[2017] KEHC 474 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

HIGH COURT SUCC. NO. 682 OF 2014

IN THE MATTER OF THE ESTATE OF MOSES NGATIA KARIUKI (DECEASED)

JULIA WANJIRU MUBIA............................PETITIONER/APPLICANT

R U L I N G

As is noted in the certificate of death filed with this cause, Moses Ngatia Kariuki died from injuries sustained in a road traffic accident on 9th October 2010.

On 13th May 2014 the chief Naromoru Location wrote the introduction letter for Julia Wanjiru Mubia as the only wife of the deceased. There was no mention of any other survivors of the deceased.

In the affidavit filed in support of the cause sworn on 14th May 5 2014, the said Julia Wanjiru Mubia deponed that she was the only survivor of the deceased, and his estate was plot No. 2213 and plot No. V6342 Solio Ranch Settlement Scheme.

On 18th November 2014 she was issued with grant of letter of Administration intestate of the estate of the deceased herein.

On 4th February 2016 she filed an application for the confirmation of the grant.

At paragraph 4 of the affidavit in support of the summons she deponed: -

“The identification and shares of all person beneficiary entitled to the said estate been ascertained and determined as follows:

LR plot No. 2213 and plot No. V6342 Solio Ranch Settlement Scheme to be inherited by Jason Kamweru Mungaro ID 10655262”

On 26th July 2016 Justice Mativo noted from the petitioner/applicant that there were minors involved in this matter. He indicated on the record that that raised the issue of whether or not section 58 of the Law of Succession Act had been complied with. He directed the applicant to consider and comply with the said section.

When the matter came before me on 25th May 2017 Mr. Karweru, counsel for the petitioner sought leave under rule 73 of the Probate and Administration Rules to file an affidavit to introduce a co-petitioner because there “is a minor” involved in the estate.

On 7th July 2017, an affidavit was filed, sworn by Jane Wakarima Mubia. She deponed that the petitioner is her younger sister and the widow of the deceased, who was her brother in law. That the two had four children, two of whom were under age as at the time she was swearing the affidavit. That she was willing to stand as a trustee for the children as a co- administrator. That she was aware that the land had been sold to one Jason Kamweru Mung’aru. She deponed further that her sister and the children had never lived on or used the said land and were residents at Kamburaini where they have their ancestral land.

Having fulfilled the requirement of introducing the co -petitioner, the applicant asked the court to proceed to confirm the grant. That the plot had been sold by the deceased to a 3rd party, the Jason Kamweru Mungaru.

From the fore going, it is clear that if it was not for Justice Mativo’s due diligence, the fact that the deceased had children would never have come to light, and the matter would have proceeded as if the deceased was survived by the only widow, Julia Wanjiru Mubia.

Taking into consideration the requirements of the Law of Succession Act, the requirements of the Constitution, with regard to the best interests of the child, the provisions of section 58, it is of concern is that these children were concealed from the court from the word go.

The entire estate of the deceased is said to have been sold by the deceased. If so, why did the petitioner need to file succession cause four years after his death? These questions are begged by the fact that the record shows a deliberate effort, in my view, to conceal the children from the court. The next question is why? And the one that follows is whether their rights and welfare as beneficiaries of their father’s estate were safeguarded and secured in this process?

The whole estate is said to have been sold. A purchaser is to ‘inherit’ the whole estate. The introduction of a co-petitioner/co-administrator/ trustee at this late stage is meaningless, in as far as the continuing trust as envisaged by section 58 is concerned. Is her coming on board is merely there to abide with procedure/ a technical compliance with section 58, yet there is nothing to protect on behalf of the children?

I doubt that any court acting in the interests of justice will not allow an application whose basis is the background I have picked from the record, and set out herein above, without answers to the questions arising from the same.

The situation is not improved by the fact the ancestral home is said to be in Kamburaini. The letter of introduction is by the chief from Naromoru Location. There is nothing placed before the court to demonstrate that even there, the children’s interests as beneficiaries of their father’s estate are secured as that part of the deceased’s estate, if it exists. It is not expected that the administration of the deceased’s estate will be pursued piecemeal.

The proviso to section 71 LOSA states clearly Provided that, in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled; and when confirmed such grant shall specify all such persons and their respective shares.

That is the why this court needs to ensure, as required by law, at this early stage, that the minors are not being disinherited.

The applicant may have a good explanation for all this. It has not been given anywhere in the record.

I decline to confirm the grant and proceed under s.71(2)(d) of the Laws of Succession, to postpone confirmation of the grant for such period, pending the provision by the petitioner/applicant, within 30 days hereof, through a further affidavit.

1) A letter from her local assistant chief in Kamburaini listing all those persons beneficially entitled to the estate of the deceased.

2) The names, ages and current occupation of the four children of the deceased

3) Confirmation from the local assistant chief that the petitioner and her children were in the place named in the affidavits.

In default of supplying this information the grant will stand revoked under s. 76(b) and (c) of the Laws of Succession Act.

Mention on 16th January 2018 to confirm compliance.

Right of Appeal 30 Days

Dated, delivered and signed this 6th Day of December 2017 at Nyeri

Teresia Matheka

Judge

In the presence of;

Court Assistant Hariet

N/A for counsel and applicant though date was given in their presence.

Teresia