[2022] KEHC 10315 (KLR)

In re Estate of Samuel Thuku Kiarie (Deceased) (Succession Cause 175 of 2003) [2022] KEHC 10315 (KLR) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10315 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 175 of 2003

OA Sewe, J

May 19, 2022

IN THE MATTER OF THE ESTATE OF SAMUEL THUKU KIARIE (DECEASED) AND IN THE MATTER OF AN APPLICATION FOR FRESH GRANT OF LETTERS OF ADMINISTRRATION

Between

James Mwaura Thuku

Petitioner

and

Margaret Nduta Ndirangu

1st Applicant

Priscilla Wanjiku Thuku

2nd Applicant

Mary Wangari Thuku

3rd Applicant

and

Florence Waithira Mwaura

Respondent

Ruling

1. Before the Court for determination is the Chamber Summons dated 18th May 2020. It was filed by the three applicants under Sections 56 and 66 of the Law of Succession Act, Chapter 160 of the Laws of Kenya; and Rules 49, 59 and 73 of the Probate and Administration Rules. They seek orders that:(a)Spent(b)A fresh grant of Letters of Administration be made to them jointly;(c)That all title deeds and transfers effected by use of the revoked Grant be recalled and cancelled to pave way for the redistribution of the estate;(d)That costs of the application be provided for.

2. The application was premised on the grounds that the revoked Grant was made to James Mwaura Thuku; and that it was revoked on 30th April 2020 following the death of James Mwaura on 24th December 2017. The Grant was consequently revoked on the ground that it had become inoperative and useless. It was also the contention of the applicants that there is now a vacuum in the administration of the estate of their deceased father; and therefore that there is need to have new administrators appointed to continue with the administration of the estate; and to recover assets that may have been wrongly alienated.

3. The applicants relied on their joint Supporting Affidavit sworn on 18th May 2020 to which they annexed a copy of the ruling delivered herein on 30th April 2020, by which the initial Grant of Letters of Administration Intestate was revoked. They averred that it is in the interest of justice that they be appointed as administrators as they rank in priority over the other beneficiaries of the deceased. They further stated that their application has been brought in good faith and in the interest of all the beneficiaries of the deceased. They annexed to their joint affidavit a copy of a letter from the area chief, confirming that they rank in priority over the other beneficiaries and are therefore best suited to take over the administration of the estate of the deceased. Consequently, the applicants prayed that their application dated 18th May 2020 be allowed and orders granted as prayed.

4. The respondent, Florence Waithira Mwaura, who is the widow of the deceased Petitioner, James Mwaura Thuku, relied on her affidavit sworn on 16th June 2020 and filed on 17th June 2020. She averred that she is aggrieved with the ruling of the Court dated 30th April 2020 and intends to pursue an appeal. She annexed a copy of the Notice of Appeal dated 5th May 2020 as proof of her intention to appeal. She also annexed copies of Sale Agreements to buttress her assertion that by the time of his death, James Mwaura Thuku had finalized the administration and distribution of the estate; and therefore that there is nothing left to administer.

5. The applicants filed a Supplementary Affidavit on 1st April 2021. They reiterated their stance that James Mwaura Thuku illegally transmitted the estate of the deceased to himself; and that the Court has already revoked the Grant that was issued to him to enable the Court invoke its inherent powers to make such orders as may be just and expedient, for the benefit of all the beneficiaries of the deceased. They also averred that they have complied fully with the conditions set out in Sections 51-66 of the Law of Succession Act and Rule 26(1) of the Probate & Administration Rules. They thus asserted that:(a)They have made full disclosure of the properties of the deceased;(b)They have made full disclosure of the beneficiaries of the estate of the deceased;(c)They are adult individuals of sound mind and the daughters of the deceased, thus ranking first in the table of consanguinity under Section 66 of the Law of Succession Act, in priority to the respondent who is a daughter in law;(d)They have obtained a letter from the area chief confirming their status;(e)They have obtained consent to the making of a Grant in their favour duly signed by all the beneficiaries of equal ranking;

6. The application was canvassed by way of written submissions pursuant to the directions given herein on 19th April 2021. Mr. Kagunza for the applicants filed his written submissions on 19th May 2021 and proposed one issue for determination; namely, whether the instant application is merited. He submitted that the respondent is not concerned about the co-existence of the late Samuel Thuku Kiarie’s children; and that instead, she is out to ensure that the family of the deceased; and in particular the applicants, do not inherit anything from the estate of their father.

7. In response to the assertion by the respondent that the distribution of the estate has long been finalized, Mr. Kagunza made reference to the case of Re Estate of Samuel Kimalel Tanui (Deceased) [2020] eKLR for the proposition that the fact that an administrator is deceased, or that the property has since changed hands in terms of ownership is no bar to the Court’s intervention should the same be warranted. Accordingly, Mr. Kagunza urged the Court to allow the instant application and grant the orders prayed for.

8. Ms. Odwa, learned counsel for the respondent, reiterated the respondent’s assertion that the succession proceedings in respect of the estate of the late Samuel Thuku Kiarie took place with the full knowledge of the applicants; and that at no time did they object to the distribution of the estate and/or the grant made to James Mwaura Thuku. She further submitted that the suit property was subsequently subdivided and transferred to over 80 purchasers by the late James Mwaura during his lifetime on the strength of a confirmed Grant of Letters of Administration. Hence, counsel proposed the following issues for determination:(a)Whether a fresh grant of Letters of Administration Intestate should be made to the applicants jointly; and,(b)Whether all title deeds and transfers effected by use of the initial Grant should be recalled and cancelled to pave way for redistribution of the estate.

9. Ms. Odwa submitted that the instant application is incompetent and improperly before the court given that upon revocation of grant on the ground of the demise of the sole administrator, it is expected that a fresh grant be sought through the process laid out under Sections 55-67 of the Law of Succession Act. She relied on Florence Okutu Nandwa & Another v John Atemba Kojwa as cited by the Court of Appeal in Re Estate of Muroko Kimiti (Deceased) [2019] eKLR to submit her assertion that the applicants were required to begin the process of acquiring a fresh Grant by filing an application in that regard along with consent of all the beneficiaries.

10. [10] She further submitted that the assets have since been transmitted and that, since there is a status quo order in place pending the hearing and determination of the appeal, the instant application ought to be disallowed with costs to the respondent.

11. The instant application is consequential to the ruling dated 30th April 2021. The previous Grant of Letters of Administration Intestate having been revoked, it was open to the applicants to file an application for a fresh grant. As observed in the said ruling, a fresh application does not necessarily mean a fresh cause of action. Indeed, in Re Estate of Mwangi Mugwe alias Elieza Ngware (Deceased) [2003] eKLR, Hon. Khamoni J. took the view that:“The Law of Succession Act has no provisions talking about substitution of a deceased single administrator…In the circumstances therefore, it is my considered view that the proper provisions of the law to apply is section 76(e) of the Law of Succession Act and Rule 44 of the Probate and Administration Rules whereby the Applicant would apply for revocation or annulment of a grant on the ground “that the grant has become useless and inoperative through subsequent circumstances.” The Applicant would proceed to put a prayer in the same application that a new grant be made to him and could as well add a further prayer, if need be, for confirmation of the new grant. The application, should, of course, be supported by consent from adult beneficiaries in the estate of the first deceased person, the second deceased person being the deceased administrator.”

12. That appears to me to be the correct approach, so long as the applicants have supplied the information that would have otherwise been necessary had a fresh cause been filed, such as consent, list of assets, list of beneficiaries. To that end, the applicants filed a Supplementary Affidavit on 1st April 2021 to confirm that:(a)They have made full disclosure of the properties of the deceased;(b)They have made full disclosure of the beneficiaries of the estate of the deceased;(c)They are adult individuals of sound mind and the daughters of the deceased, thus ranking first in the table of consanguinity under Section 66 of the Law of Succession Act, in priority to the respondent who is a daughter in law;(d)They have obtained a letter from the area chief confirming their status;(e)They have obtained consent to the making of a Grant in their favour duly signed by all the beneficiaries of equal ranking.

13. In my considered view, that suffices, granted that, for all intents and purposes, the instant cause is still pending. It is instructive that Rule 58(2) of the Probate & Administration Rules provides that:“Where at the time of the making of an application relating to the will, or to the devolution of property on the intestacy, of a deceased person there are pending or have previously been proceedings under the Act regarding that or any other will or the property of such person, the application shall be made in and bear the cause number of those proceedings.”

14. I am therefore satisfied that the three applicants have made a justification for their appointment as joint administrators in respect of the estate of their father, the late Samuel Thuku Kiarie. I am not convinced that such an appointment is necessarily inimical to the status quo order issued vide the ruling dated 30th November 2020. As for the applicant’s second prayer, I am not satisfied that a proper basis has been established for the issuance of those orders. For one, the particulars of the titles in question were not supplied. Secondly, it is a constitutional imperative that nobody should be condemned unheard; and therefore before such a drastic order can be given, all those likely to be adversely affected by such cancellation order as has been sought by the applicants ought to be given a hearing for purposes of Article 50(1) of the Constitution. That prayer is therefore as misplaced as it is premature.

15. In the result, the application dated 18th May 2020 is hereby partially allowed and orders granted as hereunder:(a)That a fresh grant of Letters of Administration be and is hereby made forthwith to the three applicants, namely, Margaret Nduta Ndirangu, Priscilla Wanjiku Thuku and Mary Wangari Thuku, jointly; to be confirmed after three months from the date of issuance.(b)That costs of the application be costs in the cause.

16. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 19TH DAY OF MAY 2022. OLGA SEWEJUDGE