[2019] KEHC 5812 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

SUCCESSION CAUSE NO.544 OF 2013

IN THE MATTER OF THE ESTATE OF NDERITU GIKARIA alias NDERITU GIKARIA (DECEASED)

BETH WANJIRU GIKARIA...........................................1ST APPLICANT

ANN WANGARI KARIMI..............................................2ND APPLICANT

-VERSUS-

PHILIP KING’ORI NDERITU....................................1ST RESPONDENT

RUTH JEAN WAMBUI KAGUME............................2ND RESPONDENT

AND

FAMILY CONFORT HOTEL

ABEL WAWERU MARITE...............................INTERESTED PARTIES

RULING

The application before me is the Summons General dated 19th February 2019. It is brought under rules 63 and 65 of the P&A Rules and other enabling law. It seeks orders: -

a) THAT this application be certified urgent and heard exparte in the 1st instance on order (a) and (c).

b) THAT the respondents herein and the cited 1st and 2nd intermeddlers be barred by an injunction of this court from building and or committing acts of waste on parcel No.L.R.No.2787/928 constituting part of the estate of the deceased herein; and or acting in such manner as will defeat and or encumber the beneficial interest of the applicants herein pending the final determination of the succession cause herein.

c) THAT this court do bar the respondents herein from selling or in any way transferring any of the deceased properties before the final orders of this court and the registration of the grant.

d) THAT in particular, the cited intermeddlers do stop constructions of permanent buildings on the said land without counsel of the applicants herein and or orders of th e court.

e) THAT costs be provided for.

It is supported by the affidavit of Anne Wangari Karimi for herself and her co-applicant Beth Wangari Gikaria sworn on the same date. The affidavit clarifies the grounds set on the face of the summons thus:-

a. THAT the cited intermeddlers and the respondent have been constructing permanent buildings on the land without any colour of right or consent from the applicants herein.

b. THAT the applicants herein have not sold and or given any authority for the said constructions.

c. THAT the property herein just like all the other properties of the deceased were adjudged by this court to belong to the applicants and the respondents equally.

d. THAT the respondents need to reveal to us and court under what or whose authority the cited intermeddlers are acting on to build on the land.

e. THAT the respondents are busy advertising for sale of properties belonging to the estate.

The 1st respondent Philip King’ori Nderitu filed a Replying Affidavit sworn on 27th February 2018 plus annexures including a power of attorney by one Ndiritu Gikaria (deceased) dated 10th July 2008, a sale agreement between him and the 2nd ‘intermeddler’ Abel Waweru Marite for 0. 3890 Ha to be exercised from L..R 2787/928 Nanyuki dated 20th February 2012 at Kshs.5,000,000/-, demand notice from Gichuhi Mwangi & Co. Advocates for the sum of Kshs.4,281,072/- as land rates, on behalf of Municipal Council of Nyeri, receipt showing how the Kshs.5,000,000/- was spent.

The Interested party/respondents filed a Replying Affidavit sworn on 25th February 2019 by Abel Waweru Marite deponing that indeed he had leased land on which his hotel the 1st interested party respondent stands vide a lease dated 8th June 2011 from the deceased Nderitu Gikaria Nderitu which was then 2787/928 Nanyuki township.

That on 20th February 2012 the deceased sold him 0. 3890 Ha out of 2787/928 and he annexed the agreement that the construction complained about was being made on Nanyuki Municipality Block 4/260 and 472. He annexed three leases 4/271 and 4/272 parcels is dated 6th April 2018 for 4/260 is dated 4th October 2016. Each of the leases is registered in the names of;

Philip King’ori Nderitu

Esther Muthoni Nderitu

Edith Wagaki Nderitu

Jane Nyawira Gikaria in equal shares.

That hence the land on which the hotel stands No.4/271 does not belong to the deceased’s estate. Hence he and his hotel cannot be referred to as intermeddlers.

In response to both affidavits Beth Wanjiru Gikaria the other applicant swore an affidavit on 4th March 2019. She pointed out that on 12th April 2018 this court issued a grant by consent of parties that the entire estate of the deceased be shared in equal shares by all the beneficiaries.

That the leases registered on 6th April 2018 were in contempt of the said orders.

That the purported sale of agreement of 20th February 2012 was fake and if not the interested parties/respondents would have been listed in the form P&A 5. That the land could not have fetched Kshs.5,000,000/-.

That the respondents had also proceeded with the succession cause of Edith Wagaki Ndiritu without informing them. They filed the proceedings of the cause for the perusal of this court.

The 1st respondent filed a further affidavit annexing documents acknowledgement of receipt of money Kshs.2,000,000/- dated 16th July 2012.

On 10th April 2019 Philip King’ori also swore another affidavit. He deponed that the lease for 4/260 was issued on 4th October 2016. The subdivision of block 260 and surrender of mother title to produce 4/271 and 4/272 was “way long before the applicants instituted the instant proceedings”.

He deponed that the proceeds of sale for one property 2787/15/IX were used to put up a Gikaria Plaza on 8/575 from where each beneficiary draws income. He referred to a family meeting where on 13th March 2012 where the family agreed to sell a part of LR 2787/928. No such agreement was annexed- only minutes of meeting of 11th March 2013 where, recollecting that the deceased Nderitu Gikaria died on 6th December 2012 they agreed on who the heirs of the deceased were and who the administrators would be.

Mr. Karweru argued the application for the applicants. The central argument of his submissions was that the applicants were concerned with the manner in which LR 2787/928. He argued that the certificate of confirmation of grant issued on 12th April 2018 clearly indicated that it was among the properties that comprise the estate of Ndiritu Gikaria alias Nderitu Gikaria (deceased) and was to be shared equally among the 6 beneficiaries of the deceased estate.

Hence everything the respondents and persons described as intermeddlers/interested parties/respondents did with this property was unlawful and the construction going on the said parcel of land by interested parties/ respondents ought to stop as it was an effort to steal a match against the applicants by altering the values of that part of the estate.

That though the petitioner/1st respondent held a power of attorney dated 10th July 2008the sale agreement pre-dated this cause but it was never mentioned in the cause.

The lease dated 8th June 2011 is not denied dated how then would the interested parties buy the same land they had leased and continue paying rent.

The petitioner did not disclose at the time of confirmation of the grant, at the time of filing of the cause, at the time of entering into the consent that led to the rectified certificate of confirmation of grant issued on 12th April 2018?

In opposing the application, Wahome Gikonyo for the respondents and interested parties began by raising great exception at the reference to the 1st and 2nd interested parties/ respondents as intermeddlers.

He argued that only a criminal court where a person had been charged under section 45 of Law of Succession Act and found guilty and convicted accordingly can be referred to an intermeddler. He also argued that the application was brought under the wrong provisions of the P&A rules which do not donate any jurisdiction to this court to hear and determine this application.

Further that the applicants were seeking the exercise of the discretion of this court, they had not fulfilled their mandate under the adage that he now alleges must prove.

Counsel pointed out that no such parcel of land as LR 2787/928 existed. That this court had not been shown any document to show the existence of parcel No.2787/928 in the Republic of Kenya in the name of the deceased.

Referring to the certificate of confirmation of grant dated 12th April 2018 where the parcel No.2787/928 was listed as one of the properties, he urged that the interested parties position was that they were NOT constructing on 2787/928 but on 4/260 and 4/472 on lease hold issued long before the order of 12th April 2018 in the 5 names of persons who were not parties to this application.

That with regard to the other 2 properties the leases were issued on 1st January 1992 for 99 years to persons not parties to this application except for the petitioner and the leases were signed on 6th April 2018 long before the order of 12th April 2018.

It was also argued that the 2nd interested party was not paying rent for land he had already purchased- that he bought 4/260 and 472, and was leasing 4/271.

That the applicants had not produced the search for 2787/928.

That the land that 2nd interested party purchased – 0. 0389 ha produced 260 and 272.

That there have been no transfer/transmission because LR 2787/928 does not exist.

In reiteration Mr. Karweru submitted that the ‘intermeddlers’ had deponed that land had been sold pursuant to a power of attorney but they are quiet to the fact that the land they bought came out of 2787/928. When 1st respondent appeared before the court on 12th April 2018 he confirmed that 2787/928 existed. That even when the petitioner was ordered to file accounts as the petitioner, he did so on the No.2787/928 a clear indication that the whole parcel was part of the deceased’s estate.

With regard to the issue of wrong provisions, he urged that they could not render the application fatal.

That once the earlier grant was annulled it affected the estate in the Nanyuki cause.

The issue therefore is whether the LR 2787/928 is part of the deceased estate whether the application is merited?

Whether the interested parties can be referred to as intermeddlers.

Analysis and Determination

The Law

Rule 65 deals with Service of documents. 63 rules provides for the Application of Civil Procedure Rules and High Court (Practice and Procedure) Rules

(1) Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Orders V, X, XI, XV, XVIII, XXV, XLIV and XLIX (Cap. 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules.

(2) Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased persons shall be those existing and in force immediately prior to the coming into operation of these Rules

On the issue of the provisions of the law, the counsel did not choose the proper provisions of the law and even if he sought to rely on the Civil Procedure Rules as provided for by Rule 63 he ought to have cited the actual provision of that order and Rule of the CPR on which he intended to rely. Hence counsel for the interested parties has a point.

While it is human to err, and mistakes are excusable, there is a reason some people are referred to as lawyers and advocates and learned is because they are expected to know where to find the law, and to apply the appropriate law to their arguments if they expect to fight their client’s cases. Sloppy drafting, and failure/neglect to look up the appropriate law and use it should not be tolerated- it subtracts from the status of ‘learnedness’ and ‘lawyerliness’ of the advocate.

Rule 63 points out to other specific provisions of the law. Counsel ought to have cited the specific one. Before saying ‘all enabling provisions of the law’. We should not let the fiat of Article 159 of our constitution be the bane of our sharpness in avoiding mistakes.

Be that as it may this court has the inherent powers under rule 73 to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. While rules are necessary we agree that courts must concern themselves with substantive justice. That is my mandate. I will proceed to look at the merits of the application. But I must address myself to some side but important issues first. Are the 1st and 2nd interested parties’ intermeddlers?

I must agree with Mr.Wahome Gikonyo that the act of intermeddling is a criminal offence provided for under section 45 of the Laws of Succession Act.

It is not different from calling a person a thief- yet they have not been found guilty under section 275 of the Penal Code. That should speak for itself;

45. No intermeddling with property of deceased person

(1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.

(2) Any person who contravenes the provisions of this section shall—

(a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and

(b) be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration..

Does LR 2787/928 exist? Is it part of the deceased’s estate?

In making this determination I must be guided by the law.

Section 2 of the Law of Succession Act defines estate intestate:

“estate" means the free property of a deceased person;

"free property", in relation to a deceased person, means the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death;

Nderitu Gikaria Nderitu died on 6th December 2012. The 1st respondent filed this petition together with Esther Muthoni Nderitu on 6th August 2013.

In the affidavit in support of the petition for letters of administration sworn by both of them on 1st August 2013 at paragraph 6 they deponed that the deceased’s estate comprised of:

a) Uns. Extension to hotel (plots ‘A’) Nanyuki Municipality

b) Land Reference No. 2787/928

c) One third (1/3) share of land reference No.2787/15/IX

d) One half (1/2) share of land reference No.21914/2 South West of Timau Town Meru-Municipality

e) One third (1/3) share of plot No. F26 –Nanyuki Municipality

f) Nanyuki/Municipality Block 8/575

g) East African Breweries Ltd Share Cert.No.00411404,007395 & 012018

h) 1790 ICDC Investment Co. Ltd shares Cert.No.36021

i) 5082 Centum Investment Co. Ltd share Cert. No. 122370

j) 5489 NIC Bank Shares Cert.No.170649,167633 and 00126892

TOTAL ESTIMATED VALUE Ksh. 50,000,000/-

On the part of liabilities, they indicated NIL.

On 18th November 2014 the petitioners filed summons for confirmation of grant dated 17th November 2014.

In their joint supporting affidavit at paragraph 3 they set out the beneficiaries of the deceased, at paragraph 5 – they set out the deceased’s estate again as follows

a) Uns. Extension to hotel (plots ‘A’) Nanyuki Municipality

b) Land Reference No. 2787/928

c) One third (1/3) share of land reference No.2787/15/IX

d) One half (1/2) share of land reference No.21914/2 South West of Timau Town Meru-Municipality

e) One third (1/3) share of plot No. F26 –Nanyuki Municipality

f) Nanyuki/Municipality Block 8/575

g) East African Breweries Ltd share Cert.No.00411404,007395 & 012018

h) 1790 ICDC Investment Co. Ltd shares Cert.No.36021

i) 5082 Centum Investment Co. Ltd share Cert. No. 122370

j) 5489 NIC Bank shares Cert.No.170649,167633 and 00126892

they also set out the mode of distribution thus:

S/No List of Properties Who to Inherit

1. PLOT NO.INS.EXTENSION TO HOTEL(PLOT ‘A’NANYUKI MUNICIPALITY) To be registered in joint names of PHILIPH KINGORI NDERITU, ESTHER MUTHONI NDERITU, EDITH WAGAKI NDIRITU AND JANE NYAWIRA GIKARIA

2. LAND REFERENCE NUMBER 2787/928 To be registered in joint names of PHILIPH KINGORI NDERITU, ESTHER MUTHONI NDERITU, EDITH WAGAKI NDIRITU AND JANE NYAWIRA GIKARIA

3. ONE THIRD (1/3) SHARE OF LAND REFERENCE NUMBER 2787/15IX To be registered in joint names of PHILIPH KINGORI NDERITU, ESTHER MUTHONI NDERITU, EDITH WAGAKI NDIRITU AND JANE NYAWIRA GIKARIA

4. ONE HALF (1/2) SHARE OF LAND REFERENCE NUMBER 21914/2 SOUTH WEST OF TIMAU TOWN MERU MUNICIPALITY To be registered in joint names of PHILIPH KINGORI NDERITU, ESTHER MUTHONI NDERITU, EDITH WAGAKI NDIRITU AND JANE NYAWIRA GIKARIA

5. ONE THIRD(1/3) SHARE OF PLOT NO.26-NANYUKI MUNICIPALITY To be registered in joint names of PHILIPH KINGORI NDERITU, ESTHER MUTHONI NDERITU, EDITH WAGAKI NDIRITU AND JANE NYAWIRA GIKARIA

6. LAND TITLE NUMBER NANYUKI MUNICIPALITY BLOCK 8/575 To be registered in joint names of PHILIPH KINGORI NDERITU, ESTHER MUTHONI NDERITU, EDITH WAGAKI NDIRITU AND JANE NYAWIRA GIKARIA

7. EAST AFRICAN BREWERIES LTD SHARE CERT.NO.00411404,007395 AND 012018 To be sold and proceeds to be transferred to Bank Account No.01148366726800 IN JOINT NAMES OF PHILIP KINGORI NDERITU AND ESTHER MUTHONI NDERITU GIKARIA CO-OPERATIVE BANK NANYUKI BRANCH

8. 1790 ICDC INVESTMENT COMPANY LTD SHARE CERTIFICATE NO.36021 To be sold and proceeds to be transferred to Bank Account No.01148366726800 IN JOINT NAMES OF PHILIP KINGORI NDERITU AND ESTHER MUTHONI NDERITU GIKARIA CO-OPERATIVE BANK NANYUKI BRANCH

9. 5082 CENTUM INVESTMENT COMPANY LTD SHARE CERTIFICATE NO.122370 To be sold and proceeds to be transferred to Bank Account No.01148366726800 IN JOINT NAMES OF PHILIP KINGORI NDERITU AND ESTHER MUTHONI NDERITU GIKARIA CO-OPERATIVE BANK NANYUKI BRANCH

10. 5489 NIC BANK SHARES CERTIFICATE NO.170649,167633 AND 00126892 To be sold and proceeds to be transferred to Bank Account No.01148366726800 IN JOINT NAMES OF PHILIP KINGORI NDERITU AND ESTHER MUTHONI NDERITU GIKARIA CO-OPERATIVE BANK NANYUKI BRANCH

A certificate of confirmation of grant was issued on 3rd February 2015 where the said property appeared intact to be shared in equal shares by the 1st respondent – the 2nd petitioner, Edith Wagaki and Jane Nyawira Gikaria.

In addition to all this on 31st January 2018 the administrators filed summons for rectification of grant together with a consent to rectify the grant to which was annexed the amended certificate of confirmation of grant where the same land LR 2787/928 was to be shared equally by all the beneficiaries including the applicants.

The question that begs is how since 2013 the issue of the 1st respondent’s power of attorney has never arisen, the issue of the sale of part of LR 2787/928 was never raised – even the lease that exists, and that is not denied by the applicants was never mentioned? It is only reasonable to ask those questions why is it that this only arose when the applicants noticed what they termed as act of intermeddling?

Clearly something is not right, all this evidence about a sale, about lease by other people cannot be accepted at this stage when all alongthe administrators of the Estate presented to this court the LR 2787/928 as part and parcel of the deceased’s estate. The petitioners provided a copy of the title for LR 2787 in the application for letters of administration among other documents.

The respondents /interested parties have tried to demonstrate they bought the land but the evidence of the transactions is not availed. Hence what is evidently clear is that the only rights the interested parties/respondents have in the estate are those conferred by the lease agreement dated 8th June 2011 which is to expire in 2021.

The rest of the transactions regarding LR 2787/928 are shrouded in a mist of inconsistent evidence given by the same person entrusted by law to tell the court the truth and, to administer the estate justly. When in a court process there appear signs of lack of material disclosure, the court must not allow its processes to be misused or abused. The interested parties and the respondents will have to prove those transactions. It is clear to me that the issues for sale, and new leases etc. have only come up because of the addition of the 2 applicants to the estate. This is a court of law and a court of justice. Otherwise the petitioners risk to be held liable for perjuring themselves a thousand and one times in their various affidavits affirming the existence of the said parcel of land as part and parcel of the estate of the deceased. It would also be good to be alive to the provisions of section 95 of the Law of Succession Act which provides inter alia:

95. Offences by personal representatives

(1) Any personal representative who, as regards the estate in respect of which representation has been granted to him—

(a) willfully or recklessly neglects to get in any asset forming part of the estate, misapplies any such asset, or subjects any such asset to loss or damage; or

(b) …; or

(c) willfully or recklessly produces any such inventory or account which is false in any material particular; or

A party cannot be allowed to speak from both ends of his mouth.

Hence, I find and hold that from the body of evidence on record the LR 2787/928 is part of the deceased estate. It was part of his free property of at the time of his death; No evidence was provided to support the alleged encumbrances. Except for the lease, it was property of which the deceased person was legally competent freely to dispose during his lifetime, and in respect of which his interest had not been terminated by his death.

Hence the application is allowed in the following terms.

1. THAT the respondents herein and the cited 1st and 2nd interested parties/respondents be and are hereby barred by an injunction of this court from building and or committing acts of waste on parcel No.L.R.No.2787/928 constituting part of the estate of the deceased herein; and or acting in such manner as will defeat and or encumber the beneficial interest of the applicants herein pending the final determination of the succession cause herein.

2. THAT the respondents herein are barred from selling or in any way transferring any of the deceased properties before the final orders of this court and the registration of the grant.

3. THAT in particular, the interested parties/respondents do stop constructions of permanent buildings on the said land without counsel of the applicants herein and or orders of the court.

4. Costs to the applicants

Dated, signed and delivered in open court at Nyeri this 26th June 2019.

Mumbua T. Matheka

Judge

In the presence of: -

Court Assistant: Juliet

Mr. Karweru for Applicant

Mr. Wahome Gikonyo for respondents

Judge