[2023] KEHC 26947 (KLR)

In re Estate of the Late Bithon Njihia Kamau (Deceased) (Succession Cause 20 of 2019) [2023] KEHC 26947 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26947 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Succession Cause 20 of 2019

CM Kariuki, J

December 14, 2023

N THE MATTER OF THE LATE BITHON NJIHIA KAMAU (DECEASED)

Between

Zipporah W Mbugua

Applicant

and

Peter Njoroge Njihia

Respondent

Judgment

1. By summons dated 28/11/2016, the Applicant sought revocation of Grant to Beth Wamaitha in Principal Magistrate Court Succession Cause No. 28 of 2010 in Nyahururu.

2. Beth Wamaitha filed a response but passed away before hearing the matter. Her son, the current Respondent, obtained letters of administration to her Estate and applied to be substituted in her place in this matter.

3. The Application was supported by the Affidavit of Zipporah W. Mbugua sworn on 28/11/2016.

4. Beth Wamaitha Njihia filed a replying affidavit opposing the application sworn on 20/11/2017; eventually, the matter was heard, and parties were directed to canvass their arguments via submissions.

5. Applicant Submissions

6. The Grant of letters of administration issued to Beth Wamaitha automatically ought to be revoked because of her Death. Section 76 of the Law of Succession Act provides that a grant of letters of administration, 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,“..(e) that the grant has become useless and in operative through subsequent circumstances."

7. During the trial, it emerged that the prominent bone of contention between the parties is the mode of distribution of the Estate, particularly the property known as L.R. No. Nyandarua/ngai Ndeithia/Ritaya Settlement/134.

8. The following are, therefore, the issues for determination in the instant case.i.Who should be appointed as Administrator of the Estate?ii.How should the deceased's properties be distributed?

Issue No. 1. Who Should Be Appointed as Administrator of the Estate 9. In these circumstances, the first order of business would be to appoint an administrator(s) to the Estate. It is proposed that Zipporah W. Mbugua be appointed as the Administrator. The deceased does not have any surviving widow who is interested in the Estate. Zipporah is a child of the deceased, and she has demonstrated a keen interest in administering the Estate.

10. Moreover, with the Grant issued to Beth Wamaitha having become inoperative and useless due to her Death, the Grant issued to Zipporah Wairimu Mbugua in Limuru C.M.C. Succession Cause 118 of 2010 remains the only good Grant.

Issue No. 2: How Should the Deceased's Properties Be Distributed? 11. It is not disputed that the deceased had the following properties in his name at the time of his Death:i.L.R No. Nyandarua/ngai Ndeithia/ritaya Seitlement/134ii.L.R. No. Wandarua/kiriita/shauri/leshau Pondo Block 1/765

12. The Applicant (PWI) testified that the deceased had three houses: that of Dorcas Wanjiru, Beth Wamaitha, and Wamburu Njihia. The first house has five children; the second has nine children; the third has eight children. The matriarchs of the 1st and third houses are deceased. Although the matriarch of the third house is still alive, the third house does not appear to be interested in the deceased's Estate. They received their inheritance in full when the deceased was still alive.

13. The Applicant's testimony was corroborated by that of PW2, who is a member of the third house.

14. Although the Respondent denied that his father had other wives other than his mother, it is worth noting that he did not deny the existence of their children, i.e., his half-siblings. Even assuming he had denied their existence, there is more than ample evidence of the existence of the three households.

15. Having established that the deceased had three houses, the next question to answer is how to distribute his properties amongst his children.

16. The deceased made his wishes on the distribution of his properties known through his actions during his lifetime. The evidence presented by all the witnesses, including the Respondent herein, proves this. The deceased settled Beth Wamaitha (2nd house) and her children on the Leshau Pondo property, L.R. No. Nyandarua/kiriita/shauri/leshau Pondo Block1/765. The third house (Wamburu's) was settled on a property in Kinamba, Ng'arua, in the eldest son's name on behalf of the family L.R. No. Nyandarua/ngai Ndeithia/ritaya Settlment/134 was given to the 1st house. There is ample evidence that Applicant's brother exclusively lived there before his Death (see the testimony of all three of the Applicant's witnesses).

17. Moreover, the Applicant presented evidence that she followed up on the property with the S.F.T. to ensure it was duly documented and later registered. It is the Applicant who personally cleared the S.F.T. loan owing on the Ngai Ndeithia property. It would also be manifestly unfair to deprive the first house of the property they made efforts to keep in the family. The wishes of the deceased ought to be respected in this case.

18. Lady Justice Mumbi Ngugi faced a similar dilemma in the case of Re Late Morogo A. Mugun (Deceased) [2019] eKLR Kericho H.C. Succ Cause No. 113 of 2011. While referring to Section 42 of the Law of Succession Act, the learned trial Judge held that the deceased's intentions were manifestly clear by the actions he took of settling the different houses on different land parcels that the deceased had prior to his Death considered how he wished to have his properties distributed after his Death and his wishes should be respected.

19. The learned trial Judge also cited the Court of Appeal decision in Scolastica Ndululu Suva V. Agnes Nthenya Suva (2019) eKLR in which the absurdity of a blind application of Section 40 of the Law of Succession Act was noted and then observed as follows:“It is therefore evident that, although section 40 of the Law of Succession Act provides a general provision for the distribution of the estate of a polygamous deceased person, the court has discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate." (Emphasis added)

20. See paragraphs 41 to 47 of Re Late Morogo A. Mugun (Deceased) [Supra] and paragraph 17 of Scolastica Ndululu Suva V. Agnes Nthenya Suva (supra).

21. Similarly, in the instant case, the deceased's intentions were made manifestly clear by the actions he took of settling each family on their separate land parcels. The wishes of the deceased should be respected. The house of Beth Wamaitha should inherit the Leshau Pondo property, to be shared equally amongst them, while the Ngai Ndeithia scheme property should go to the first house to be shared equally amongst the survivors.

22. The grounds for the application for revocation were that there is a Grant in respect of Nyandarua/ngai Ndeithia/ Ritaya Settlement /134 issued to the Applicant Vide Limuru succession Cause No. 118 of 2010 dated 8th April 2011. Being aware of the Grant, the Respondent petitioned for letters of administration of the Estate of Bithon Njihia Kamau. Moreover, before his Death, the Deceased had subdivided his Estate into his, and each was fully divided.

23. Respondent Submissions

24. The Respondent, Beth Wamaitha Njihia, in Response to the Application via replying affidavit sworn in opposition on 20th November 2017. She averred that she is the administratrix of the Estate of Bithon Njihia Kamau alias Pithon Njihia Kamau alias Njihia Kamau (deceased) having been issued with the Grant of Letters of administration and Certificate of confirmation of Grant vide Nyahururu Principal Magistrate's Court Succession Cause No. 28 of 2010. According to the Certificate of Confirmation of Grant, land parcel number L.R Nyandarua/ Ngai Ndethia/Ritaya Settlement/134 has been distributed between herself and five other beneficiaries. Her late husband had settled her and their children on L.R Nyandarua/ Ngai Ndethia/ritaya Seitlement/134 and had since lived thereon.

25. Sometime in June 2017, in the execution of her duties as administratrix of this state, she prepared and presented for registration Transfer Forms but was surprised to discover that the Applicant had presented a Certificate of confirmation of Grant issued vide Limuru Principal Magistrates Succession Cause No. 118/2010 where she purported to acquire the entire portion in exclusion of others.

a. Who should be appointed as Administrator of the Estate? 26. The Court at Limuru, which issued and confirmed the Grant, did not have the requisite jurisdiction to allow such orders. The Certificate of Death of Bithon Njihia Kamau (Deceased) indicates that he was a Resident of Ndogino Leshau Pondo Nyandarua within Nyahururu, which is within the jurisdiction of the Nyahururu Magistrates Court. Section 49 of the Law of Succession Act provides that:“The Magistrate's Court within whose area a deceased person had his last known place of residence shall, if the gross value of the Estate of the deceased does not exceed the pecuniary limits set out in section 7(1) of the Magistrate's Courts Act, 2015, have in respect of that Estate the jurisdiction conferred by section 48: Provided that— (i) the magistrate may, with the consent or by the direction of the High Court, transfer the administration of an estate to any other Magistrate's Court where it appears that the greater part of the Estate is situated within the area of that other magistrate or that there is other good reason for the transfer."

27. If a court lacks jurisdiction, it has no powers to proceed to entertain the matter, and it has to down its tools, and the said jurisdiction cannot be assumed or consented to by parties. The court is urged to move suo moto in revoking the Grant issued thereon.

28. During his testimony, the Respondent stated that he was unaware that his father was ever married to three wives, as claimed by the Applicant. His mother was the only known legal wife solemnizing their marriage at Ndaragwa P.C.E.A, and a marriage certificate was issued.

29. The late Beth Wamaitha is the only legal wife of the deceased, as proven by the production of the marriage certificate, which is evidence of marriage as provided under section 34 of the Marriage Act Cap 150 Laws of Kenya. Beth Njihia, being the surviving spouse, was entitled to have petitioned for letters of administration here at Nyahururu Law Courts. Section 66 of the Law of succession gives the spouse priority. In this instant, the Respondent herein, a son of the Deceased Beth Njihia, is entitled to be appointed Administrator.

b. How Should the Deceased's Properties be Distributed 30. The Deceased, in this matter, did not have three families as indicated by the Applicant. The Applicant's filing of the succession proceedings at Limuru indicates that she did not want the involvement of other siblings.

31. The Respondent submits that their father was very intentional when he solemnized his wedding with Beth Wamaitha to confirm that the only recognized family he had while he was alive was Beth Njihia as his only legal wife. The Applicant has not produced any marriage certificate or agreement to show that a marriage existed between the deceased and her mother.

32. Respondent objected to the Applicant getting a share of the deceased's Estate due to the denial of marriage. From the upshot as was quoted in the case of Hortensia Wanjiku Yawe V The Republic Trustee Civil Appeal No. 13 of 1976, the court heldi.The onus of proving customary law marriage is generally on the party who claims it,ii.The standard of proof is usually for civil action, namely on the balance of probabilities.iii.Evidence as to the formalities required for a customary law marriage must be proved to that standard."

33. It is contended that the Applicant's mother was ever a wife to the deceased. From the foregoing, the mode of distribution would be that the said parcel of land being L.R Nyandarua/ Ngai Ndethia/Ritaya Settlement/ 134, should go to the Respondent herein after being appointed as the Administrator of the Estate of the deceased.

34. Issues, Analysis and Determination

35. After reviewing the record of proceedings herein, pleadings, and submissions filed, I find the issues to be: Who should be appointed Administrator of the Estate? How should the deceased's properties be distributed? Who should bear the costs of the application?

36. On the first issue, i.e., Who should be appointed as Administrator of the Estate, the court notes there are two sets of succession causes which had grants to respective rivaling parties, namely Applicant obtained grants in a Limuru court, and the Respondent obtained grants in Nyahururu CMs court.

37. Both grants are impugned in that a court issued Limuru's court grant without territorial jurisdiction as the court is in Kiambu County, where its jurisdiction obtain. On the other hand, the Nyahururu court grants are said to have been rendered useless by the petitioner's Death. I agree with the respondent submissions that the Court at Limuru, which issued and confirmed the Grant, did not have the requisite jurisdiction to allow such orders. The Certificate of Death of Bithon Njihia Kamau (Deceased) indicates that he was a Resident of Ndogino Leshau Pondo Nyandarua within Nyahururu, which is within the jurisdiction of the Nyahururu Magistrates Court. Section 49 of the Law of Succession Act provides that:“The Magistrate's Court within whose area a deceased person had his last known place of residence shall, if the gross value of the Estate of the deceased does not exceed the pecuniary limits set out in section 7(1) of the Magistrate's Courts Act, 2015, have in respect of that Estate the jurisdiction conferred by section 48

38. On the other hand, the petitioner in the Nyahururu cause who obtained the Grant has since passed away. Section 76 of the Law of Succession Act provides that a grant of letters of administration, 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,“...(e) that the grant has become useless and inoperative through subsequent circumstances."

39. Thus, the court finds that both grants in the Limuru cause and Nyahururu cause are for revocation in the circumstances aforesaid. The court observes that though the Respondent contests the existence of the customary marriage between Applicant's deceased mother and deceased herein, there is no contest as to the Applicant being a child of the deceased. Thus, the court finds that the persons to be appointed joint administrators are Zipporah W. Mbugua (Applicant) and Peter Njoroge Njihia(respondent)

40. Regarding the second issue, i.e., How should the deceased's properties be distributed? The court reserves the ruling until a scene visit to L.R Nyandarua/ Ngai Ndethia/ritaya Settlement/ 134 to determine its occupancy as it is the epicenter of the contest herein.

41. Thus, at this stage, the orders are;i.The court has appointed the joint administrators of the deceased's Estate as follows: Zipporah W Mbugua (Applicant) and Peter Njoroge Njihia (Respondent).ii.The scene visit directions shall be issued during the delivery of this ruling.

DATED, SIGNED, AND DELIVERED AT NYANDARUA THIS 14TH DAY OF DECEMBER 2023………………………………C KARIUKIJUDGE