[2021] KEHC 4154 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

SUCCESSION CAUSE NO. 317 OF 2003

IN THE MATTER OF THE ESTATE OF NELSON KIRAGU KARUNJI (DECEASED)

FAITH WANJIKU KIRAGU............................................. 1ST APPLICANT

CHARLES MAINA KIRAGU...........................................2ND APPLICANT

MARGARET WARUGURU KIRAGU.............................3RD APPLICANT

VERSUS

MARGARET WANGECI substituted by

ESTHER WANJIRU KIRAGU............................................. RESPONDENT

AND

SUSAN NGIMA GITHINJI...................................1ST INTERESTED PARTY

DAVID MATHENGE GITHINJI..........................2ND INTERESTED PARTY

JOSEPH KINYUA KARANI................................3RD INTERESTED PARTY

ESTHER NYAWIRA..............................................4TH INTERESTED PARTY

RULING

1. There are three (3) applications all premised under the provisions of Section 76 of the Law of Succession Act the applications are supported by Affidavits and the applicants seek the Revocation of the Grant made to the respondent on the grounds that;

(i) That the Letters of Administration issued herein and the subsequent Grant confirmed on the 29/06/2004 be revoked and annulled on the grounds that the proceedings to obtain the same were defective in substance and the Grant was obtained fraudulently by making of false statements and concealment from the court of things material to the cause and ;

(ii) Costs of the application be provided for.

2. Directions were given that all the applications be heard by way of ‘viva voce’evidence being tendered and the applications be heard together, hereunder is a summary of the parties respective claims;

THE APPLICANTS’ CASE

3. The estate relates to Nelson Kiragu Karunji (deceased) who died on 10/04/2003. The 1st applicant (PW5) in her affidavit stated that she is an issue of the 3rd applicant and the deceased and therefore this made her a daughter of the deceased. The 2nd applicant (PW3) stated that he was an issue of the deceased and his 1stwife named Wakagio Kinyua Muriuki making him a son to the deceased. Lastly the 3rd applicant (PW1) contends that she was the 3rdwife of the deceased.

4. PW1 was the first to give evidence and her testimony was that the deceased had three wives who were Margaret Kiragu (deceased), herself (PW1) and Peris Wakagio Kirigui, she stated that she was an employee at the deceased’s workshop before she got married to him under Kikuyu Customary Law and that he had paid a bride price of Kshs.35,000/- to her parents and the two proceeded to cohabit together as husband and wife at his workshop at Kagumo Market from 1985 to 2003. PW1 produced her National Identity Card which bore her husband’s name and reads ‘Margaret Waruguru Kiragu’ she also produced a letter from the area chief which confirmed that she was a wife of the deceased and thus a beneficiary to his estate.

5. The union was blessed with three (3) children namely Faith Wanjiku, Rachel Muthoni and Joyce Wamwirui PW1 produced their Birth Certificates and the same were marked as ‘PExh.1- PExh.2 and PExh.3’. Her evidence was that the names of her children are similar to the names of the children of the second wife and that they were all named after the parents of the deceased in accordance with Kikuyu traditions, she further testified that the deceased used to pay the children’s school fees and produced receipts in support of the same.

6. Her contention was that the 2ndwife of the deceased who was also the mother of the respondent herein before she died had petitioned for and obtained a Grant of Letters of Administration and therein she concealed important information to the court that the deceased had another family. PW1 and her family were therefore left out of the succession proceedings on the grounds that she was not a wife of the deceased, having been married to the deceased under Kikuyu customary law she was entitled as a co-wife to benefit from the estate.

7. PW1 called Lucy Wainoi (PW2),John Mugo Nyamu (PW4) and Joyce Wamwirwa Kiragu (PW6)to testify on her behalf and to support her case. PW2adopted her witness statement as her evidence and stated that she first met PW1 in 1990 when she (PW1) resided with the deceased as husband and wife in a house at Kagumo that was located behind the workshop. That she had visited PW1at Kagumo when PW1 had just delivered her second child, the deceased was present during the visit and told her that he would name the baby after his mother.

8. The evidence of Charles Maina Kiragu (PW3)who was also one of the applicants was that the deceased had there (3) wives and that he was a son of the deceased being an issue from the first wife named Peris Wakagio Kirigia. That upon his mother leaving the deceased she abandoned him and he was raised by the respondent’s mother. He testified that he knew PW1 as being one of the deceased’s wives and that she had resided with the deceased at Kagumo from 1985 to 2003 in the rooms behind his fathers’ workshop;

9. His evidence was that the respondents mother had petitioned for the Grant of Letters of Administration and that the process had been done secretly with the intention of deliberately leaving out PW1 and her daughters. He admitted to having participated in the process of filing of the Petition and appeared in court when the Grant was confirmed and that he had benefitted but not as he had expected, he wanted the Grant revoked as he was not happy with the process by which it was obtained due to the fact that the court had been misled and his step mother (PW1) and her children had not benefitted from the deceased’s estate as they were given nothing. He also claimed that some properties forming part of the deceased’s estate were omitted;

10. Faith Wanjiku Kiragu(PW5)who was the 1st applicant herein claimed that she was a daughter of the deceased by the 3rd applicant (PW1) and therefore a dependant of the deceased; she alleges that the respondent had omitted her name when petitioning for the Grant of Letters of Administration;

THE PETITIONERS RESPONSE

11. The respondent in response contends that the deceased only had one wife named Margaret Wangechi who was her mother and was now deceased.

12. The 3rd applicant (PW1) was not a wife of the deceased as he had no capacity to contract any other form of marriage as he already had a statutory marriage with the respondent’s mother on 14/12/1963. That neither a customary marriage nor a marriage by long cohabitation could override a statutory marriage, The deceased and the applicant had never lived together and there could be no presumption of marriage, her evidence was that the applicant was a mere employee of the deceased at the workshop.

Nor did the 3rd applicant have children together. She stated that the deceased had reported to the police the loss of his personal documents in 2003 only for the same to resurface in the hands of the applicant whom she alleges had stolen the deceased’s personal documents with the intention of using them to register the births of her children;

13. Her contention was that the 2nd applicant (PW2)was an adopted child of the deceased and that his mother had been married to the deceased’s elder brother, That at all materials times PW2had been involved in the process of obtaining the Grant and had only enjoined himself to the instant application because he was a bitter man with an aim of settling scores because he had not gotten the share of the properties he had wanted.

14. As for the 1st applicant (PW5) she was not a child of the deceased as she so claimed and neither was she a dependant and she had failed to prove that the deceased had assumed responsibility over her and her siblings. That these children were brought up by their mother as a single parent.

15. In her bid to challenge and controvert the evidence adduced by the applicants she called Eliud Munene Kiragu(DW2), Charles Wamea Gatitu(DW3)and Loise Nyawira Thiongo (DW4) to support her case.

16. In conclusion she submitted that the Grant which was confirmed on 29/06/2004 was done in accordance with the law and should not be revoked.

INTERESTED PARTIESSUBMISSIONS

17. The 1st and 2nd Interested Parties are enjoined as the legal representatives of the estate of John Muturi Mugo(deceased) (‘John’)and produced into court the Grant. Their evidence was that John bought Parcel No. Mwerua/Gitaku/1317 from Peter Munene Muriithi who had bought it from Eliud Munene Kiragu who is one of the sons of the deceased herein, they contend that this parcel did not form part of the deceased’s estate

18. The 3rd and 4th Interested Parties had bought 2 acres from one John Maina who had in turn bought Parcel No. Mwerua/Gitaku/1250 from Solomon Murani Kiragu also a son of the deceased. The 3rd Interested Party had also purchased another piece of land Parcel No. Mwerua/Gitaku/1316from James Mwangi who had bought it from Eliud Munene Kiragu, their contention is that they had purchased the properties after distribution had been done hence their interests should be protected.

ISSUES FOR DETERMINATION

19. After the close of the proceedings the parties filed and exchanged written submissions and narrowed down the issues, from the evidence tendered and upon reading the rival written submissions these are the issues framed for consideration;

(i) Whether the 3rdapplicant and her daughters are dependant’s of the deceased and beneficiaries to his estate.

(ii)Whether the 2nd applicant (PW3) is a dependant and a beneficiary of the estate of the deceased.

(iii) Whether the Grant was obtained fraudulently by making of a false statement or by concealment from the court of something material to the case.

(iv) Whether the Interested Parties interests should be protected.

(v) Distribution of the estate.

ANALYSIS

Whether the applicant and her daughters are dependants of the deceased and beneficiaries to his estate;

20. The respondent’s testimony was that the deceased married their late mother in 1963 and as provided by Section 37 of the Marriage Act he lacked capacity to contract any other form of marriage, she further claimed that the 3rd applicant was a mere employee of the deceased at his furniture shop in Kagumo and this was corroborated by DW2 and DW3.

21. The 3rd applicant controverted this by testifying to being married to the deceased in 1983 under Kikuyu customary law and a sum of Kshs.35,000/- was paid as bride price, after that she co-habited with the deceased at Kagumo. Despite there being no evidence produced by the 3rd applicant to support or corroborate the fact of the customary marriage being conducted this court notes that the evidence of the respondent nor her witnesses did not specifically deny that bride-price had been paid;their evidence only consisted of denial that the 3rd applicant was a wife to the deceased.

22. The court record reflects that when the respondents mother had petitioned for the Letters of Administration she had not enclosed a letter from the local area chief and her reasons given are made under oath in her Affidavit dated 20/08/2003 which was that the area chief had declined to issue her with one for no apparent reason and therefore, she was requesting the court to allow her to proceed to file the petition without this said letter.

23. Apparently the reasons why the area chief had declined to give the respondents mother the said letter came out in evidence and it was because a letter (‘PExh.8’) of such a nature had been issued to the 3rd applicant by the Senior Chief, Mwerua Location, in the letter the area chief states that the deceased ‘is survived by two widows’ and the3rdapplicant is described and named therein as a widow of the deceased. In the same letter the chief confirmed that that the deceased ‘was a resident of Gitaku Sub-Location of Mwerua Location which is within my area of administration.’

24. From this documentary evidence in the form of a report from the local chief which evidence was not controverted by the respondent this court is satisfied that the 3rd applicant was a wife and widow of the deceased;

25. The applicable law on whether the 3rd applicant is entitled to benefit from the estate of the deceased is found at Section 3(5) of the Law of Succession Act. This provision of the law recognizes that a person married after one had previously contracted a statutory marriage can still be considered a wife for the purposes of inheritance, This court is guided by the Court of Appeal case of Irene Njeri Macharia vs Margaret Wairimu Njomo & Another [1996] eKLR; where it held that;

‘Our understanding of Section 3(5) of the Act is that it was expressly intended to cater for women who find themselves in the situation in which Josephine found herself. Mutua, previous to his union with Josephine had contracted a statutory marriage which remained un dissolved upto the time of his death. But subsequent to that marriage, he purported to marry Josephine under Kamba customary law………Notwithstanding the provisions of Section 37 of the Marriage Act……Josephine was nevertheless, a wife for the purposes of the Law of Succession Act, and in particular Sections 29 and 40 of the Act.’

26. The second limb of this issue relates to whether her children who include the 1st applicant (PW5) are dependants and entitled to benefit from the estate.

27. The 3rd applicant produced documentary evidence in the form of Birth Certificates for the three (3) children which were tendered into court and marked as ‘PExh.1 – PExh.2 - and PExh.3’ The exhibits indicate that the deceased and the 3rd applicant as being the parents of the three children;

28. The respondent alleged that the 3rd applicant had stolen the deceased personal documents with the intention of using the information to process the Birth Certificates, upon a cursory look at the date of registration of the Birth Certificates and the Police Report Abstract clearly shows that the documents were issued before a report was made to the police on the loss of the personal documents as alleged by the respondent.

29. This court finds that the Birth Certificates produced to be conclusive evidence that the three children were the deceased’s children,

30. On dependency: the 3rd applicant produced receipts demonstrating that the deceased paid school fees for the three children; but this was controverted by the evidence of DW3 who stated that the deceased was a generous employer and used to pay the school fees for the children of his employees and that the 3rd applicant fell into this category of employees, DW3 admitted to having two school going children at the time she was employed by the deceased but interestingly did not produce any document to demonstrate that the deceased had paid school fees for her own children,

31. In the absence of such evidence this court is satisfied that the deceased paid school fees for the children he had with the 3rd applicant; and finds that Margaret and her children qualify as ‘dependants’ within the meaning of Section 29 of the Act and are entitled to benefit from the deceased’s estate,

Whether the 2nd applicant (PW3) is a dependant and a beneficiary of the estate of the deceased

32. The respondent contends that that he was an adopted son of the deceased as his father who was the deceased’s elder brother had died, the responsibility then fell on the deceased to look after PW3 as his own son.

33. The respondent in the same breadth contradicts herself by calling him their‘elder brother’whom her mother had looked upon to source for all the documents to enable her mother file the succession proceedings. The 2nd applicant also confirms that he was part of the process and had his consent was endorsed on the requisite documents and even benefitted as the respondent’s mother upon Confirmation of the Grant proceeded to distribute a portion of the deceased’s estate to him.

34. To prove that the deceased was his father the 2nd applicant produced a Birth Certificate (‘PExh.10’) therein the deceased is named as being his father; the minutes of the Clan also confirmed that ‘Charles’ was not adopted and that he was a son of the deceased and also a member of the clan.

35. This court has also had occasion to peruse Form P&A5 filed by the respondent’s mother therein she described Charles Maina Kiraguas a surviving ‘son’ of the deceased.

36. For those reasons this court is satisfied that 2nd applicant herein is a son of the deceased and qualifies as a dependant within the meaning of Section 29 of the Act.

Whether the Grant was obtained fraudulently by making of a false statement or by concealment from the court of something material to the case;

37. The applicants all contend that the respondent’s mother concealed important material from the court at the time of taking out the Letter of Administration, the respondent misled the court by failing to disclose to the court of the existence of another family;therefore, the Grant was obtained fraudulently.

38. Section 76 of the Law of Succession Act sets out the grounds upon which a Grant can be revoked, and reads as follows;

“Section76

(a) The proceedings to obtain the grant were defective on substance.

(b) The grant was obtained fraudulently by the making of false statements or concealment of something material the case.

(c) The grant was obtained by means of untrue allegations of fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently.

(d) The persons to whom the grant was made have failed after due notice and without reasonable cause either;

(i) To apply for confirmation within one year of such longer time as the court may allow,

(ii) To proceed diligently with the administration of the estate,

(iii) To produce to the court such inventory or account of Administration as required under section 83(e) and 83(g) of the act or has produced false accounts.

(e) The grant has become useless and inoperative through subsequent circumstances.

39. This court makes reference to the contents of the Affidavit dated 20/08/2003 made by the respondent’s mother when she petitioned for the Letters of Administration she had not enclosed a requisite letter from the local area chief and her reasons given are made under oath. She deposed therein that the area chief had declined to issue her with the letter for no apparent reason and therefore, she was requesting the court to allow her to proceed to file the petition without this said letter, the exact wording in the affidavit is as follows;

‘3. THAT I have approached my local Chief to grant me a letter to enable me file petition in court but he has declined to issue the same for no apparent reason.

4. THAT I have no alternative but to file this petition without the said letter.’

40. The reasons why the local area chief had declined to give the said letter to the respondent’s mother came out in evidence and it was because the requisite letter (‘PExh.8’) had already been issued to the 3rd applicant by the Senior Chief, Mwerua Location.

41. It is apparent from the evidence adduced that the respondent’s mother knew the reasons as to why her request was declined and also knew that the 3rd applicant had also commenced Kerugoya Succession Cause No.26 of 2005 and the court record bears a letter from her Advocate to the court in which she had also instructed her advocates to write and request for the Revocation of the Grant issued to the 3rd applicant on the grounds that she ( the respondents mother) had initiated a cause at the Nyeri High Court and her contention was that the subordinate court at Kerugoya lacked jurisdiction from this she also knew about the existence of the other family and despite being in possession of all this information on the existence of the other Succession Cause and the existence of the other family the respondent’s mother proceeded to obtain the Grant and to have it confirmed without any notification to this other family nor is there any evidence on record of attempts to acquire their consents as required by Rule 26 of the Probate and Administration Rules. Rule 26 reads as follows;

‘(1) 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….’

42. For the foregoing reasons this court finds that the applicants have satisfied this court to the requisite threshold that there was concealment and non-disclosure of pertinent and material facts to the court by the respondents mother on the existence of the other family when she petitioned for the Grant of Letters of Administration, As for the Chiefs Letter it is this courts considered view that the respondent’s mother knew the ‘apparent reason’ why the local area chief denied her the requisite letter and that she made an untrue statement of fact under oath.

43. For those reasons this court is satisfied that the applicants have demonstrated that there is sufficient cause for the Grant and the subsequent Confirmation of Grant to be revoked as provided by the provisions of Section 76(b) of the Act as it was obtained by the making of an untrue statement of fact and there was also concealment of material facts that would have assisted and enabled the court to have otherwise made an informed determination,thereby rendering it defective.

Whether the Interested Parties interests should be protected

44. The issue for determination is whether to safeguard the interests of the Interested Parties, the Interested Parties invited the court to take into consideration the provisions of Section 93 of the Law of Succession Act and they sought protection under this section which reads as follows;

‘93(1) A transfer of any interest in immovable or movable property made to a 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 by a personal representative to a purchaser shall not be invalidated by reason only that the purchaser may have notice that all the debts, liabilities, funeral and testamentary or administration expenses, duties and legacies of the deceased have not been discharged nor provided for.’

45. The 1st and 2nd Interested Parties contend that the Parcel No. Mwerua/Gitaku/1317they bought from Peter Munene Muriithi who had bought it from Eliud Munene Kiragu who is one of the sons of the deceased herein did not form part of the deceased’s estate.

46. But upon perusal of the Green Card produced into court as ….. it indicates that Parcel No.Mwerua/Gitaku/1317was a sub-division of the original Parcel No.Mwerua/Gitaku/437which in actual fact appears on Form P&A5 as one of the properties the respondent’s mother had listed as belonging to the deceased;

47. The Grant having been revoked by this court it would in essence mean that the interests of the Interested Parties will definitely be affected; although the Section 93 of the Law of Succession Act may appear to come to the rescue of the Interested Parties this court is of a different view and is persuaded by the holding in the case of Monica Adhiambo vs Maurice Odero Koko [2016]eKLR which clearly spells out that;

‘…… it would be a corruption of the law to validate how the original suit property belonging to the deceased was transferred to the petitioner’.

48. The circumstances in the case of Monica Adhiambo (supra) are similar to this instance as the petitioner herein locked out other beneficiaries, the court in Monica Adhiambo (supra)went on to make the following observation;

‘The fact remains that the petitioner stole a march over the other beneficiaries who were also to benefit on equal status from the estate of the deceased and it would be unfair to validate the illegal actions of the petitioner by invoking Section 93 of the Law of Succession Act.’

49. The court went on to state that;

‘The reality of the situation is that the provisions of Section 93 do not validate unlawful acts and what was intended by Section was where a grant is properly and lawfully issued the, Section 93 can come to the rescue of such a purchaser. In my humble view the underlying objective of the Law of Succession Act is to ensure that the beneficiaries of deceased persons inherit the property….’

50. This court is so persuaded and finds that it would be ‘unfair to validate the illegal actions of the petitioner by invoking Section 93 of the Law of Succession Act.’

51. There is also no respite for the 3rd and 4th Interested Parties who admit to having purchased the properties after distribution and this court’s finding is the same as for the 1st and 2nd Interested Parties;

DISTRIBUTION OF THE ESTATE.

52. From the evidence adduced this court satisfied itself that the deceased had three (3) households and was polygamous therefore, his estate shall be subjected to distributed in conformity with the provisions of Section 40 of the Law of Succession Act. Section 40 of the Act reads as follows;

“Where an interstate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate shall, in the first instance, be divided among the houses according to the number of children in each house but also adding any wife surviving him as an additional unit to the number of children.”

53. This court is also guided by the Court of Appeal decision of Rono vs Rono and Anor (2005) 1 EA 363;where it was held that the estate of a polygamous deceased should be distributed according to the number of children and not the number of houses.

54. The second house as per the form P&A5 is found to comprise of eight (8) family members which consists of the respondent, Moffat Karunji Kiragu, Solomon Murani Kiragu (deceased), Eliud Munene Kiragu, Joyce Wamwirua Wacira, Nancy Wambui Kiragu, Lucy Wainoi Kiragu and Nancy Wambui Kiragu and translates to eight (8) units; the third house comprises of three (3) children and the applicant being the extra unit brings the total to four (4) units;the first house comprises only of PW3 making him a single unit; the ratio of distribution is therefore determined to be 8/15 for the second house and 4/15 for the third house and 1/15 for the first house, This court will therefore apply these ratios in distributing all the properties that comprise the estate of the deceased together with the money (if any) in the bank account.

55. The properties that comprise the estate of the deceased are as set out in paragraph 6 of the Form P&A5 and are listed by the respondents mother as Parcel Nos. Mwerua/Gitahu/135, 143, 411 and 437. Plot Nos 96 and 39B Kagumo;

56. The provisions of Section 40 (2) of the Law of Succession further provide that the spouse is entitled to the chattels and all the household goods, therefore, the chattels in the furniture business and the household effects located at the Kagumo plot to be distributed to the 3rdapplicant.

FINDINGS AND DETERMINATION

57. From the afore-going reasons this court makes the following findings that;

(i) The 1st applicant,2nd applicant, 3rd applicant and her children are all found to be dependants of the deceased and are entitled to directly benefit from the deceased’s estate.

(ii) This court finds that the Grant was obtained fraudulently by concealment from the court of material facts to the case and the making of false statements, the applications for Revocation of the Grant are found to have merit and are hereby allowed;

(iii) The Grant issued on 16/10/2003 and the Certificate of Confirmation issued on 29/06/2004 are both hereby revoked and a Fresh Grant be hereby issued in the joint names of the 3rdapplicant and the respondent.

(iv) The Interested Parties claims are found to be devoid of merit and are hereby disallowed.

(v) The estate of the deceased to revert back to its original state and the Grant is hereby confirmed as follows; the properties comprising Parcel Nos.Mwerua/Gitahu/135, 143, 411 and 437; Plot Nos 96 and 39B Kagumobe distributed on a ratio of 8/15 for the second house; a ratio of 4/15 for the third house and a ratio of 1/15 for the first house; the 3rdapplicant shall hold a life interest of her share and the life interest to terminate upon her death and her interest shall then be shared equally between her three (3) daughters.

(vi) The chattels in the furniture business and the household effects located at the Kagumo plot to be distributed to the 3rd applicant.

(vii) Parties at liberty to apply for further orders.

(viii)Each party shall bear their own costs.

Orders accordingly.

DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NYERI THIS 10TH` DAY OF SEPTEMBER, 2021.

HON.A.MSHILA

JUDGE