[2022] KEHC 9988 (KLR)

In re Estate of Richard Thuita Wang'ang'a (Deceased) (Succession Cause 1473 of 2015) [2022] KEHC 9988 (KLR) (Family) (18 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9988 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 1473 of 2015

AO Muchelule, J

July 18, 2022

IN THE MATTER OF ESTATE OF RICHARD THUITAI WANG’ANG’A - DECEASED

Between

Mary Njeri Ng’ang’a

1st Applicant

Lilian Gathon Thuitai

2nd Applicant

and

Eunice Wambui Kariuki

1st Respondent

Mary Muthoni Mwangi

2nd Respondent

Grace Wangechi

3rd Respondent

Serene Wanjiku Ngung’u

4th Respondent

Loise Nduta

5th Respondent

Ruling

1. The deceased Richard Thuitai Wang’ang’a died intestate on 19th February 2003. He left a parcel of land Dagoretti/Kinoo/2781 measuring 1. 010 Ha as his only estate.

2. A petition for the grant of letters of administration intestate was filed at the Chief Magistrate’s Court at Kikuyu in Succession Cause No. 62 of 2014 by Eunice Wambui Kariuki (1st respondent), Mary Muthoni Mwangi (2nd respondent), Grace Wangechi (3rd respondent) and Serene Wanjiku Ngung’u (4th respondent). The 1st, 2nd and 3rd respondents were children of the deceased and the 4th respondent was his granddaughter. The joint grant was issued to them on 4th September 2014.

3. Mary Njeri Ng’ang’a (1st applicant) and Lilian Gathoni Thuitai (2nd applicant) on 17th June 2015 filed an application before this Court seeking the revocation of the grant on the basis that they and the beneficiaries of the estate of the deceased had been excluded from the petition and the grant, and that, in any case, the value of the subject estate was Kshs.20,000,000/= which was well in excess of the monetary jurisdiction of Kikuyu Court. The 1st applicant was the deceased’s daughter-in-law and the 2nd applicant was the deceased’s granddaughter.

4. On 25th June 2019, by the consent of Mr. Gakaria for the respondents, M/S Kinyanjui for the applicants and Mr. Ngugi for Loise Nduta, the grant issued on 4th September, 2014 was revoked, and a fresh grant jointly issued to the 3rd respondent, the 1st applicant and the 4th respondent. They, or any of them, were asked to file and serve the application for the confirmation of the grant within 30 days. Once served, the other side was given 30 days to respond so that the application be heard on 5th November 2019.

5. The 3rd respondent filed an application dated 24th July 2019 to confirm the grant. She proposed that the estate of the deceased be shared among the deceased’s surviving children. Those who signed the consent to the mode of distribution were the 1st and 2nd respondents. The 2nd applicant filed an affidavit of protest to the mode of distribution. She explained that she was the widow of the late Kenneth Thuitai Ndungu who was the deceased’s grandson. She stated that the deceased had before his death distributed the estate to his children who had processed titles in their names. Subsequently, a son of the deceased called Geoffrey Ndungu died. A dispute arose between his two children Kenneth Thuitai and Catherine Waringa (both now deceased) on the distribution of their father’s estate. A family meeting was held on 16th November 2008 in which the deceased herein confirmed that he had given his son Geoffrey Ndungu 5 acres being Dagoretti/Kinoo/801 and his grandson Kenneth Thuitai Ndungu 2 acres being Dagoretti/Kinoo/2881. The grandchildren Richard Thuitai and Kiarie Thuitai had each been given 2 acres. Kenneth Thuitai had settled on his Dagoretti/Kinoo/2881. The deceased was living on ½ acre of this parcel. He died before transferring the 2 acres to Kenneth Thuitai. It was her case, therefore, that she gets the 2 acres in Dagoretti/Kinoo/2881 and that ½ acre be shared equally among the rest of the family of the deceased.

6. On 28th April 2021, Mr. Gakaria for the 1st, 2nd and 3rd respondents, M/S Kamotho for M/S Kihika for the 1st applicant and Mr. Aboge for the 5th respondent appeared and recorded a consent in which the grant was confirmed on the basis that these five beneficiaries were to equally share the estate of the deceased.

7. The applicants filed the present application dated 19th July, 2021 seeking that M/S Kiarie Joshua & Co. Advocates takes over from M/S C.N. Kinyanjui & Co Advocates who were acting for the applicants and that the grant confirmed on 26th November 2021 be revoked on the basis that they and the other beneficiaries of the estate of the deceased did not participate in the consent that led to the confirmation and therefore they had been defrauded.

8. The 1st, 2nd and 3rd respondents opposed the application, saying that the 1st applicant was a co-administrator to the estate who should be raising the complaint. Their case was that the 1st applicant had consented to the application for the confirmation of the grant and therefore relinquished her further claim to the estate of the deceased. She otherwise had been provided for by the deceased by being given 5 acres and later on getting another 2 ½ acres.

9. There is no dispute that during the hearing of the application dated 24th July 2019 the 1st applicant was represented by counsel who had participated in the recording of the consent. Counsel was properly on record for her, and therefore it was assumed that she had authority to compromise the cause. It is now settled that a court will not normally interfere with a consent or judgment order except in circumstances such as would provide a good ground for varying or rescinding a contract between the parties (Flora N. Wasike -v- Destimo Wamboko [1881]eKLR. No evidence was led to establish collusion or fraud or other agreement in bad faith against her advocate then on record.

10. However, the 2nd applicant had opposed the application for the confirmation of the grant. There was no indication that neither she nor her advocate was aware of the hearing. It is evident from the record that neither was present during the hearing, and therefore they did not participate in the recording of the consent. The consent could not bind her. She had a right to be heard in her protest to the application to confirm the grant, which right she was denied. Where a cause has several parties, each of them has the right to know that the cause is coming up for hearing and has to be heard before any orders are given or consent entered. The orders contained in the consent certainly aggrieved the 2nd applicant. On this ground, I recall and set aside the proceedings of 26th April 2021. Specifically, under Section 76 of the Law of Succession (Cap. 160), I revoke the grant that was issued on 26th April 2021.

11. The application dated 24th July 2019 for the confirmation of the grant shall be heard on 29th November 2022. I make no order as to costs.

DATED AND DELIVERED AT NAIROBI THIS 18TH DAY OF JULY 2022. A.O. MUCHELULEJUDGE