[2022] KEHC 9882 (KLR)

In re Estate of Njiru M’Ndambari (Deceased) (Succession Cause 37 of 2015) [2022] KEHC 9882 (KLR) (13 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9882 (KLR)

Republic of Kenya

In the High Court at Embu

Succession Cause 37 of 2015

LM Njuguna, J

July 13, 2022

IN THE MATTER OF THE ESTATE OF NJIRU M’NDAMBARI (DECEASED)

Between

Jane Gitiri Samwel Nyaga

Applicant

and

Elizabeth Ruguru Njiru

1st Respondent

Marion Wamugo Njiru

2nd Respondent

and

Moses Kariuki Mwaniki

Interested Party

Judgment

1. The matter before this court is revocation of the grant dated 23. 05. 2016 wherein the applicant has sought for orders that the grant issued herein and certificate of confirmed grant issued on March 3, 2016 be revoked and/or annulled.

2. The summons is based on the grounds on its face and it’s supported by an affidavit sworn by the applicant in which she seeks for revocation of the grant of letters of administration intestate issued to the 1st and 2ndadministartors/respondents.

3. The applicant’s case is that she is the third wife of the deceased herein while the 1st and 2nd administrators/respondents are her co –wives. That her co-wives secretly filed a succession cause in regards to the estate herein and further distributed the estate without making any provision for her. It is her case that the estate of the deceased comprise of LR Nos. Ngandori/ Kiriari/3193, Ngandori/kanja/1875 and 1876, Mbeti/ Kiamuringa/1547, Kaagari/kianjokoma/T.88 and Ngandori/kangaru/T.66.

4. The 1st and 2nd administrators/respondents filed joint affidavit of reply sworn on November 3, 2016 wherein they swore that the deceased was their husband and they are the only widows while the applicant was simply an employee. That according to the Embu customary law, the wife or wives is/are normally involved in a marriage ceremony where a husband chooses to marry another wife and that as a practice, the first wife/wives must take gifts to the intended wife to show acceptance of the intended wife joining the family. They deposed that none of them was ever involved in such a ceremony of the alleged marriage of the applicant. That the applicant only came to console the family and attended the funeral but never at any time participated as a member of the family and/or stated that she was married to the deceased. They deposed that the burial permit was issued to them and further, the demise of the deceased was announced in the Radio Station of Wimwaro FM and the applicant never objected to the same. It was their evidence that even after burial, all family members were requested to meet and neither the applicant nor her children remained behind. That the applicant was an employee and not a wife and in that regard, they filed the succession cause in good faith as there was no intention of disinheriting the applicant or her children.

5. Directions were taken that the application be canvassed by way of viva voce evidence and thereafter parties to file their submissions.

6. The applicant submitted that she is a wife and on that strength, a beneficiary just like her co-wives. That she resides on a six acre piece of land which the deceased previously had subdivided into three and that she occupies the middle portion of the said land. That the respondents instituted the succession cause without informing her and she only came to learn of the same sometime in the year 2015. She submitted that her testimony has been corroborated by all her witnesses and specifically PW2, a brother to the deceased who confirmed having been present at all the dowry negotiations of all the three wives including the applicant who had been married to the deceased for a period of 24 years.

7. That DW1 could not explain how the applicant came into occupation of the middle portion of LR No. Ngandori/Kiriari/ 3193 if the said portion had been set aside to benefit the deceased in buying medicine as alleged. It was her case that the 1st and 2nd administrators/respondents never challenged the fact that the applicant’s children belonged to the deceased. In reference to whether the grant issued to the 1st and 2nd administrators/respondents ought to be revoked, it was submitted that there was no consent for distribution that was sought from the applicant and given that she ranked equally in priority to the respondents, she thus ought to have signed the consent at the time of taking out of the grant. Reliance was placed on Rule 26 of P&A Rules and further, section 76 of the LSA. The applicant submitted that the respondents obtained the grant herein fraudulently by concealing the fact that the applicant is one of the wives of the deceased and that her children ware dependents of the deceased.

8. In regards to the interested party, it was submitted that he is not a bona fide purchaser for value and that he cannot find protection under section 93 of the LSA. It was also submitted that, given that the grant herein was obtained fraudulently, the case of the interested party thus can’t stand and the same should fail. Reliance was placed on the cases of Adrian Nyamu Kiugu v Elizabeth Karimi Kiugu & another [2014] eKLR and In re estate of Mati Njeru (Deceased) [2020] eKLR. In the end, this court was urged to allow the application seeking to revoke the grant issued to the respondents herein.

9. The 1st and 2nd respondents submitted that upon the death of the deceased, the applicant was never recognized nor included in the funeral programme and equally, in the annexed birth certificate by the applicant, the name reads Mandabari and not the deceased name, Njiru M’ndabari and as such, the same does not relate to the deceased herein. In reference to the letter by the Chief from Ruguru Location, it was submitted that the same pointed out that the deceased lived with the applicant but was silent whether he knew of the existence of the 1st and 2nd respondents in any way. That the home of the deceased was at Irangi village, Kagaari and not Ruguru as alleged by the applicant. It was their case that no dowry was ever paid and no member of the clan testified to the fact that dowry negotiations took place. The respondents submitted that the applicant was only a long serving employee of the deceased. That the land parcel No. Ngandori/Kiriari/3193 had been subdivided by the deceased into three portions and that he proceeded to give two of the portions to his sons leaving the remaining middle portion for himself.

10. That though the applicant averred that the deceased sired with her two children, of importance to note is the birth certificate on which, the date of birth is hand written and the name of the father is typed using a different typewriter from the one that typed the name of the minor. They further submitted that the deceased could not have sired children before 1990. In the end, it was prayed that the application herein be dismissed with costs to the respondents.

11. The interested party submitted that he is a bonafide purchaser for value and that he is the registered proprietor of LR No. Ngandori/Kangaru/T.66 having acquired the same lawfully. That he bought the said land from the respondents after the grant had been confirmed and thereafter attended the Land Control Board for issuance of a consent which led to the same being transferred to him as the rightful proprietor. He submitted that he knows the two administrators/respondents but not the applicant herein. Reliance was placed on the case of Shimoni Resort v Registrar of Titles & 5 others [2016] eKLR. In the end, it was prayed that since the applicant has not proved her case, the application should be dismissed with costs to the interested party.

12. I have considered the application herein together with the viva voce evidence and the submissions by the parties. In my view, this court has been called upon to determine whether the application herein is merited.

13. The said application is brought under rules 49 and 73 of the Probate and Administration rules. The applicant sought for orders for revocation of grant issued on April 16, 2015 to the 1st and 2nd respondents/administrators as they fraudulently filed the succession cause by concealing the fact that she is a wife of the deceased.

14. Section 76 (a) - (d) provides for revocation of grant and the circumstances under which a grant of representation may be revoked. However, from the perusal of the application herein, the applicant’s ground for seeking the revocation is that the 1st and 2nd administrators/respondents did not disclose her existence as the wife 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 of its own motion on the grounds either that the grant was obtained fraudulently by making of a false statement or by concealment from the court of something material to the case.[ See Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No.158 of 2000; [2016] KEHC 1528 (KLR) and Matheka & another v Matheka[2005] 2 KLR 455].

15. The applicant herein has submitted that the 1st and 2nd administrators/respondents secretly obtained grant without involving her. That the deceased had three wives and that her co-wives, 1st and 2nd administrators/respondents have shut her out of the process of succession and she stands disinherited.

16. Having gone through the viva voce evidence and the documents filed by the parties herein and more specifically, the chief’s letter dated 05. 01. 2014 which recognized the 1st and 2nd administrators/respondents as the wives of the deceased herein, of importance to note is the fact that the letter was written by the chief from Kagaari Location. There is yet another letter by the chief from Ruguru Location which confirmed that indeed the applicant had been living with the deceased till his death. From the cross examination of the 1st respondent, it emerged that the applicant lived at Gachiegi while the 1st and 2nd respondents lived at Erangi in Kagaari. That the chief at Kagaari once called them after having issued them with the letter herein and informed them that the applicant was the third wife of the deceased. According to them, it was the applicant who took herself to the chief claiming that she was the third wife of the deceased. PW2, a brother to the deceased testified that he was present during the dowry negotiations and further during the payment of the same when the deceased sought the applicant’s hand in marriage. In the same breadth, the administrators could not give a satisfactory answer to the reason why the applicant was in occupation of the third portion of the deceased’s land if she was just an employee as they allege.

17. The main contest between the applicant and the 1st and 2nd administrators/respondents is the fact that even if they were to concede of which they did not, that, there was a marriage between the applicant and the deceased, the same never conformed to the Embu customary laws and to them, the alleged union thus cannot be called a marriage. Further, to buttress their case, it was their evidence that the applicant never actively participated during the burial and funeral arrangements of the deceased; and that she was never included as a member of the family in the announcement made in Wimwaro radio station.

18. It is my considered view after having considered the whole evidence before me, that, the applicant’s case is more reliable as opposed to that of the 1st and 2nd respondents. Even assuming, as alleged by the respondents that the deceased never sought their authority before marrying the applicant, this cannot negate the fact that indeed the deceased had a union with the applicant. Further, the applicant annexed the birth certificates of their children showing that the deceased was the father of the said children.

19. In view of the above, I hold the view that the 1st and 2nd administrators/respondents failed to list the applicant herein as a wife and a beneficiary of the estate of the deceased and the same denotes a non-disclosure of material fact given that, had they disclosed the existence of the applicant, the court would not have made the grant to them without her participation.

20. The applicant also submitted that her consent was never sought during the filing of the succession cause despite the fact that she was a wife to the deceased.

21. 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 ….

22. 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. 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 HC 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).

23. It is my view, therefore, that the plain interpretation of the above Rule is that it is mandatory for 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 this case, more so now that there was no consent by persons of same degree given that the applicant and the 1st and 2nd administrators were wives of the deceased, it is my considered view that the respondents deliberately left out the applicant so as to have the grant made in their names to the disadvantage of the applicant herein.[See Anthony Karukenya Njeru v Thomas M. Njeru [2014] eKLR in Meru succession Cause No. 663 of 2011].

24. On the issue whether the interested party can be considered as bona fide purchaser for value; who is an innocent purchaser for value without notice? In the case of Katende v Haridar & Company Limited [2008] 2 EA 173, the Court of Appeal of Uganda held that:“For purposes of this appeal, it suffices to describe a bona fide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on a bona fide doctrine,….(he) must prove that:a.He holds a certificate of title;b.He purchased the property in good faith;c.He had no knowledge of the fraud;d.He purchased for valuable consideration;e.The vendors had apparent valid title;f.He was not party to any fraud. ”

25. Under the given circumstances, could the interested party be referred to as a purchaser for value without notice and thereby proceed to acquire a good title? Section 93 of the Act has been a subject of interpretation in various cases. In Adrian Nyamu Kigu v Elizabeth Karimi Kiugu and another [2014] eKLR, Makau J held:-Whereas the above section states that a transfer 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, I am of the considered view that such transaction can only be relied upon where the legal representative is entitled to legal representation but not where one is not and where one has obtained the grant fraudulently. The purchaser in this cause came from the neighborhood of the objector and it is not possible that he did not know of the objector herein. I therefore find and hold the sale to be invalid.

26. In re Estate of Christopher Jude Adela (Deceased) [2009] eKLR, Rawal J held, of sections 93 (1) and (2) of the Act as follows:The correct reading of those provisions will indicate that the transfer to a purchaser, if shown to be fraudulent and /or upon other serious defects and /or irregularities can be invalidated. Reading these provisions in that manner will be commensurate with the provisions of section 23 of the RTA (Cap 281 repealed) or any other provisions of law regarding proprietorship of an immovable property. It shall be very weak and unfair system of law if it gives a carte blanche of absolute immunity against challenges to transfer of immovable properties of estate by a personal representative, it shall be against all notions of fairness and justice. No court can encourage such an interpretation where a personal representative will be protected even while undertaking unethical or illegal actions prejudicing the interests and rights of the right beneficiaries of the estate.

27. In Jane Gachola Gathetha v Priscilla Nyamira Gitungu and another [2006] eKLR the court of Appeal in Nyeri stated this:-“We think with respect, that there is a fallacy in invoking and applying the provisions of Section 93(1) of the Law of Succession Act and the Superior Court fell into error in reliance of it. The section would only be applicable where firstly there is a transfer of any interest immovable or moveable property. Kabitau had no interest in plot 321 or any part thereof and therefore he could not transfer any. A thief acquires no right or interest which is transferable in stolen property. The transaction would be void ab initio and the property is traceable.”

28. The foregoing pronouncements are to the effect that Section 93 of the Act is not a panacea for fraudulent dealings with the estate property. The provision was meant to protect bonafide purchasers for value without notice. It was not meant to shield fraudulent administrators and their cohorts from innocent beneficiaries. It is an exception to the intention and spirit of the Law of succession Act that the rightful beneficiaries of the estate do inherit the estate property.

29. Further, it must not have been the intention of the Legislature that section 93 of the Act be used as a vehicle for fraud. In this regard, any transfer of estate property will be set aside if it is shown that, the transferor had not been lawfully issued with a grant confirmed under section 71 of the Act; or, the grant had been fraudulently obtained; or, the purchaser was not an innocent purchaser for value without notice.

30. In my considered view and on a balance of probabilities, the evidence adduced by the applicant points to a clear case of concealment of material facts from the court which is a ground for revocation of a grant which had been issued to the 1st and 2nd administrators/respondents in this matter.

31. For the foregoing reasons, I am satisfied that the interested party cannot benefit from a title that he acquired from a party who had obtained it through a fraudulent transaction. Such a title cannot be said to be clean title capable of vesting any legal interest on a party.[ See Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No.158 of 2000, Mwita J. noted thus:“[13] Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”[See Antony Karukenya Njeru v Thomas M. Njeru [2014] eKLR in Meru Succession Cause No. 663 of 2011].

32. In the end, the grant issued on April 16, 2015 to the 1st and 2nd administrators/respondents is hereby revoked.

33. This being a family matter, each party shall bear its own costs of the summons.

34. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 13TH DAY OF JULY, 2022. L. NJUGUNAJUDGE……………………………………..……for the Applicant…………………………………………for the Respondents………………………………………..for the Interested Party