[2022] KEHC 420 (KLR)

In re Estate of the Late Njagi Mutindwa Irunga (Miscellaneous Succession Cause 10 of 2017) [2022] KEHC 420 (KLR) (16 March 2022) (Judgment)

Neutral citation: [2022] KEHC 420 (KLR)

Republic of Kenya

In the High Court at Chuka

Miscellaneous Succession Cause 10 of 2017

LW Gitari, J

March 16, 2022

IN THE MATTER OF THE ESTATE OF THE LATE NJAGI MUTINDWA IRUNGA

Between

John Gitonga Mutindwa

Administrator

and

Elizabeth

Administratrix

Judgment

1. This succession cause relates to the estate of the late Njagi Mutindwa Iriunga who died on 3rd February 2000. As per the pleadings on record, the estate of the deceased comprised of the following land parcels:a)L.R. Karingani/Ndagani/2505;b)L.R. Karingani/Ndagani/4667; andc)L.R.Karingani/Ndagani/1084.

2. A Grant of Letters of Administration Intestate was made to John Gitonga Mutindwa on 15th April 2009 in Chuka SPM Succession Cause No. 7 of 2000. The said grant was later confirmed on 29th December 2010. The decesead’s estate was distributed as follows as per the certificate of confirmation of grant:a)L.R.Karingani/Ndagani/4667i.Benedict Elias Njage Gakutha – 0. 10 Acresii.Karimi E Mwangi – 0. 10 Acresiii.Lena Kanini Mutidwa – 0. 12 Acresiv.Elljoy Kambura Mugambi – 0. 10 Acresv.Medline Kanyua Mutidwa – 0. 15 Acresvi.Nellis Murugi Mutindwa – 0. 10 Acresvii.Catherine Karimi Mutindwa – 0. 10 Acresviii.Hellen Kaari Mutegi – 0. 20 Acresix.Elizabeth Ciambura Mutindwa – 0. 20 Acresx.Jerioth Ciakuthi Mutindwa – 0. 20 Acresxi.Virginia Ciamwari – 0. 10 Acresxii.John Gitonga Mutindwa – Balance thereofb)L.R. Karingani/Ndagani/2505i.John Gitonga Mutindwa (Whole)c)L.R. Karingani/Ndagani/1084i.John Gitonga Mutindwa (Whole)

3. Land parcel no. Karingani/Ndagani/4667 was subdivided into eleven portions (8259 to 8269) and distributed to the beneficiaries as indicated above. Various transactions including but not limited to subdivisions and transfers consequently took place. Subsequently thereof, some of the dependants disposed their shares to third party purchasers for value as follows:i.Elljoy Kambura Mugambi – 0. 10 Acres (sold whole share)ii.Medline Kanyua Mutidwa – 0. 15 Acres (sold whole share)iii.Nellis Murugi Mutindwa (DW1) – 0. 10 Acres (sold whole share to Kijaru Benson Murogi (DW3) in 2014)iv.Catherine Karimi Mutindwa (now deceased) – 0. 10 Acres (sold whole share to Elias Munene Gichira)v.Hellen Kaari Mutegi – 0. 20 Acres (sold whole share)vi.Elizabeth Ciambura Mutindwa – 0. 20 Acres (sold 0. 10 acres to Benson Mugambi Gatuni (DW7) and remained with 0. 10 acres)vii.Lena Kanini – 0. 12 Acres (sold wholeshare to Elius Munene – DW2)viii.John Gitonga Mutindwa – Balance thereof (sold whole share); also sold the whole of L.R. Karingani/Ndagani/2505 to Justin Ndeke Njeru (PW8) between 2015 and 2018

4. On October 2, 2017, the grant issued on 15th April 2009 was revoked by this court’s own motion on the ground that the lower court lacked pecuniary jurisdiction to entertain the cause before it. Elizabeth Ciambuba and John Gitonga Mutindwa were consequently appointed as joint administrators of the estate herein. This court further ordered that the property comprising the subject estate to revert to the name of the deceased pending the determination of the distribution of the estate.

5. Before this court presently is the Application for confirmation of grant dated 8th November 2018. The application seeks for the following orders:a.Thatthe grant of letters of administration made jointly to Elizabeth Ciamburaand John Gitonga Mutindwaon 2nd October 2012 be now confirmed.b.Thatthe estate of the deceased be distributed as per paragraph 7 of the supporting affidavit.c.Thatthe costs of this application be in the cause.

6. The application is supported by the affidavit of Elizabeth Ciambura sworn on 6th November 2018. Paragraph 7 of the said affidavit proposes the distribution of the subject estate as follows:a.L.R. Karingani/Ndagani/4667i.Elizabeth Ciambura Mutindwa – 0. 60 Acresii.Peter Gitaru Njeru – 1. 0 Acresiii.Ciakuthi Francis – 0. 2 Acresiv.Ciamwari Mutindwa – 0. 10 Acresv.Irene Kaari Mutegi – 0. 10 Acresvi.Medline Kanyua Mutindwa – 0. 2 Acresvii.Elljoy Kambura Mugambi – 0. 10 Acresviii.Nellis Murugi – 0. 10 Acresix.Lena Kanini – 0. 10 Acresb.L.R. Karingani/Ndagani/1084i.John Gitonga Mutindwa }ii.Ireen Kaari Mutegi }iii.Medline Kanyua Mutindwa } 1 acre jointlyiv.Elljoy Kambura Mugambi }v.Nellis Murugi }i.Elizabeth Ciambura }ii.Ciakuthi Francis }iii.Ciamwari Mutindwa }1 acre jointlyiv.Peter Gitari Njeru }c.L.R. Karingani/Ndagani/2505i.John Gitonga Mutindwa }ii.Elizabeth Ciambura } jointly in equal sharesA protest was filed by the Co-administrator John Gitonga Mutindwa vide an affidavit of protest sworn on 29/11/2018. His contention is that the estate of the deceased should be distributed the same way it was distributed in the lower court that is as per paragraph (2) above. He avers that after the grant in the lower court was confirmed, each benefitiary was given his/or her title deed. That subsequently, all the dependants disposed their shares some wholly while others remained with some balance. As a result f the distribution, all the children of the deceased and dependants were catered for. He further deposes that all the children of the deceased consented to the mode of distribution. It is his contention that Peter Gitari Njeru is a grandson of the deceased a stranger to the estate of the deceased.John Gitonga further deposes that Peter Gitari Njeru is a son of Elizabeth Ciambua, the 1st administrator who was given her share of 0. 20 Acres out of the estate of the deceased. That 1st administrator having consented to getting 0. 20 Acres and proceeding to sell half a share (0. 10) thereof is a sign that she had agreed with the mode of distribution of the estate. That distribution was in accordance with the wishes of the deceased and there is no provision for dependants that is pending.Protests were also filed by some of the beneficiaries who support the mode of distribution suggested by the 2nd administrators. There were interested parties who opposed the mode of distribution proposed by the 1st administration. Their protest is that they are bona fide purchaser who bought land from the beneficiaries after the confirmation of grant and therefore their title deeds are protected under Section 93 (1) of the Law of Succession Act and should there be reinstated.

Issue for determination 7. From the evidence tendered before this court and the submissions of the parties it is my view that the main issue for determination is whether the grant should be confirmed as prayed in the application dated 8th November 2018.

Analysis 8. It is the submission of the interested parties that they are protected by Section 93 of the Law of Succession Act to the effect that revocation of grant should not affect the validity of transfer of immovable property by a personal representative. I take cognizance of sub-section (1) of the said section which provides as follows:“(1)A transfer of any interest in immovable or movable property made to a purchaser either before or after the commencement of this Act by a person to whom representation has been granted shall be valid, notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this act.”

9. In Jacinta Wanja Kamau vs Rosemary Wanjiru Wanyoike andanother (2013) eKLR, the Appellant therein unsuccessfully sought protection under Section 93 of the Law of Succession Actand the Court of Appeal sitting in Nyeri stated as follows:-“Before the appellant could seek protection as a purchaser under Section 93 of the Act, she had first to prove that she is a purchaser. In this case, there was no prima facie evidence that she was a purchaser.”

10. In the instant case, it is undisputed that several of the beneficiaries of the subject estate transferred the suit property to third parties after the confirmation of the grant of letters of administration which is legally in order. The revoked grant of letter of administration was not obtained fraudulently or through the non-disclosure of material facts. The only reason why the grant was revoked is because the trial court did not have the requisite jurisdiction to determine the cause.

11. While the administrator did not act fraudulently as he disclosed to the trial court all the beneficiaries and the properties forming part of the subject estate, it is trite law that jurisdiction is everything without which a court of law acts in vain. It has already been determined by this court that the trial court was bereft of the jurisdiction to issue and confirm the revoked grant. Jurisdiction is conferred by the Constitutionand statutory enactment and the subordinate court therefore had no power to arrogate itself jurisdiction that is vested in another court of competent jurisdiction.

12. In Re-Estate of Christopher Aide Adela (Deceased) (2009) eKLR, Rawal, J. (as she then was) held as follows:-“As per my considered view, Section 93(1) of the Act talks of interest for immovable or movable property and Section 93(2) refers to transfer of immovable property. Obviously both provisions talk of different types of transfer and Section 93(2) protects a purchaser of the immovable property only if he was aware of some liabilities or expenses of the estate which are not met or paid and still got the property transferred in his names. The aspect reading of the said provisions will indicate that the transfer to a purchaser, if shown to be either fraudulent and/or upon other serious defects and/or irregularities can be invalidated… It shall be a very weak or unfair system of law if it gives a carte blanche of absolute immunity against challenges to transfer of immovable properties of estate by a personal representative, it shall be simply against all notions of fairness and justice. No court can encourage such interpretation while a personal representative will be protected even while undertaking unethical or illegal actions prejudicing the interests and rights of right beneficiaries of the estate.” [Emphasis mine]

13. I am persuaded by the above holding. It is my humble view that the subsequent transactions transferring the properties forming part of the deceased’s estate were null and void ab initio. I opine that the effect of the revocation of the initial grant was that the estate of deceased reverted to the name of the deceased for distribution amongst the beneficiaries. This addressed the applications by the interested parties. The High Court had power under Section 47 of the Law of Succession Act to issue the order revoking the grant and that the estate to revert to the estate of the deceased.

14. As per the testimony of John Gitonga Mutindwa (DW5 and the Administrator of the subject estate), the deceased had eleven (11) children of which eight (8) are alive. Peter Gitari Njeru (DW4) is the son of Elizabeth Ciambura Mutindwa (daughter to the deceased) and therefore the grandson of the deceased. He was not a dependant of the deceased at the time of the deceased’s death. As such, I opine that the proposed mode of distribution attempting to introduce him and other parties that were not beneficiaries to the estate at the time of the deceased’s death cannot be entertained. Grandchildren do not have the right to inherit from their grandparents. Section 29 of the Law of Succession Act defines dependants. It provides:a)the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;(b)such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and (c) Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.”For a grandchild to inherit he must prove as a condition precedent that he was being maintained by the deceased. The grandson Peter Gitari Njeru was not a dependant. His mother got a share. Grandchildren inherit through their parents. As such the grandchild should be contented with his mother’s share.

Conclusioni.From the foregoing, it is my view that the application by Elizabeth Ciambua cannot be allowed and is therefore rejected.ii.I find that the protest by the 2nd administrator succeeds as it caters for all beneficiaries who have sworn affidavits in support of the mode of distribution.iii.The grant issued to the administrators on 2/10/2017 is hereby confirmed and distribution be as proposed by the 2nd administrator John Gitonga Mutindwa at paragraph 4 of his supporting affidavit.iv.Each party bears its own costs

DATED, SIGNED AND DELIVERED AT CHUKA THIS 16TH DAY OF MARCH, 2022. L.W. GITARIJUDGE16/3/2022The Judgment has been read out in open court.L.W. GITARIJUDGE16/3/2022