[2017] KEHC 2637 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

SUCCESSION CAUSE NO. 98 OF 2013

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

ANN WAMUYU GATHU………………..…………..…..….1ST APPLICANT

MARY GATHIGIA NJUE…………….……..……...….…....2ND APPLICANT

CATHERINE WAMBUI NJUE………….…...………..……3RD APPLICANT

JESINTA WANGU NJUE…………….…..…………...........4TH APPLICANT

SUSAN WANGARI NJUE………….……...……........……5TH APPLICANT

JOHN MWANGI NJUE………….……..………….....…….6TH APPLICANT

VERSUS

PETER MWAI NJUE..…………..........…1ST PETITIONER/RESPONDENT

FREDRICK WANJOHI KARANI…….....………………2ND RESPONDENT

RULING

1. The applicants, ANN WAMUYU GATHU, MARY GATHIGIA NJUE, CATHERINE WAMBUI NJUE, JESINTA WANGU NJUE, SUSAN WANGARI NJUE,and JOHN MWANGI NJUE filed a Summons for Revocation and Annulment of Grant under Section 76 of the Law of Succession Act and Rules 44 (1) of the Probate and Administration Rules. They seek an order that the grant of letters of administration granted to the petitioner Peter Mwai Njue and confirmed on 30th October, 2013 be revoked and/or annulled. The application is based on the grounds which are on the face of the application. They are as follows:

(a) The applicants here who are children of the deceased were not involved and consulted by the 1st respondent during the succession cause herein.

(b) They only came to learn of the existence of the succession cause when the land was being subdivided and issued to the 2nd respondent.

(c) This has caused acrimony in the family and the 2nd respondent is on the verge of evicting the applicants.

(d) There is imminent danger of eviction of beneficiaries who have been left out in the sharing of the deceased estate hence the orders sought.

(e) The deceased had orally shown the applicants and the petitioner how the land will be shared amongst themselves.

(f) If the orders sought are not granted the applicants will have no place to live in.

2. The cause relates to the estate of Njue Gaturu, deceased. Grant of temporary Letters of Administration to the estate were issued to Peter Mwai Njue and later confirmed on 30th October, 2013. The estate of the deceased which was comprised of Land Parcel No. Kiine/Kiangai/996 measuring 0. 81 hectares was distributed as follows: Peter Mwai Njue 0. 41 hectares and Fredrick Wanjohi Karani 0. 40 hectares. Peter Mwai Njue had petitioned for the grant of letters of administration as a son of the deceased while Fredrick Wanjohi applied as a buyer having bought a portion of the estate from the Petitioner.

3. The applicants have brought this application based on the above grounds and claiming that they are children and wives of the deceased who were beneficiaries entitled to the estate of the deceased. They are contending that they were not consulted nor involved during the succession proceedings and only came to know of its existence after the suit land had been sub-divided and issued to the 2nd respondent Fredrick Wanjohi Karani. It is the contention by the applicants that the Petitioner who is their brother inherited the whole estate and has since transferred the same to the 2nd respondent Fredrick Wanjohi Karani who is on the verge of evicting them.

4. The applicants also sought for an order of inhibition and/or prohibitory orders against registration of any transfer, charge, lease or any dealing with the deceased’s estate pending the hearing and determination of the application for revocation of grant.

5. The Respondents were duly served but did not file any papers to oppose the application. The 2nd respondent who appeared in Court stated that he bought the land from the Petitioner who is the registered owner. He confirmed that the Petitioner was aware of the matter.

6. The applicants claim interest as beneficiaries entitled to the estate. Section 29 of the Law of Succession Act Cap. 160 defines beneficiaries as wife or wives or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death. The applicants being dependants of the deceased were entitled to a share of the estate. They contend that they were not informed of the proceedings nor did they consent to the distribution of the estate. Rule 26 (1) of the Probate and Administration Rules provides that 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. A grant issued without involving all the beneficiaries entitled to the estate cannot be upheld by the court as the same is obtained through non disclosure of material facts.

7. The Petitioner did not obtain the necessary consent from other dependants when he applied for letters of administration of the deceased’s estate. He then proceeded to distribute the estate to the 2nd respondent who was not a beneficiary entitled to the estate but a buyer. The Petitioner by so doing denied the rightful beneficiaries a share and dealt with the estate fraudulently. The net effect is to disinherit the beneficiaries and render the widows to become landless. This is good reason for this Court to order the revocation of the grant. In Re Estate of David Ngugi Muhoro (deceased) (2011) eKLR where the wife of the deceased and her three children were not named as beneficiaries though the administrator claimed that the wife had separated with the husband. The Court revoked the grant and stated:

“There are many questions which have been posed for which there are no answers and the only reasonable answer is that the respondent fraudulently obtained the said letters of administration and did not consult either the applicant or the children who are the beneficiaries of the deceased’s estate.”

The Law of Succession Act gives Court wide powers to annul/and/or revoke the grant. At Section 76 it is provided:

“A grant of representation, whether or not confirmed may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion

That the grant was obtained fraudulently by the making of a false statement or by concealment from the Court of something material to the case.”

8. I am of the view that the Petitioner obtained the grant fraudulently. His intention was to disinherit other beneficiaries by disposing of the estate to a buyer without their knowledge and consent. The applicants did not inherit a share of the estate though they were entitled. The Petitioner did not oppose the application. There was non-compliance with rule 26 (1)of the Probate and Administration Rules (supra). The applicants have shown that they were beneficiaries entitled to the estate in priority to the 2nd respondent. They ought to have been involved and their consent obtained. The estate could only be distributed amongst all the beneficiaries. It is only after the distribution that a party could dispose of his share. I am of the view that the applicants have proved the grounds to warrant this Court to order that the grant be revoked. The application has merits and is allowed. There shall be inhibition on the title Kiine/Kiangai/996 until further orders of this Court.

Dated and delivered at Kerugoya this 12th day of October, 2017.

L. W. GITARI

JUDGE

Read out in open court, parties present, court assistant Naomi Murage, this 12th day of October, 2017.

L. W. GITARI

JUDGE

12. 10. 2017