[2020] KEHC 7433 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT CHUKA

SUCCESSION CAUSE NO. 11 OF 2018

(FORMERLY MERU HC SUCC. CAUSE NO. 306 OF 2013)

IN THE MATTER OF THE ESTATE OF NJUE EREMANO (DECEASED)

AND

JAPHET GITARI DANIEL................PETITIONER/1ST RESPONDENT

VERSUS

JULIE KARIMI NJAGI..........................................................APPLICANT

SEVERINO MUTEGI..........INTERESTED PARTY/2ND RESPONDENT

R U L I N G

1. This is an application by way of Summons for Revocation of Grant dated 20th March 2017 lodged by JULIE KARIMI NJAGI (the Applicant) who has invoked the provisions of Section 76 of Law of Succession Act, substantively seeking for revocation of grant made on 30th April 2014 and confirmed on 9th December 2014 to JAPHET GITARI DANIEL, the Respondent herein.

2. The application is grounded on the following grounds namely;

a. That the Petitioner/Respondent secretly and fraudulently filed this succession cause without notifying other members of the deceased family.

b. That the Respondent misled the court on who the true dependants were.

c. That the Petitioner was fraudulent in the representations made to court.

d. That the signatures of beneficiaries appearing in the Summons for Confirmation of Grant may have been forged.

e. That the Respondent through deceit attempted to disinherit other dependants of the deceased.

3. In her Supporting Affidavit sworn on 20th March 2017, the Applicant depones that the deceased died and was survived by the following:

a. Julie Karimi Njagi

b. Frankline Mugambi and

c. Elijoy Kaimuri

4. She has further deponed that the Respondent wrongly listed the following as dependants;

i. Severino Mutegi

ii. Rosemary Kangai

iii. Josphine Muthoni

iv. Japhet Gitari Daniel and

v. Purity Kanini.

According to her, the deceased was survived by the following:

i. Julie Karimi Njagi

ii. Frank Mugambi Njagi and

iii. Elijoy Kaimuri

5. The applicant has averred that the Respondent presented children of Daniel who was a brother to the deceased herein and that they are out to disinherit them. She has pointed out that whereas the deceased family kept the titles to the deceased estate safe, the Petitioner/Respondent misrepresented facts through summons dated 23rd February 2015 that the titles were missing and that he could not trace them.

6. In her evidence before court the Applicant reiterated the above contents as deponed in her affidavit in support of this application. She reiterated that the Petitioner/Respondent is her cousin. She told this court that her father was known as Njue Eremano and tendered a Death Certificate P. Exhibit 1 showing that the deceased died on 3rd October 2011 aged 59 years. She further reiterated that the titles to the properties comprising the estate namely:-

a. Karingani/Mugirirwa/409 and

b. Karingani/Mugirirwa/713 were in her custody and tendered them as P. Exhibit 2 (a) and 2(b) respectively.

7. The applicant accused the Petitioner/Respondent for not informing her abou the succession cause. She conceded under cross-examination that the Petitioner/Responded had a case in court around 2008.

8. Agnes Ciamwari (PW2) testified and told this court that the deceased was her brother in law and that her husband was called Daniel Mbiuki. She further testified that she had 4 children namely:-

i. Daniel Gitari (Petitioner/Respondent)

ii. Daniel Karani

iii. Wanja

iv. Kimathi

She added that her deceased husband had also another wife with whom they got the following children:-

i. Severino Mutegi

ii. Rose

iii. Mugendi

iv. Karugu

v. Muthomi

9. She further testified that Njue Eremano (the deceased herein) had the following children;-

(i) Karimi Julie

(ii) Mugambi

(iii) Kaimuri

10. The witness told this court that her husband and Njue had a father known as Eremano and that the land was divided by the clan into 3 portions for herself, Jesca Ciambuba and Ciambaka with each getting 1 /2 acre. She added under cross-examination that the deceased was known as Njue Eremano M'Rubia and that Njue Eremano died later. She faulted the Petitioner/Respondent, who is her son for not involving her in the succession cause.

11. The Petitioner/Respondent has opposed this Summons for Revocation of Grant through a Replying Affidavit sworn on 10th May 2017. He has deponed that his father was Daniel Njue Eremano and that his father was Eremano M'Iruba. He added Eremano M'Iruba had two sons namely:-

(i) Njue Eremana alias Daniel Njue Eremano M'Irubia

(ii) Michael Njagi M'Irubia

12. The Respondent added that the 2 parcels comprising the estate herein was adjudicated upon in 1968 and that the two parcels were registered in his father's name Njue Eremano in 1969 and has exhibited respective Green Cards in regard to the two parcels (409 and 713) to support his claims.

13. He has added that according to the Death Certificate he presented in court, (Death Certificate Serial No.273012) and an introductory letter from the Chief dated 13th October 1969, the person in whose estate this proceedings relate to is Njue Eremano (deceased) who died on 13th October 1969.

14. He has alleged that in 2003 Michael Njagi M'Rubia obtained an Identity Card fraudulently in the name of Njue Eremano M'Rubia with a view to defrauding the estate of the deceased.

15. In his oral testimony in court the Petitioner/Respondent reiterated that Michael Njagi, an uncle to him took the titles in respect to the estate in an attempt to defraud them. He further added that Michael Njagi Eremano died on 3rd November 2011. He further stated that he filed this succession cause in relation to his father who died on 13th October 1969 and he tendered Death Certificate D. Exhibit 4 as proof. He also tendered a copy of the certified copy of the Register (Green Card) D. Exhibit 1. He further testified that Michael Njagi died at Chuka General Hospital on 3rd October 2011 and that upon his demise someone sneaked into the hospital and altered his name to read "Njue Lemano M'Rubia" and showed the court the alteration made. He faulted his mother for siding with the family of Michael Njagi and stated that he involved all his siblings in this cause.

16. This court has considered both the Applicant's case and the respondent's response. The main issue in this Application is whose estate does this cause relate to.

17. This court has been told by both the Respondent and the Applicant that the estate in this cause belongs to one NJUE EREMANO (deceased) The Respondent avers that the deceased died on 13th October 1969 while the Applicant states that Njue Eremano (deceased) was her father and that he died on 3rd October 2011. She told this court that she only applied for his death Certificate on 11th February 2019. The Death Certificate Serial No.0364514 was issued on 11th February 2019 and the name appearing is "Njue Lemano M'Rubia." I have looked at the petition filed plus the copies of green cards filed together with the petition and the Chief's introductory letter dated 11th July 2009. It is quite apparent that the estate for which letters of administration in this cause was sought was in regard to the late Njue Eremano who died on 13th October 1969. The evidence on the Green Cards tendered clearly shows that the Registers to the two parcels; Karingani/Mugirirwa/409 and 713 were opened in 1969 with the deceased Njue Eremano being the first registered owner of the two parcels.

18. What is apparent from the evidence tendered is that the late Njue Eremano (deceased) also known as Daniel was a brother to Michael Njagi M'Rubia and both shared a common father known as Eremano M'Irubia. It also transpired that when Njue Eremano (deceased) died in 1969, his brother Michael Njagi cleverly and fraudulently altered his name to read Njue Lenano M'Rubia perhaps with a view to fostering fraud. Moreover when he died on 3rd October 2011 someone again altered his name Michael Njue to "Njue Lemano M'Rubia" with the sole intention of perpetrating the same fraud. I am persuaded by the evidence tendered by the Petitioner/Respondent that the Applicants have no basis to stake claim on the estate of the late Njue Eremano who died in 1969. The evidence tendered by Agnes Ciamwari, the mother to the Petitioner seems to only to suggest that the late Eremano Njue held the estate in trust of his brother Michael Njagi Eremano. This application however before me is not based on trust. It is based on concealment.

19. The Applicant has not disclosed sufficient grounds for this court to revoke the grant because it is clear from the evidence that the estate belongs to Njue Eremano who died in 1969 and not Njue Eremano who died in 2011 as the Applicant urges this court to find.

However this court having been made aware of the fact that the widow or the wife of the late Njue Eremano (deceased), Agnes Ciamwari is alive and was not involved in the Administration of the estate of her late husband, I am inclined to find that there was some concealment by the Petitioner/Respondent. For clarity the finding of concealment is only to that extent.

In the premises, the grant issued on 13th April 2014 and confirmed on 9th December 2014 is hereby revoked. A fresh grant in respect to the estate of Njue Eremano (deceased), shall hereby issue to both Japhet Gitari Daniel and Agnes Ciamwari. The two are both given liberty to move this court jointly or individually for confirmation of grant before the expiry of the statutory period of six months owing to the age of this cause. I shall make no order as to costs.

Dated, signed and delivered at Chuka this 11th day of March 2020.

R.K. LIMO

JUDGE

11/3/2020

Ruling signed, dated and delivered in the open court in presence of Petitioner and Applicant.

R.K. LIMO

JUDGE

11/3/2020