[2024] KEHC 6230 (KLR)

In re Estate of Samuel Michubu M’mwirabua (Deceased) (Succession Cause 102 of 1988) [2024] KEHC 6230 (KLR) (16 May 2024) (Ruling)

Neutral citation: [2024] KEHC 6230 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 102 of 1988

TW Cherere, J

May 16, 2024

Between

Japhet Ntela Michubu

Applicant

and

Julia Wanja Thro her Personal Representative Elias Mwongela

Respondent

Ruling

1. Samuel Michubu M’Mwirabua (Deceased) died sometimes 08th May, 1984.

2. In her affidavit filed on 19th August, 1988, in support of the petition, Julia Wanja (Julia) stated that deceased was survived by the following:WidowJulia WanjaChildren1. Jeniffer Kathure2. Ruth Kananu3. Unice Kaimuri4. Prisalla Kagwiria5. Lucy Kathambi6. Harriet Kendi7. Elias Mwongera

3. Julia also disclosed that deceased’s asset comprised only of LR Njia/Burieruri/161 and Kshs 16,847/30 with Barclays Bank.

4. Julia was issued with Letters of Administration on 08th September, 1988 and by a Certificate of Confirmation of Grant dated 14th November, 1989, LR Njia/Burieruri/161 and Kshs 16,847/30 with Barclays Bank were distributed wholly to her.

5. Subsequently, Julia alias Juliana died on 14th August, 1998, Applicant and Peter Maore filed Maua Succession Cause No E026 of 2021 and obtained letters of administration on 13th April, 2021. Subsequently, the said letters of administration were revoked and issued to Julia’s son Elias Mwongela (Respondent) and Peter Maore on 05th May, 2021.

6. When Japhet Ntela Michubu (Applicant) received information that his father’s estate had been partially distributed, he moved the court by way of application dated 27th February, 2023 seeking revocation of Letters of Administration issued to Julia and stay of Maua Succession Cause No E026 of 2021 on the following grounds;a)That the Maua Succession Cause is in respective of the Land Parcel No Njia/burieri/161 which is the subject matter in this causeb)That the Maua cause is pending confirmationc)That if the grant in the Maua Cause is confirmed, this application will be rendered nugatory and the applicant herein will be disinheritedd)That the proceedings to obtain the grant herein were defective in substancee)That the grant herein was obtained fraudulently by concealment from the court of something material to the causef)That the grant was obtained by means of untrue allegation of fact essential in point of law to the grant notwithstanding that the allegation was made in ignorance or inadvertently

7. Respondent opposed the summons by way of a replying affidavit sworn on 30th October, 2023. He acknowledged that deceased had three wives and children. He stated that deceased owned LR Njia/Burieruri/161 where he settled his 3rd family, LR Njia/Ciamwendwa/416 where he settled the 1st family and LR Njia/Ciamwendwa/2130 where he settled the 2nd family. He blamed the Applicant and his brother of filing Maua Succession Cause No E026 of 2021 in a bid to inherit the 3rd family and stated he was substituted as an administrator to protect that interest.

8. Seeing that the parties could not agree, I directed that the matter be heard by way of viva voce evidence.

Applicant’s case 9. Applicant stated that the deceased family comprised of:First housei.Agnes Mbuuru Widowii.Joseph Mutuma soniii.Peter Maore Son2nd housei.Rose Karamana Widow - Deceasedii.Japhet Ntela Soniii.Francis Muriungi Son3rd housei.Julia Wanja Widow – Deceasedii.Jeniffer Kathureiii.Ruth Kananuiv.Unice Kaimuriv.Prisalla Kagwiriavi.Lucy Kathambivii.Harriet Kendiviii.Elias Mwongera

10. Applicant additionally stated that the deceased estate comprised of :-i.LR Njia/Burieruri/161ii.LR Njia/Ciamwendwa/416iii.LR Njia/Ciamwendwa/2130

11. Applicant further told court that the three families of the deceased were settled on different portions of LR Njia/Burieruri/161 and faulted Julia for disinheriting the 1st and 2nd houses which has the effect of having the 1st and 2nd families evicted from LR Njia/Burieruri/161 where deceased settled them during his lifetime.

12. Joseph Mutuma Michubu supported the Applicant’s case. He stated he was deceased’s son from the 1st house and had settled on LR Njia/Burieruri/161 together with the Applicant, Respondent and Peter Maore.

Respondent’s case 13. Respondent confirmed deceased had three families and owned three assets. He confirmed that the children of the three houses have settled on LR Njia/Burieruri/161 but stated that the 1st and 2nd house ought to settle on LR Njia/Ciamwendwa/416 and LR Njia/Ciamwendwa/2130 respectively.

14. His witness Zakayo Birithu Lirenge confirmed that children of deceased’s three houses have settled on LR Njia/Burieruri/161 and that deceased did not indicate how he wanted his estate distributed.

Analysis and determination 15. I have considered the application for revocation in the light of the affidavits and annexures thereto, the oral evidence and submissions of the parties and I have deduced the following issues for determination:1. Whether the grant issued in this cause ought to be revoked2. Whether Maua Succession Cause No E026 of 2021 ought to be stayed3. How ought the estate of deceased be distributed?

1. Whether Certificate of Confirmation of Grant dated 14th November, 2019 ought to be revoked 16. The grounds for revocation of a grant are provided under section 76 of the Act 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 has ordered or allowed; 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; or(e)that the grant has become useless and inoperative through subsequent circumstances.”

17. Applicant has demonstrated, a fact that the Respondent concedes that at the time of filing this cause up to the time the grant in favour of Julia Wanja was confirmed distributing LR Njia/Burieruri/161 to her wholly, Julia failed to disclose that deceased had two other families and also failed to provide for them.

18. Applicant has demonstrated and Respondent has conceded,that the three families of the deceased have settled on LR Njia/Burieruri/161 a fact which Julia Wanja failed to disclose to the court.

19. On the other hand, Applicant has demonstrated, a fact that the Respondent concedes that deceased’s estate also comprises of LR Njia/Ciamwendwa/416 and LR Njia/Ciamwendwa/2130 which Julia Wanja did not disclose when she filed this cause.

20. Applicant has likewise demonstrated that Julia Wanja filed this cause without involving the 1st and 2nd houses.

21. There is no doubt that deceased did not leave a will and the allegation by Respondent that deceased had bequeathed LR Njia/Burieruri/161 to the 3rd house is therefore rejected.

22. From the foregoing, I am satisfied that the Letters of Administration issued on 08th September, 1988 and the Certificate of Confirmation of Grant dated 14th November, 1989 distributing LR Njia/Burieruri/161 and Kshs 16,847/30 with Barclays Bank wholly to Julia were obtained fraudulently by the making of a false statement and by the concealment from the court of the fact that deceased had other beneficiaries and owned other assets. These orders have the effect of unlawfully disinheriting the 1st and 2nd houses of LR Njia/Burieruri/161.

2. Whether Maua Succession Cause No E026 of 2021 ought to be stayed 23. The proceedings in Maua Succession Cause No E026 of 2021 arise from unlawfully obtained Letters of Administration issued on 08th September, 1988 and the Certificate of Confirmation of Grant dated 14th November, 1989 and cannot be allowed to stand.

3. How ought the estate be distributed? 24. In a case of this nature where the deceased died intestate and was a polygamous man survived by one widow and children, the anchor on distribution of his estate is Section 40 of the Law of Succession Act which primarily provides that;“40. (1)Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children”.

25. Consequently, the orders that commend to me and which I hereby issue are as follows:1. Letters of Administration issued on 08th September, 1988 and the Certificate of Confirmation of Grant dated 14th November, 1989 issued in this cause are revoked2. The proceedings and all consequential orders issued thereto in Maua Succession Cause No E026 of 2021 are a nullity and are quashed.3. Peter Maore, Japhet Ntela Michubu and Elias Mwongela are appointed joint administrators of deceased’s estate representing the 1st, 2nd and 3rd houses respectively.4. Letters of administration shall forthwith issue to Peter Maore, Japhet Ntela Michubu and Elias Mwongela5. The Land Registrar Meru is directed to cancel title number LR Njia/Burieruri/161 in the name of Julia Wanja alias Juliana Wanja Michubu and revert it to the name of Samuel Michubu M’Mwirabua6. Upon execution of order (5) above, Peter Maore, Japhet Ntela Michubu and Elias Mwongela shall either jointly or severally apply for confirmation of the grant identifying respective shares of each of the deceased’s beneficiaries7. Upon the filing of the 1st mode of distribution, the other administrators and beneficiaries who will not agree with it shall be at liberty to file their respective modes of distribution8. Mention on 03rd October, 2024 to confirm compliance with these orders and for further orders and/or directions9. The Deputy Registrar of this court is directed to call for Maua Succession Cause No E026 of 202110. Each party shall bear its own costs

DELIVERED AT MERU THIS 16th Day of May 2024WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/MuneneFor Applicant - Mr. Gitonga for Harun Gitonga & Co. AdvocatesFor Respondent - Mr. Thangichia for for Thangichia M.David & Co. Advocates