[2022] KEHC 13871 (KLR)

In re Estate of Philip Wachira Koigu (Deceased) (Succession Cause 883 of 2009) [2022] KEHC 13871 (KLR) (19 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13871 (KLR)

Republic of Kenya

In the High Court at Nyeri

Succession Cause 883 of 2009

JN Njagi, J

October 19, 2022

IN THE MATTER OF THE ESTATE OF PHILIP WACHIRA KOIGU (DECEASED) KANJA WACHIRA KOIGU ……..................……APPLICANT/ OBJECTOR VERSUS RONALD KAHARU WACHIRA ……......................................RESPONDENT

Ruling

1. By way of amended summons for revocation of grant dated 24th November 2021, the applicant herein seeks for the following prayers:a.Spentb.That grant of letters of administration intestate to the estate of Philip Wachira Koigu granted to Samuel Kaharu Wachira and Ronald Kaharu Wachira on 1/4/2010 and confirmed on 3/2/2012 in this matter be revoked.c.That upon grant of prayer (b) above this Honourable Court be pleased to issue an order directing the Land Registrar Nyeri to rectify the register by cancelling any subdivision and/ or dealing on the parcel of land known as Mweiga/Gakanga/110 after the death of the deceased and the title to revert to the deceased for the purposes of distribution.d.That costs of this application be provided for.

2. The application is supported by grounds on the face of the application and by an annexed affidavit of Kanja Wachira Koigu alias Thomas Kanja Wachira Koigu dated 24th November 2021.

3. The application is opposed by the respondent vide a replying affidavit sworn on 26th November 2021 by himself as the legal representative of the Estate of Philip Wachira Koigu (Deceased).

4. The brief facts of the case are that both the applicant and the respondent are sons of the deceased in this succession cause. Upon the demise of the deceased in 1991, the respondent and his late brother, Samuel Kaharu Wachira, filed this succession cause. They sought for summons for confirmation of grant in respect to land parcel No.Mweiga/Gakanja/110. The grant was confirmed on the 3rd February 2012 and the said parcel of land was shared out between the respondent and his 6 other brothers. The resultant titles were registered in their respective names. The titles are Nos. Mweiga/Gakanja/283-289. The applicant was excluded from the sharing of the said property.

5. The applicant now contends that he was not involved in the succession cause and was deliberately left out in the distribution of the estate despite him being a beneficiary. That the petitioners forged his signature of consent to hoodwink the court that he had signed the consent to making of grant. That he never consented to not receiving a share of his father`s estate and neither did he renounce his entitlement. That he was not present in court on the date the grant was confirmed. That he was disinherited without just cause.

6. The applicant further says that during the time of making the grant, some properties of deceased were left out while some that did not form part of the estate were included as assets of the deceased. The assets left out are:(i)Gakanja plot No.3(ii)Gakanja plot No.16(iii)Plot No.38 Ndaragwa Kahuthia.

7. The applicant contends that land parcel No.Nyandarua/Ndaragwa Block 1 (Kahuthia)/88 was listed amongst the assets of the estate when it was not. Therefore, that the grant was obtained fraudulently and/or misrepresentation by concealment of material facts and as such should be revoked.

8. In opposing the application the respondent contends that the applicant is the one who refused to be involved in the succession cause. That the applicant was given land parcel No. Mweiga/Gakanja/203 measuring 3 acres by the deceased during his lifetime which he has refused to register in his name to disguise that he has been disinherited.

9. The respondent further says that after the death of the deceased the applicant fraudulently registered in his name the deceased`s land parcel No.Nyandarua/Ndaragwa Block1 (Kahuthia)/88 for which they have been litigating in Nyeri ELC case No.237 of 2014. That vide a judgment delivered on 14th October 2021, the Land & Environment Court found that the said land parcel belonged to the deceased and that the applicant fraudulently acquired title to the said land as a consequence of which the court nullified his title. That the respondent refused to be part of the succession proceedings because he had already acquired the said property illegally. That the respondent wants to disinherit his other siblings by fraudulently acquiring LR No. Nyandarua/Ndaragwa Block 1 (Kahuthia)/88 and Mweiga/Gakanja/203. That the instant application is calculated to delay this matter and has been brought to court in bad faith and should be dismissed.

10. In response to the replying affidavit, the applicant contended that land parcel No. Mweiga/Gakanja/203 has never formed part of the deceased`s estate. That he has filed an appeal at the Court of Appeal on the judgment of the ELC court. He reiterated that he never renounced his rights to the estate of his father yet he was left out in the petition.

11. The application was canvassed by way of written submissions. The applicant through his advocates, Raydon Mwangi & Associates Advocates, submitted that the respondent admitted that he left the applicant out of the succession proceedings. That the applicant did not renounce his entitlement on the estate of the deceased. That failure to notify the applicant of the cause was a violation of the provisions of Rule 26 of the Probate and Administration Rules which requires a petitioner to get consent from the beneficiaries of the estate before filing the petition. Therefore, that the process of confirmation was defective in substance.

12. It was submitted that the respondent admitted that some assets of the estate were left out in the petition. That the respondent concealed from the court that the deceased had other properties. Counsel for the applicant cited several cases where courts revoked the grant for failure to involve the beneficiaries in the proceedings. In one of the cited cases in Re Estate of Magangi Obuki (Deceased)(2020) eKLR the court stated that:-The Respondent’s justification for excluding the objector from the proceedings in Succession Cause 408 of 2005 is that the deceased left the objector and his mother a piece of land in Kisii. However, that notwithstanding the respondent should have complied with Rule 26 of P & A Rules set out above, to get consent from all the beneficiaries of the deceased’s estate before filing the petition. The objector had not renounced his rights to the estate. He should have been notified of the filing of the cause. That is the first irregularity noted in the petition by the Respondent.

13. In Re Estate of Moses Wachira Kimotho (Deceased)Succession Cause 122 of 2002 (2009) eKLR, the court made pronouncements on the importance of disclosing all material facts before a court of Law while seeking letters of administration and confirmation thereof. It observed;“I am certain that had the applicants been made aware of the application for the confirmation of grant by being served they would have brought to the fore their aforesaid interest in the estate of the deceased and the resultant grant would have taken care of those interests. Further had the respondent been forthright and candid and included the applicants as beneficiaries of a portion of the estate of the deceased as purchasers for value, the court in confirming the grant would have taken into account their interest in the estate of the deceased. As it is therefore the grant was obtained fraudulently by making of a false statement and or concealment from court of something material to the cause. The respondent knew of the applicants’ interest in the estate of the deceased yet she chose to ignore them completely in her petition of letters of administration intestate. She also ignored them completely when she applied for the confirmation of the grant."

14. Counsel submitted that the object of the court is to uphold substantive justice which in this case will only be done by ensuring that the applicant who was left out when the proceeds of the estate were shared is given his share of the estate.

15. The advocates for the respondent, Karanja Maina & Co. Advocates, on the other hand submitted that the application does not satisfy the provisions of section 76 of the Law of Succession Act. That the applicant knew of the succession cause and chose not to participate as he had fraudulently acquired land parcel Nyandarua/Ndaragwa Block 1 kahuthia)/88 so as to be the only beneficiary. That the applicant was given land parcel No.Mweiga/Gakanja/203 by the deceased. That the applicant should have raised the issues he is raising now during confirmation of the grant which he refused to participate.

16. I have carefully considered the grounds in support of the application, the grounds in opposition thereto, the pleadings and the submissions by the learned counsels for the parties. The issue for determination is whether the grounds for revocation of grant under section 76 of the Law of Succession Act have been established.

17. Section 76 of the Law of Succession Act provides as follows:“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 -(a)That the proceedings to obtain the grant were defective in substance;(b)That the grant was obtained fraudulently by making of a false statement or by concealment from the court of something material to the case;(c)That the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently:"

18. 1t is the duty of an applicant to prove that any of the grounds set out under Section 76 has been committed before the court can revoke a grant already issued. It has to be noted that the power to revoke a grant is a discretionary one that must be done only in deserving cases. In the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No.158 OF 2000, (As cited in re Estate of Magangi Obuki (Deceased) [2020] eKLR), Mwita J. made remarks on the guiding principles for the revocation of a grant and stated that:“(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.”

19. The application herein is based on the ground that the respondent did not involve the applicant when he filed the petition and when he distributed LR No. Mweiga/Gakanja/110. Therefore, that the applicant was disinherited despite being a beneficiary to the estate. Further that the respondent left out other assets of the deceased when he filed the petition.

20. The respondent admitted that he indeed did not involve the respondent in the proceedings of the succession cause. The reason he gave for not involving him in the proceedings was that the deceased had during his lifetime given the applicant LR No. Mweiga/Gakanja/203.

21. Rule 26 of the Probate & Administration Rules provides as follows:(1)Letters of Administration shall not be granted to any applicant without notice to any other person entitled in the same degree as or in priority of the applicant.2)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 communication, or written consent in Form 38 or 39, by all persons so entitled in equality or priority be supported by an affidavit of the applicant and such other evidence as the court may require.

22. It is clear from the provisions of the said rule that a beneficiary is required to be notified of the filing of a succession cause and his consent be sought to that end. A perusal of the petition herein shows that the respondent filed P & A form 38, being consent to the making of a grant of administration intestate to a person of equal or lesser priority dated 28/9/2009, which was purportedly signed by all the beneficiaries including the applicant. The applicant denies to have signed the said consent and averred that his signature on the document was forged. The respondent in his replying affidavit did not contest the averment that the applicant did not sign the said form. He instead admitted that he did not involve him in the filing of the petition. This confirms the averment by the applicant that his signature on the said form was forged. The grant was therefore obtained fraudulently by the making of a false statement that the respondent had given his consent to the filing of the petition. The applicant therefore never gave his consent nor did he renounce his right as provided by Rule 26 the Probate & Administration Rules.

23. Further to this Rule 40(8) of the Probate & Administration Rules requires all persons beneficiary entitled to the estate to give their consent in P & A 37 before the grant is confirmed. The petition herein indicates that the respondent during confirmation of the grant sought the consent of all his siblings except the applicant. This confirms his statement that he had indeed decided to exclude him from the proceedings. The grant was in the circumstances defective in substance for failure to comply with the provisions of Rule 26 and 40(8) of the P &A Rules.

24. The respondent admitted during the hearing in Nyeri ELC case No.237 of 2014 that three of the properties of the deceased were left out in the petition. However, no titles have been filed in this succession cause to demonstrate that those properties form part of the estate of the deceased. That notwithstanding, it has not been shown that the property was excluded from the proceedings with an ulterior motive. The mere exclusion of the property would not by itself be sufficient reason for revocation of the grant. This is because the grant can be rectified in respect of the property that was left out and distribution done. In the premises, I do not find any merit in this ground.

25. It is clear that there is one property that the respondent contends to be part of the estate of the deceased that is the subject of civil litigation between the applicant and the respondent. The dispute is currently before the Court of Appeal. The prudent thing to do is to await the determination of the said court on whether the property forms part of the estate of the deceased or not.

26. The instant succession cause was filed on the 28/9/2009 and the grant was confirmed on the 3rd February 2012. The applicant filed the summons for revocation of grant on the 24th November 2021. This was soon after the ELC Court nullified his title to LR No. Nyandarwa/Ndaragwa Block 1 (Kahuthia)/88 on the 14th October 2021. What is the coincidence that the applicant filed the instant application soon after losing the suit over the said land? The applicant is the elder bother of the respondent. The dispute over the Kahuthia land was filed in 2011 (originally HCCC No.2 of 2011 before it was transferred to the ELC Court). It is not possible that the applicant was not aware during all this period that there was a succession cause filed in respect to his father`s estate. My thinking is that he had contented himself with his fraudulent acquisition of land parcel Kahuthia/88 and had no interest in the Mweiga/Gakanja/110. He has now woken up to the realization that there is a possibility of him losing the Kahuthia land to the estate of his father. I have no doubt that that is the reason why he now wants to be given a share of LR Mweiga/Gakanja/110. He is just taking advantage of the transgressions committed by the respondent in the process of filing the petition and obtaining the grant.

28. Whether the applicant had interest in land parcel Mweiga/Gakanja/110 or not, the respondent was obligated to follow the procedure as set out in the Law of Succession Act when filing the petition and obtaining grant of letters of administration. The Act provides elaborate provisions for even a person who has no interest in the property such as issuing a citation for him to show cause why he should not file grant of letters of administration. The person is required to give consent before the filing of the petition and before confirmation of the grant. The respondent failed to follow this procedure in the case of the applicant. The respondent made a false statement that the respondent had given consent to the filing of the petition. The proceedings to obtain the grant were therefore defective in substance for failure to comply with the law. There are sufficient reasons for revoking the grant.

29. It is trite that the object of the court is to uphold substantive justice. It is my considered view that justice in this case would be served if the applicant who was left out during the sharing of his father`s estate is considered in a fresh re- distribution of the estate. In the premises the grant issued herein, the certificate of confirmation of grant and the sub-division and resultant registration should be cancelled to enable fresh re-distribution of the estate. If the applicant was given any land by his father, that ought to be determined during the hearing of the petition.

30. The upshot is that there is merit in the application. I therefore make the following orders:a.The grant of letters of administration intestate to the estate of Philip Wachira Koigu granted to the late Samuel Kaharu Wachira and Ronald Kaharu Wachira on 1/4/2010 and confirmed on 3/2/2012 in this matter is revoked.b.The sub-division and registration of land parcel Mweiga/Gakanja/110 into land parcels Mweiga/Gakanja/283, 284, 285, 286, 287, 288 and 289 is hereby cancelled.c.The Land Registrar Nyeri is hereby ordered to rectify the register by cancelling title Nos. Mweiga/Gakanja/283, 284, 285, 286, 287, 288 and 289 and the titles to the said parcels of land are hereby ordered to revert to the original number, Mweiga/Gakanja/110 in the name of the deceased herein, Philip Wachira Koigu, for purposes of distribution of the deceased`s beneficiaries.(d)A fresh grant of letters of administration is to issue to the respondent herein, Ronald Kaharu Wachira.

31. Orders accordingly. As the matter involves members of the same family, each party is ordered to bear its own costs.

SIGNED THIS 14TH SEPTEMBER 2022. J. N. NJAGIJUDGEDELIVERED, DATED AND SIGNED AT NYERI THIS 19TH DAY OF OCTOBER, 2022. By:J. N. NJAGIJUDGEIn the presence of:Mwangi for ApplicantKaranja for RespondentApplicant :present.Respondent: present.Court Assistant Kinyua.30 days R/A.