[2022] KEHC 1267 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS FAMILY DIVISION SUCCESSION CAUSE NO. 2407 OF 2006

IN THE MATTER OF THE ESTATE OF THOMAS KOIGI KARIMI ALIAS KOIGI KARIMI (DECEASED)

HENRY NJAU.................................................................APPLICANT

VERSUS

CHARLES S. KAHURIA KOIGI.........................…RESPONDENT

RULING

1. The background of this case is that the deceased Thomas Koigi Karimi alias Koigi Karimi died intestate on 21st October 1978. He hailed from Ngecha in Kiambu. During his life, he married three wives. The first wife was Alice Wanjiru Koigi (now dead) who had five children. The second wife was Hannah Wanjiru Koigi (now dead) who had four children. The third wife was Grace Wanjiru Koigi who has eight children.

2. The estate comprised Limuru/Ngecha/250, Gilgil/Karunga Block 68, Plot No. 6 Ngecha Township, Plot No. 13 Ngecha Township, Gilgil/Karunga Block 4/18, Njoro/Ngata Block 3/14, Plot No. 15 Ngata, Plot No. 8 Ngata, shares in East Africa Breweries, ICDC Ltd, Nation Media Group Ltd, BAT Kenya Ltd, Hill Crest Farm Limuru, Hill Crest Nairobi Building, Limuru Dairy Farmers Cooperative Society; and an account in CFC Bank Ltd.

3. It appears not disputed that the deceased left a written Will which, upon his death, was read to the family. However, the document disappeared at the offices of Ngecha Farmers’ Cooperative Society. It was decided that the family proceeds on the basis of an intestate succession. Each house gave one person. The three persons petitioned and were issued with a grant of letters of administration. In the first house the person picked was the respondent Charles S. Kahuria Koigi. The second house picked Geoffrey Kahuria Koigi, and the third house picked David Karimi Koigi. A joint grant was issued to them on 22nd January 2007, and confirmed on 7th June 2010. The estate was distributed to the beneficiaries.

4. The applicant Henry Njau is the younger brother of the respondent. He filed the present application dated 12th May 2021 seeking the partial compliance of confirmed grant or review, revocation and annulment of the grant. The application was brought under sections 45, 46, 47, 76and 82(b)of the Succession Act (Cap. 160), rules 49and73of the Probate and Administration Rules, Order 40 rules 1, 2and9of theCivil Procedure Rulesandsections 1, 3and3Aof theCivil Procedure Act.The prayers were that: -

“1. That all the Administrators herein be ordered to furnish and file in court by way of a sworn affidavit;

a) The accounts to the estate depicting the current estate shareholding and dividends earned from the deceased properties to date within fourteen days of issuance of the court orders.

b) That the Administrators do produce in court all the titles which constitute and bearing the names of Henry Njau share of the deceased properties now evidencing the deceased estate distributed in the grant to him for his custody.

c) That upon filing in court the documents ordered in clauses (a) and (b) above, the Administrators be ordered to complete distribution of the estate in full including the liquidation and or sharing of the shares and dividends earned todate.

2. That Charles S. Kahura Koigi be ordered to uphold the mode of distribution as expressed by the deceased during his lifetime to the family members more so the eldest daughter the preferred mode of distribution of the land known as L.R. No. Limuru/Ngecha/250 as depicted in diagramed annexture number “HN2” in supporting affidavit to this application.

3. That in the alternative Charles S. Kahura Koigi be removed as an Administrator of the estate representing the 1st house and that the applicant herein be appointed Administrator of the estate of the deceased on behalf of the 1st house.

4. That this Honourable Court do issue any other orders and directions in this matter in the interest of justice.”

5. In the supporting affidavit, the applicant swore that the administrators had declined to complete the administration of the estate, twelve years since the grant was confirmed. He sought that each beneficiary be given his or her entitlement as ordered in the certificate of confirmation, and wanted titles to his parcels. He proposed how Limuru/Ngecha/250 should be shared, saying that the proposal was as per what the deceased had indicated during his lifetime. He stated that the respondent was interfering with his plot and was disrespectful to him. He stated that although he has been put in occupation of his portions in Gilgil/Karunga/Block 68 and Njoro/Ngata Block 3/14, he has not been given titles. Lastly, he stated that he and his advocate had sought information as to the status of the estate but that

“the information and accountability by the administrators to me has not been forthcoming.”

6. The three administrators (including the respondent) swore a joint replying affidavit to oppose the application which they stated was –

“inept, a nonstarter and hopelessly lacking in merit………..”

After giving the history of the cause, they wondered why the applicant was proceeding against one administrator (the respondent) while the administration of the estate was jointly by the three. Their case was that, even if the application were to be allowed, the respondent alone was incapable of satisfying the prayers without them. They explained that the applicant had a bad history with the family, and that the application was a continuation of his had behavior. They produced documents to show that the applicant had secretly and unilaterally filed High Court Succession Cause No. 142 of 2002 at Nairobi in respect of the estate of the deceased and had obtained a grant. He had forged the signatures of the other beneficiaries to support the petition. When this was discovered, the forgery was reported to police and the applicant successfully prosecuted in Criminal Case No. 1556 of 2002 at Kiambu. He was convicted and fined. The administrators had moved the High Court and successfully obtained the revocation of the grant.

7. The administrators swore that they had subdivided Limuru/Ngecha/ 250 (as ordered in the certificate of confirmation into parcels 2805 to 2809 and exhibited the mutation form). The applicant’s parcel was 2808. They had processed the title deeds, and the applicant’s title deed was with the 2nd administrator Geoffrey Kahuria Koigi but that the applicant had failed to collect it. They annexed a copy of the title deed. As for Njoro/Ngata Block 3/14, they had subdivided the same as directed in the certificate of confirmation and that the applicant’s parcel was 414 which he was already occupying. All the other beneficiaries entitled to the parcel had obtained their respective title deeds, but that the applicant had not gone to the lands registry to obtain his. They were willing to execute the documents necessary to enable him collect the title deed. As for Gilgil/Karunga Block 4/68, it has already been subdivided and each beneficiary obtained his title deed except for the applicant who was uncooperative but he was occupying his portion. His portion was 683. Gilgil/Karunga Block 4/18 has also been subdivided, and the applicant’s portion was 682 which he was occupying. All other people had titles, except the applicant who had failed to go to the lands registry to have it processed. Plot No. 13 Ngecha Township had been subdivided, and the applicant’s portion was No. 3 which he occupies and collects rent from there.

8. The administrators explained in great detail how they had dealt with the non-fixed assets, mainly shares and funds of the estate. They explained that the applicant at all stages of their dealing with the estate was in the know and had benefitted from the proceeds of the shares and funds.

9. The applicant filed a further affidavit which did not deal with the specific details given by the administrators in the replying affidavit.

10. Given the history of the cause, and after considering the rival affidavits, it is clear to me that the administrators of the estate of the deceased have done their best to make sure that all the beneficiaries of the estate each gets his/her entitlement. This has been done despite the lack of cooperation and fraudulent acts by the applicant. He has been given occupation of the parcels of land he is entitled to. He has a ready title deed for Limuru/Ngecha/250 which he should collect from the second administrator. As for the other parcels, all that he needs to do is to engage the administrators for them to help him get the title deed. He has no cause to complain. As for the shares and funds, I am satisfied that the administrators have given account and explanation in the replying affidavit which is satisfactory.

11. Why the applicant chose to proceed against this brother (the respondent), and not all the administrators together, goes to show the vendetta he has against him. In this joint administration, the respondent cannot act alone to administer the estate or complete the administration. The respondent can only be targeted for removal if it is shown that he has refused and/or failed to act with the other administrators to administer the estate. In this case, the administrators have continued to work together for the benefit of the beneficiaries, the applicant included.

12. In conclusion, I do not find merit in the application which I dismiss with costs.

DATED AND SIGNED THIS …………………. DAY OF MARCH 2022

A.O. MUCHELULE

JUDGE

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 28TH DAY OF MARCH 2022

A.O. MUCHELULE

JUDGE