[2022] KEHC 16673 (KLR)

In re Estate of Richard Njagi Ngaithia (Deceased) (Miscellaneous Succession Cause 08 of 2000) [2022] KEHC 16673 (KLR) (14 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16673 (KLR)

Republic of Kenya

In the High Court at Embu

Miscellaneous Succession Cause 08 of 2000

LM Njuguna, J

December 14, 2022

IN THE ESTATE OF RICHARD NJAGI NGAITHIA (DECEASED)

Between

John Mwaniki George

Applicant

and

Joseph Njiru Francis

1st Respondent

Stanley Nyaga Njeru

2nd Respondent

Ruling

1. Before this court is the summons dated June 28, 2021 and which seeks revocation and/or annulment of the grant of letters of administration issued to Francis Njeru Ngaithia in relation to the estate of the deceased herein.

2. The said summons is based on the grounds on its face and it’s supported by the affidavit annexed to the application.

3. In a nutshell, it is the applicant’s case that the said grant was obtained by means of untrue allegations of facts, fraudulently by making of a false statement or by concealment from court of something material to the case and the proceedings to obtain the grant was defective in substance. It appears that the applicant’s claim is that the grant was defective in nature and substance by concealment to the court the fact that the deceased herein died without children or direct family. That both brothers filed Succession Causes 228 of 1997 and 221 of 1998 and both grants were confirmed; that this was the main reason why the applicant’s father filed an application for revocation of grant in 221 of 1998.

4. The application is opposed by the respondents via replying affidavit sworn on June 9, 2022 and wherein the 2nd respondent on behalf of the 1st respondent deposed that the letters of administration issued and confirmed on October 16, 1998 to Francis Njeru Ngaithia in Succession Cause No 221 of 1997 were done according to court procedure and law. That the allegations by the applicant is untrue because all the family members were aware of the process and the mode of distribution of the estate of the deceased herein. Further, the siblings (Francis Ngaithia, Maitha Karau, Abishagh Kairu and Eglas Ciurunji) swore affidavits to support its case. It was conceded that the deceased was never married but instead was adopted by Francis Ngaithia (deceased) and lived in their home from his youth till his death.

5. That prior to that, the deceased had spent part of his life with his brother in law (Alvan Nyaga Njuguna) who is also deceased. It was their case that during his life and prior to his death, the deceased endeared himself to both Francis Ngaithia (deceased) and (Alvan Nyaga Njuguna (deceased). Further, it was sworn that while living and growing in the respondent’s home, the deceased was part of their family and Francis Ngaithia (deceased) was in charge of his needs including his medication for the long standing sickness which he suffered until his death. In the same breadth, it was deponed that the deceased had expressly made it known to the family members that he was part of the family of the respondents herein. That during succession, the sisters to Francis Ngaithia (deceased) who would have inherited the said estate granted Francis Ngaithia (deceased) in recognition and appreciation of the role of bringing up the deceased herein and being a defacto parent to him, to inherit the deceased’s estate.

6. That the estate of the deceased was thus subdivided and that the families of Francis Ngaithia (deceased) and that of Alvan Nyaga Njuguna have since settled and used the estate for over twenty years and causing them to vacate the premises, would cause irreparable damages. Further, it was his contention that the inordinate delay by the applicant of over 21 years in prosecuting the matter has not been explained to this court and therefore, this court was urged to dismiss the application herein.

7. Directions were taken that the application be canvassed by way of written submissions and thereafter, parties were to file written submissions and all parties complied with the said order.

8. The applicant submitted that the application herein is in reference to the estate of the deceased who died without any child or direct family. That both brothers went to court and filed Succession Causes 228 of 1997 and 221 of 1998 and both grants were confirmed; that this was the main reason why the applicant’s father filed an application for revocation of grant in 221 of 1998. That the grant in Succession Cause No 221 of 1998 was obtained because it did not disclose to the Honourable Court that there was an earlier grant which had been obtained in reference to the same estate. Further, that the respondent intermeddled with the estate and fraudulently transferred Plot Number 159 Runyenjes to himself and Alvan Nyaga Njuguna and was further attempting to transfer Land Parcel Kagaari/Kanja/685 to himself. It was contended that the respondent did not disclose that there were other dependents of the deceased. That the allegations by the respondents are baseless and even for the fact that there were two confirmed grants in reference to the estate herein, that fact alone is enough to revoke the grant that was later made to Francis Ngaithia (deceased). This court was therefore urged to revoke the grant herein and order that the estate be shared by all the beneficiaries.

9. The respondent on the other hand also submitted while addressing the court to consider the various documents already filed in the matter herein for the reason that most of the parties directly involved in the matter have since passed on. That the deceased herein was under the custody of Francis Ngaithia (deceased) and therefore, he was entitled to proceed and file the necessary proceedings to facilitate the devolvement of the estate herein. Further, it was their contention that through various affidavits of the family members, this court gets to understand that the rest of the family members were aware of the steps undertaken by the original respondent in this matter by filing Succession Cause No 221 of 1997. That under section 71 of the P& ARules, its only logical that whoever was in custody of the deceased was the most relevant person to ensure the devolvement of the estate of the deceased took place. In the obtaining circumstances therefore, this court was urged to find that the applicants have no direct association with the deceased and the application herein should thus be dismissed.

10. I have perused the application herein and the response thereto by the respondents and it is my view that this court has been called upon to determine whether the orders sought for revocation of the grant issued to the petitioner/respondent could be granted.

11. As I have already noted, the application herein seeks revocation of the grant made to the petitioner/respondent herein.

12. The circumstances under which a grant of representation may be revoked are provided for under section 76 (a) - (e) of the Law of Succession Act and include;a.Where the proceedings to obtain the grant were defective in substance;b.Where 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.Where 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.Where 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.Where the grant has become useless and inoperative through subsequent circumstances.

13. What is clear from the above provision is that when a court is dealing with an application for revocation of grant, it is supposed to consider only the process of obtaining the grant. Such that issues touching on the process of confirmation of the grant and distribution of the estate amongst the beneficiaries is beyond what the court should consider as it is not covered by section 76 and thus cannot form a basis of revoking a grant but ought to be challenged through a review or appeal. In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR, W Musyoka, J after analyzing section 76 and discussing the meaning of a grant within the provisions of the laws governing succession in Kenya held thus: -“17. I have very closely perused through the provisions of the Law of Succession Act, and I have not come across any provision that provides a remedy to a person who is aggrieved by confirmation orders. Sections 71, 72 and 73 of the Law of Succession Act, which deal with confirmation of grants, do not address the question of redress for parties who are unhappy with the confirmation process, nor do they deal generally with flaws in the confirmation process. As stated above, section 76 has nothing to do with the confirmation process, and provides no relief at all to any person unhappy with the confirmation process. In the absence of any provision in the Law of Succession Act, for relief or redress for persons aggrieved by such orders, the aggrieved parties have only two recourses under general civil law, that is to say appeal and review, to the extent that the same is permissible under the Law of Succession Act. I would believe that one can also apply for the setting aside or vacating of confirmation orders, where the same are obtained through abuse of procedure.”

14. From the perusal of the application herein, the applicant’s ground for seeking the revocation is mainly that the respondent obtained the grant fraudulently and misrepresented facts to the court in respect to the deceased’s estate.

15. In the instant case, the applicant’s case is that the grant was obtained fraudulently on the basis that the respondent concealed to the court that there existed other dependents of the deceased. I have perused the record and I note that indeed there was a Succession Cause No 228 of 1997 wherein certificate of grant was issued to Njenga Ngaithia and another one No 221 of 1997 whereby certificate of grant was issued to one Francis Ngaithia. Of importance to note is the fact that the respective grants were of the estate of the deceased herein. In both petitions, I note that Francis Ngaithia, Maitha Karau, Abishagh Kairu and Peter Ngaithia and Ciurunji Ngaithia have been listed as brothers and sisters of the petitioners in as much as distribution of the said properties were not made to the exact persons denoted as brothers and sisters of the parties herein/petitioners. I note further from the trend established in the documents herein that the deceased herein was like a brother to the siblings listed above. That no party would therefore authoritatively state that the deceased was closer to them than the other party. In view of the same, it is my humble finding that the deceased was like a brother to the applicant and respondents given that there was no direct family member who could lay claim to the estate of the deceased herein.

16. Under section 66, the Law of Succession Act, the court is mandated to 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:

17. Rule 7 of theProbate and Administration Rules 1980 provides that application for grant of representation in relation to an estate of a deceased person to whose estate no grant or no grant other than one under section 49 or a limited grant under section 67 of the Act has been made, the application shall be by petition supported by an affidavit. The said affidavit must contain amongst other details, the names, addresses, marital state and description of all surviving spouses and children of the deceased, or, where the deceased left no surviving spouse or child, like particulars of such person or persons who would succeed in accordance with section 39(1) of the Act [rule 17(e)(i)].

18. Rule 26 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. Further, in 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 renunciation, 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.

19. The effect of the above provision is that where a person is applying for a grant of letters of administration intestate, he must get consent from persons of equal or lower priority than him. By dint of this provision, the consent by the said applicant was mandatory. The applicant, the respondents and the listed siblings, all survived the deceased herein and thus their consent, in my view, ought to have been obtained before filing for letters of administration; they had not renounced their right to petition for the grant. It follows that the proceedings leading to the grant were defective in substance, and therefore, the grant should be revoked. I rely on the persuasive authorities in Antony Karukenya Njeru v Thomas M Njeru [2014] eKLR where JA Makau J while revoking a grant on the ground that the consent of a person of equal priority was not obtained held as thus;-“The respondent was required to file Form 38 as per provisions of Rule 26(2) of the Probate and Administration Rules which mandates a petitioner to obtain consent to the making of the grant of administration intestate to person….The respondent in Form P&A 80 stated that every person having an equal or prior right to a grant of representation had consented or renounced such right or has been issued with a citation to renounce such right and apply for a grant of representation and not done so. Are the contents of the Form P&A 80 which duly signed by the respondent true? The answer is obvious. The Form has untrue allegation and it is clear the respondent is in breach of Rule 26(2) of the Probate and Administration Rules. He lied to the court to obtain grant of letters of administration of the deceased estate…”[See also In the Matter of the Estate of Muriranja Mboro Njiri, Nairobi HC Succ Cause No 890 of 2003].

20. Further, I have seen affidavits filed by the said siblings deponing that the respondent prior to filing the succession cause, informed the family members and that the applicant deliberately ignored the summons to attend the same.

21. In the same breadth, this court takes notice of the fact that there exist two succession causes on the same estate and this court cannot act on falsity of the affidavits by the siblings herein in supporting a grant camouflaged with fraud.[See In re Estate of Kamau Ng’ang’a Mathondu (Deceased) [2021] eKLR].

22. In reference to the fact that Alvan Nyaga and the deceased herein co-owned the property with the deceased herein, no evidence was produced in relation to the same. Nothing of that sort has been presented as evidence before this court to support the same.

23. It’s upon these findings and provisions of Section 76 of the Law of Succession Act that, I move to revoke both confirmed Grants of Letters of Administration as its only just and fair to restore the estate to its original state. It means, therefore, that all transactions on the sale of land entered into on diverse dates with effect from the date of confirmation of grant made to the respondent are void abinitio and therefore have no effect in law.

24. It is my view therefore, that the said grant was obtained pursuant to proceedings which were defective in substance. The respondent ought to have obtained consent from his siblings, at least the applicant if at all the other siblings gave up their rights in reference to the same. In the case of Antony Karukenya Njeru v Thomas M Njeru [2014] eKLR, a grant of letters of administration was revoked for failure by persons with equal priority not consenting to the petitioners in applying for grant of letters of administration. [See alsoIn the Matter of the Estate of Muriranja Mboro Njiri, Nairobi HC Succ Cause No 890 of 2003].

25. In view of the foregoing, I find that it’s only fair that both grants are revoked so that all the beneficiaries can have an opportunity to proof their claims to the estate and consequently both grants are revoked.

26. It is hereby ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 14TH DAY OF DECEMBER, 2022. L. NJUGUNAJUDGE……………………………………………for the Applicant……………………………………….for the Respondents