[2022] KEHC 13787 (KLR)

In re Estate of Njeru M’njaria (Deceased) (Succession Cause 163 of 2005) [2022] KEHC 13787 (KLR) (4 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13787 (KLR)

Republic of Kenya

In the High Court at Embu

Succession Cause 163 of 2005

LM Njuguna, J

October 4, 2022

IN THE MATTER OF THE ESTATE OF NJERU M’NJARIA (DECEASED)

Between

Pheris Mutitu Nthiga

Applicant

and

Stephen Kithinji Nyaga

1st Respondent

David Mukundi Nyaga

2nd Respondent

Joshua Mugambi Nyaga

3rd Respondent

Alexander Kinyua Nyaga

4th Respondent

Boniface Kimathi Nyaga

5th Respondent

Geoffrey Mugendi Nyaga

6th Respondent

Ruling

1. The matter before this court for determination is the chamber summons application brought under section 54 and rule 14 of the fifth schedule of the Law of Succession Act, dated August 30, 2021 which seeks for the orders that:i.The honourable court be pleased to appoint Boniface Kimathi Nyaga as a nominee to substitute the deceased respondent Cyrus Nyaga Njeru.ii.The honourable court be pleased to issue a grant of letters of administration ad litem to the said nominee, Boniface Kimathi Nyaga, limited for the purpose only of representing the deceased respondent in this suit.iii.Costs of the application be provided for.

2. The said chamber summons is supported by the affidavit annexed to the application.

3. The application is hinged on the fact that the initial respondent by the name Cyrus Nyaga Njeru is deceased and the respondents herein are his sons. That the respondents were impleaded by this court as respondents by an order of this court dated October 13, 2014 but they have been very evasive, uncooperative and unwilling to obtain a grant ad litem limited for the purpose of pursuing the present succession cause. That the deceased respondent, Cyrus Nyaga Njeru has never been formally substituted to date and that in the interest of justice and to facilitate the expeditious disposal of the instant suit, the orders sought herein be granted by this court.

4. By a replying affidavit sworn on the July 4, 2022, Boniface Kamathi Nyaga on behalf of himself and other respondents opposed the application. He deponed that he is one of the beneficiaries and that the application herein is premature, bad in law and should be dismissed with costs because the applicant ought to cite the family of the deceased to accept and /or take up letters of administration. That no citation proceedings have been filed and/or served upon him or on any other beneficiary. He deponed that he is only a beneficiary and that he acquired the land parcel from his father who was the administrator and therefore, he should not be made to answer for someone’s deeds; and that all his siblings are not willing to be appointed as administrators in this cause. He averred that being impleaded does not mean that they can be appointed as administrators and prayed that the estate be distributed as per his protest.

5. Directions were taken that the application be canvassed by way of written submissions. The applicant submitted that this court be pleased to appoint one Boniface Kimathi Nyaga as a nominee to substitute the deceased respondent Cyrus Nyaga Njeru. That the requirements provided for in section 54 of LSAhave been satisfied and thus it is necessary to appoint a representative in the present suit to represent the deceased respondent in the pending application for revocation. Reliance was placed on the case ofJoseph Mbogo Ishmael v Henry Namu[2014] eKLR. That the respondents have not denied being the sons of Cyrus Nyaga Njeru (deceased) and as such, the respondent (Boniface Kimathi Nyaga) who has been the most active in the present case, accepting service of pleadings and pleading on behalf of the rest of the respondents is the most suited person to represent the estate of Cyrus Nyaga Njeru (deceased). That citation proceedings are not applicable in the present case as the grant sought to be issued to the respondent is limited only for the purpose of substituting the aforesaid Cyrus Nyaga Njeru (deceased) in the present succession cause. It was her case that the respondents then may choose an administrator of their choice in respect to the estate of Cyrus Nyaga Njeru (deceased).

6. As to the respondent’s allegation that he is only a beneficiary and cannot be made to answer for his father’s deeds and that he needs to consent to the appointment, it was submitted that an intended substitute need not be the registered owner of the property in question and does not have to consent to being appointed personal representative as the grant is only limited to substituting the deceased in the suit; reliance thus was placed on the case of Gladys Njeri Muhura v Daniel Kariuki Muthiguro[2018] eKLR. The applicant thus urged this court to grant it the prayers sought.

7. The respondents on the other hand submitted that the application herein is premature for the reason that the applicant ought to have either waited for the family of Cyrus Nyaga Njeru (deceased) to petition for letters of administration or institute citation proceedings instead of filing a compelling application. That their late father had distributed all his estate during his lifetime and hence there has never been any need to choose an administrator to date. It was submitted that the applicant ought to have consulted the family of the deceased before filing the application herein and as result, this court was urged to dismiss the application as the same is an abuse of the court process. That the family should be given a chance to decide on the way forward before this court can make further directions. It was further deponed that the respondents should not be punished for ill doings of their father if at all there is any and that none of them is willing to be an administrator of the estate of their father. In the end, it was prayed that the application herein be dismissed with costs.

8. I have perused the application herein, the responses thereto and the rival submissions by the parties herein and I find that the main issue for determination is whether the application has merits.

9. Section 54 of the Law of Succession Act cap 160 gives powers to the court to issue the ad litem grant to a nominee who is unwilling to act as so. The said rule states as follows;When it is necessary that the representative of a deceased person be made a party to a pending suit, and the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the nominee of a party in such suit, limited for the purpose of representing the deceased in the said suit, or in any other cause or suit which may be commenced in the same or in any other court between the parties, or any other parties, touching the matters at issue in the cause or suit, and until a final decree shall be made therein, and carried into complete execution.

10. Further section 16 states;Appointment of person not normally entitled to a grant Where it appears to the court to be necessary or convenient to appoint some person to administer an estate or any part thereof other than the person who would in ordinary circumstances be entitled to a grant of representation, the court may, in its discretion and having regard to all the circumstances of the case, appoint such other person to be administrator and grant letters of administration, whether limited or otherwise, as it shall think fit.

11. I have looked at the replying affidavit of the intended substitute where he opposed the manner the application is brought. He claims that orders are being sought without his consent and the same is premature for the reason that the applicant ought to have either waited for the family of Cyrus Nyaga Njeru (deceased) to petition for letters of administration or institute citation proceedings instead of filing a compelling application.

12. As stated by the applicant, what is sought herein is ad litem and not a full grant. The 5th respondent is being appointed for purposes only of these proceedings for him to step in the shoes of his deceased father.

13. In the circumstances of this case, his consent is not necessary and in any event, it has been deposed that none of the beneficiaries are willing to be appointed in place of their deceased father.

14. In the end, I find that the application has merits and it is granted as prayed.

15. Orders accordingly.

DELIVERED, DATED AND SIGNED AT EMBU THIS 4TH DAY OF OCTOBER, 2022. L. NJUGUNAJUDGE………………………………………...…..for the Applicant………………………………………….for the Respondent