[2022] KEHC 13660 (KLR)

In re Estate of Muru Muthanjuki (Deceased) (Succession Cause 452 of 2014) [2022] KEHC 13660 (KLR) (11 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13660 (KLR)

Republic of Kenya

In the High Court at Embu

Succession Cause 452 of 2014

LM Njuguna, J

October 11, 2022

IN THE MATTER OF THE ESTATE OF MURU MUTHANJUKI (DECEASED) ALEX ABRAHAM KINYUA……………………….……….…..APPLICANT VERSUS JESKA MUTHANJE MURU……………………..…….1ST RESPONDENT LEONARD THANJUKI WAMURUH………….……..2ND RESPONDENT MOSES WAMURU………………………………...……3RD RESPONDENT

Ruling

1. Before this court is the summons dated June 16, 2020 and filed in court on June 17, 2020 which seeks revocation and/or annulment of the grant of letters of administration made to Jeska Muthanje Muru (1st respondent) in relation to the estate of the deceased herein. The said summons is based on the grounds on its face and it’s supported by the affidavit annexed to the application.

2. In a nutshell, it is the applicant’s case that the said grant was obtained by means of untrue allegations of facts, fraudulently by making of a false statement or by concealment from court of something material to the case and the proceedings to obtain the grant were defective in substance. That the applicant’s claim is that the grant is defective in nature and substance for concealment to the court the fact that he deserved ½ an acre of LR No Kyeni/Mufu/5997 of the estate by virtue of being a purchaser and thus entitled to a share of the estate.

3. The application is opposed by the 3rd respondent herein vide a replying affidavit sworn on August 20, 2020 wherein it was deposed on behalf of the 1st and 3rd respondents that they are not opposed to this court granting the orders sought. It was further deposed that this court should visit the locus in quo so as to ascertain the status of the land subject to this dispute and which is also subject to the application.

4. The 3rd respondent also filed a replying affidavit to the application herein albeit late in the day stating that he is the son to the 1st respondent and that he was opposed to the application seeking to revoke the grant in respect to the estate herein. That it is true that the 2nd respondent sold his share to the applicant and that the same is not in dispute. He stated that each of the children of the deceased herein acquired ½ an acre save for the ones whose transfer had not been completed at the time of the death of the deceased. It was his view that this court instead of revoking the grant, it should instead amend the same to read Moses Wamuru instead of Moses Kariuki and further, allocate the applicant ½ an acre of the estate previously allocated to the 2nd respondent.

5. The 2nd respondent also filed a replying affidavit sworn on July 23, 2020 wherein it was deposed that this court should disallow the prayers sought for the reason that the proceedings to obtain the said grant were above board. That the applicant herein has no interest in the estate and for that reason, the prayers sought are undeserved. It was his case that the alleged sale agreement cannot stand for the reason that the deceased herein was not a party to the same despite the same having been entered during the life time of the deceased. Further, it was deposed that the alleged agreement did not indicate the exact piece of land the parties referred to; in the same breadth, the 2nd respondent reiterated that at no point in time did he ever express his intention to sell his inheritance to the applicant.

6. Further that the family meeting minutes annexed were doctored by the applicant to serve his interests and that of the 1st respondent’s family against him. It was stated that the rightful beneficiaries of the estate in respect to LR No Kyeni/mufu/5997 are Jesca Muthanje Muru, Jecklia Rwamba, Leonard Thanjuki Wamuru and Moses Wamuru and therefore the applicant has no locus to be included as a beneficiary in the said estate. In the end, he urged this court to dismiss the application herein for want of merit.

7. The applicant filed a further affidavit in response to the 2nd respondent’s replying affidavit dated July 23, 2020 wherein he sought to rectify the number of the land in issue to read LR No Kyeni/ Mufu/5997 instead of LR No Kyeni/mufu/5097. He reiterated the contents of his application dated June 16, 2020, the grounds in support and further, the supporting affidavit and annextures attached thereon. That the said handwritten agreement was executed on July 29, 2009 and thereafter, he made the said payment of Kshs 45,000/= and a further Kshs 35,000/= thus making a total of Kshs 78,500/= to the 2nd respondent herein. It was deposed that at the time of the meetings whose deliberations culminated to the sale agreement subject of this cause, the deceased herein was present and he even signed the minutes of the meeting.

8. He reiterated that the 2nd respondent is aware of the said agreement and the deliberations in the said meeting but only wants to use this court to frustrate him from getting what rightfully belongs to him. It was his evidence that pursuant to the agreement wherein they agreed that he takes up the inheritance belonging to the 2nd respondent, they mainly did so orally as they awaited the process of succession before commencing the process of transfer. He stated that he is an interested party in the estate herein for the reason that he purchased the share belonging to the 2nd respondent. He thus urged this court to allow the prayers as sought.

9. Directions were taken that the application be canvassed by way of viva voce evidence and thereafter parties to file written submissions. The applicant submitted that during the confirmation and distribution of the estate herein, the respondents failed to inform him of the same given that he had purchased ½ an acre from the 2nd respondent, a land belonging to the estate of the deceased. That he purchased the said portion at a consideration of Kshs 100,000/= and unfortunately the deceased died before the transfer process could be completed on the shares he had gifted his heirs. That at the time of the petitioning for the grant of letters of administration, the 1st respondent who was well aware of the said sale failed to disclose the same to the court so that he could be included as a beneficiary as such, the same rendered the whole proceedings to obtain the grant defective. That as a result of the non-disclosure, the honourable court issued the grant and thereafter confirmed the same on a mistaken belief that the persons indicated thereon were the correct beneficiaries which act led to him losing his share of the estate. He referred to rule 26 (2) of the P & A Rulesthat his consent was never sought as such, the grant was obtained vide an untrue allegation. He further relied on the case of Jamleck Maina Njoroge v Mary Wanjiru Mwangi (2015) eKLR to support his case. In his final plea to this court, he urged that this court finds in his favour.

10. The respondent on the other hand submitted that the applicant was fully involved in the proceedings to obtain the grant of letters of administration and that he was listed at position (d) of form 38 and that he even signed against the same. It was his submission that the registered name on the parcel of land LR No Kyeni/Mufu/5997 was that of the deceased hence not his name. That the alleged money transferred and/or paid to him was as a result of a loan extended to him by the applicant and the same was not in reference to the sale of the alleged portion of land; he further submitted that the said agreement did not include description of the alleged parcel of land to have been purchased. He further alleged that the signature allegedly construed to be his was forged and as a result, the alleged sale agreement can’t be valid. He further submitted that the alleged minutes failed to show, if at all, the parcel of land that was to be distributed and so, he prayed that the application herein be dismissed.

11. I have perused the application, the responses thereto and the rival submissions by the parties.

12. As I have already noted, the application seeks revocation of the grant previously made to the 1st respondent herein.

13. It is trite that the circumstances under which a grant of representation may be revoked are provided for under section 76 (a)-(e) of the Law of Succession Act and include;a.Where the proceedings to obtain the grant were defective in substance;b.Where 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.Where the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;d.Where the person to whom the grant was made has failed, after due notice and without reasonable cause either—i.to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; orii.to proceed diligently with the administration of the estate; oriii.to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; ore.Where the grant has become useless and inoperative through subsequent circumstances.[See re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR and re Estate of Agwang Wasiro (Deceased) [2020] eKLR].

14. Section 76 of the Law of Succession Act and rule 44 of the Probate and Administration Rules1980 indeed provides for the circumstances under which a grant can be revoked. Under the said provisions, a grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by an interested party or of its own motion on the grounds either that the proceedings to obtain the grant were defective in substance; that the grant was obtained fraudulently by making of a false statement or by the concealment from the court of something material to the case; or that the grant was obtained by means of untrue allegation of a fact essential in point of law to justify the grant not withstanding that the allegation was made in ignorance or inadvertently.

15. The law under rule 26 (a) and (2) of the Probate and Administration Rules provides as follows:Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent ….

16. The plain interpretation of the above rule is that it is mandatory for every individual who wishes to be an administrator to an estate to give notice to every person entitled in the same degree as or in priority to the applicant.

17. In the instant case, the applicant herein previously purchased a part of the estate of the deceased herein via the 2nd respondent; he does not allege that he was a beneficiary nor a member of the family of the deceased. In my view therefore, the failure by the 1st respondent to inform the applicant of the succession cause, on which the application herein is mainly hinged on, was not against the provisions of sections 66 and 29LSA.

18. From the perusal of the application before me, it is clear that the applicant is not one of the heirs or survivors of the deceased. His interests in the estate of the deceased herein arise from a purported sale agreement between him and the son to the deceased (2nd respondent) and that he desires that this court amends the grant issued to the 1st respondent and order that the inheritance of the 2nd respondent be inherited by the applicant. Therefore, in view of the same, could the applicant be viewed as a purchaser so as to amend the grant and order that the ½ be transferred to him in reference to section 93 of the LSA?

19. Section 93 of the LSA states that;1. All transfers of any interest in immovable or movable property made to purchaser either before or after the commencement of this Act by a person to whom representation has been granted shall be valid, notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this Act.2. A transfer of immovable property by a personal representative to a purchaser shall not be invalidated by reason only that the purchaser may have notice that all debts, liabilities, funeral and testamentary or administration expenses, duties and legacies of the deceased have not been discharged nor provided for.

20. Under the given circumstances, having perused the alleged sale agreement between the applicant and the 2nd respondent as further supported by the 1st and 3rd respondents, the 2nd respondent had sold to the applicant herein the said portion of land; could the applicant be therefore referred to as a purchaser for value without notice and thereby proceed to acquire a good title? Section 93 of the Act has been a subject of interpretation in various cases. In Adrian Nyamu Kigu v Elizabeth Karimi Kiugu andanother[2014] eKLR, Makau J held:-Whereas the above section states that a transfer by a person to whom representation has been granted shall be valid notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this Act, I am of the considered view that such transaction can only be relied upon where the legal representative is entitled to legal representation but not where one is not and where one has obtained the grant fraudulently….I therefore find and hold the sale to be invalid.

21. In re Estate of Christopher Jude Adela (Deceased) [2009] eKLR, Rawal J held, of sections 93 (1) and (2) of the Act as follows:The correct reading of those provisions will indicate that the transfer to a purchaser, if shown to be fraudulent and /or upon other serious defects and /or irregularities can be invalidated. Reading these provisions in that manner will be commensurate with the provisions of section 23 of the RTA ( Cap 281 repealed) or any other provisions of law regarding proprietorship of an immovable property. It shall be very weak and unfair system of law if it gives a carte blanche of absolute immunity against challenges to transfer of immovable properties of estate by a personal representative, it shall be against all notions of fairness and justice. No court can encourage such an interpretation where a personal representative will be protected even while undertaking unethical or illegal actions prejudicing the interests and rights of the right beneficiaries of the estate.

22. It is my view therefore, that, the sale between the 2nd respondent and the applicant was by all means null and void given that the 2nd respondent was just a beneficiary and was never clothed with the requisite authority to transact on behalf of the estate of the deceased herein.

23. As Lord Denning MR in the case ofMacfoy v United Africa Co [1961] 3 All ER 1169 at page 1172 held: -“… if an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

24. I find that the applicant does not possess the requisite locus standi to present the instant application. There is no way he can claim against the estate of the deceased whereas the agreement of sale in question was not executed by the said deceased.

25. In the circumstances, the instant application has no merits and as such, the same is dismissed.

26. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 11TH DAY OF OCTOBER, 2022. L. NJUGUNAJUDGE......................for the Applicant....................for the Respondents