[2015] KEHC 1695 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 1163 OF 2001

IN THE MATTER OF THE ESTATE OF ROSEMARY WANJIKU WAITHAKA (DECEASED)

JUDGMENT

Teressia

1. The application coming for consideration is the Summons of revocation dated 14th March 2011. The application is brought under Rules 44(1 and 63 of the Probate and Administration Rules and section 76 (b) of the Law of Succession Act Cap 160. The applicant seeks; revocation/annulment of the confirmed grant issued on 6th May 2003. The applicant also seeks that pending the hearing and determination of this application inter partes the honorable court be pleased to issue an order restraining the respondent whether by herself or through her agents and/or servants from interfering with the estate of the deceased by disposing off some of the property and more particularly RUIRU/RUIRU EAST BLOCK 4348and4349.

2. In her affidavit dated 1st March 2011 in support of the said application she reiterated the averment s of the grounds on the face of the application adding that she and her siblings were not aware of the proceedings and that the same was obtained fraudulently and by non-disclosure of material facts to the court.

3. In opposition to the said application Jacinta Njahira Mwangi filed her replying affidavit filed on 13/6/2011 she avers that the application touches on properties that do not belong to the estate but touch on other people and states that the applicant’s father predeceased her the deceased having died on 31st July 2000 while her mother died on 8th February 2001. That shortly before her death the deceased had given her L.R. No. Kiganjo/Kiganjo/888 while the applicant’s father got L.R. No Kiganjo/Kiganjo/887. That in 1983 her mother gave her the plot Dandora Phase II where she built residential and rental rooms and that she was the one who pays City Council rates and land rent.

4. Christine Nguhi Muhoho testified that she was a daughter to the late Francis Muhoho Gatheca who died on 31st July 2000, whom she states was son to the deceased Rosemary Wanjiku Waithaka to whom these succession cause relates. She testified that she had other siblings Rosemary Wanjiku Muhoho, Caroline Njeri Muhoho and Elizabeth Nyambura Muhoho. That her father died in 2000 and her sister Rosemary died in 2001. That she and her mother prior to her death lived in a house built by her father on Kiganjo/Kiganjo/887 and that was also where her mother was buried upon her demise. She testified that she and her siblings were not consulted when they petitioned for grant of letters of administration, changed title of the land in her name and had threatened to evict them and has since sold part of the properties. That the parcel where their home stood was inherited by her father from his father.

5. On cross-examination she testified that they used to stay with the deceased and she used to pay their fees. That she heard that her grandmother had two plots in Dandora Phase II but did not know who had built the houses there. That the grandfather had two wives Rosemary and Teresiah Wanjiku that the land he had was subdivided between his two sons. The parcel was subdivide and given no 887 and was registered on 22/8/01 but she could not tell for sure whether the titles of the same were released after the death of her grandfather. That plot 887 was given to her father and grandmother and the land was subdivided before her father died. That she had no reason to dispute that LR.5122 belongs to her uncle Boniface Kihara. That the all documents were in her grandmother’s name. She claims that the respondent was given the father’s document for safekeeping and urged the court to compel the respondent to return it. That the fact that she is married does not justify that she and he siblings be left out.

6. DW1, Boniface Kihara testified that the applicants are his nieces. He avers that he purchased Plot No. 5122 Dandora Phase II from one Benedict Gaitho and though the same had no title she had a sale agreement and power of attorney to prove it. That though his mother wanted to register the said land in his names he refused as he had been given his share plot no. 887 by his dad and his brother was given plot 888.

7. DW2, Jacinta Njahira Mwangi she refutes that her father died before her grandmother testified that when their mother fell ill and bills arose her brother Boniface gave a title as security and she had to sell plots at Ruiru to be able to settle the bill. She denied that they stayed with the deceased stating that they only went there once after their mother died and she accommodated them. She testified that she took care of the deceased took her to hospital and various test as ordered by the doctors. That at one time she was taken to Guru Nanak as a matter of emergency and was admitted but she was later on released and at during this period she did not have money and had to sell the Ruiru plots to pay the deceased’s hospital bills. She testified that the Dandora plot no. 514 which was registered in her mother’s name was given to her by the deceased and that she was the one who told her to build there. She built a one bedroom house and even gave the girls one room when their father died and hence it was hers. She testified that plot no. 887 and 888 belonged to her father. She testified that her father had two wives Rosemary Wanjiku. That Teressia had seven children 2 boys and 5 girls and his father wanted to distribute property to them but died before doing so but the process was concluded and the family was involved. That Rosemary got 1. 5 acres and her son got 2 acres which was registered in her brother’s name while Teressia and her children got the remainder. That the mother held her share and she did not foresee any problems in future.

8. In cross examination she affirmed that she bought 879 and 878 after her mother died and never collected the sale agreement. Documents she adduced showed that she sold the property at Kshs. 100,000/- she testified that the deceased’s hospital bill was Kshs. 25,000 and she had sold the plots for Kshs.200,000/- and that she used the balance to obtain the titles but had no receipts to support her claim as she did not know they would be required. She denied any intentions of disinheriting some of her siblings and in 2001 when her father’s shamba was alienated. That plot 888 was given to the mother though the same was registered in the brother’s name and she admitted the same formed part of her father’s property.

9. Parties filed written submissions which I have read and considered. It is not in dispute that the deceased was married to the late John Gatheca Muhoho. The applicants are the daughters’ of the late Francis Gatheca Muhoho who was a brother to the respondent and a son to the deceased. The deceased to whom this succession cause relates died on 8th February 2001 and a grant of administration intestate was granted to Rosemary Wanjiku Waithaka on 10th August 2001. As per her per her affidavit in support of the petition for letters of administration intestate only listed herself as the only person surviving the deceased. Further she listed the following as the assets surviving her.

Title No. Kiganjo/Kiganjo/887

Title No. Ruiru/East Block 2/4349

Title No. Ruiru/Mugutha Block 1/T879

Share Certificate no. 0212 at Gatundu Nyakinyua Co. Ltd

Kenya commercial bank shares

Ruiru Mugatha block I/T.878

Kenya breweries shares

Barclays Bank Shares

Standard Chartered Bank Current Account No. 0102057002200

Standard Chartered Bank Savings Accounts No. 0152057002200

Kenya Commercial Bank Account No.130041860

Title No. Ruiru/Ruiru East Block 2/4348

With no liabilities

10. The said grant of letters of administration was confirmed on 6th May 2003 with all the said properties said to be registered solely in her name. From her sworn testimony before this Court the respondent stated that their father though intent on distributing his property to his children died before he could do so. This then means that the process did not take place and her nor her brothers received their inheritance from their father whom she confirmed initially owned the said property. She also admitted that her mother had given to her plot no. 888 where she constructed a house and some rental rooms. She admitted to having sold Ruiru Plots for Kshs. 200,000/- to pay off a hospital bill for the deceased of which an amount Kshs. 25,000/- went towards payment of the outstanding bill and the rest of the money went towards other payments such as registration of transfer of the properties. From the documents before this court the respondent has since transferred the property into her names as follows; RUIRU/RUIRU/EAST BLOCK 2/4349, RUIRU/MUIGUTHA BLOCKI/T.878,RUIRU/MUIGUTHA LOCK 1/T.879, KIGANJO/KIGANJO/887 are registered in Rosemary Wanjiku Waithaka’s name. In conclusion to her testimony the respondent avers that she did not intend to disinherit the applicants and would have considered them.

11. There is no dispute that the applicant and her siblings are the daughters of the late Francis Muhoro Gatheca who was a brother to the respondent and a son to the deceased. The respondent in her testimony stated that though the father was intent of distributing the estate to her and her siblings he died before doing so. I find that the applicants were entitled to inherit their late father’s share In the case of Re Estate of John Musambayi Katumanga – (Deceased) [2014] eKLR, “I suspect that she is a daughter of the said heir, and therefore a granddaughter of the deceased. She is described in one of the papers as a dependent of the deceased. The said Laura Mesitsa is not entitled to a share in the estate of the deceased. There are two reasons for this. She is not an heir of the deceased, for grandchildren are not entitled to inherit from their grandparents so long as their own parents, the children of the deceased, are alive and themselves taking a share in the estate.”

12. Section 76 of the Law of Succession Act, Cap 160 provides that, “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 - (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”.I find that omitting the applicant and her siblings as beneficiary was tantamount to concealment of something material to the court and thus the grant as obtained was faulty and order the revocation of the grant of letters of administration issued on 10th August 2001. I further order that a fresh grant of administration intestate be issued to Jacinta Njahira Njahira Mwangi and Christine Nguhi Muhoho to co-administer the deceased’s estate.

Dated, signed and delivered this 30thday of September 2015.

R. E. OUGO

JUDGE

In the presence of:-

…………………………………………….…..…………For the Applicant

………………………………………………………….For the Respondent

Ms. Charity Court Clerk