[2017] KEHC 9771 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO.608 OF 2003

IN THE MATTER OF THE ESTATE OF SERAH WANJIKU NJENGA (DECEASED)

ANTONY NJENGA KINYURU.........OBJECTOR/APPLICANT

VERSUS

GEOFFREY KIRURI GACHARA.................1ST RESPONDENT

GRACE WAMUHU GACHARA...................2NDRESPONDENT

JUDGMENT

PLEADINGS

The deceased Serah Wanjiku Njenga died on 11th December 1999. She was not survived by a spouse or any children of her own. Two properties being Land Reference No. Muguga/Gitaru/1386 and Land Reference No. Muguga/Gitaru/1388, were listed as assets comprising the estate of the deceased. Teresia Mukami Njenga and Geoffrey KinyuruNjenga petitioned the court through Succession Cause No. 2680 of 2000, for a grant of letters of administration intestate in respect to the deceased’s estate, in their capacity as the deceased’s co-wife and step-son respectively. The grant was issued to them on 2nd May 2001 and confirmed on 21st October 2003.

On 3rd November 2003, the 1st respondent filed an application for revocation of the grant issued to Teresia Mukami Njenga and Geoffrey Kinyuru Njenga on 2nd May 2001 and confirmed on 21st October 2003. By the Order issued on 22nd April 2004, the grant was revoked and the court ordered withdrawal of Succession Cause No. 2680 of 2000. The respondents thereafter initiated fresh succession proceedings in the present suit and petitioned for a fresh grant of representation in respect of the deceased’s estate in their capacity as the deceased’s brother and sister. The grant was issued to them on 23rd July 2003 and confirmed and 9th September 2003.

The applicant filed the present summons dated 16th December 2015 seeking the revocation or annulment of the grant made to the respondents on 23rd July 2003 and confirmed and 9th September 2003on the grounds that: the grant was obtained fraudulently by making false statement and/or by concealing from the court of material facts; that the proceedings to obtain the grant were defective and incompetent in substance;and that the grant was obtained by means of untrue allegations of a fact essential in point of law to justify the grant.

The application was supported by the affidavit of the applicant dated 16th December 2015. The following is the summary of the applicant’s case:

a) That he was the deceased’s grandson, having been born to the deceased’s daughter Ngendo Njenga (deceased);

b) That the deceased was one of the wives married to Julius Njenga (deceased).

c) That Land Reference No. Muguga/Gitaru/1386 and Land Reference No. Muguga/Gitaru/1388 were initially registered in Julius Njenga’s name but when he died the properties were transferred to the deceased’s names.

d) That the deceased was survived by Ngendo Njenga (deceased), Geoffrey Kinyuru Njenga (deceased) and Teresia Mukami Njenga;

e) That the grant of letters of administration for the estate of the deceased was issued to Teresia Mukami Njenga and Geoffrey Kinyuru Njenga on 2nd May 2001 vide Succession Cause No. 2680 of 2000 and confirmed on 21st October 2003;

f) That Geoffrey Kiruri Gachara and Grace Wamuhu Gachara in their capacity as the deceased’s brother and sister fraudulently and secretly filed the Succession Cause herein and were issued with the grant on 23rd July 2003;

g) That Land Reference No.Muguga/Gitaru/1388 was distributed between TeresiaMukamiNjenga having 2 Acres in trust for herself and her children and Geoffrey Kinyuru Njenga in trust of himself and his brothers and sisters while Land Reference No. Muguga/Gitaru/1386 was distributed to Geoffrey Kinyuru Njenga for himself in trust for his brothers and sisters;

h) That since 1998, he together with his family have been in occupation of the two parcels of land and for over 17 years they have enjoyed uninterrupted and exclusive possession of the land;

i) That he has developed the said parcels of land by planting various crops and keeping livestock and has built a house and drilled a borehole on the said parcels of land where his mother was buried.

j) That he and the other beneficiaries of the estate of the deceased stand to suffer irreparably if the orders sought are not granted

The application is opposed by Geoffrey Kiruri Gachara, who is a brother of the deceased through a replying affidavit sworn on 12th February 2015. The following is the summary of the respondent’s case:

a) That the deceased was his blood sister who died intestate and a grant of letters of administration was to him and his sister Grace Wamuhu Gachara (deceased) on 23rd July 2003 and confirmed and 9th September 2003;

b) That the deceased had once cohabited with Julius Njenga but had long separated from him after she was ostracised due to her inability to bear children ;

c) That the deceased died under their care after a long illness and as far as they were concerned she had no links to anyone in the family of Julius Njenga;

d) Ngendo Njenga and Teresia Mukami Njenga were wives of Julius Njenga and had no blood relations to the deceased and as such they could not have survived the deceased;

e) That the two parcels being Land Reference No. Muguga/Gitaru/1386 and Land Reference No. Muguga/Gitaru/1388 were all registered and belonged to the deceased and not Julius Njenga;

f) That he and Grace Wamuhu Gachara having blood relations with the deceased fell in a higher degree of priority under Section 39 of the Law of Succession since the deceased did not leave a spouse or children;

g) That at the time of petitioning the court for grant they revealed to the court that they were the deceased’s brother and sister;

h) That they were not aware and had no way of knowing that there was another petition filed in Succession Cause No. 2680 of 2000, and that the grant subject to this cause was duly confirmed before the one in Succession Cause No. 2680 of 2000 and took precedence as observed by Justice Koome who revoked the said grant on 21st January 2014;

i) That the applicant and his family have intermeddled with the properties that belonged to the estate of the deceased by filing numerous frivolous suits among them being Nairobi HCCC 34/04 OS, HCELC 861/13 OS whose only aim was to pervert the cause of justice and keep him from accessing his property;

j) That the application is an afterthought and brought too late after over 13 years since the grant was confirmed and ought to be dismissed for laches;

The application was heard on 23rd March 2017 where the applicant Anthony Njenga Kinyuru PW1 and Geoffrey Kiruri Gachara DW1 reiterated contents of the pleadings and filed of written submissions. All the evidence has duly considered by this court.

ISSUES The following are the issues for determination:

i) Whether the respondents rank higher than the applicant in priority for administering the deceased’s estate?

ii) Whether the grant issued to the respondents was obtained fraudulently by making false statement and/or by concealing from the court of material facts, whether the proceedings to obtain the grant were defective and incompetent in substance, and that the grant was obtained by means of untrue allegations of a fact essential in point of law to justify the grant?

DETERMINATION

From the proceedings in Succession Cause No. 2680 of 2000, and from the evidence presented in the present case through pleadings and at the hearing of the matter, I note that the deceased was not survived by a spouse or children. Though the applicant claimed to be the deceased’s grandchild and a son to the deceased’s daughter this was not proved by evidence on record. Instead, it was clearly demonstrated that he was in fact a son to one of the deceased’s co-wives. Section 39 of the Law of Succession Act comes into play in instances where the deceased has left no surviving spouse or children. It states that:

Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority—

(a) father; or if dead

(b) mother; or if dead

(c) brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none

d) half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none

(e) the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.

The applicant is therefore not a beneficiary of the estate of the deceased by virtue of the above referenced section, the deceased’s estate does not legally devolve to him but to the respondents who are brother and sister of the deceased as set out in Section 39(c) of the Act.

Section 66 of the Law of Succession Actfurther sets out by order of preference the persons who are entitled to administration of the estate of an intestate. It states:

“66. 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 interests 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 association of other beneficiaries;

b) other beneficiaries entitled in intestacy, with priority according to their respective beneficial interests as provided by Part V;

c) the Public Trustee; and

d) creditors.”

According to Section 66(b) of the Act, those others are:-

a) the children of the deceased according to Sections 35 and 38 of the Act;

b) the father, mother, siblings and children of dead siblings, half siblings and children of half-siblings, and other relatives in the nearest degree of consanguinity up to and including the sixth degree, according to Section 39(1) of the Act.

Stepchildren and co-wives of the deceased in this cause are not her kin. They share no blood kinship with her and therefore they cannot possibly be her survivors, unless she had formally adopted them. They cannot therefore be ranked at all in the list of the survivors envisaged in Section 66(b). They do not appear at all in the radar. The respondents having blood relations with the deceased as brother and sister of the deceased therefore ranked in higher priority over the applicant in administering the estate of the deceased.

On the next issue regarding whether the grant should be revoked, I note that the respondents complied with the requirements of the Succession Act in petitioning the Court for the grant. The right beneficiaries of the estate were listed and duly participated in the Succession proceedings. The necessary consents were availed at the confirmation of the grant. Therefore the instant application lacks merit.

DISPOSITION

1. The present application for revocation of grant is dismissed for lack of merit.

2. Each party to bear their own costs.

DELIVERED SIGNED & DATED IN OPEN COURT ON 10TH NOVEMBER 2017

M.W.MUIGAI

JUDGE

IN THE PRESENCE OF;

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