[2022] KEHC 10771 (KLR)

In re Estate of Waronja Gachunga (Deceased) (Succession Cause 3848 of 2004) [2022] KEHC 10771 (KLR) (Family) (2 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10771 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 3848 of 2004

AO Muchelule, J

June 2, 2022

IN THE MATTER OF THE ESTATE OF WARONJA GACHUNGA (DECEASED) MICHAEL NGIGI NJANE ............................. 1ST APPLICANT GEORGE NJUGUNA NJOROGE .................... 2ND APPLICANT TABITHA NYAKIO KINYURU ....................... 3RD APPLICANT (Suing as trustees of Maimahiu High Vision Conservation Self Help Group) VERSUS MONICA WAMBUI WARONJA ..................... 1ST RESPONDENT RAHAB WAMBUI WARONJA ..................... 2ND RESPONDENT

Ruling

1. The deceased Waronja Gachunga died intestate on March 15, 2002. He left two widows: Rahab Wambui Waronja (2nd respondent) and Monica Wambui Waronja (1st respondent). He had 14 children. The 1st respondent and the deceased’s brother Jack Kimani Ithagu petitioned for the grant of letters of administration intestate, and the same was issued to them on May 24, 2005. It was confirmed on December 7, 2005.

2. In the application dated March 12, 2008 the 2nd respondent sought the revocation of the grant on the basis that the petition had excluded some beneficiaries. The grant was revoked and a fresh grant issued on June 25, 2008 jointly to the respondents. The grant was confirmed on October 27, 2017. One of the deceased’s parcels of land was Kijabe/Kijabe Block 1/1851. It was allocated to the house of the 2nd respondent. In the confirmed grant of December 7, 2005 the entire estate of the deceased had been ordered to be registered in the joint names of the 1st respondent and Jack Kimani Ithagu to hold in trust for all the children of the deceased in equal shares.

3. There is no dispute that, armed with the certificate of confirmation issued on December 7, 2005, the 1st respondent and Jack Kimani Ithagu sold Kijabe/Kijabe Block 1/1851, to Mai MahiU Conservation Self Help Group through its officials Michael Ngigi Njane, Tabitha Nyakio Kinyuru and George Njuguna Njoroge (the applicants herein). The agreement of sale was dated July 8, 2010. The purchase price was Kshs 580,000/=. It was paid in full.

4. The present application is dated January 5, 2021 by the applicants and seeks the following prayers:-“1. That the interested party/applicants be allowed to take part in the proceedings in as far as they relate to the property known as Kijabe/Kijabe/Block 1/1851;2. That the firm of Wanjiku Mwaura & Company Advocate be allowed to come on record after judgment so as to represent the interested parties who were not party to this suit prior to this application. The Notice of appointment herein attached be deemed as duly filed;3. That there be a stay of execution of orders contained in the Certificate of Confirmation of Grant issued on October 19, 2017 pending the hearing and determination of this summons for Revocation of Grant;4. That the order made by this honourable court confirming the grant issued to the respondents on October 19, 2017 and confirmed on the same date allocating Kijabe/Kijabe/Block 1/1851 to the 2nd respondent be revoked;5. That the hearing of the Petition for Confirmation of Grant for the estate of the deceased be heard a fresh with the applicants as participants in the suit as beneficiaries by way of purchase; and6. That the costs of this application be provided for.”

5. The applicants’ case is that when the grant was confirmed on October 19, 2017 land parcel Kijabe/Kijabe/Block 1/1851 was no longer part of the estate as they had bought it from the initial administrators of the estate. The parcel had been transferred into the names of the administrators who had proceeded to sell it to the applicants. The Land Control Board consent had been obtained in readiness for the transfer. The applicants state that the 1st respondent was guilty of non-disclosure as she did not inform the court of the sale which could not now be completed as the confirmation of October 19, 2017 had allocated the parcel to the 2nd respondent. The applicants had had the bought land for 12 years, since June 25, 2008, and now sought to be joined in the proceedings to have the grant issued on October 19, 2017 revoked for them to continue having te land, and to have the sale to them completed.

6. The 1st respondent swore a replying affidavit which essentially supported the application. She admitted that she and Jack Kimani Ithagu had on July 8, 2010 sold the parcel to the applicants and presented all documents wanting the land to be transferred. When they went to effect the transfer they found the grant had been revoked. She stated that the applicants were innocent buyers who should get the land. She feared that if the transaction is not let to completion she runs the risk of the applicants suing her for breach of contract. Her case was that she sold the land in good faith prior to the revocation of the grant, which she said took place in 2017, when the sale was in 2010. Lastly, she stated that the 2nd respondent would not suffer any prejudice if the parcel is given to the applicants.

7. According to the 2nd respondent, the 1st respondent and Jack Kimani Ithagu petitioned for the grant without informing the rest of the family. When this was discovered, the grant had been issued and confirmed. She sought revocation. When the revocation was granted on June 25, 2008, she said, the 1st respondent was in court. A fresh grant was issued on July 23, 2008 in which the respondents became new administrators. She filed an application for the confirmation of the grant. The 1st respondent protested. In the affidavit of protest, she never mentioned that she had sold the land to the applicants, or that the land was not available for distribution. She proposed how she wanted the estate shared. The court heard the application and on October 19, 2017 confirmed the grant. It was her case that the said sale was at the time when there was no confirmed grant, following the revocation. Further, that the sellers had no capacity to sell as the estate had not been distributed.

8. I have considered the application, the rival affidavits and the written submissions.

9. The applicants say they bought the parcel of land from the 1st respondent and Jack Kimani Ithagu on July 8, 2010 because they had a confirmed grant that had been issued on December 7, 2005. It was expected that, as buyers, the applicants conduct due diligence to satisfy themselves that the parcel was free for purchase, and that the sellers had capacity to sell it. A look at the certificate of confirmation in question clearly shows that the 1st respondent and Jack Kimani Ithagu were to be registered to hold the estate property in trust for all the children of the deceased in equal shares. The children were named. It follows that the 1st respondent and Jack Kimani Ithagu had not been given any property in the distribution that they were capable of selling. The applicants, as they entered into the agreement to buy the land, saw the certificate of confirmation that said the sellers were only but trustees. No property had been allocated to them. Land parcel Kijabe/Kijabe/Block 1/1851 had not been allocated to them to be able to sell it. Given the certificate of confirmation, both the applicants, as buyers, and the 1st respondent and Jack Kimani Ithagu, as sellers, knew that they were entering into a fraudulent transaction; a transaction intended to defraud the children of the deceased of the parcel of land.

10. Secondly, the 1st respondent had participated in the proceedings leading to the revocation of the grant. So, when she purported to sell the parcel she did not have a confirmed grant. The sale offended section 82 (b)(ii) of the Law of Succession Act, (Cap 160) which provides that no immovable property shall be sold before the confirmation of the grant. Further, the 1st respondent was by this time a joint administrator with the 2nd respondent. The 2nd respondent’s authority was not sought in the transaction.

11. It is my finding that, given the facts of this case, the applicants on one side, and the 1st respondent and Jack Kimani Ithagu, on the other, recklessly and blatantly entered into this sale agreement knowing very well it was fraudulent and illegal. Their intention was to defraud the estate and its beneficiaries of the parcel of land. The transaction was null and void.

12. Consequently, I decline to invite the applicants into these proceedings as interested persons. I decline their request to revoke the grant that was issued and confirmed herein. I find that they have no legal or legitimate interest or claim that they can protect in these proceedings. The application dated January 5, 2021 is dismissed with costs.

DATED AND DELIVERED AT NAIROBI THIS 2ND DAY OF JUNE 2022. A O MUCHELULEJUDGE