[2022] KEHC 12316 (KLR)

In re Estate of Mugao Mburi M’Kigwanja (Deceased) (Succession Cause E004 of 2020) [2022] KEHC 12316 (KLR) (19 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12316 (KLR)

Republic of Kenya

In the High Court at Chuka

Succession Cause E004 of 2020

LW Gitari, J

July 19, 2022

IN THE MATTER OF THE ESTATE OF MUGAO MBURI M’KIGWANJA (DECEASED)

Ruling

1. This succession cause relates to the estate of the late Mugao Mburi M’Kigwanja (deceased) who died intestate on August 19, 2006.

2. A grant of letters of administration intestate was issued to Nyaga Mugao Mburi and Mugambi Mugao Mburi on May 19, 2021 in their capacity as the sons of the deceased.

3. Before this court is the summons application dated November 30, 2021 seeking the confirmation of the said grant. The application is supported by the affidavit sworn on November 30, 2021 by the administrators, Nyaga Mugao Mburi and Mugambi Mugao Mburi.

4. As per paragraph c of the affidavit in support of the application, the deceased was survived by:a.Karea Mugao Mburi – widow.b.Mugambi Mugao Mburi – son.c.Nyaga Mugao Mburi – son.d.Njeru Mugao Mburi – son.e.Kabiru Mugao Mburi – daughter.f.Kaindi Mugao Mburi – daughter.g.Risper Gakii Bundi – dependant.

5. It was the submission by Mr Kimakia, the counsel on record for the administrators that all the beneficiaries of the deceased’s estate have agreed that the subject estate be distributed as per Schedule 2 of the affidavit in support of the application, that being as follows:a.Kathwana/540 – 3. 13 Hai.0. 15 Ha – Mugambi Mugao Mburi and Nyaga Mugao Mburi in their capacity as administrators to hold the parcel in trust of all the beneficiaries for purposes of disposal and equal distribution.ii.Karea Mugao Mburi – 0. 40 Haiii.Mugambi Mugao Mburi – 0. 79 Haiv.Nyaga Mugao Mburi – 0. 79 Hav.Njeru Mugao Mburi – 0. 79 Havi.Kabiru Mugao Mburi – 0. 05 Havii.Kaindi Mugao Mburi – 0. 05 Haviii.Risper Gakii Bundi – 0. 10 Hab.Kathwana/729 – 1. 85 Hai.Mugambi Mugao Mburi and Nyaga Mugao Mburi in their capacity as administrators to hold the parcel in trust of all the beneficiaries for purposes of disposal and equal distribution.

6. On record are the affidavits of the other beneficiaries to the effect that they should be exempted from attending physical court for the hearing of the confirmation application.

7. During the hearing of the instant application, the counsel for the administrators made an oral application for the rectification of the names of the deceased’s daughters to read Margaret Mugao Kabiru and Kaindi Mugao Nyaga.

Analysis Rectification of Names 8. Section 74 of the Law of Succession Act (chapter 160 of the laws of Kenya) (“the Act”) provides that errors on grants of representation that may be rectified by the court in the following terms:“Errors in names and descriptions or in setting out the time and place of the deceased's death, or the purpose in a limited grant, may be rectified by the court; and the grant of representation whether before or after confirmation, may be altered and amended accordingly.”

9. From the above provisions, it is clear that the applicant’s case falls within the purview of rectification as it seeks the rectification of the names of the deceased’s daughters.

10. Kaindi Mugao Nyaga is the holder of identity card number xxxxxx and her names read as such. On the other hand, Kabiru Mugao Mburi is the holder of identity card number xxxxxx which reads the name Margaret Kabiru Zachariah.

Confirmation of Grant 11. The applications for confirmation of grants are guided by the provisions of section 71(1) of the Actwhich provides that:“(1)After the expiration of a period of six months, or such shorter period as the court may direct under subsection (3), from the date of any grant of representation, the holder thereof shall apply to the court for confirmation of the grant in order to empower the distribution of any capital assets.”

12. The administrators have complied with section 71 of the Act by ascertaining all the persons beneficially entitled to a share in the estate of the deceased.

13. All the named beneficiaries have all sworn individual affidavits in which they each explain that they have unanimously agreed to the proposed mode of distribution in the summons for confirmation of the grant.

14. The Law of Succession Act (cap 160) laws of Kenya) requires that at the time of confirmation of the grant, the court must be satisfied as to;1)The identities of all the persons beneficiary entitled.2)Shares of all persons beneficially entitled to the estate of the deceased.3)The grant shall specify all such persons entitled and their respective shares.These requirements are contained in the proviso to section 71 of the Act which provides:“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 the persons beneficiary entitled; and when confirmed the grant shall specify all such persons and their respective shares.”

15. The forms of letters of administration are defined under section 53 & 54 of the Law of Succession Act.The sections provides:a)“where a deceased person is proved (whether by production of a will or an authenticated copy thereof or by oral evidence of its contents) to have left a valid will, grant, in respect of all property to which the will applies, either-b)(i) probate of the will to one or more of the executors named therein;orc.(ii) if there is no proving executor, letters of administration with the will annexed;and(b)if and so far as there may be intestacy,letters of administrationin respect of the intestate estate.54. A court may, according to the circumstances of each case, limit a grant of representation which it has jurisdiction to make,in any of the forms described in the fifth schedule.”

16. The applicants are seeking confirmation of the grant of letters of administration intestate. The hearing of application for confirmation of grant is provided under rule 41 of the Probate and Administration Rules. Under the rule, sub-rule -2- gives court discretion to either confirm the grant or refer it backs to further consideration by the applicant or adjourn it for further evidence to be adduced or make any other order necessary for satisfying itself as to the expediency of confirming the applicant as the holder of the grant or concerning the identities, shares and interests of the persons beneficiary entitled and any other issue which has arisen. See rule 41 (2) Probate and Administration Rules.

17. The rules echoes the provisions of section 71 (1) of the Act (supra). The administrator is enjoined to apply for the confirmation of the grant after the expiry of six months. Upon the application for confirmation being made the court may confirm the grant or if not satisfied that the applicant will properly administer the estate, postphone the confirmation.Section 71 (2) of the Actprovides:“(2) Subject to subsection (2A), the court to which application is made, or to which any dispute in respect thereof is referred, may- (a) if it is satisfied that the grant was rightly made to the applicant, and that he is administering, and will administer, the estate according to law, confirm the grant.”

18. The issue of confirmation of grant is critical as it concludes the process of administration of the estate and the distribution of the estate. That is the reason why the Act is emphatic that the court must be satisfied that the beneficiaries entitled to the estate are the persons before court and the property distributed forms the estate of the deceased.

19. In this case the administrators and the beneficiaries have never set foot in this court. They all opted to file affidavits. It is striking how all the beneficiaries including the administrators can be in the same pre-dicarment of being unable to attend apart from the matriarch who is eighty two (82) years old and sickly.

20. My view is that the court should be able to ascertain the identities of the administrators before confirmation of the grant. The practice of the courts when dealing with the issue of confirmation of grants has been that all the beneficiaries/dependants appear in court and affirms their identities and consent to the mod of distribution of the estate. That way the court is able to satisfy itself as to the identities of the persons beneficiary entitled to the estate.

21. I therefore direct that the administrators and the beneficiaries should appear in court for the purpose of the confirmation of the said grant. On the issue of the estate of the deceased, Act defines estate as the free estate of the deceased. Net intestate estate means estate of a deceased person in respect of which he has died intestate. My understating of this definition is that the deceased must have owned the property at the time of his death. There are two issues which arise with regard to the estate of the deceased. These are-1)The Chief’s letter has not discloses the properties which the deceased left behind. It is a common practice for such letters to disclose the property of the deceased and in particular land.2)The deceased is said to have died on August 19, 2006. This is the date indicated on the death certificate.3)The applicants did not annex copies of the title deeds of the estate.

22. The applicants annexed certificates of official search which are dated October 16, 2020 for land parcels No Kathwana/540 whose title was issued on November 28, 2014 and Kathwana/729 whose title was issued on November 28, 2014. The deceased was registered on 4/07/2011 on both properties which is long after his death.

23. These are matters which the applicants have to clarify before the court can proceed to order the confirmation of the grant.

24. In view of the foregoing I order that the confirmation of the grant shall be postphoned for the beneficiaries to avail themselves in court and the administrators to clarify the issues I have raised with respect to the registration of the estate. The prayer for the rectification of the names of the daughters of deceased is granted as prayed.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 19TH DAY OF JULY 2022. LW GITARIJUDGE