[2022] KEHC 16494 (KLR)

In re Estate of the Late George Ndirangu Kagunyi (Deceased) (Miscellaneous Succession Cause E031 of 2022) [2022] KEHC 16494 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16494 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Succession Cause E031 of 2022

HK Chemitei, J

December 15, 2022

IN THE MATTER OF THE ESTATE OF THE LATE GEORGE NDIRANGU KAGUNYI - DECEASED

Between

Martin Wachira Ndirangu

1st Applicant

Jane Wanjiru Ndirangu

2nd Applicant

and

Elizabeth Njeri Ndirangu

1st Respondent

Francis Karonji Wander

2nd Respondent

Ruling

1. The applicants filed summons for revocation dated June 14, 2022 and sought for an order that the grant of letters of administration instated issued to the respondents herein on September 15, 2021 be revoked and that the petitioners in Nakuru Succession Cause No E 155 of 2021 render accounts.

2. The application is premised on the grounds on the face of the record and the supporting affidavit of the applicants.

3. In their supporting affidavit the applicants deponed that the deceased died intestate and left the following surviving him namely; Jane Wanjiru Ndirangu, Martin Wachira Ndirangu and Jackline Wangui Ndirangu whom are the widow, son and daughter respectively. That the proceedings to obtain the grant in Nakuru Succession Cause No E155 of 2021 were defective as the petitioners therein fraudulently omitted other dependants including them. Further, that they had taken steps to file a petition in the estate of the deceased herein the cause being HCFP and A E 765 of 2022.

4. The applicants deposed further that the said grant had been obtained by concealment from this court of a material fact that the deceased had a first family being them. That they were never consulted or gave their consent in the impugned succession case by the respondents herein. Further, that the deceased estate was currently being administered by the respondents who were strangers to the estate.

5. The applicants went on to depose that the certificate of confirmation, the grant herein and all the consequential orders issued in favour of the respondents herein should be revoked and instead the same be granted to them who were more suitable persons to faithfully administer the estate.

6. The respondents filed a replying affidavit dated June 28, 2022 sworn by the 1st respondent on the even date and she averred that the 2nd applicant was not the wife of the deceased as she had been divorced by him in the year 2008. That the last known place of residence of the deceased was Santon Kasarani where he was living with the 1st respondent and their two children until his demise. That the deceased was survived by no other dependants other than herself as his only widow and their two children Duncan Wachira Ndirangu and Ashley Wangui Ndirangu.

7. The 1st respondent averred further the proceedings for obtaining the grant were not defective as no dependants of the deceased were excluded and that she had the priority to obtain the grant as the deceased only surviving spouse with or without consulting the beneficiaries. That the applicants had never been dependent on the deceased either by parental responsibility or marital status. Further, that it was her together with her elderly father the 2nd respondent herein who took care of the deceased during his illness until his demise. Also, that the deceased had a strained relationship with his immediate family as they refused to take care of him and all they were interested in was his property.

8. The 1st respondent went on to aver that the applicants who were claiming to be the deceased’s 1st family never visited the deceased or attended his burial. That the deceased’s alleged daughter Jackline Wangui when she got married no dowry was brought to the deceased as was required under the Kikuyu tradition. Further, that the deceased prior to his demise confirmed that he had no other children except their two children.

9. The 1st respondent averred that the Succession Cause NKR CMCC 155 of 2020 was duly gazetted, Letters of Administration issued and the certificate of confirmation of grant granted without any objection. that therefore, the applicants’ application was an afterthought, abuse of the courts process and misdirected. Further, that she had discharged her obligation as the administrator and nothing had been left unadministered.

10. Additionally, that if at all the applicants were dependants of the deceased they ought to have made an application for reasonable provisions as dependants instead of the instant application. For the said reasons the 1st respondent prayed that the said application be dismissed and the matter marked as closed given that the estate had already been administered.

11. The applicants filed a supplementary affidavit dated November 1, 2022 and sworn by the 1st applicant on even date. He averred that at the time of the deceased demise him and his sister Jackline Wangui Ndirangu were depending on him as per the court order issued directing him to support them. That they had been contacted by the deceased former employer and were requested to fill forms to facilitate their upkeep. Further, that no matter the dispute between the deceased and their mother, they were still dependants of the deceased.

12. The 1st applicant averred further that he was aware that the children whether or not maintained by the deceased immediately prior to his demise remained to be his dependants. That they had not been left with any capital, gift, advancement or any source of income by the deceased and they were therefore dependant on the estate.

13. Parties were directed to canvass the application by way of written submissions which they have complied.

Applicants’ Submissions 14. The applicants in their submissions identified three issues for determination by this court and the same relate to revocation of grant and rendering of account in the estate of the deceased. On the issue of revocation, the applicants relied on section 76 of the Law of Succession Act and rule 44(1) of the Probate and Administration Rules.

15. The applicants submitted that through their supporting affidavit they had proved that the respondents had obtained the grant through defective and fraudulently manner. That the respondents failed to disclose other dependants including them. Further, that the respondents had proceeded to distribute the assets and failed to provide for them as dependants of the deceased. They placed reliance on the case of Re Estate of Moses Wachira Kimotho (Deceased) Succession Cause 122 of 2002 [2009] eKLR as quoted in the case of Re Estate of the late Epharus Nyambura Nduati (deceased) [2021] eKLR where the court revoked a grant where the respondents failed to disclose all the material facts.

16. On the issue of rendering accounts in the estate of the deceased, the applicants placed reliance on section 83 (e) (g) of the Law of Succession Act and the case of Re Estate of Katana Vuko Wale v Hamisi Katana Vuko[2021] eKLR. They urged the court to order the respondents to render the accounts of all the assets of the estate of the deceased. Also that their application be allowed as prayed and costs be in their favour.

Respondents’ Submission 17. The respondent as well identified three issues for determination namely; whether the 2nd applicant was a wife of the deceased thus qualifying to benefit from the estate. The respondents submitted that at the date of the deceased death the 2nd applicant was not his wife as her marriage to the deceased had been dissolved on 18th June 2008 vide a decree nissi issued in Nairobi Divorced Cause No 136 of 2006. That she therefore did not survive the deceased as a spouse. They drew the court’s attention to section 3 of the Law of Succession Act and the case of Re the Estate of T K G (deceased) [2014] eKLR on who a wife was and that a divorced wife was not recognized as one.

18. On the second issue, whether the 1st applicant and his sister were children of the deceased, the respondents submitted that the deceased had expressed fears that the 1st applicant and his sister were not his children and as such they were not to benefit from his estate. That there was need for more compelling evidence other than the birth certificates produced by them proving their paternity.

19. On the last issue, whether the grounds raised for revocation were so fatal to the grant so as to call for revocation, the respondents submitted that the issue of lack of notice and consent as raised by the applicants were procedural requirements, and its absence was a procedural defect and not a substantive defect under section 76 (a) of the Law of Succession Act as a ground for revocation. The respondents submitted further that the requirements for notice and consent were satisfied by them as per the provisions of section 67 of the Law of Succession Act and rule 26 of the Probate and Administration Rules. That Nakuru Succession Clause No E155 OF 2021 was duly advertised vide gazette notice number 4255 of August 27, 2021.

20. Additionally, that the 2nd applicant being the only surviving spouse of the deceased ranked superior in the order of priority for issuance of grant hence no consent was needed according to the provisions of section 66 of the Law of Succession Act. It was also the respondents’ submissions that this court find the 1st applicant and his sister to be children of the deceased thus entitled to benefit from the estate. That the same could be done by way of making reasonable provisions for them by way of application as provided for under section 26, 27 and 28 of the Law of Succession Act. They also placed reliance on the cases of Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No 158 of 2000, Re estate of Joseph Odinde Odongo (Deceased)[2021] eKLR and Re Estate of Charles Shatsala Ikunza (Deceased) [2021] eKLR.

21. In conclusion, the respondents submitted that the issue that had been raised by the applicants for revocation of grant could not altogether be relevant. They therefore urged the court to exercise its discretion to revoke the grant judiciously by ensuring that all parties concerned are protected in the interest of justice. They further urged the court to dismiss the applicants’ application with costs in their favour.

Analysis and Determination 22. I have looked at the application and the grounds thereof, the affidavits and submissions by the parties herein. In my view three issues arise for determination by this court namely; whether the 1st applicant and his sister Jackline Wangui Ndirangu were children of the deceased and thus beneficiaries of the estate, whether the applicants have met the threshold for revocation of a grant and whether the respondents should be ordered to render the accounts of the assets of the estate of the deceased.

23. In addressing the first issue, that is to establish if indeed the 1st applicant and his sister Jackline Wangui Ndirangu were the children of the deceased and thus beneficiaries of the estate, I have perused through the birth certificates that were adduced in court, the court order dated September 10, 2007 ordering the deceased to pay their school fees, medical expenses and to give Kshs 4,000/= for their maintenance during holiday. Produced as pieces of evidence.

24. On their part the respondents contended that there was need for more compelling evidence other than the birth certificates produced in court to prove the 1st applicant paternity and that of his sister. I however note that the respondents did not adduce any evidence challenging the said paternity or contracting it and therefore this court finds that the 1st applicant and his sister were the deceased children hence there was need for them to be included in the list of the beneficiaries. The above legal documents were not challenged by the deceased not the Respondents at all.

25. Moving on to the second issue, this court has power to revoke a grant in the circumstances set out in section 76 of the Law of Succession Act, as follows: -“Revocation or annulment of grantA 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; ore.that the grant has become useless and inoperative through subsequent circumstances.”

26. In the instant case, the applicants peg their application for revocation of grant on section 76 of the Law of Succession Act and rule 44 (1) of the Probate and Administration Rules, on grounds that the process of obtaining the same was done fraudulently by concealment of material facts from the court. It is contended that the respondents omitted to seek the consent of the applicants and that some of the beneficiaries were omitted from the list of beneficiaries as presented before the lower court. Further, that no notice was issued to them on the succession proceedings.

27. Section 66 of the Law of Succession Act provides as follows on the order of preference with regard to who ought to apply and be appointed administrator in intestacy;“Preference to be given to certain persons to administer where deceased died intestateWhen 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 on intestacy, with priority according to their respective beneficial interests as provided by Part v;c.the Public Trustee; andd.creditors …” and

28. Further, rule 7(7) of the Probate and Administration Rules provides as follows;“Where a person who is not a person in the order of preference set out in section 66 of the Actseeks a grant of administration intestate he shall before the making of the grant furnish to the court such information as the court may require to enable it to exercise its discretion under that section and shall also satisfy the court that every person having a prior preference to a grant by virtue of that section has –a.renounced his right generally to apply for grant; orb.consented in writing to the making of the grant to the applicant; orc.been issued with a citation calling upon him to renounce such right or to apply for a grant.”

29. In the instant case, the 2nd applicant who is a divorced spouse to the deceased is not a person in the order of preference. It is clear from the decree nissi annexed t the 1st respondent’s replying affidavit that the 2nd applicant had been divorced by the deceased prior to his demise and therefore the same controverted the marriage certificate produced by the 2nd applicant as proof of marriage to the deceased.

30. Further the surviving spouse who in this case is the 1st respondent a fact that has not been challenged by the applicants in adducing any evidence to the contrary, has a higher priority hence ought not to have obtained a consent from the 1st applicant who had a lesser right to administration. In re Estate of Festo Akwera Kusebe (Deceased) [2019] eKLR the administratrix in the instant cause, being a surviving spouse, had a superior right to administration over the children and the other relatives of the deceased, going by section 66 of the Law of Succession Act.

31. My understanding of section 66 and Rules 7(7) and 26 of the Probate and Administration Rules is that the widow herein did not need to comply with requirements of rules 7(7) and 26, since those provisions apply only to persons who seek representation while they had an equal or lesser right to administration. She did not, therefore, have to obtain the consents of the other beneficiaries to apply for representation to the estate of her late husband.

32. However, section 51(2) (g) requires the petitioner to disclose all the surviving spouses and children of the deceased. The provision is couched in mandatory terms. Section 51(2) (g)(h), states as follows:“Application for grant 51. (1)every application for a grant of representation shall be made in such form as may be prescribed, signed by the applicant and witnessed in the prescribed manner.

(2)Every application shall include information as to(g)in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased;(h)a full inventory of all the assets and liabilities of the deceased...”

33. According to the pleadings and evidence on record, the 1st respondent presented herself and her two children as the only beneficiaries. She contended that the 1st applicant and his sister were not recognized by the deceased when he was alive hence they were not his kids. The 1st respondent however failed to provide any evidence to controvert the applicants’ evidence that the 1st applicant and his sister were children of the deceased. Therefore, this court finds that she concealed something material from the court and such an action can only be described, at best, as fraudulent and dishonest.

34. Inre Estate of Festo Akwera Kusebe (Deceased) (Supra) stated as follows;“The administratrix was obliged to disclose the children of the deceased and the children of any of them who had died. This is required because, as a surviving widow, she was not entitled absolutely and exclusively to the intestate estate of her departed husband. If anything, she was entitled only to a life interest over the property, for the ultimate destination of the property of the deceased is not to her but to the children of the deceased. Her entitlement to absolute access to the estate is limited to personal and household goods, but not to capital assets, which are destined to the children. It is about a parent passing property on to his or her descendants but not to his or her contemporaries or ascendants.”

35. Further, the said court opined as follows;“I need not say more. A case for revocation of the grant herein has been made out successfully. The conduct of the administratrix, from the very inception of the matter to its conclusion, clearly points to the fact that she does not merit the position of administratrix, which is one of trust, as she has proved herself untrustworthy.”

36. On the last issue, rendering of the accounts of the estate of the deceased, having established the respondents’ actions to be fraudulent and dishonest, I find that in accordance with the law, the respondents herein are bound to render accounts for the period that they have been in office as administrators of the deceased’s estate.

37. In the premises, this court is left with no other option but to allow the application as follows;(a)The grant issued on September 15, 2021 for all intent and purposes is hereby revoked.(b)Jackeline Wangui Ndirangu and Martin Wachira Ndirangu are the deceased children born out of his marriage with Jane Wanjiru Ndirangu whom he had divorced.(c)A fresh grant be issued in Succession Cause No CMCC E155 OF 2021 in the joint names of Elizabeth Njeri Ndirangu and, Martin Wachira Ndirangu.(d)The confirmation of grant issued on November 29, 2021 in Succession Cause NO CMC E155 of 2021 be and is hereby set aside and parties be at liberty to apply for a fresh confirmation of grant.(e)The respondents Elizabeth Njeri Ndirangu and Francis Karonji Wanderi should avail to the court the accounts of the estate from the date they were issued with the grant till and after its confirmation as shall be directed by the presiding court.(d)Costs shall be in the cause.

DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 15TH DAY OF DECEMBER 2022. H. K. CHEMITEIJUDGE