[2022] KEHC 15404 (KLR)

In re Estate of the Late Ezekiel Kibe Kimaru (Deceased) (Succession Cause 356 of 1998) [2022] KEHC 15404 (KLR) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15404 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause 356 of 1998

HK Chemitei, J

November 3, 2022

IN THE MATTER OF THE ESTATE OF THE LATE EZEKIEL KIBE KIMARU (DECEASED)

Between

Muchiri Kibe Kimaru & 3 others

Applicant

and

John Kamau Kibe

Respondent

Ruling

1. The applicant filed a notice of motion under section 1, 1A,3 and 3A of the Civil Procedure Act, Order 9 rule 13 of the Civil Procedure Rules, section 74 and 76 of the Law of Succession Act and sought for orders inter alia:a.That the summons for rectification of grant dated the October 4, 2021 be denied.b.That the grant of letters of administration intestate issued to John Kamau Kibe on the October 29, 1998 and confirmed on June 5, 2001 be revoked.c.That the beneficiaries of the estate of the late Ezekiel Kibe Kimaru be allowed to apply for letters of administration intestate and appoint Muchiri Kibe Kimaru as the administrator.d.That the beneficiaries of the estate of the Late Ezekiel Kibe Kimaru be allowed to make a new mode of distribution that is equitable.

2. The application is supported by the grounds on the face of it as well as the sworn affidavit of Kariuki Kibe and additional affidavits of Muchiri Kibe Kimaru, Ruth Wanjuhi Mwangi and Joseph Kibe Mwangi the 4th, 6th and 8th beneficiaries respectively who reiterated the contents in the affidavit of the 2nd beneficiary.

3. He deposed that his brother the respondent herein was issued with letters of administration on October 29, 1998 and the same was confirmed on June 5, 2001. That the respondent did not consult, disclose or account for any steps he takes as the administrator of the estate. He deposed further, that the respondent had gone as far as forging the signatures of the beneficiaries in the consent to the summons for rectification of grant dated October 4, 2021.

4. The 2nd beneficiary went on to deposed that, since June 5, 2001 the respondent failed to complete the task of administration to the beneficiaries yet their deceased father had one property. He urged the court not to grant the summons for rectification of grant dated October 4, 2021, to revoke the letters of administration issued to respondent on October 29, 1998 and confirm on June 5, 2001. Further, he urged the court to allow his brother Muchiri Kibe Kimaru to apply for letters of administration and divide the property equally.

5. The respondent in response to the application filed a replying affidavit dated December 29, 2021 and a further affidavit dated October 13, 2021. He deposed that the application was frivolous, vexatious, incompetent and the same was an abuse of the process of this honourable court. That though a grant of letters of administration intestate of the estate of the deceased herein was issued to him on October 29, 1998 and then confirmed on June 5, 2001, he was unable to distribute the said estate due to the fact that one of the beneficiaries of the said estate namely Ruth Wanjuhi Mwangi protested to the mode of distribution of the same giving way to a long and protracted objection proceedings which was eventually dismissed.

6. He deposed further that following the determination of the dispute between the said Ruth Wanjuhi Mwangi who is his late brother’s 1st wife and him, he immediately commenced the process of distributing the estate hereof comprised in land parcel number Nyandarua/tulaga/174. That it was therefore not true that he had failed in his duties as the administrator of the estate hereof as claimed by the applicants. In addition, that the aforesaid Ruth Wanjuhi Mwangi, who was listed as one of the applicants in the instant application had not appealed the decision of this honourable on the objection.

7. The respondent went to depose that the applicants' real intention was to disinherit Micah Kibe Mwangi and Mary Muthoni Njunge, who were the children of his late brother Mwangi Kibe Kimaru with the second wife. That the reason why the said Mary Muthoni Njunge had not been included in these proceedings was that she had been married but the said marriage had since collapsed and in any event she was still entitled to a share of her deceased father's entitlement to the estate herein. Additionally, that the applicants herein are essentially asking this honourable court to sit on appeal of its own judgment.

8. The court directed that the application be disposed by way of written submissions which all parties have complied.

Applicant’s Submissions 9. The applicants in their submissions identified three issues for determination including whether the summons for rectification of grant dated October 4, 2021 should be denied. On this issue the applicant submitted that the said summons sought to change the mode of distribution of Title Number Nyandarua/Tulaga/174 which was proposed in the confirmed grant dated June 5, 2001. The same was done through the rectified certificate of confirmation of grant dated November 19, 2020 by taking half of the 6th beneficiary’s-Ruth Wanjuhi Mwangi-share by allocating her 1. 3 acres of the estate, completely disinheriting the 8th beneficiary-Joseph Kibe Mwangi by not allocating him any portion of the estate, introducing a stranger to the estate one Mary Muthoni Njunge to take 0. 65 acres of the estate and increasing the 7th beneficiary’s-Micah Kibe Mwangi share from 0. 5 acres to 0. 65 acres. Further, that the consent in support of summons for rectification of grant dated October 4, 2021 had been proved to be a forgery by the sworn affidavits of the 2nd and 4th beneficiaries.

10. On the second issue, whether the grant of letters of administration intestate issued to the respondent be revoked and whether the beneficiaries should be allowed to appoint a new administrator they submitted that the respondent who was the current administrator had not diligently administered the estate. That he does not disclose, consult or account for any of the actions he takes regarding the estate and has gone to the extent of giving false statement and forgeries. On those grounds they urged the court to allow the beneficiaries to choose another administrator who will administer the estate equally and efficiently.

11. On the last issue, whether Micah Kibe Mwangi and Mary Muthoni Njunge should be allowed from the estate, they submitted that the 6th beneficiary who was the widow of the late Mwangi Kibe Kimaru a son to the deceased herein, should get her husband’s full portion and afterwards Micah Kibe Mwangi and Mary Muthoni Njunge can file succession under their late father’s name for their part of the estate as his legitimate children.

12. They placed reliance on Article 40(1) and 48 of the Constitution of Kenya, 2010, sections 52 and 76 of the law of succession. They also draw the court’s attention to the cases of Re Estate of Gathuku Gathuna (deceased) [2020] eKLR, Re Estate of David William Kigumi Kimemia (deceased) [2021] eKLR, Re Estate of Omar Makokha Matsakhu(deceased) [2021] eKLR.

13. In conclusion the applicants urged the court to make orders that the 4th beneficiary be issued with grant of letters of administration of the estate so that he comes up with an equitable mode of distribution to be confirmed with the grant.

Respondent’s Submissions 14. The respondent submitted that all the bonafide beneficiaries of the estate with the exception of Ruth Wanjuhi Mwangi had been allocated equal shares in land parcel number Nyandarua/Tulaga/174 of 2. 6 acres each. That the only contention was with regard to the entitlements of the dependents of Mwangi Kibe Kimaru (deceased) who had benefitted from 2. 6 acres just like the rest of his brothers.

15. Further, that there was full disclosure of all beneficiaries the chief’s letter and that the applicants were present during the confirmation of grant and therefore the application for revocation of grant was an afterthought as there was nothing fraudulent in the said process. He submitted also that from the provisions of section 76 of the Law of Succession Act, it was clear that a party seeking to have a grant revoked must prove either or all the grounds therein.

16. The respondent placed reliance on rule 40 (8) of the Probate and Administration Rules and went on to submit that no affidavit of protest save for that of Ruth Wanjuhi Mwangi had been filed by the beneficiaries. In conclusion, he submitted that the instant application had no met the threshold required under section 76 of the Law of Succession Act.

Analysis and Determination 17. From the foregoing and having carefully looked at the court records, three issues are for determination namely; whether the summons for rectification of the grant dated October 4, 2021 should be denied, whether the grant of letters of administration intestate issued to respondent on October 29, 1998 and confirmed on June 5, 2001 should be revoked and whether the beneficiaries of the deceased herein be allowed to apply for fresh letters of administration intestate by appointing Muchiri Kibe Kimaru as the administrator and make new mode of distribution.

18. In addressing the first issue, whether the summons for rectification of the grant dated October 4, 2021 should be denied this court has jurisdiction to rectify a grant but must be guided by section 74 of the Act which provides: -“Errors in names and descriptions, or in setting forth the time and place of the deceased’s death, or the purpose in a limited grant, may be rectified by the court, and the grant of representation, whether before or after confirmation, may be altered and amended accordingly”.

19. Looking at the schedule of properties and distribution in the rectified certificate of confirmation of grant dated November 19, 2020 and the schedule of properties and proposed distribution mode in the affidavit in support of summons for rectification of grant it is noted that the rectification sought in the said summons entails removal of some beneficiaries, addition of other alleged beneficiaries and amendment of the sizes of the property earlier allocated to certain beneficiaries.

20. The rectification sought by the respondent herein in his summons clearly does not represent an error in the description of the properties, names, time and place of the deceased death or a genuine mistake in the description and consequent distribution in line with the provisions of section 74 of the Law of Succession Act.

21. In addressing the second issue, whether the grant of letters of administration intestate issued to respondent on October 29, 1998 and confirmed on June 5, 2001 should be revoked it is trite law that for a grant to be revoked, one must meet the grounds set out in section 76 of the Law of Succession Act which provides as follows:“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)that the proceedings to obtain the grant were defective in substance.(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently.(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either—i.to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; orii.to proceed diligently with the administration of the estate; oriii.to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(e)that the grant has become useless and inoperative through subsequent circumstances.

22. In the instant case, the issue is whether the administrator has carried out his administration duties diligently from the date he was granted permission by this court. In his reply he blamed the applicants who according to him prolonged the whole process by filing objection proceedings which the court later dismissed. The respondent went ahead and attached a copy of a mutation form which he has divided the land into 9 portions including the road reserve.

23. Taking the totality of the facts, the history of this matter as well as the pleadings before me, it is apparent that the issue at hand has to do with the portion due to Mica Kibe Mungai. As per the respondent, he feels that the same ought to be divided so that one Mary Muthoni Njunge could get a portion thereof.

24. This court should not be dragged into the wars between the parties after the grant was confirmed without any objection being raised and the only objection was later dismissed by this court. All that the parties should do is to ensure that the distribution of the property ought to be as per the confirmed grant issued on June 5, 1998 and rectified on November 19, 2020.

25. In the instant case if there are any claims on any of the shares due to the beneficiaries then the same should not target the entire estate but must be specific to the said beneficiary. In other words, the estate should be distributed to the 8 beneficiaries indicated in the confirmed grant. The beneficiaries can then transmit it to whoever they desire and if there is any dispute then it should be specific to that beneficiary alone. The beneficiaries whose entitlement is not challenged should be able to obtain their respective titles.

26. As a matter of fact, and noting that the administrator had gone to the extent of drawing a mutation form, which symbolizes a survey exercise, the process ought to be completed and the resultant titles transmitted as per the grant from this court mentioned above.

27. I think I have stated so much to indicate that the application for revocation of grant for now will not benefit any party save to prolong the exercise further. Let the administrator complete the exercise speedily and within a reasonable time frame noting that the matter has unnecessarily taken inordinately long time to be concluded.

28. This court does not see the reason of introducing another or a joint administrator for now although it reserves the right to do so in the event that the current one does not finalize the process within the stipulated timeframe. At the same time there is no reason to allow the respondent’s application dated October 4, 2021 as it seeks to introduce other new beneficiaries which in my view complicates the matter. The respondents/beneficiaries should simply complete the process as per the rectified grant mentioned earlier.

29. Consequently, the parties are hereby directed as hereunder;(a)the grant rectified on November 19, 2020 for all intend and purpose should be actualized by having the property Nyandarua/Tulaga/174 be subdivided and transmitted to the mentioned beneficiaries within 90 days from the date herein.(b)the costs of the above exercise shall be met by the estate and or alternatively be contributed by the beneficiaries on a pro rata basis.(c)each party shall bear their respective costs.

DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 3RD DAY OF NOVEMBER 2022. H. K. CHEMITEIJUDGE