[2022] KEHC 9799 (KLR)

In re Estate of Ngune Kibako (Deceased) (Succession Cause 32 of 2016) [2022] KEHC 9799 (KLR) (20 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9799 (KLR)

Republic of Kenya

In the High Court at Embu

Succession Cause 32 of 2016

LM Njuguna, J

July 20, 2022

In the Matter of the Estate of Ngune Kibako (Deceased)

Between

Gichoni Thairi

1st Applicant

Patricio Njeru Mbaka

2nd Applicant

and

Sebastian Njeru Thairi

Respondent

Ruling

1. The matter before this court is summons for revocation and/ or annulment of grant dated January 29, 2018 issued to the respondent /administrator.

2. The application is based on the grounds on its face and its supported by an affidavit sworn by the applicants on even date. It was deposed that the respondent/administrator never informed the court that they were also beneficiaries of the estate of the deceased herein. That the respondent/administrator filed the cause secretly without informing them yet they are rightful heirs of the estate. That the 1st applicant is the brother to the grandson of the deceased. They deposed that they currently live on the suit land and the respondent has been threatening them with eviction. It is their case that the respondent has unjustly enriched himself from the estate without their consent thus denying them their rightful shares. They therefore urged this court to grant the prayers sought.

3. The respondent filed a replying affidavit wherein he conceded that indeed he never informed the applicants when filing the succession cause for the reasons that the 1st applicant has his own parcel of land while the 2nd applicant being the son of his brother, has no right to demand land from him given that his deceased brother who is also the father of the 2nd applicant had previously been given land by the deceased herein. He urged this court to dismiss the application.

4. Directions were taken that the application be canvassed by way of viva voce evidence and thereafter parties to file their submissions. The applicants did file while the respondent/ administrator failed to adhere to the directions.

5. The applicants submitted that the 1st applicant and the respondent are sons of the deceased herein while the 2nd applicant is a grandson to the deceased and that the respondent did not inform them while filing the succession cause and that the grant was obtained by means of false allegations or concealment of essential facts in point of law. That the subject land parcel LR No. Evurore/thambu/1039 was wholly inherited by the respondent/administrator thus denying the applicants their inheritance. Reliance was placed on section 76 of the LSA to support their case that indeed the respondent/administrator concealed the fact that there were other beneficiaries of the estate of the deceased who were not involved in the succession cause. Further, it was their case that the procedure followed was defective given that the applicants were not notified of the proceedings as provided for in section 26 of the Probate and Administration Rules. In the end, it was prayed that the confirmed grant issued to the administrator/ respondent be revoked.

6. I have considered the application herein together with the viva voce evidence and the submissions by the applicants and I form the view that this court has been called upon to determine whether the orders sought before it could issue.

7. Section 76 (a) - (d) provides for revocation of grant and the circumstances under which a grant of representation may be revoked. The application herein is hinged on the fact that the administrator/respondent did not disclose their existence as rightful beneficiaries of the estate of the deceased. As such, it is clear that the application is premised on the provision of section 76(c) and which provides that 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 on its own motion on the grounds either 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. [See Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No.158 OF 2000 and Matheka and Another v Matheka [2005] 2 KLR 455].

8. The applicants have submitted that they stand disinherited given that the respondent/administrator secretly obtained grant without involving them. That they are rightful heirs of the deceased and the respondent/administrator failed to inform court about them thus exposing them to imminent disinheritance if the court shall not grant their payers.

9. Having perused the record and more so, the chief’s letter dated February 23, 2015, the chief indicated that the deceased had two wives (Mati Thairi and Njeru Thairi) who are already deceased while the sons are as follows:i.Mbaka Thairi son to Mati Thairi Mbaka (Deceased).ii.Francis Gichohi Thairi son to Njeru Thairi.iii.Sebastian Njeru Thairi son to Njeru Thairi.

10. From the viva voce evidence adduced before the court, the 1st applicant testified that the respondent has exclusively taken the suit land thus leaving them without any land. Further, from the evidence, it emerged that there are also sisters (Kathu Ngune, Njoka Ngune, Maria Nginya and Benedita Ciambugi. It was his case that there was no family meeting held on how the estate should devolve and as such, their consents were never acquired before filing the succession cause. That two of their sisters are deceased and the rest never showed any interest in inheriting the estate.

11. Having considered the two opposing sides, I hold the view that indeed the applicants’ case is more plausible. The applicants submitted that their consent was never sought and further that, they were never informed of the filing of the cause herein despite them being rightful heirs and beneficiaries of the estate herein. Further, the existence of the daughters not having been brought to the attention of the court, I find that the respondent ought to have involved all the beneficiaries when he filed the succession cause.

12. Section 51(2) (g) requires the petitioner for grant of letters of administration intestate to disclose all the surviving spouses and children of the deceased. The provision is in mandatory terms. The administrator/respondent never disclosed the existence of his siblings and thus proceeded to benefit alone from the estate to the detriment of his siblings.

13. This court is bestowed with jurisdiction to determine any dispute which comes before it in relation to an estate of the deceased (see section 47 of the Law of Succession Act) and further the inherent powers to make orders so as to make the ends of justice meet or to prevent abuse of the process of the court. (See Rule 73 of the Probate and Administration Rules 1980).

14. Further, 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 ….

15. The import of this rule is that where for instance a petitioner is a wife of the deceased, the consent from the other wives ought to be obtained. When it is amongst the beneficiaries, then the same ought to be obtained too. A grant is liable to revocation where such consent was not obtained. In the matter of the Estate of Isaac Kireru Njuguna (deceased) Nairobi HC Succession Cause 1064 of 1994 the court found that a grant is liable for revocation where all the heirs have not consented to the mode of distribution and all the properties which make up the estate are not taken into account or distributed. [See also Antony Karukenya Njeru v Thomas M. Njeru [2014] eKLR and In the Matter of the Estate of Muriranja Mboro Njiri, Nairobi H.C. Succession Cause No. 890 of 2003 where in both cases, a grant of letters of administration was revoked since persons with equal priority did not consent to the petitioners therein applying for grant of letters of administration).

16. The rule above is in mandatory terms that every individual who wishes to be an administrator to a given estate to give notice to every person entitled in the same degree as or in priority to the applicant. In the instant case, it is clear that the respondent/administrator failed and in fact concealed from the applicants’ herein together with their sisters when he was filing the cause herein.

17. In that regard, and in view of the foregoing, the grant is hereby revoked.

18. Each party to bear its own costs of the summons.

19. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 20TH DAY OF JULY, 2022. L. NJUGUNAJUDGE……………………………………for the Applicants……………………………………for the Respondents