[2022] KEHC 15164 (KLR)

In re Estate of Samuel Ngugi Mbugua (Deceased) (Succession Cause 45 of 2017) [2022] KEHC 15164 (KLR) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 15164 (KLR)

Republic of Kenya

In the High Court at Kajiado

Succession Cause 45 of 2017

SN Mutuku, J

July 7, 2022

Between

Virginia Wahu Rumoi

Petitioner

and

Jane Njeri Mungai

1st Objector

Peter Joshua Mbugua alias Joshua Mbugua Susan Wanjiru alias Susan Naipono Letuya

2nd Objector

Judgment

Introduction 1. The deceased in this case died testate. The deceased had two families. The grant of Probate of the deceased’s estate was issued to Allan Gitau Mbugua and Gichanga Kimani on October 18, 2006, the executors of the Estate. Both are now deceased.

2. The Applicant is the daughter of the deceased from the first family and the Objectors are the wife and children of the deceased from the second family.

3. The applicant has filed Summons for Revocation of Grant dated May 29, 2020 brought under sections 76(e) & 81 of the Law of Succession Act and Rules 44 and 49 of the Probate and Administration Rules seeking orders that:a.That the grant of probate of written will of the estate of Samuel Ngugi Mbugua (deceased) made to Allan Gitau Mbugua & Gichanga Kimani (both deceased) in this matter on October 18, 2006 be revoked.b.That the Honorable Court do issue Grant of Letters of Administration De Bonis Non with the Will to Virginia Wahu Rumoi.c.That the Honourable Court do thereafter confirm the said grant of letters of administration de bonis non with will and the estate to be distributed in accordance with the last will & testament of Samuel Ngugi Mbugua (deceased) herein duly incorporating the one (1) acre provision from Estate property Loitoktok/Emperon/171 made in favour of Jane Njeri Mungai by the ruling of this court delivered on April 18, 2018. d.That the costs of this application be costs in the cause.

Case for each party 4. The Application was supported by an Affidavit sworn by Virginia Wahu Rumoi on May 29, 2020 in which she has deposed that the two executors are both deceased; that they were not beneficiaries of the deceased’s estate and that the entitled beneficiaries of the deceased per his last Will and Testament have resolved that Virginia Wahu Rumoi be the administrator in place of the deceased executors; that the litigation involving the estate has been long since 2006 and it’s only fair that the court grants the orders prayed for to enable transmission of the respective shares of the Estate to entitled beneficiaries.

5. She has further deposed that the beneficiaries of the Estate have confirmed that they are amenable to pray for formal issuance of certificate of confirmation of grant of probate of the deceased Will duly incorporating the one (1)acre provision from Loitoktok/Emperon/171 made in favour of Jane Njeri Mungai by this court’s ruling on April 18, 2018. That the rest of the shares remain the same.

6. Jane Njeri Mungai, Peter Joshua Mbugua and Susan Wanjiru, being the wife and children of the deceased respectively, objected to the making of Grant of representation De Bonis Non of the Estate of the deceased to the Petitioner arguing that the widow is first in priority to the Petitioner that they were not informed nor did they give their consent to the Petitioner’s appointment.

7. They filed a cross petition for grant de bonis non administratis on October 27, 2020 seeking to have the grant de bonis non administratis to be issued to Jane Njeri Muchai the deceased’s widow.

8. The cross petition was supported by an Affidavit sworn by Jane Njeri Mungai on October 27, 2020. She has deposed that the deceased’s estate was distributed in accordance with his Will by Justice Musyoka and thereafter provisions made under section 26 of the Law of Succession Act by Hon Justice Nyakundi whereby they appealed by filing Civil Appeal No 311 of 2019 which is still ongoing. That as such the court is functus officio on re-distribution of the deceased estate. That upon the demise of the executors this court can only appoint new administrators and that she being the widow she has first priority. That Virginia Wahu Rumoi applying for grant without her consent is evident of a desire to denying her share in the deceased estate.

9. The Applicant filed an affidavit in response to the objection and cross-petition dated February 2, 2021. She denied that she sidestepped the cross petitioners or applied for revocation of grant secretly. She deposed that they informed the objectors but the latter failed to co-operate; that in light of this the other beneficiaries proceeded to issue a citation against the objectors to accept or refuse letters of administration which Jane Njeri Mungai declined to receive the same; that there is no order for stay of proceedings in this instant matter and nothing is stopping the court from proceeding with determination of the instant petition.

10. She further deposed that contrary to the averments of the cross-petitioner the hierarchy proposed under Section 66 of the Law of Succession Act is on intestate cases while in this case the deceased died testate and that she is better suited to administer the estate as she is the deceased’s daughter and secondly, she is not claiming any share of the Estate.

- Submissions 11. This court (Mwita, J) directed that this matter be canvassed by way of written submissions. The Petitioner/Applicant filed her submissions dated October 4, 2021 in which she has reiterated that the purpose of the application is to facilitate the transmission of the Estate according to the Will of the deceased as well as the ruling dated April 18, 2018 that made provision of one (1) acre from Loitoktok/Emperon/171 in favour of Jane Njeri Mungai. It is argued that the cross-petitioner as well as the other objectors cannot in good faith implement the Will because they have contested from the time this succession matter was first instituted at the High Court in Nairobi.

12. It is submitted that reason the Objection and cross-petition is doomed to fail and argued that the applicable Law is sections 76 (e) & 81 of the Law of Succession Act, Rules 44 & 49 of the Probate & Administration Rules. The applicant relied on various authorities including Embu High Court Succession Cause No 416 of 2012 Re Estate of Ngaigwo M’Shomba (deceased) [2019] eKLR.

13. The Objectors filed their submissions dated October 10, 2021. They have submitted on two issues: whether the grant has become inoperative and live for revocation and whether the objectors should be appointed the administrators debones non.

14. On the first issue, they submitted that it is not in dispute that the 2 executors are now deceased leaving the Estate undistributed and therefore the only remedy is revocation of the grant and cited section 76 (e) of the Law of succession Act and several authorities including re Estate of NgaigwoM’Shomba (deceased) [2019] eKLR.

15. On the second issue, they submitted that though the Applicant has based her case on being impartial, she is the deceased’s daughter from the 1st family; that she had not disclosed that the deceased had two families nor did she inform the objectors on her intention to petition for grant beforehand until 14th June, 2020 when they were served with this application and therefore, her conduct is not impartial. They relied on section 66 of the Law of Succession Act and stated that by dint of that section the cross-petitioner has priority over the Applicant as she is the widow to the deceased. They also relied on sections 63 & 65 of the Law of Succession Act and Nairobi Succession Cause No 2916 A of 2005 Re Estate of Christos Kinyua Wainaina deceased [2014] eKLR in regard to appointment of administrators where there is no executor of a will.

Determination. 16. It is not disputed by both parties that the deceased died testate and that the executors Allan Gitau Mbugua and Gichanga Kimani are now deceased.

17. The starting point is always the law. Revocation of grants is provided for under Section 76 of the Law of Succession Act. This section gives the grounds upon which a grant may be revoked. The relevant ground in respect of this application is section 76 (e) which 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-(a)………………….(b)………………….(c)……………………(d)…………………….(e)that the grant has become useless and inoperative through subsequent circumstances.”

18. In this matter the grant has become useless and inoperative through the death of the two executors, a subsequent circumstance. This court must therefore step in and fill the gap left by the demise of the two executors. In so doing, this court will be guided by the provisions of the Law of Succession Act and the jurisprudence arising from similar cases.

19. Under Section 63 of the Law of Succession states that:“When a deceased has made a will, buta.he has not appointed an executor; orb.the only executors appointed are legally incapable of acting, or have renounced their executorship, or have died before the testate or before receiving a grant of probate of the will, or have failed within the time limited by a citation to apply for a probate thereof; orc.all proving executors have died before completing administration of all the property to which the will applies, a universal or residuary legatee may be admitted to prove the will, and letters of administration with the will annexed may be granted to him of the whole estate, or of so much as thereof as may be unadministered.”

20. Section 65 of the Law of Succession Act provides that:“When there is no executor, and no residuary legatee or representative of the residuary legatee, or if every such person declines or is incapable of acting, or cannot be found, the person or persons who would be entitled to the administration of the estate of the deceased if he had died intestate, or the Public Trustee, or any other legatee having a beneficial interest, or a creditor, may be admitted to prove the will, and letters of administration may be granted to him or them accordingly.”

21. In the circumstances facing us, the law under section 65 of the Law of Succession Act leads this court to look no further in filling the gap left behind by a deceased executor than under its provisions. The person or persons that would be entitled to the administration of the estate of the deceased if he had died intestate have priority, followed by the Public Trustee or any other legatee having a beneficial interest, or a creditor.

22. Who is the person or the persons that would be entitled to the administration of the estate of a deceased if he had died intestate? The answer is found in section 66 of the Law of Succession Act. It provides that:“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 interest 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 associate 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.”

23. I agree with the Objectors. It is not an executor this court is required to appoint. It is an administrator with Will annexed. Therefore, it is not necessary to argue that one is impartial because he or she has no beneficial interest in the estate. In fact the law expects those with beneficial interest as shown under sections 65 and 66 of the Law of Succession Act.

24. In re Estate of Dorcas Omena Binayo (Deceased) [2021] eKLR, the court addressed this issue thus:“The purport of these provisions ( that is Sections 53(a)(ii), 63, 64 and 65 of the Law of Succession Act) is that where there is no proving executor, the next in line should be any universal or residuary legatee, that is the beneficiary entitled to the residue of the estate under the will. Where there is no universal or residuary legatee the next in line would the persons entitled to the estate if the testator had died intestate, followed by the Public Trustee and creditors.”

25. The question of a legatee and his/her role in administration was addressed by the court in Mumbua Musyoki and 6 Others v Mbenya Musyoki, [2016] eKLR, thus:“A universal or residuary legatee therefore has priority to apply for letters of administration with will annexed, failing which sections 64 to 65 of the Act provides for the following order of priority, a personal representative of the universal or residuary legatee, persons entitled to administer the deceased’s estate if he had died intestate; the Public Trustee; any other legatee with a beneficial interest in the estate of the deceased; or a creditor of the deceased.A residuary legatee is a person named in the will to receive the residue of the deceased’s estate, while a universal legatee is a residuary legatee that receives the entire residuary estate. The parties herein will therefore need to determine whether the deceased’s will had a residuary or universal legatee, and if not, who among them has priority to apply for a grant of letters of administration with will annexed.”

26. In this matter, the issue of a residuary or universal legatee does not arise as the Will does not provide a residuary or universal legatee to the Will. In this regard therefore section 65 of the Law of Succession Act would apply in that the next in line would be persons entitled in intestacy.

27. I have noted that both the Applicant and the Objectors are claiming that they are best suited to be appointed. According to the provisions I have cited above, the 1st objector ranks in priority over the applicant. But I have noted the arguments that the Cross-petitioner and the other objectors have contested the Will of the deceased and therefore not the best suited to realize the interest of the deceased. On the other hand, the applicant is accused of concealing material facts from the court.

28. I have considered the case for the applicant and the objectors. I have noted that each side is accusing the other in one way or another. From the information contained in their respective affidavits and submissions, this matter has proceeded to a great degree. The estate was to be distributed according to the Will of the deceased and the Ruling of this court (Nyakundi, J) delivered on April 18, 2018 to provide for the 1st Objector with one (1) acre from Loitoktok/Emperon/171.

29. Having taken into account the provisions of the law and cited authorities, and noting that this court has the final say in resolving this matter, it is my considered view that the applicant and the 1st objector do not strike me as the ideal persons to appoint administrators as prayed by each. While the provisions of the law are clear as to who lies in priority over the other, it is my view that another person or persons from the family may be better suited than either the applicant or the 1st objector.

30. I have noted that there are two houses in this estate. It is important to take into account the interests of both houses. It is my view that the family (both houses) should nominate two people, other than the applicant and the 1st objector, to be appointed as administrators with Will annexed to complete the administration of the Estate of the deceased. If, for any reason the family is unable to appoint two persons, one person from each house, then this court will take the next available option and appoint one in accordance with sections 65 and 66 of the Law of Succession Act.

31. For this purpose this court allows the family 60 days to make that decision and report to court.

32. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 7TH DAY OF JULY, 2022. S N MUTUKUJUDGE