[2022] KEHC 12179 (KLR)

In re Estate of Wathuko Chongo Alias Wathuko Chongo Wathuko (Deceased) (Succession Cause 2171 of 2001) [2022] KEHC 12179 (KLR) (Family) (6 May 2022) (Ruling)

Neutral citation: [2022] KEHC 12179 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 2171 of 2001

MA Odero, J

May 6, 2022

N THE MATTER OF THE ESTATE OF WATHUKO CHONGO ALIAS WATHUKO CHONGO WATHUKO (DECEASED) SAMUEL NJOROGE WATHUKO.....................1ST APPLICANT SERAPHINE WANJIKU WATHUKO ..............2ND APPLICANT VERSUS NDERI WATHUKO CHONGO ....................1ST RESPONDENT PETER NDERI CHONGO..........................2ND RESPONDENT

Between

Samuel Njoroge Wathuko

1st Applicant

Seraphine Wanjiku Wathuko

2nd Applicant

and

Nderi Wathuko Chongo

1st Respondent

Peter Nderi Wathuko

2nd Respondent

Ruling

1. Before this court for determination is the summons dated July 10, 2014 by which Lillian Wanjeri Wathuko the applicant/beneficiary seeks the following orders:-“1. That a government or private surveyor be appointed to survey and subdivide LR Nyandarua/Ol’Aragwai/288. LR Nyandarua Mumui/Ol’Aragwai/185 and 186, Mawingo Scheme Plots 49 and 50, Kiarutara Location 16, 14 and Mwagu 16/135 and Turasha Ridge Plot 3 among the beneficiaries in line with the orders of the court of May 6, 2013 and at the cost of the estate.2. That the administrators be directed to execute and transfer the properties to the respective beneficiaries in line with the orders of the court of May 6, 2013. 3.That costs of this application be costs in the cause.

2. The application which was premised upon sections 45, 47 and 83 (G) (H) and 1 of the Law of Succession Act, rules 49 and 73 of the Probate and Administration Rules was supported by the affidavit of even date sworn by the applicant as well as the further affidavit dated November 25, 2021, sworn by Wathuko Nderi Chongo also a beneficiary of the estate.

3. The administrator/respondent of the estate Nderi Wathuko Chongo opposed the application through his replying affidavit dated September 25, 2014 as well as the affidavit in reply dated November 3, 2021. The matter was canvassed by of written submissions. The applicant filed the written submissions dated November 30, 2021, whilst the respondent relied upon his written submissions dated November 26, 2021.

Background 4. This succession cause relates to the estate of the late Wathuko Chongo alias Wathuko Chongo Wathuko (hereinafter ‘the deceased’) who died interstate on May 30, 2001. The deceased had four (4) wives namely Tabitha Wanjiku (who pre-deceased her husband). Dorcas Waithera, Seraphine Wanjiku and Susan Nyambura and the deceased had a total of twenty two (22) children and his estate comprised of several assets.

5. Grant of letters of Administration Intestate were on July 23, 2010 issued to the following (who represented the four (4) houses) as administrators of the estate(i)Samuel Njoroge Wathuko(ii)Nderi Wathuko Chongo(iii)Seraphine Wanjiku Wathuko(iv)Peter Nderi Wathuko

6. The said Administrators then filed a summons for confirmation of Grant dated November 13, 2012.

7. On May 6, 2013 the parties entered into a consent before hon Justice Luka Kimaru regarding the identification of the beneficiaries and the distribution of the estate of the deceased. the said consent read as follows:-“It Is hereby ordered by consent:-1. That the beneficiaries are the ones listed in paragraph 2 of the affidavit in support for confirmation dated November 13, 2012. 2.That the properties of the deceased are the ones listed in paragraph 5a of the affidavit in support for confirmation dated November 13, 2012. 3.That the distribution of the estate of the deceased be as follow:-a.1st house comprised of:Naomi Wambui, Beatrice Wangare, Nderi Wathuko, David Njuguna, Samuel Njatha, Julia Wanjeri Wathuko and Maina Wathuko to get:-i.Ngara Block 27ii.Bahati/Bahati/Block 636 the one with a houseb.2nd house comprised of:-Wathuko Nderi Chongo, Lilian Wanjeri, Samuel Njoroge, Lucy Njoki, Peris Nduta, Jane Wambui Mwai and Dorcas Waithira Wathuko to get:-i.Umoja Innercoreii.Kiriko Township/106iii.Nyandarua/Murungaru Township/142iv.Kibera Ayani Share Plot Q 12v.Bahati Block 1/642vi.Bahati Block 1/643c.3rd house comprised of:-Seraphine Wanjiku Wathuko, Grace Wambui, Margaret Waringa, Wanjeri Wathuko, James Nderi Wathuko, Edwin Mwangi Wathuko and Njatha Wathuko to get:i.Mathare North Plot No. 4ii.Bahati Block 641d.4th house comprised of:-John Chege Wathuko, Peter Nderi Wathuko, Ann Wambui, Jecinta Wangari and Susan Nyambura to get-i.Ngara Block 15ii.Bahati/Block 6474. That the money held in accounts Numbers 8291782 Barclays Bank of Kenya, Nakuru East Branch, Nakuru BDMS ID Nos 20472 and Account No. 8202518, 27 Nakuru East Branch BDMS ID No 30910 be paid to the lawyers as part payment of their legal fees.5. That the balance of the legal fees be recovered from the disposal of one of the remaining assets of the deceased to be identified before the transfer of the properties to the respective beneficiaries.6. That the following assets to be shared equally among all the beneficiaries and in so sharing priority be given to those already in occupation.i.Farms at Ol’Aragwai Settlement Scheme Nyandarua/Ol’Aragwai/288ii.Farms at Mumui Settlement Scheme Titleiii.No Nyandarua/Mumui/Ol’Aragwai/185 & 186iv.Mawingo Scheme Plot No 49 and 50v.Kiarutara Location Plot 16 and 14vi.Mwagu/16/135vii.Turasha Ridge Plot 37. That the shares with Kenya Power & Lightening Certificate No 6B, 0261, 5B, 0246 and 4B 0264 numbering 170 shares, Brooke Bond K Limited shares accounts 087500 and any other shares to be given to Seraphine Wanjiku Wathuko.8. That the amount of Kshs 464,000 advanced to the 2nd house for the purposes of conducting valuation of the estate of the deceased be taken into consideration in the determining share of the 2nd house in distribution of the properties listed in paragraph (vi) of this consent”.

8. Notwithstanding the formal adoption of this consent by the court the estate of the deceased remains undistributed almost ten (10) years after the said consent was entered into and adopted by the court.

9. Hence the present application filed by one of the beneficiaries seeking to compel the administrators to complete the execution and transfer of the estate properties in line with the consent dated May 6, 2013.

10. The applicant averred that under the terms of the consent it was agreed that priority be given to those already in occupation of the various pieces of land comprising of the estate of the deceased. That despite the agreement on distribution, the Administrators took no steps to actualize that distribution leading to conflict and strife between the beneficiaries. The applicant alleged that she herself was subjected to an assault by one of the beneficiaries, which resulted in a broken arm. She has annexed a copy of the P3 form dated February 4, 2014 as proof of the said assault (Annexutre ‘LWW’4’).

11. The applicant further averred that as a result of this delay by the administrators some beneficiaries began to move from the areas they were occupying and began to develop plots which ought to have devolved to other beneficiaries. Others began to lease out estate land to outsiders, thereby further complicating matters. That due to the failure to distribute and transfer the parcels of land comprising the estate, the estate has become the subject of both civil and criminal proceedings in court.

12. The applicant submits that litigation must come to an end. They urge the court to direct the administrators to conclude the distribution of the estate in order to prevent the estate falling into a deeper quagmire.

13. As stated earlier the application was opposed. The 1st respondent Nderi Wathuko Chongo indicated that he had filed an application opposing the mode of distribution of the estate. He states that the family have held several meetings in an attempt to reach consensus on the distribution of the estate to no avail.

14. The 1st respondent insists that he has at all times co-operated in the process of Administration of the estate. That the distribution could not be completed because the beneficiaries have failed to agree on a private surveyor or to subdivide the land. The 1st respondent urges the court to refer the matter for mediation.

Analysis and Determination 15. I have carefully considered the summons dated July 10, 2014, the affidavits in reply as well as the written submissions filed by both parties.

16. The applicant submitted that prayers (1) and (2) of the summons are now spent.

17. The respondent whilst conceding that prayer (1) of the summons was spent insisted that prayer (2) seeking that a surveyor be appointed to survey and sub-divide the various parcels of land was not spent. The respondent submits that since the beneficiaries have been unable to agree on distribution, they failed to engage a surveyor to subdivide the assets.

18. The above argument is not entirely correct. There is evidence that a surveyor was engaged and did prepare a report dated November 26, 2018 in respect of the estate properties. That report by the surveyor appears as Annexture WNC ‘1’ to the further affidavit dated November 25, 2021. It is therefore manifest that a survey has infact been conducted and thus I find that prayer (2) of this summons is spent.

19. The crux of this matter is the consent entered into by the parties on May 6, 2013. That consent which has been reproduced earlier in this ruling provided for the mode of distribution of the estate. The applicants’ position is that the consent ought to be adhered to and that distribution ought to proceed in compliance with the same.

20. The respondents on the other hand deny that any consent was reached. The respondents insist that they did not instruct their advocates to enter into any consent and allege that the same is not a reflection of their true wishes.

21. The respondents assert that no consensus has been reached regarding the distribution of the estate. They challenge the mode proposed in the consent and urge the court to refer the matter to mediation.

22. The fact of the matter is that the hon Justice Luka Kimaru recorded and adopted the consent dated May 6, 2013. I have carefully perused the record of the proceedings of May 6, 2013. In the presence of Mr G Kamonde Advocate for the 1st and 4th houses, Ms Ndirangu for the 3rd house and Mr Mbuthia Kinyanjiui for the 2nd house, the court made the following order:-“Order: The consent of the parties filed in court on May 6, 2013 handwritten is hereby adopted as the order of the court.”

23. It is trite that a consent once adopted is binding on the parties. The respondents cannot run away from this consent by alleging that their Advocates on record at the time had no instructions to enter into the consent on their behalf. In the case of Hirani vs Kassam[1952] 19 EACA it was held as follows:-“Prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them….. and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court… or if consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement.”

24. Likewise in the case of Flora Wasike vs DestinoWamboko[1982-88] 1 KLR the Court of Appeal stated as follows:-“It is now settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside or if certain conditions remain to be fulfilled…”

25. The respondents state that they have issues with the mode of distribution of the estate as set out in the consent. They are in effect attempting to walk back the consent. They are in effect seeking to set aside the consent. In order to repudiate the consent the respondent would have to challenge the same in court by seeking the have the consent set aside on grounds of Fraud collusion and/or misrepresentation. The respondents have not filed any application seeking to set aside the consent. Instead, they have since 2013 engaged the courts in a flurry of applications and appeals all of which have been dismissed.

26. In Purcell vs F C Trigal Ltd[1970] ALL ER WINN LJ stated that-“It seems to me that if a consent order is to be set aside, it can really only be set aside on ground which would justify the setting aside of a contract entered into with knowledge of the material matters be legally competent persons….”

27. I do agree with the applicants that litigation must come to an end. This is a very old succession cause – it ought to be concluded. I find that the blame for failure to conclude this matter lies squarely at the feet of the respondents who have abused the court process in their attempt to renege on the consent entered into by the parties.

28. The respondents have asked that the court refer this matter to mediation. This request is cheeky and is further evidence of the respondents obstinacy in defying the court orders of May 3, 2013. The purpose of mediation is to build consensus. A consent has already been achieved. To ask for mediation is to take this matter several years backwards.

29. The administrators duties and responsibilities are explicit and outlined in section 79, 82 and 83 of the Law of Succession Act cap 160. These duties include the following:-a)Enforce by suit all causes of action that survive the deceased.b)Sell or otherwise turn to account – where necessary or desirable or any part of the assets vested in them.c)Provide and pay out the estate, expenses of a reasonable funeral of the deceased.d)Get in all free propertye)Pay out of the estate all expenses.f)Ascertain and pay out of the estate of the deceased all his debts.g)Produce within 6 months to the court a full and accurate inventory of the assets and liabilities of the deceased.h)Provide a full and accurate account of all dealings therewith up to the date of account.

30. All the real property of the estate vested in the administrators and cannot be transferred without their involvement. The administrators in this matter who include the respondents have failed dismally in the exercise of their responsibilities under the law. I find that the present application is merited. I allow prayer (3) of the summons and direct that the administrators immediately embark on the process of executing and transferring the properties comprising the estate of the deceased to the respective beneficiaries in accordance with the consent and orders of the court dated May 3, 2013.

31. In the event that any of the administrators declines to execute the relevant documents, within fourteen (14) days of the date of this ruling then i direct that the hon Deputy Registrar shall execute the documents on their behalf.

32. Since the delay in concluding the distribution of this estate has been occasioned by the administrators i direct that the 1st and 2nd administrators/respondents shall personally meet the costs of this application.

DATED IN NAIROBI THIS 6TH DAY OF MAY 2022. ...........................................MAUREEN A. ODEROJUDGE