market Plot No. 47B (20x80), Protestor/Applicants have not denied that they were party to the consent dated 21st November, 2018 by which the said plot was distributed jointly to Moses Kiautha M’Muthuri and Francis Mathei M’Muthuri.

14. A perusal of the court file reveals that the 1st Protestor/Applicant had previously by summons dated 08th February, 2019 sought to impeach the said consent order on the grounds that she was given a smaller share than the rest of the beneficiaries.

15. By a ruling dated 18th July, 2019, Gikonyo J had this to say concerning the said application:(8)The beneficiaries herein recorded a consent dated 21st November, 2018 which was signed by seven of the dependents, being a representation of the three houses of the deceased(9)The consent distributed the estate amongst the beneficiaries of the estate of the deceased. The consent was adopted by this honourable court and a certificate of Confirmation of Grant issued on 20th December,2018{10]A keen look at the proceedings reveals that the Applicant herein was involved in the proceedings. She signed the initial consent for confirmation of grant dated 25th July, 2014. She was therefore familiar and well aware of the happenings in these proceedings.

16. The Court of appeal in the case of William Koross (Legal personal Representative of Elijah C.A. Koross) v Hezekiah Kiptoo Komen & 4 others [2015] eKLR addressed the issue of res judicata and stated as follows:“The philosophy behind the principle of res judicata is that there has to be finality. Litigation must come to an end. It is a rule to counter the all too human propensity to keep trying until something gives in. It is meant to provide rest and closure, for endless litigation and agitation does little more than vex and add to costs. A successful litigant must reap the fruits of his success and the unsuccessful one must learn to let go.………………………..”

17. In yet another case, the Court of Appeal in Kenya Commercial Bank Limited v Benjoh Amalgamated Limited [2017] eKLR cited the decision in Lal Chand v Radha Kishan, AIR 1977 SC 789 where it was stated that;“The principle of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded in equity, justice and good conscience which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue.The practical effect of the res judicata doctrine is that it is a complete estoppel against any suit that runs afoul of it, and there is no way of going around it – not even by consent of the parties – because it is the court itself that is debarred by a jurisdictional injunct, from entertaining such a suit.”

18. I fully associate myself with the foregoing holding by Gikonyo J as restated at paragraph 14 above. With respect, the issues concerning the distribution of the estate of the deceased and the implication of the consent dated 21st November, 2018, now raised by the Protestors/Applicants in the summons dated 23rd October, 2023 are res judicata for the reason that they have already been determined by a court of competent jurisdiction.

19. It is therefore hereby ordered as follows:1. The summons dated 23rd October, 2023 has no merit and it is thus dismissed with costs to the Petitioners/Respondents.2. A rectified Certificate of Grant shall issue in terms of the orders issued on 29th November, 20233. This cause will be mentioned on 19th September, 2024 to confirm full transmission of the estate

Dated at Meru this 14th Day of March 2024WAMAE. T. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/MuneneFor Protestors/Applicants - Mr. Muriira for Steve Muriira & Co. AdvocatesFor Petitioners/Respondents- Ms. Gachohi for G.M.Wanjohi, Mutuma & Co. Advocates