[2022] KEHC 14385 (KLR)

In re Estate of Mwanki Wega alias Mwaniki M'Wega (Deceased) (Succession Cause 76 of 2015) [2022] KEHC 14385 (KLR) (19 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14385 (KLR)

Republic of Kenya

In the High Court at Embu

Succession Cause 76 of 2015

LM Njuguna, J

October 19, 2022

Between

John Nyaga Imeri

Administrator

and

Bernard Mugendi Waimeri

Respondent

and

Eunice Muthoni Njiru

Beneficiary

Ruling

1. Before this court is the summons dated February 9, 2022 and filed in court on April 14, 2022 which seeks for the orders that:i)Spentii)That the Deputy Registrar of this Honourable Court do execute all the relevant documents on behalf of the administrator/ applicant to facilitate the full implementation of the amended grant issued on December 8, 2020 be pleased to issue an order for the cancellation of the respondent’s title to LR Kyeni/ Mufu/9293 which is a sub division of LR Kyeni/mufu/544. iii)The Land Registrar Embu be ordered to sub divide the LR Kyeni/mufu/9293 measuring 0. 40 ha into two portions measuring 0. 20 ha as per the amended confirmation of grant dated December 8, 2020. iv)The Honourable Court be pleased to issue an order for the DR of the High court to execute the relevant documents in place of the defiant respondent to facilitate the full implementation of the amended grant and that costs be in the cause.

2. The said summons is based on the grounds on its face and it’s supported by the affidavit annexed to the application.

3. In a nutshell, it is the applicant’s case that on September 9, 2019, the beneficiary filed summons for revocation or annulment of grant issued to the applicant on June 23, 2015 and confirmed on March 21, 2017 in respect to the estate of the deceased herein. That the said certificate of grant had beneficiaries listed as John Nyaga Imeri (0. 20 ha); Benard Mugendi Waimeri (0. 40 ha); (Margaret Ciarunji; Anisia Muthoni M’Wega 0. 20 ha (jointly); Amos Murithi Mwaniki (0. 20 ha) and Anthony Njeru Waimeri (0. 20 ha). It was his case that the subject land parcel LR Kyeni/mufu/544 was subdivided into five portions that is numbers 9291 – 9295 and that it was evident that the respondent had received a bigger share which was inclusive of his late brother’s, Rufus Njiru Waimeri, who was survived by his wife, Eunice Muthoni Njiru. That the applicant has been unable to implement the amended grant issued on December 8, 2020 since the respondent has been hostile and uncooperative towards him and the beneficiary while it is within his knowledge that the beneficiary herein and her children have been living on the same parcel of land and more so, her late husband who is also buried there. As a result therefore, the applicant filed the summons herein to urge this court to grant the orders sought herein.

4. The application is opposed by the respondent herein vide his replying affidavit sworn on June 28, 2022 wherein he deposed that the summons and the supporting affidavit filed by the applicant are defective in nature and substance. That the beneficiary ought to have moved the court in place of the applicant herein. He deponed that he is the registered owner of LR Kyeni/mufu/9293 and therefore the prayers sought cannot obtain in that the estate of the deceased herein has already been distributed and therefore the saidLR Kyeni/mufu/544 is no longer in existence. It was his case that he received a bigger share of the estate for the reason that he takes care of the basic needs of their mother; further that, the prayers sought herein have already been overtaken by events. He thus prayed that the application be dismissed with costs.

5. Directions were taken that the application be canvassed by way of written submissions.

6. The applicant submitted that he is the brother and the administrator and equally a beneficiary of the estate of the deceased herein; that he was issued with letters of administration on June 23, 2015. He submitted in reference to two issues to wit: whether he has locus standi to institute the proceedings herein and further; whether he is entitled to the reliefs sought. He stated that the law on locus in succession matters is well settled in that a litigant is clothed with locus upon obtaining a limited or a grant of letters of administration in cases of intestate succession. The applicant relied on the case of Otieno v Ougo [1986- 1989] EALR 468 as cited in Succession Cause No. 36 of 2017 Khalid Abdi Ibrahim v Asha Ibrahim Hassan & Another (2019) eKLR. That there is evidence on record that the applicant filed the said summons and his interests emanates from the fact that he is a beneficiary and administrator of the deceased’s estate within the provisions of section 29 of the LSA, he acquires an interest in his brother’s estate and as an administrator, he is duty bound to administer the estate herein as provided for by the law and in regard to that, the said summons is properly before this court.

7. In reference to the fact that the respondent was bequeathed a bigger share for taking care of his mother’s basic needs, the applicant reiterated that the same is untrue given that the estate herein does not belong to their mother but to their brother Mwaniki Wega alias Mwaniki M’ Wega (Deceased) who was unmarried and had no surviving children at the time of his demise. That the shares of all the beneficiaries namely John Nyaga Imerei, Eunice Muthoni Njiru, Benard Mugendi Waimeri, Margret Ciarunji M’wega, Anisis Muthoni M’Wega, Amos Muriithi Mwaniki and Anthony Njeru Waimeri were identified and were to get equal share of the estate. It was deponed that the applicant has made several attempts to have the respondent surrender the title deed for sub division and/or the respondent to sign the transfer documents to the beneficiary but even with the intervention of the area chief from Kyeni North West Location, the respondent has been adamant to cooperate. Reliance was placed inter aliaon the cases of Re Estate of Simon Kiprop Cheruiyot (Decaesed)[2021] eKLRand Re Estate of Wilfred Munene Ngumi (Deceased) [2020] eKLR. In the end, the applicant prayed that the application be allowed to effect the amended grant issued on December 8, 2020 and complete the administration of the estate herein.

8. The respondent did not file his submissions.

9. I have perused the application herein, the responses thereto and the submissions by the applicant.

10. As I have already noted, the application herein seeks to have the deputy registrar execute all the relevant documents on behalf of the administrator/applicant to facilitate the full implementation of the amended grant issued on December 8, 2020 and further issue an order for the cancellation of the respondent’s title to land parcel number Kyeni/mufu/9293 which is a sub division of Kyeni/mufu/544.

11. It is trite that, the duties of personal representatives are fiduciary in nature [See Section 83 of the Law of Succession Act] and it provides that the same includes the duty (subject to section 55) to distribute or to retain on trust (as the case may require) all assets remaining after payment of expenses and debts as provided by the preceding paragraphs of this section and the income therefrom, according to the respective beneficial interests therein under the will or on intestacy, as the case may be [section 83 (f)]; within six months from the date of confirmation of the grant, or such shorter period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the court a full and accurate account of the completed administration; [section 83 (g)]; and to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration [section 83 (i)].

12. This court notes that the amended certificate of confirmation of grant dated December 8, 2020 was issued to the applicant and that the portion in contention is currently occupied by the respondent. Of importance to note is the fact that the applicant having filed summons general dated June 23, 2020, which sought for review and the rectification of the grant issued on December 19, 2019, the respondent herein did append his signature on the consent in support of the said summons. That, as a result of the same, an amended certificate was issued having the names of the following; John Nyaga Imeri, Benard Mugendi Waimeri and Eunice Muthoni Njiru, all to be bequeathed 0. 20 ha.

13. In my own view, the respondent is not sincere in his deposition that he was apportioned a larger share for the reason that he provides for their mother’s basic needs. I say so because the estate herein belongs to their brother Mwaniki Wega alias Mwaniki M’ Wega (Deceased) who was unmarried and had no surviving children at the time of his demise and the same, does not belong to the beneficiaries’ parents.

14. The court in Re Estate of Wilfred Munene Ngumi (deceased) [2020] eKLR while allowing the application for the Deputy Registrar of the court to execute completion documents thus held as follows:“…It is evident from the Applicant’s affidavit in support of the application and oral arguments by her Advocate, Mr. Kahiga, that the Respondents have refused to sign the necessary documents to facilitate execution of the court’s judgment/decree. To prevent abuse of the court process, by the above legal provisions, this court has inherent powers to prevent such abuse. I therefore find and hold that the petitioner’s summons dated 23/9/2019 and filed on 25/9/2019 to be merited…”

15. Further, this court vide Section 47 and Rule 73 of the Probate and Administration makes provision that nothing 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 this court. The respondent herein has been difficult and has refused to cooperative to ensure that the administrator accomplishes his duty of ensuring that the beneficiary herein get what is rightfully hers.

16. The import of the above is that, this court, in exercise of its inherent power can order rectification of the lands register if for instance like in the instant case where the respondent has already registered the contested land in his name. This court is mandated to ensure that the estate is distributed to all the rightful beneficiaries and any attempts to disinherit some of the beneficiaries cannot be entertained. To achieve this, and in the instant case, it is my considered view that the register in relation to the suit land herein ought to be rectified.

17. I am persuaded by the above provisions of law and it is trite that court orders are never to be made in vain. The Law of Succession Act thus places a duty on personal representatives to complete the administration of the estate. Section 83(i) of the Law of Succession Act provides;“To complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate…….”

18. In the end, I do hereby allow the summons dated the February 9, 2022.

19. This being a succession cause each party should bear its own costs.

20. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 19TH DAY OF OCTOBER, 2022. L. NJUGUNAJUDGE……………………………………….…..for the Administrator……………………………………………….for the Respondent………………………………………………..for the Beneficiary