[2017] KEHC 9807 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

SUCCESSION CAUSE NO. 70 OF 2015

IN THE MATTER OF THE ESTATE OF NJOKI KIMOTHO ADRIANCE also known as JANE NJOKI KIMOTHO, JANE NJOKI ADIANCE, JANE NJOKI KIMOTHO and JANNIE NJOKI KIMOTHO (DECEASED)

R U L I N G

1. The Application before the Court was filed on 20th February 2017. It is in effect seeking a review of the Order of this Court made on 25th January 2017. That Hearing was attended by two of the Three Executors and none of the Beneficiaries.

2. The Executors applied for confirmation of the Grant of Probate by a Summons dated 13th September 2016. In that Application, the Executors are asking the Court to depart from the strict words of the Will. The Court declined that Application and ordered that the distribution be confirmed only in accordance with the Will. The Applicant, David Adriance also known as David Holmes Adriance, the Widower is dissatisfied with that Order. He is asking the Court to review the Order as a matter of urgency. In the circumstances, the Applicant was directed to proceed by written submissions which were filed on 31st March 2017 and listed for highlighting twice due to non-attendance on 24th April 2017.

3. The issue is well defined. The Applicant argues that the Deceased’s half share in the matrimonial property known as L.R. 17/170 Peponi Road does not fall to the Estate for distribution because it vests in him by reason of it firstly being, alternatively being deemed to be a joint tenancy under Section 93(1) of the land Registration Act 2012. In the circumstances, the Applicant is adamant that the Court reconsider its decision and allow the entirety of the matrimonial home vest in him under the right of survivorship.

4. The Applicant’s argument fails to consider and therefore evaluate a fundamental part of the facts that the Court is obliged to consider. That is the terms of the Will. The Deceased executed her will on 12th November 2013. At Clause 5 of the Will she makes specific bequests. 5(c) states; “In respect of ALL THAT property known as L.R. No.17/170, situated along Peponi Road in Nairobi and registered in the names of my husband DAVID ADRIANCE and myself, without specifying whether held as tenants in common or joint tenants but with the intention and understanding that I hold and own 50% share thereof, I hereby give, devise and bequeath my said 50% share as follows….”. The Intention of the Testator is abundantly clear. She does not specify whether the matrimonial home was held as a joint tenancy or a tenancy in common but she demonstrates a clear intention to sever any joint tenancy that may or may not exist. Her words show that as a consequence of that severance, as far as she is concerned she is entitled to 50% and she wishes to bequeath it to someone other than the Applicant. That comprises an unequivocal intention to sever the joint tenancy. The Court accepts that as a clear expression of the Testator’s wishes. Therefore although the Submissions seek to lecture the Court on the Law relating to joint tenancies, in this case the facts point to severance. That is not addressed in the Written Submissions.

5. In the circumstances, the Application is dismissed. The Costs of the Application shall NOT be paid from the Estate. If it is the genuine intention of the stated beneficiaries that the entirety of the matrimonial home should vest in the Applicant that is something that they can arrange between themselves. The Court has not heard from the Beneficiaries on whether they are willing to forego their bequest or would like it to be compensated by another part of the Estate.

6. ORDER: Application Dismissed.

7. After the Ruling was delivered Counsel made subsequent submissions. The Court appreciates that the situation to be resolved is a conflict between the right to bequeath by Will and the right of survivorship in relation to a joint tenancy. This Court takes the view that the right of bequest takes precedence because it acts as severance of the joint tenancy the Land Registration Act offers no assistance. In the circumstances, the Applicant is granted leave to appeal. This was enunciated in open court but is repeated here. Time for appeal to run from the date the file is returned to the Registry on this further consideration.

Order accordingly,

FARAH S. M. AMIN

JUDGE

SIGNED AND DELIVERED AT NAIROBI THIS 4th day of October 2017

Reconsidered and returned to Registry 30th April 2018

In the Presence of:

Clerk: Patrick

Applicant: Mr K. Kuria