[2021] KEHC 13480 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

SUCCESSION CAUSE NO. 309 OF 2006

IN THE MATTER OF THE ESTATE OF WAWERU

WAHINYA KUIBIGA ALIAS WAWERU WAHINYA KUIBITA DECEASED)

BEATRICE WANJIKU NGUHI

ROBERT THIONGO KARIUKI

FRANCIS MWANIKI WAWERU

ANDREW PHORO WAWERU.....................APPLICANTS

VERSUS

GICHERU WAHINYA WAWERU

FRANCIS NDUNGU WAWERU

MARY NJERI KARIUKI..........................RESPONDENTS

RULING

1. Before this Court for the Chamber Summons dated 3rd May 2021which the Applicants seek orders as follows -

“1. Spent.

2. THAT the typing in the name JANE MUTHIORA WAWERU

in the amended confirmed grant dated 31st January 2020, be rectified to read JOHN MUTHIORA WAWERU.

3. THAT two the beneficiaries of the deceased ESTHER

WAMBUI KARIUKI and JOHN MUTHIORA WAWERU having since died, the beneficiaries for their respective shares be substituted respectively with the estate of ESTHER WAMBUI KARIUKI and the estate of JOHN MUTHIORA WAWERU for the respective shares of inheritance.

4. THAT the share of inheritance of the house of (Irene

Waweru, deceased) out of Asset L.R. DAGORETTI/RIRUTA/1303; the subdivision known as DAGORETTI/RIRUTA/7392 due to the beneficiaries FRANCIS NDUNGU WAWERU; JOHN MUTHIORA WAWERU, GICHERU WAWERU WAHINYA; ESTHER WAMBUI KARIUKI; MARY NJERI KARIUKI & CATHERINE NGUHI WAWERU (Deceased) be allocated equally to her children Beatrice Wanjiku Nguhi, Leonard Munyua Mbugua, Samuel Kamau Nguhi & David Kirui Nguhi be sold by way of public auction and the proceeds thereof be shared out to the beneficiaries proportionally in terms of the confirmed grant dated 9/7/2011 and further amended on 31/1/2020.

5. THAT the Deputy Registrar of the High Court do sign any

documents required to be signed on the part of any of the parties herein for purposes of effecting the orders made by this court.

6. THAT the costs be incurred by the administrators and/or on their behalf in the process of disposal of the asset L.R. 7392 be off set from the proceeds of the sale of property prior to the distribution of the proceeds of sale.

7. THAT costs of this application be provided for”.

2. The Application was premised upon section 74 Law of Succession Act, Rules 43 & 49 Probate & Administration Rulesand all enabling provisions of law and was supported by the Affidavit of even date sworn by BEATRICE WANJIKU NGUHI, FRANCIS MWANIKI WAWERUand ANDREW PHORO WAWERU the four Administrators/Applicants.

3. The 1st Respondent FRANCIS NDUNGU WAWERU filed a Replying Affidavit dated 2nd June 2021opposing the Application. Likewise, the 1st Respondent GICHERU WAHINYA WAWERUand the 3rd Respondent MARY NJERI KARIUKIboth filed Replying Affidavit dated 2nd June 2021in opposition to the Application. The application was canvassed by way of written submission. The Applicant filed the written submissions dated 8th July 2021whilst the Respondents relied on their written submissions dated27th July 2021.

BACKGROUND

4. This Succession Cause relates to the estate of WAWERU WAHINYA KUIBIGA alias KUIBITA(hereinafter ‘the Deceased’) who died intestate on 26th July 2004. The deceased was survived by the following:-

“1st House of Irene Wangui Waweru (Deceased)

a) John Muthiora Waweru – Son

b) Francis Ndungu Waweru – Son

c) Gicheru Waweru Wahinya – Son

d) Esther Wambui Kariuki – Daughter

e) Mary Njeri Kariuki – Daughter

2nd House of Rahab Wanjiru Waweru – (Deceased)

f) Sammy Kamau Waweru – Son

g) Francis Kariuki Waweru – Son

h) Eunice Wanjiru Ndungu – Son

i) Ephantus Ndungu Waweru – Son

j) Siphorah Nguhi Njoka – Daughter

3rd House of Grace Njambi Waweru – (alive)

k) Grace Njambi Waweru – (Wife/Widow)

l) Samuel Wahinya Waweru – Son

m) Andrew Phoro Waweru – Son

n) Mary Wanjiru Waweru – Daughter

o) Margaret Wanjiku Wagura – Daughter

p) Zipporah Nguhi Waweru – Daughter

q) Teresia Wansohi Waweru – Daughter

r) Franics Mungai Waweru – Son

s) Samuel Mwarangu Waweru – Son

5. Following the demise of the Deceased, Grant of Letters of Administration Intestate was issued to the four Applicants on13th May 2008 The said Grant was duly confirmed on 19th July 2011and was further amended on 31st January 2020.

6. The only assets of the estate was LR. No. DAGORETTI/RIRUTA/1303. The said parcel of land was sub-divided into three portions representing the three houses of the Deceased. From the sub-division, the following three parcels of land were obtained.

(i) L.R. No Dagoretti/Riruta/7391.

(ii) L.R. No. Dagoretti/Riruta/7392. Each comprising 0. 56 Ha.

(iii) L.R. No Dagoretti/Riruta/7393.

7. Following the subdivision of L.R. No Dagoretti/Riruta/1303 into three parcels of land, the Administrators in compliance with the mode of distribution as set out in the confirmed Grant effected transfer of two out of the three subdivisions as follows: -

a) Title NumberDagoretti/Riruta/7391 – to the 3rd wife – Grace Njambi Waweruto hold in trust for herself and her children in equal shares.

b) Title No. L.R. No Dagoretti/Riruta/7393 to the 2nd House of Rahab Wanjiru Waweru. (Deceased)

8. The Applicants state that todate they have been unable to effect transfer of the 3rd portion being Title No. Dagorett/Riruta/7392 which had been allocated to the 1st House of Irene Wangui Waweru due to lack of co-operation by some beneficiaries who had declined to submit their personal documents and have refused to sign to facilitate said transfer.

9. It was averred that one of the sons of Irene Wangui Waweru namely Francis Ndungu Waweru (the 2nd Respondent) solely occupies parcel 7392 and is actively preventing the sharing out of said parcel of land to the other beneficiaries entitled to the same, arguing that the parcel of land is too small to be shared.

10. The Applicants contend that given that in a judgement dated 17th June 2016, the court determined that the best solution was to sell the parcel 7392 and divide the proceeds of sale equally amongst all the beneficiaries and given that their attempts to transfer has been thwarted they urge that court grant the orders sought for sale by public auction of the suit land as no prejudice would be suffered by the beneficiaries.

11. The 2nd Respondent vehemently opposed this application. The 2nd Respondent averred that before he died the Deceased had allocated the entire property to himself and that his two brothers were to inherit Title No. Dagoretti/Riruta/1302, which was registered in the name of their mother Irene Wangui Waweru.

12. The 2nd Respondent averred that he had developed parcel No 7392on his own and he opposed any sale of the property because he claimed the Deceased had indicated that no one should sell his land. The 2nd Respondent claimed that he would be subjected to a curse if he allowed the land to be sold.

13. The 2nd Respondent suggested that the property be divided into two portions, one portion going to the children of his deceased siblings, (grandchildren of the deceased) and the second portion remaining in his family. He argued that he stood to lose a lot if the land was sold as he had invested heavily in the property.

14. The 1st and 3rd Respondents vide their Affidavits dated 2nd June 2021 supported the stand taken by the 2nd Respondent. The two averred that the suit property had been given to the 2nd Respondent by their father whilst the two other brothers were bequeathed L.R. No Dagoretti/Riruta/1302, which was registered in their mother’s name. They both assert that the 2nd Respondent has carried out developments on the suit land. They proposed that the suit land be sub-divided into two parcels, the grandsons of the Deceased to get one portion whilst Francis was to get the other portion.

Analysis and Determination

15. I have considered the application dated 3rd May 2021,as well as the Replies filed thereto.

16. By prayer No. 2 the Applicants seek orders to rectify the confirmed Grant as amended on 31st January 2020 to correct an error in the name of one of the beneficiaries whose name was indicated as ‘JANE’ MUTHIORA WAWERU instead of the correct name being JOHN MUTHIORA WAWERU.

17. Section 74 of the Law of Succession Act, Cap 160, Laws of Kenya provides for rectification of Grants as follows:-

“Errors in names and descriptions, or in setting out the time and place of the deceased’s death, or the purpose in a limited grant, may be rectified by the court.

18. Similarly, Rule 43(1) of the Probate and Administration Rules provides -

Where the holder of a Grant seeks pursuant to the provisions of section 74 of the Act rectification of an error in the grant as to the names or descriptions of any person or thing or as to the time or place of the death of the deceased, or in the cause of a limited grant, the purpose for which the grant was made, he shall apply by summons”.

19. None of the parties to this Succession Cause have opposed this prayer to rectify the Grant so as to correct name of the said beneficiary. It is clear to this court that the indication of the name as ‘Jane’ instead of ‘John’ is an error. Throughout the proceedings and in all the other documents filed in this matter the said beneficiary has been referred to as ‘JOHN’ MUTHIORA WAWERU.This error falls in the category of errors which the court is empowered under section 74to rectify. I therefore grant prayer (2) of this application for rectification of the Grant.

20. Vide prayer (3) of the application it has been sought to have two of the beneficiaries of the Deceased, ESTHER WAMBUI KARIUKIandJOHN MUTHIORA WAWERUwho are now deceased, substituted by the beneficiaries of their respective estates.

21. The fact that the two named beneficiaries are now also deceased is not in any doubt and has not been disputed by any of the parties to this Succession Cause. Annexed to the Supporting Affidavit dated 3rd May 2021are copies of the Death Certificate of Esther Wambui Kariuki who passed away on 10th December 2018(Death Certificate Serial No. 040882 (Annexture ‘BRFA ‘6’) and the Death Certificate of John Muthiora Waweru who diedon24th December 2015Death Certificate Serial No. 0432431 (Annexture ‘BRFA ‘7’)

22. The children of the deceased beneficiaries are considered all the ‘survivors’ of their deceased parents and are entitled to the share of the estate that belonged to their parents.In RE: ESTATE OF JOSEPH GICHUKI REUNGE [2016] eKLR Hon JUSTICE WILLIAM MUSYOKAobserved as follows: -

“should the estate devolve only amongst the living children of the deceased? Where the deceased is survived by a child who subsequently dies before the estate is ….distributed, the estate of such (deceased) child would be entitled to the share that would have gone to the said child were he alive at the distribution. His estate would be entitled to a share equal to that of his siblings”.

23. That is precisely the situation that pertains here, Esther Wambui Kariuki and John Muthoni Waweru who were both children of the Deceased were entitled to a share of the estate. However, the two having died before the estate was distributed their respective shares devolve to their survivors. Accordingly, I allow prayer (3) of the application.

24. The Applicant have expressed frustrations they have faced in trying to transfer parcel No. 7392 to the rightful beneficiaries. Indeed the Applicants as the Administrators of the estate of the Deceased deserve commendation for their fidelity to their role as administrators and in having already transferred Parcels 7391 and 7393 to the rightful beneficiaries.

25. The Applicants contend that the 2nd Respondent Francis Ndungu Kariukihas thwarted their efforts to distribute the estate of the deceased. That the 2nd Respondent is in sole occupation of the suit land and that some of the beneficiaries have declined to submit copies of their personal documents to enable the subdivision and transfer of the suit land.

26. The 2nd Respondent does not dispute the sharing of the suit land. Likewise, the other beneficiaries from the house of Irene Wangui Wawerudo not contest the sharing of the suit land. They only argue that the land should be divided into two portions to be shared equally between Francis (2nd Respondent) on the one hand and the other beneficiaries on the other hand. The issue of who should get what out of the estate has long been settled.

27. In such a case where there is a stalemate the court is entitled to invoke its powers under Rule 73 of the Probate and Administration Ruleswhich authorizes a court to “make any order or may be necessary for the ends of justice and to prevent the abuse of the process of court”

28. This is a very old succession matter which was filed way back in the year 2006 (fifteen (15) years ago). The estate has been partially distributed. The 2nd and 3rd Houses have received their share of the estate and nobody is complaining. The problem has arisen amongst the beneficiaries in the 1st House who have thwarted and frustrated efforts being made by the Administrators to settle the estate. The court cannot condone this state of affairs. Accordingly, I do direct that the beneficiaries co-operate with the Administrators and provide the documents necessary to facilitate the transfer of Title No. Dagoretti/Riruta/7392 in terms of the certificate of confirmed Grant dated 31st January 2020.

29. In the event that the beneficiaries fail to comply within twenty one (21) days from the date of this Ruling then I direct that the property be sold by the Administrators and the proceeds of such sale be shared equally amongst the beneficiaries of the 1st House.

30. Finally and in conclusion, I make the following orders –

(1) Prayer (2) seeking rectification of the Grant is allowed.

(2) Prayer (3) seeking substitution of the names of the beneficiaries of the estates of Esther Wambui Kariuki and John Muthiora Waweru as beneficiaries to the estate of the Deceased is allowed.

(3) The beneficiaries of the 1st House are directed to provide within twenty one days hereto all documents necessary to facilitate the transfer by the Administrators of the subdivision known as DAGORETTI/RIRUTA/7392 due to the said beneficiaries.

(4) In the event the beneficiaries fail to comply within twenty one (21) days as directed then DAGORETTI/RIRUTA/7392 due to the beneficiaries FRANCIS NDUNGU WAWERU; JOHN MUTHIORA WAWERU (Deceased), GICHERU WAWERU WAHINYA; ESTHER WAMBUI KARIUKI (Deceased); MARY NJERI KARIUKI & CATHERINE NGUHI WAWERU shall be sold by the Administrators and the proceeds thereof be shared out to the beneficiaries proportionately in terms of the confirmed grant dated 9/7/2011 and further amended on 31/1/2020.

(5) The Deputy Registrar of the High Court is directed to sign any documents required to be signed on the part of any of the parties herein for purposes of effecting the orders made by this court.

(6) The costs be incurred by the administrators and/or on their behalf in the process of disposal of the asset LR. 7392 be off set from the proceeds of the sale of property prior to the distribution of the proceeds of sale.

(7) This being a family matter each side shall bear its own costs.

DATED IN NAIROBI THIS 29TH DAY OF OCTOBER 2021.

..........................................

MAUREEN A. ODERO

JUDGE