[2018] KEHC 6283 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 480”A” OF 2010

IN THE MATTER OF THE ESTATE OF MWARANIA M’INOTI

PASKWELINA NKIROTE KIRUKI..................................PETITIONER

VERSUS

DOMINIC KIRIMI M’INOTI ...................................1ST PROTESTOR

JUSTUS GICHUNGE M’INOTI ..............................2ND PROTESTOR

J U D G M E N T

1. MWARANIA M’INOTI (“the deceased”)died on 25th August, 2007 at Kiija Sub-location, Meru. He left behind one daughter, three sons and a grandson. These were Paskwalina Nkirote Kiruki, Mathew Kirimi Mwarania, Josephat Rokothi Mwarania, Silas Kimathi Mwarania and Lawrence Gituma Kiruki.

2. The deceased also left six properties as his estate. These properties were; L. R No. Abothuguchi/Kiija/969, 970, 971, 972, 973 and 974.

3. On 6th October, 2010, Paskwalina Nkirote Kiruki (“the Petitioner”),petitioned for letters of administration intestate for the estate of the deceased. On 26th July, 2011, the petitioner took out a Citation against Dominic Kirimi M’Inoti and Justus Gichunge M’Inoti (“the Protestors”)requiring the two to enter appearance and confirm their relationship with the deceased. In answer to the Citation, the protestors filed an Objection to the grant on the basis that they had been excluded from the list of beneficiaries yet they were purchasers of L.R. No. Abothuguchi/Kiija/971 and 969,respectively.

4. The grant was issued to the petitioner on 8th January, 2015 and on 27th July, 2017, the petitioner applied for the confirmation thereof. In that application, the petitioner proposed that the estate be distributed between herself two of her brothers and the deceased’s grandson as one of the beneficiaries had since passed on.

5. This provoked Protests from the protestors which were filed on 27th September, 2017 through the firm of L. Kimathi Kiara & Company Advocates. In their protests, the protestor contended that they had purchased L.R. No. Abothuguchi/Kiija/971 and 969from the deceased in 2000, and 2004, respectively. That the deceased had obtained Land Control Board Consents with the intention of transferring the said properties to the protestors before he passed on. That they had been put in possession thereof.

6. Directions were made to the effect that the protests be determined by way of affidavit evidence on record and submissions. In his submissions, Mr. Kimathi, Learned Counsel for the protestors submitted that since the protestors were direct purchasers from the deceased himself, they were dependants under section 38 of the Law of Succession Act Cap 160 Laws of Kenya (“the Act”).That the deceased had put the protestors in possession of the two respective properties they were in occupation.

7. On his part, Mr. Mwarania, Learned Counsel for the petitioner reiterated the petitioner’s contention in her affidavit in support of the Citation. He submitted that the protestors were not sons of the deceased as indicated in the chief’s letter. That the 1st Protestor had used his influence as the area assistant chief to have him and his brother, the 2nd protestor included in the letter. That they were intermeddlers at best. Counsel took issue with the agreements produced by the protestors submitting that they were evidence of nothing.

8. I have considered the affidavits on record and the submissions of Counsel. The only issue that arise for determination whether the protestors are dependants or beneficiaries of the estate, and if so, whether the estate should be distributed as proposed by them or the petitioner.

9. The letter of introduction by the area Chief where a deceased has hailed from is very crucial in determining who the survivors of the deceased are. It is expected that the area Chief or his assistant, by use of other smaller administrative units, will be able to know the deceased and his family. Indeed, the Chief’s elders will always have a clue of who is who in the villages. In the present case, the letter of introduction dated 21st April, 2010 by the Assistant Chief of Kiija (sub) Location showed that both the protestors were sons of the deceased.

10. However, by in her affidavit in support of the Citation sworn on 19th July, 2011, the petitioner seriously contested that position. She accused the two of using their administrative influence over the Assistant Chief who issued the subject letter to indicate them as sons of the deceased. Although they were served with the said averments, they never denied the same. In this regard, the protestors cannot be said to be beneficiaries of the deceased on the basis of being sons.

11. In their protests, the protestors alleged that they had purchased Abothuguchi/Kiija/971 and 969from the deceased who had put them in possession. That the deceased had even obtained the Land Control Consents but he died before he could finalize the transfer. The petitioner does not seem to have responded to the averments contained in the said protests.

12. On my part, I have looked at the documents produced in support of the allegation that the protestors had purchased the subject properties from the deceased. I agree with the submission of Mr. Mwarania that the alleged agreement cannot be relied on as it is in Kimeru and there was no translation thereto. The question is whether the documents relied on can support the contention that the deceased sold the subject properties before he died. Several questions arise, if the sales began in 2000 and consents allegedly obtained in 2004, why were the transfers not effected before the deceased passed on in August, 2007? Why did the protestors wait until the demise of the deceased for them to take possession of the said properties? The protestors know that the petitioner does not recognize their claim against the estate. Why have they not sought to prove their claim in a civil suit?

13. The foregoing notwithstanding, the court takes cognizance of the provisions of Rule 41 of the Probate and Administration Rules.That Rule provides that:-

“(1) At the hearing of the application for confirmation the court shall first read out in the language or respective languages in which they appear the application, the grant, the affidavits and any written protests which have been filed and shall then hear the applicant and each protester and any other person interested, whether such persons appear personally or by advocate or by a representative.

(2) The court may either confirm the grant or refer it back for further consideration by the applicant or adjourn the hearing 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 beneficially entitled and any other issue which has arisen including the interpretation of any will.

(3) Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71(2) of the Act, proceed to confirm the grant.

(4) In proceedings under subrule (3), unless the court otherwise directs, the personal representative of the deceased shall be the applicant seeking determination of the question, and the person claiming so to be beneficially interested together with the residuary legatee or other person to be appointed by the court to represent the residuary estate shall be the respondents; and the court in such proceedings shall give all necessary directions relative to the prosecution thereof including the safeguarding of the share or estate so appropriated and set aside and the provision of costs.

(5) Where the court in exercise of its power under section 71(2)(a) of the Act directs that a grant be confirmed it shall cause a certificate of such confirmation in Form 54 to be affixed to the grant together with the seal of the court and shall appoint a date not more than six months ahead, by which time the accounts of the completed administration shall be produced to the court for its approval.

(6) Where the court, in exercise of its power under section 71(2)(b) of the Act, instead of confirming a grant already issued directs the issue of a confirmed grant, this grant may be in Form 55.

(7) On production of the accounts in court any person beneficially entitled and any creditor may appear and be heard before the court’s approval is given.

(8) The approval of the accounts in court may be dispensed with if all persons beneficially entitled have signed as consenting to the accounts as produced.

(9) On the date for approval of the accounts and on any adjourned date application may be made for an adjournment to a fixed date not longer than three months away.”

14. In view of the foregoing, I hold that the claim by the protestors is misplaced, they should first prove their respective claims before the civil court before mounting their claim before this court. A family court is not seized of the jurisdiction to determine civil disputes. Its jurisdiction extends only to ascertaining who the beneficiaries of the deceased are, what the estate constitute and thereupon distribute the same amongst the beneficiaries.

15. In this regard, I dismiss the protests direct that the protestors do file their claims in the relevant court with jurisdiction and prosecute the same within 24 months. Failing, those properties will stand absolutely distributed to the beneficiaries as proposed by the petitioner in paragraph 7 of the affidavit in support of the confirmation without the necessity of making an application therefore.

16. In the meantime there shall be partial distribution of the estate as follows:-

a) L. R. No. Abothuguchi/Kiija/970

Mathew Kirimi Mwarania

b) L. R. No. Abothuguchi/Kiija/972

Josphat Rokoth Mwarania

c) L. R. No. Abothuguchi/Kiija/973

Lawrence Gituma Kiruki

d) L. R. No. Abothuguchi/Kiija/974

Paskwelina Nkirote Kiruki

DATEDand DELIVEREDat Meru this 31st day of May, 2018.

A. MABEYA

JUDGE