[2023] KEHC 27269 (KLR)

In re Estate of Raphael Kamau Gicharu (Succession Cause 494 of 2007) [2023] KEHC 27269 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 27269 (KLR)

Republic of Kenya

In the High Court at Mombasa

Succession Cause 494 of 2007

G Mutai, J

November 10, 2023

In the matter of the Estate of Raphael Kamau Gicharu

Between

Susan Murugi Muiruri

1st Petitioner

Esther Wanigu Muriuki

2nd Petitioner

and

Mary Nyaguthii Kamau

Respondent

Judgment

1. The decedent, whose estate is the subject matter of these proceedings, is Raphael Kamau Gicharu alias Raphael Kamau. I shall hereafter refer to him as “the deceased”. The deceased was the son of Mwanahawa Wanigu (deceased). His said mother had 2 sons, the deceased and one Mohamoud Muiruri Adam (deceased). The deceased died on September 26, 2006 at the Coast General Hospital. Upon his demise the petitioners/respondents applied for grant of representation of his estate, vide these proceedings, on the grounds that they were respectively his granddaughter and daughter-in-law. This, as shall become clear in this ruling, is incorrect. The petitioners made no mention of the fact that the deceased had previously been married to Mary Nyaguthii Kamau, the respondent/applicant herein. The grant was issued by Prof. Jackton Ojwang, J (as he then was) October 26, 2009. The same was confirmed on May 25, 2010 by Lady Justice Maureen Odero.

2. The respondent/applicant, on her part, applied for grant vide Mombasa High Court Succession Cause No. 24 of 2012; In the Matter of the Estate of Raphael Kamau. In this latter petition the last name of the deceased was omitted. His postal address was given as P. O. Box 5 Kaptama. In my perusal of the file I have not seen evidence of the residence by the deceased in Mt. Elgon area nor an explanation for the use of this particular address. The grant, in respect of the second petition was issued by Edward Muriithi, J on July 2, 2012.

3. On May 19, 2023 this court delivered a ruling in respect of the 3 applications that were then pending. In dispositive parts of the ruling I, inter alia, directed as follows:-1. I consolidated Succession Cause No. 24 of 2012; In re Estate of Raphael Kamau and Succession Cause No. 494 of 2007; In re Estate of Raphael Kamau Gicharu and ordered that pending applications being summons for Revocation of Grant dated May 9, 2022 and October 26, 2022 be heard and determined together; and2. I found and held that Succession Cause No. 73 of 1996; In re Estate of Mwanahawa Wanigu (deceased) was spent and that her estate had been fully distributed. In the circumstances I ordered that the relevant court file be closed.

4. I have already stated that the deceased was earlier married to Mary Nyaguthii Kamau. The marriage was dissolved through court proceedings and decree absolute issued on 24th June 1992. The two thereafter lived separate lives until the demise of the deceased in 2006.

5. The summons for revocation of grant dated 26th October 2022 seeks the following orders: -a.Spent;b.That the grant of letters of administration obtained by the respondent in Succession Cause No.24 of 2012 be revoked for concealment of material facts; andc.That the grant issued in Succession Cause No.73 of 1996 be considered the only valid grant dealing with the properties subject matter of the estate herein and the applicants be substituted therein as administrators of the estate of Mwanahawa Wanigu (deceased).

6. The summons is premised on the grounds therein and the affidavit of the 1st petitioner/respondent sworn on October 26, 2022, on her own behalf and also that of the 2nd petitioner/Respondent.

7. She stated that they are related to the deceased by virtue of the fact that he was her uncle and a brother-in-law to the 2nd petitioner/respondent. In the said deposition she stated that the deceased was the son of Mwanahawa Wanigu(Deceased), who was her grandmother. The said Mwanahawa was also mother to Mohamed Muiruri Adam (Deceased), who was her father. Mwanahawa predeceased her two sons as she died on January 22, 1996 leaving Plot No. 5391/III/MN, on which was erected a house without land, as one of the two assets of her estate. The two sons applied for letters of administration which were issued on September 10, 1997. The same had not been confirmed by the time Mwanahawa’s said two sons died. Prior to their demise they entered into an agreement for apportionment of her two properties. Vide the said agreement Plot No. 5391/III/MN was set aside for the deceased.

8. She further stated that the respondent/applicant was married to the deceased. Their marriage was dissolved on 24th June 1992. After the dissolution of the said marriage, she, together with other family members, took care of the deceased until his death. Upon his death they buried him. The respondent/applicant did not attend the funeral as two lived separately after the divorce.

9. She stated that the property the respondent/applicant is claiming belongs to the estate of Mwanahawa Wanigu (deceased) the mother to the deceased and not the deceased. She averred that she is entitled to a share of the estate as a grandchild of Mwanahawa.

10. She stated that the respondent/applicant falsely indicated that she was the only beneficiary without mentioning them as the next of kin to the deceased herein. She further stated that they have since renovated and invested massively in Plot No.5391/III/MN, which is rented out to tenants and proceeds shared by beneficiaries who stand to suffer irreparably if the status quo changes.

11. The summons dated May 9, 2022 seek revocation of the grant of letters of administration intestate issued on October 21, 2009 to the petitioners and confirmed on May 14, 2010, on the grounds that the grants were obtained through concealment of material information, which if revealed, this court would not have issued the grants, the proceedings to obtain the grant were conducted without informing the applicant herein who was the rightful person to apply for the grant; the said grant was obtained fraudulently by the concealment from this court of a material fact that the applicants were not granddaughter and daughter as stated in the pleadings.

12. The summons is supported by the supporting affidavit of the respondent/applicant sworn on May 9, 2022. She stated that she got married to the deceased herein in 1981 with whom they resided in Nyeri and Mombasa. That their marriage was not blessed with any issue, neither did the deceased sire any child with another woman. They divorced in 1992 and a decree absolute was issued after which they separated.

13. She stated that the deceased’s mother was Mwanahawa Wanigu(Deceased) who died leaving behind the deceased herein and his brother Mahmoud Muiruri Gicharu. On the demise of their mother the two brothers entered into agreement on December 2, 1997. The mother had sub divided her properties to her two sons as follows: Raphael Kamau (Deceased), house without land in Mtwapa and Mahmoud Muiruri, 2 houses without land in Magongo. Mahmoud predeceased his brother, leaving behind several wives and children whom he never used to reside with. Upon his demise his properties were taken by the 1st petitioner/respondent and the 2nd petitioner/respondent who was the first wife to Mahmoud although they had divorced.

14. She averred that at the time of the death of the deceased she was ailing and could not attend his burial and when she engaged the 1st petitioner she informed her that she had taken the house however, she was yet to commence succession as she waiting for her. She then filed Succession Cause No.24 of 2012 and was issued with grant of letters of administration. She then informed the tenants of the same but to her surprise the 1st petitioner came up and indicated that she had already applied for letters of administration which had already been confirmed. He stated that she was not hitherto aware of the issuance of the said grant nor its confirmation.

15. She further stated that the petitioners included the Magongo and Mtwapa properties so as to mislead the court. The petitioners gave false information to court by stating that they were granddaughter and daughter in law respectively of the deceased herein. The petitioners/respondents did not disclose to the court that the deceased had a former wife who was entitled to the estate of the deceased.

16. She urged the court to revoke the grant of letters of administration issued to the petitioners/respondents and she be named the administrator and sole heir of the estate of the deceased.

17. The matter was canvassed by way of viva voce evidence.

18. The respondent/applicant testified under oath. She relied on her witness statement dated April 13, 2022 as well as her list of documents. She reiterated the averments in her affidavit and told the court that she got to know the 1st petitioner/respondent after the death of the deceased. The deceased never remarried nor was the suit property distributed after divorce. It was her evidence that she participated in the development of the suit property and that it was their family property. She further told the court that she kept in touch with the deceased despite the fact that they were living separately and that she did not claim matrimonial property as the deceased declined to accept divorce.

19. She testified that the petitioners/respondents are still collecting rent from the deceased estate. She stated that the deceased was taken care of by pastors, as he was a pastor, and not by the petitioners/respondents as claimed. It was her evidence that the estate of Mwanahawa Wanigu (deceased) no longer exists as it was distributed and that the grant issued to the petitioners/respondents was fraudulent as the petitioners/respondents did not involve all family members. She therefore urged the court to revoke the same.

20. The 1st petitioner/respondent, on the other hand, relied on her affidavit sworn on May 5, 2014, her witness statement and the bundle of documents dated July 10, 2023. She reiterated the position in the affidavit and witness statement and stated that the late Mwanahawa did not distribute the houses during her lifetime. The same was distributed by the two brothers through an agreement after the demise of their mother.

21. It was her evidence that she took over the property after the death of the deceased without documentation and has been receiving rent from the said property since 2006. The grant of representation in respect of the estate of Mwanahawa was never confirmed.

22. Upon the closure of the parties cases the court directed parties to file written submissions. Subsequently, the petitioners/respondents through their advocates, M. K Mulei & Company Advocates filed their written submissions dated September 26, 2023. Counsel submitted that the properties in question belong to the estate of Mwanahawa which was distributed by her two sons in 1997.

23. Counsel submitted that the applicant’s claim is based on the argument that she contributed by supervising the construction of the suit property. The applicant is not entitled to any interest in the property as she did not claim her share after divorce of during the life time of the deceased’s mother or the deceased. After divorce the applicant did not bother about the welfare of the deceased who suffered ill health for a very long time. It was submitted that Section 29 of the Law of Succession Act does not apply in this case neither can the applicant inherit the deceased estate as a spouse as she is divorced meaning the marriage came to an end unless as a claim for matrimonial property which it is not.

24. Counsel submitted 1st petitioner/respondent being the daughter of the deceased’s brother Mohamoud Muiruri Adam, together with her brothers and sisters, are the closest in consanguinity to the deceased as the property devolved upon the deceased long after divorce and the demise of his mother.

25. Counsel relied on Section 76 of the Law of Succession Act and submitted that the applicant deliberately failed to disclose her actual status and thus the grant issued to her is defective and ought to be revoked.

26. On the respondent/applicant’s application dated 9th May 2022, counsel submitted that the application is not merited and should be dismissed with costs as the respondent/applicant was divorced in 1992. The suit property belonged to Mwanahawa Wanigu (deceased), the deceased’s mother and only devolved to the deceased upon her demise. The said fact informed the decision not to involve her as a beneficiary of the deceased’s estate and thus no material facts were concealed.

27. On the allegation that the proceedings were conducted without informing her, counsel relied on Section 66 and 39 of the Law of Succession Act on the order of consanguinity and submitted that there is no provision for a former wife and thus the applicant was not entitled to apply for the grant in respect of the deceased’s estate neither was her consent necessary.

28. Counsel further submitted that the applicant had not proved fraud.

29. The applicant on the other hand through her advocates Munyithya, Mutugi, Umara & Muzna Company Advocates filed written submissions dated August 10, 2023. Counsel submitted on three issues namely; whether the grant dated May 25, 2010 was fraudulently obtained by making false statement or by the concealment from the court of something material to the case; whether the respondent/applicant (Mary Nyaguthii Kamau) is a dependant of the estate of the deceased; whether the petitioners should refund or cease from benefitting from the estate of the deceased.

30. On the first issue, counsel relied on Section 76 of the Law of Succession Act and submitted that the petitioners/respondents gave wrong information on their relationship with the deceased. For that reason, the proceedings leading to the issuance of the grant on May 25, 2010 were defective in substance. In support this position counsel relied on the case of In re Estate of Agwang Wasiro (Deceased)[2010]eKLR.

31. Counsel further submitted that the petitioners/respondents cannot claim ignorance and thus it is clear that their intention was to conceal their true identity from the court.

32. Counsel relied on Section 29 of the Law of Succession Act and the case of Public Trustee v Esther Jepsongok Keter[2012]eKLR and submitted that a former wife is a dependant of the deceased and that the fact that the 1st petitioner new of her existence and failed to disclose to the court amounted to concealment of material information meant to fraudulently deprive her of the inheritance. Counsel further relied on rule 73 of the probate and administration rules and urged the court to revoke the grant issued to the petitioners on October 26, 2009 and confirmed on May 25, 2010.

33. On the 2nd issue counsel relied on Section 29 of the Law of Succession Act and submitted that it was not in dispute that she was the deceased’s former wife and thus she has the right to his estate. Counsel further relied on sections 6, 7 and 9 of the Matrimonial Property Act, No. 49 of 2013 and submitted that the applicant contributed to the establishment and construction of the suit property during the subsistence of her marriage to the deceased. The suit property being the only existing property under the deceased’s estate and the applicant having called it a matrimonial home and contributed to its improvement it is only fair and just that the court finds her to be the only surviving beneficiary of the deceased.

34. On the third issue counsel submitted that it was evident that the grant issued on October 26, 2009 and confirmed on 25th May,2010 was null and void and should be revoked forthwith for having been acquired using false statements and concealment of material facts.

35. I have considered the two summons for revocation, the responses therein, the oral evidence of parties and the rival submissions both counsel and the issues that emerge for determination are:a.Which grant, between the one issued to the respondent/applicant on July 2, 2012, and the one issued to the petitioners/respondents on October 26, 2009, and confirmed on May 14, 2010, should be revoked?

36. Section 76 of the Law of Succession Act provides for grounds of revocation 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 the making of a false statement or by the 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;d.That the person to whom the grant was made has failed, after due notice and without reasonable cause either—i.To apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; orii.To proceed diligently with the administration of the estate; oriii.To produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; ore.That the grant has become useless and inoperative through subsequent circumstances.”

37. The court in the case ofIn re Estate of DKB (Deceased)[2020] eKLR stated: -“From the wording of the above provision, it is apparent that authority to revoke a grant is a matter of discretion by the trial court. In recognizing these wide powers conferred upon the court under Section76 of the Law of Succession Act, the Court of Appeal in the case of Nyaga Cottolengo Francis versus Pius Mwaniki Karani (2017)eKLR had this to say:-“The combined effect of the provisions of the law cited above is to clothe the court with considerably wide powers to do justice in any particular estate of a deceased person on case by case basis.The discretion excisable is in terms unfettered but, of course, it must be guided by the law and reason but not whims or caprice”However, revocation of a grant is not a mechanical act but a product of clearly defined legal parameters. It is incumbent upon the applicant to prove one or more of the conditions set out under section 76 of the law of succession Act.”

38. The petitioners/respondents in their summons for revocation of grant issued to the respondent/applicant sought to have the grant revoked on the ground that the applicant falsely indicated that she was the only beneficiary in her Succession Cause No.24 of 2012 without mentioning them as the next of kin to the deceased herein. Further on the ground that the applicant is not a beneficiary of the deceased estate as she divorced the deceased in 1992 therefore ceasing to be a wife. They also urged that the respondent/applicant deliberately failed to disclose her actual status thus the grant issued to her is defective and ought to be revoked. They that argued there is no provision for a former wife and thus the applicant was not entitled to apply for the grant in respect of the deceased’s estate neither was her consent necessary.

39. On the other hand the respondent/applicant sought to have grant issued to the petitioners/respondents revoked on the ground that the grants were obtained through concealment of material and important facts to the court and which revealed this court would not have issued the grant, leave alone confirming the same; the proceedings to obtain the grant were conducted without informing the applicant herein who was the rightful person to apply for the grants; the said grant was obtained fraudulently by the concealment from this court of a material fact that the applicants were not granddaughter and daughter as stated.

40. The respondent/applicant submitted that the petitioner in her affidavit dated May 5, 2014 indicated that the grant had mistakes but opted to conceal the same and only came to admit the same after she sought to have the grant revoked thus for that reason the proceedings leading to the issuance of the grant on 25th May 2010 were defective in substance. The petitioners/respondents cannot claim ignorance.

41. My understanding of this case is that the major dispute is on who is the beneficiary to the estate of the deceased and who was entitled to apply for the grant of letters of administration. The fact that the applicant divorced the deceased in 1992 during the lifetime of Mwanahawa and before distribution of her estate is not in dispute. However, the applicant has argued that she kept in touch with the deceased and that none of them remarried and that she is the sole beneficiary of the estate as a former wife and the fact that she contributed to the development of the suit property.

42. Section 2 of the Law of Succession Act defines wife as follows;“wife" includes a wife who is separated from her husband and the terms "husband" and "spouse", "widow" and "widower" shall have a corresponding meaning;It further defines spouse as follows;“spouse" means a husband or a wife or wives recognised under the Marriage Act (No. 4 of 2014);

43. The court in the case ofJLM versus MCM & 2 others [2014]eKLR in discussing the place of a divorced wife in succession stated:-“In the circumstances, this court must find and does hereby find that the applicant is a divorced wife of the deceased and would have no right to the estate of the deceased although her children with the deceased would benefit from the estate.However, a divorced wife may make a claim under section 26 of the Law of Succession Act considering that section 29 of the Act defines a dependant to include former wife.”

44. The applicant has claimed dependency under Section 29 of the Law of Succession Act which provides;For the purposes of this Part, "dependant" means-a.the 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;b.such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; andc.where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

45. The court in the case of In re Estate of DKB (Deceased) [2020] eKLR in discussing the issue of former wife stated: -“Under Section 39 and 66 of the law of succession Act, only a surviving spouse is recognized and not former wives. However, a former wife can claim a share out of the estate pursuant to section 7 of the matrimonial property Act especially where the property in question was acquired during the subsistence of the marriage.For purposes of taking out letters of administration, the administratrix is not recognized as having a direct right to petition for a grant. However, her children who are entitled in priority authorized her as their mother to petition. This was in an effort to safeguard their interest through a trusted person. Although the administratrix was not entitled to take out letters of administration, the general circumstances where one of the children is not in his sound mind require a person in a position of trust in the management of the estate. Further, as a former wife, she has a direct interest in the estate as well as an indirect interest in the best interest of her children who have mandated her to represent them.”

46. The applicant argued that being a former wife to the deceased she is a dependant and has the right to the estate she helped build. The applicant and the deceased divorced in 1992. At the time of their divorce the property in question belonged to the late Mwanahawa the mother to the deceased who was still alive then thus the same cannot be said to have been the deceased property. No evidence was tendered to show why the applicant did not claim her share of the matrimonial property before the death of the deceased herein. Further the applicant and the deceased were not blessed with any children and thus cannot claim interest in the deceased estate.

47. On the issue of the 1st petitioner/respondent being a grandchild, the court in the case of In the Matter of the estate of Veronica Njoki Wakagoto (Deceased)[2013] eKLR stated: -“Under Part V, grandchildren have not right to inherit their grandparents who die intestate after July 1, 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.”

48. It is not in dispute that the petitioner is a niece to the deceased and not a grandchild as indicated in the petition for grant of letters of administration and that the late Susan Murugi Muiruri is a sister-in-law and not daughter in law. These errors appear to have been made inadvertently, as they appear to relate to the parties’ relationship with Mwanahawa Wanigu, the previous owner of the subject property.

49. The petitioners/respondents argued that they took over the estate of the deceased on the grounds that there was no one to inherit the same and were next in line in the degree of consanguinity.

50. Section 66 of the Law of Succession Act provides: -When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—a.surviving spouse or spouses, with or without association of other beneficiaries;b.other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;c.the Public Trustee; andd.creditors:Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.Section 39 of the law of succession act provides;1. Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority—a.father; or if deadb.mother; or if deadc.brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if noned.half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if nonee.the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.2. Failing survival by any of the persons mentioned in paragraphs (a) to (e) of subsection (1), the net intestate estate shall devolve upon the State, and be paid into the Consolidated Fund.

51. Based on the foregoing it is my view that the petitioners/respondents being the nearest in consanguinity to the deceased were entitled to apply for the grant of letters of administration intestate to the estate of the deceased.

Disposition 52. Accordingly, it is my finding that at the time deceased died he had divorced Mary Nyaguthii Kamau. Being a former spouse she is not entitled to take out letters of administration in respect of the estate of Raphael Kamau Gicharu. In my view a Probate & Administration Court has no jurisdiction to determine a matrimonial property dispute. In any event such dispute should have been raised when the deceased was alive.

53. I therefore revoke the grant obtained by the respondent/applicant in P&A Cause No.24 of 2012; In re Estate of Raphael Kamau. The court file, in respect of the said cause, is closed forthwith.

54. I order the administrators in P&A No. 494 of 2007; In re Estate of Raphael Kamau Gicharu(deceased) to complete the administration of the estate within 6 months of the date of this ruling.

55. Each party to bear own costs.Orders accordingly.

DELIVERED, DATED AND SIGNED AT MOMBASA THIS 10TH DAY OF NOVEMBER 2023 VIA MICROSOFT TEAMS.GREGORY MUTAIJUDGE