[2022] KEHC 1674 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT KENYA

AT MERU

(CORAM: CHERERE-J)

SUCCESSION CAUSE NO. 5 OF 1995

IN THE MATTER OF THE ESTATE OF SIMON IKANDI GITUNGA ALIAS

SIMON M’IKANDI ALIAS SIMON GIKANDI(DECEASED)

BETWEEN

DOMICIANO MBAYA IKANDI...............................................1ST ADMINISTRATOR/APPLICANT

JUSTINE KATHAMBI MAITIMA.........................................2ND ADMINISTRATOR/APPLICANT

AND

PATRICK MUTETHIA...........................................................3RD ADMINISTRATOR/RESPONDENT

RULING

Introduction

1. Deceased died sometimes on 11th March, 1972. The Applicants and Respondent were appointed joint administrators of the estate on 21st November, 2018.

2. By a ruling dated 09th May, 2019, this court after hearing the parties found that two daughters of the deceased had renounced their right to inheritance and directed that the estate be distributed equally to the other beneficiaries.

3. A Certificate of Confirmation of Grant dated 09th May, 2019, contains the following as the beneficiaries of the estate:

i. NYAKI/GIAKI/442 equally to

1) Henry M’Amathi M’ikandi

2) Justine Kathambi Maitima

3) Domesiano Mbaya Ikandi

4) Pascasious Mutua Ikandi

5) Fedelis Ngaruni Ikandi

6) The family of Augustino Maitima (deceased) to be held by the administrators

7) The family of Alex Murugu deceased) to be held by the administrators

ii. LR. NYAKI/NKABUNE/493 equally to

1) Henry M’Amathi M’ikandi

2) Justine Kathambi Maitima

3) Domesiano Mbaya Ikandi

4) Pascasious Mutua Ikandi

5) Fedelis Ngaruni Ikandi

6) The family of Augustino Maitima (deceased) to be held by the administrators

7) The family of Alex Murugu deceased) to be held by the administrators

4. On 10th September, 2021, the Applicants filed summons dated 08th September, 2021 seeking an order that the Executive Officer of this court signs necessary transfer forms on behalf of the Respondent for purposes of executing the distribution of the estate. That application remains unprosecuted.

5. Before that application could be heard, the Applicants on 01st November, 2021 filed the summons dated 28th October, 2021 which is the subject of this ruling seeking orders for:

(a) Review of the order on distribution of the estate made on 09th May, 2019

(b) Inclusion of Christina Kithira and the family of Teresia Kananu Muchena as beneficiaries entitled to an equal share as the other beneficiaries

6. The summons is based mainly on the ground thatChristina Kithira andTeresia Kananu Muchena who had renounced their right to inheritance have since changed their mind. The summons is supported by a joint affidavit sworn by the Applicants on 28th October, 2021 in which they reiterate the grounds on the face of the application.

7. Respondent opposed the summons by way of a replying affidavit sworn on 22nd November, 2021 and a further affidavit sworn on 22nd December, 2021on the following grounds THAT:

i. The Certificate of Confirmation of Grant annexed to the supporting affidavit is erroneous having included the name of Justine Kathambi Maitima who renounced his right to inheritance

ii. Justine Kathambi Maitima and Christina Kithira who renounced their rights to inherit have not given any reasons for the alleged change of mind

iii. Justine Kathambi Maitima and Christina Kithira are bound by the decisions that they willingly made

iv. There is no evidence that Teresia Kananu Muchena (deceased) left a family that requires to be provided for

Analysis and determination

8. I have considered the summons in the light of the affidavits on record and also on the submissions filed on behalf of the Protestor and the issue for determination revolves around distribution of deceased’s estate.

9. Review of decisions of a probate court is governed by Rule 63 of the Probate and Administration Rules which recognizes that the provisions of Order 45of the Civil Procedure Rules are applicable to probate matters. It states that:

“Save as in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and Orders 11, 16, 19, 26, 40, 45 and 50 (Cap. 21, Sub. Leg.), … shall apply so far as relevant to proceedings under these Rules.”

10. Clearly, Order 45 relating to review is one of the Civil Procedure Rules imported into succession practice by rule 63 of the Probate and Administration Rules. An application for review in succession proceedings can be brought by a party to the proceedings, a beneficiary to the estate or any interested party. However, the application must meet the substantive requirements of an application brought for review set out in Order 45 of the Civil Procedure Rules.(SeeJohn Mundia Njoroge & 9 Others vs. Cecilia Muthoni Njoroge & Another [2016] eKLR).

11. Order 45 rule 1 of the Civil Procedure Rules on the other hand provides that:

(1) Any person considering himself aggrieved—

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or

(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.

12. The Court of Appeal in Anthony Gachara Ayub v Francis Mahinda Thinwa [2014] eKLR restated the main grounds for review which are discovery of new and important matter or evidence; mistake or error apparent on the face of the record; or for any other sufficient reason and most importantly, the application has to be made without unreasonable delay.

13. The Certificate of Grant which the Applicants seek to review was issued on 09th May, 2019. The application for review was filed on 01st November, 2021. The 2 ½ years delay on the part of the Applicants has not been explained and I therefore find that the summons has been brought with unnecessary delay.

14. I have anxiously considered the summons and the supporting affidavit and the Applicants have not averred or demonstrated the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within their knowledge or could not be produced by them at the time when the impugned Grant was confirmed, or some mistake or error apparent on the face of the record, or any other sufficient reason that would entitle them to an order of review.

15. Concerning renunciation of right to inheritance, it should be noted that a beneficiary under a will or a survivor in intestacy cannot be compelled to take a share in the estate against their wish. In other words, it is not mandatory that a beneficiary takes his bequest or legacy under the will of the deceased or that a survivor in intestacy takes the share allotted to them. In both cases, there is liberty to renounce or disclaim the right to the share. The usual practice is for such beneficiary or survivor or heir to file a deed or instrument of renunciation disclaiming such right (See In the Matter of the Estate of Elizabeth Wanjiku Munge (Deceased) [2015] eKLR).

16. The court record demonstrates that by affidavits sworn on 04th February, 2019 filed on the same date, Justine Kathambi MaitimaandChristina Kithirarenounced their right to the estate which renunciations the court considered in its ruling dated 09th May, 2019 when it directed that the estate be shared equally amongst the remaining beneficiaries.

17. It is worth noting that Christina Kithirahas not filed any affidavit and the contentions concerning her as stated by the Applicants are mere allegations which are not worthy of any consideration.

18. The allegation that the Justine Kathambi MaitimaandChristina Kithiraare facing hostilities from the families of their late husbands concerning inheritance of their father’s in-laws has not been demonstrated. There is no evidence that any cause has been filed in respect of their fathers in law and even if that be so, their interests are protected by the law.

19. Whilst it is true that all the children of the deceased are by law entitled to share in his estate, it has not been demonstrated that the renunciations byJustine Kathambi MaitimaandChristina Kithira were made under duress, coercion, intimidation or misrepresentation of material particulars concerning their rights to inherit their father’s estate.

20. The parties having acquiesced to the renunciations, the court acted on the same and directed that the estate be shared equally amongst the remaining beneficiaries. Justine Kathambi MaitimaandChristina Kithiraare therefore precluded from asserting something contrary to what is implied by their renunciations (See Serah Njeri Mwobi v John Kimani Njoroge (2013) eKLR, where the Court of Appeal held that:

“The doctrine of estoppel operates as a principle of law which precludes a person from asserting something contrary to what is implied by a previous action or statement of that person.”

21. Concerning Teresia Kananu Muchena (deceased), I agree with the Respondent that the Applicants have neither explained why they omitted her name when they applied for confirmation of the grant nor demonstrated that she left a family that requires to be provided for.

22. Finally, the record demonstrates that the Certificate of Confirmation of Grant dated 09th May, 2019 erroneously contains the name of Justine Kathambi Maitimawho as stated hereinabove had unequivocally renounced her right.

23. From the foregoing analysis, it is therefore hereby ordered THAT:

1) No case has been made for review of the order on distribution of the estate made on 09th May, 2019

2) The summons dated 28th October, 2021 and filed on 01st November, 2021 has no merit and is dismissed

3) The Certificate of Confirmation of Grant dated 09th May, 2019 shall be rectified by deleting the name of Justine Kathambi Maitima who renounced her right to inheritance of the estate

4) Applicants shall bear the costs of this summons.

DELIVERED IN MERU THIS 10TH DAY OF MARCH, 2022

WAMAE. T. W. CHERERE

JUDGE

Appearances

Court Assistant -Morris Kinoti

For Applicants - Mr.Muthomi for John Muthomi& Co. Advocates

For Respondent - Mr. Ringera for Gatari Ringera & Co. Advocates