[2022] KEHC 16613 (KLR)

In re Estate of William Mbogo Njunu (Deceased) (Succession Cause 5 of 1999) [2022] KEHC 16613 (KLR) (14 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16613 (KLR)

Republic of Kenya

In the High Court at Embu

Succession Cause 5 of 1999

LM Njuguna, J

December 14, 2022

IN THE MATTER OF THE ESTATE OF WILLIAM MBOGO NJUNU (DECEASED)

Between

Zelipha Njura John

1st Applicant

Hesbon Njeru John

2nd Applicant

Kenneth K. Njuki

3rd Applicant

Grace Karimi Njuki

4th Applicant

and

Ephantus Njiru W. Mbogo

Respondent

Judgment

1. The applicants herein moved this court vide an application dated March 25, 2022 and wherein they sought for orders revoking the grant of letters of administration intestate made by this court to Ephantus Njiru (the respondent) on November 5, 2009 and confirmed on July 7, 2011 or in the alternative the proceedings of July 7, 2011 confirming the grant herein and the subsequent orders therefrom be reviewed and/or set aside and the estate herein be ordered to be distributed afresh. They also sought for orders that the subsequent sub-division of LR Kagaari/ Weru/235 be set aside and the title deeds issued therefrom be cancelled and the same do revert to LR Kagaari/Weru/235 being the original number prior to the grant of letters of administration; and that further orders be made that the respondent herein do apply for confirmation of the grant and do serve all the beneficiaries including the applicant herein.

2. The application is supported by the affidavit sworn by the 2nd applicant with authority from the other applicants.

3. The applicants’ case is that the 1st applicant is a spouse of one of the sons of the deceased by the names John Njuki William and the 2nd to 4th applicants were his sons. That the petitioner petitioned for letters of administration in relation to the estate of the deceased herein but in doing so, he failed to disclose that the applicants together with their siblings (Erick Munyi Njuki, James Gitonga Njuki and Joyce Wakina Njuki) were beneficiaries of the said estate and that he failed to include them in the affidavit in support of the petition as beneficiaries. They pleaded that as such, the grant made to the respondent is a candidate for revocation as the same was obtained in contravention of section 51(2)(g) of the Law of Succession Act cap 160 Laws of Kenya. That for the reasons of the said non-disclosure, the proceedings to obtain the grant were defective in substance, the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case and further by means of an untrue allegation of a fact essential in point of law to justify the grant.

4. It was further deposed and pleaded that upon the respondent failing to disclose the existence of the applicants as beneficiaries of the estate, the court proceeded to confirm the said grant vide the orders of July 7, 2011 and on which date, the applicants were never involved or notified by the respondent herein.

5. The respondent did not file any response to the application. However, when the application came for hearing, directions were given that the application be canvassed by way of viva voce evidence.

6. Hesbon Njeru John testified as the applicants’ witness. His evidence supported the application to the effect that the petitioner did not include them or involve them in the process of obtaining the grant and confirming the same and neither did they inherit anything from the said estate. On cross examination, he reiterated that the suit land belonged to his grandfather and that, previously, they had sued the respondent but the suit was not finalized as their grandfather passed on.

7. The respondent testified and upon adopting his witness statement, he agreed that John Njuki William was his brother and that the 1st applicant was his spouse. He also admitted having not included the applicants as beneficiaries of the estate or even involve them arguing that he had no duty to do so and that the applicants’ father had benefitted from the estate of the deceased during his lifetime having been given clan land LR Gaturi/Githimu/1085 and LR Gaturi/Weru/555.

8. The parties proceeded to file their respective written submissions. The applicants submitted that the respondent’s action of not disclosing their existence was in violation of section 51 of the LSA and the grant ought to be revoked as, if the existence of these beneficiaries was disclosed, the grant would not have been made to the respondent herein or even confirmed without the court having been satisfied as to their whereabouts and having ascertained their respective shares.

9. The applicants further submitted that the respondent did not obtain consent from the persons he indicated as beneficiaries in the petition and who are his brothers and neither did he obtain the consent from the 2nd – 4th applicants and the other children of his deceased brother (John Njuki). That for failing to disclose their existence and further to get their consent, it was submitted that the grant ought to be revoked. Reliance was made on the case of In re Estate of Florence Mukami Kinyua (Deceased) [2018] eKLR. The applicants further submitted that for the reasons that the 1st applicant was not involved and her consent obtained, the grant ought to be revoked. Further that the 1st applicant being a spouse to the deceased son (John Njuki), she ought to have been involved in the proceedings. Reliance was placed on the case of In re Estate of PGN (Deceased) [2021] eKLR.

10. The applicants further submitted that for the reasons that the applicants were left out during the distribution of the estate herein and whereas they are beneficiaries of the estate, the proceedings of July 7, 2011 confirming the grant herein and the subsequent orders therefrom ought to be set aside. That leaving the mode of distribution to stand is tantamount to disinheriting the said grandchildren. Further that, for the reasons of fraud on the part of the respondent and by him having obtained the grant fraudulently, it means that all subsequent transactions in relation to the suit land was a nullity and as such, the subsequent sub-divisions ought to be set aside and the title deeds issued therefrom be cancelled.

11. The respondent on his part submitted that prior to petitioning for letters of administration to the estate herein, he consulted the whole family and that all the procedures were completed without any objection raised. That the grant was fully executed and the beneficiaries to the estate being Ephantus Njiru W Mbogo, Jonah William Njeru and Njue William each shared land parcel No Kagaari/Weru/235 and on transmission, title deeds were issued to all of the beneficiaries. It was the respondent’s contention that the applicants herein have not demonstrated by way of evidence to satisfy any of the grounds as provided under section 76 of the LSA to justify the revocation of the grant previously issued to him.

12. That the applicants herein lacked locus standi to move this court for the orders sought and reliance was placed on section 29 of the LSA and further, that they were not being maintained by the deceased herein. Further reliance was placed on the case of Beatrice Ciamutua Rugamba v Fredrick Nkari Mutegi & 5others [2016] eKLR. He reiterated that the applicants’ father had previously been given LR Gaturi/Githimu/1085 and LR Gaturi/Weru/555 and further, the deceased herein had during his lifetime directed on how he would wish his estate to devolve. It was his contention that it was unanimously agreed that the applicants’ father was not to benefit from the estate and in the same breadth, during the said succession proceedings, there were no objections.

13. That it is 11 years since the grant was confirmed and thus multiple developments have taken place on the suit land and as a result, it would be unfair for the beneficiaries to share the remaining portion which is cumulatively 17 acres while the applicants have 30 acres of land which neither of the other beneficiaries are claiming. Further that, the applicants are not destitute or landless and that they have no use of the said land; he was thus apprehensive that if this court allows the application herein, the applicants are likely to dispose off the same .He thus prayed that the application herein be dismissed with costs to the respondent.

14. I have perused the application herein and the oral evidence and the rival written submissions. It is my view that this court has been called upon to determine whether the orders sought for revocation of the grant issued to the petitioner/respondent could be granted and if so whether the application is merited.

15. As I have already noted, the application herein seeks revocation of the grant made to the petitioner/respondent herein. The said grant issued to the respondent is dated November 5, 2009.

16. The circumstances under which a grant of representation may be revoked are provided for under section 76 (a)- (e) of the Law of Succession Act and include;a.Where the proceedings to obtain the grant were defective in substance;b.Where the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;c.Where the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;d.Where the person to whom the grant was made has failed, after due notice and without reasonable cause either—i.to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; orii.to proceed diligently with the administration of the estate; oriii.to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; ore.Where the grant has become useless and inoperative through subsequent circumstances.

17. These conditions have been subject to many judicial decisions. (See for instance In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR).

18. The courts have further held that the power to revoke a grant is a discretionary one. In Albert Imbuga Kisigwa v Recho Kavai Kisigwa Succession Cause No 158 of 2000 where Mwita J stated:-“Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”

19. The question therefore is whether the applicants have satisfied any of the above conditions.

20. From the perusal of the application herein, the applicant’s ground for seeking the revocation is mainly that the respondent obtained the grant fraudulently by failing to disclose that the applicants are beneficiaries of the estate. When the application came up for hearing, the applicants’ witness reiterated that the respondent did not involve them in the filing of the succession cause, or even seek their consent. The respondent indeed admitted that he did not involve the applicants herein.

21. It is not in dispute that the 1st applicant is the mother to the 2nd – 4th applicants and is also the surviving spouse to the deceased John Njuki. John Njuki was the son to the deceased herein but who predeceased him. It is further not in dispute that the said John Njuki was the brother to the respondent herein. Under the Law of Succession Act, the deceased ranked equally in priority with the respondent herein.

22. The applicants’ case is that since they are children of the deceased beneficiary, they ought to have been disclosed by the respondent and further their consent was necessary. On the other hand, the respondent’s case is that he needed not consult the applicants herein. The question therefore is whether the applicants herein were of such a rank that their consent was required and/or their involvement and inclusion necessary.

23. In answering this issue, I find guidance in section 51 of the LSA. The said section has provisions on the application of a grant. Sub-section 2 provides on what ought to be included in the application. It provides that an application shall include information as to amongst other things and in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased. (see section 51(2)(g)).

24. The 2nd - 4th applicants being the grandchildren to the deceased herein it means that from the reading of the above provisions, they ought to have been disclosed in the petition. Failure to disclose them in my view amounts to concealment from the court of something material to the case.

25. Further, the applicants deposed and submitted that the respondent did not obtain their consent for him to be an administrator of the estate as required by law. Rule 26 provides that letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant. Further that, in an application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in forms 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.

26. The effects of the above provisions is that where a person is applying for a grant of letters of administration intestate, he must get consent from persons of equal or higher priority than him.

27. In re Estate of Florence Mukami Kinyua (deceased) (supra) and which was cited by the applicants herein Judge Matheka held that;-“A grandchild is a direct heir to the estate of the grandparent where the parent predeceased the grandparent. The grandchildren get into the shoes of their deceased parents and take the parent’s share in the estate of the grandparents………………………The minor herein got into the shoes of her deceased’s father upon his demise, acquiring equal rights with the respondents to apply for the letters of administration as they fall in the same degree of consanguinity, 2nd degree, according to rule 7(1)(e)(iii) and rule 4 of the second schedule to the Probate and Administration Rules………”

28. The judge proceeded to hold that the minor in the said case ought to have been informed of and involved in the succession proceedings through the next friend (who was the minor’s mother) and that, that next friend having been married to the deceased’s son deserved a mention in the same breath as her child so that she would have the opportunity to pursue or take care of their interests in the deceased’s estate.

29. Though the above decision is not binding on this court, I find the same persuasive. In the instant case, the Judge in revoking the grant held that the applicants by virtue of being children of the deceased, ought to have been included and involved in the process. It is through that involvement that their interests would have been taken care of.

30. In the instant case, the respondent did not involve the 2nd to 4th applicants and also their other brothers and sisters. He testified that he was not required to do so as their father had been provided by the deceased in his lifetime. I find this a wrong deposition for the reasons that as seen above, the said applicants had a right to be involved. Further, the respondent did not prove the said inter vivo benefit and neither can such a benefit be a bar from involving the other beneficiaries in the succession cause.

31. The respondent further admitted to not having involved the 1st applicant and who is undisputedly daughter in law to the deceased. In re Estate of PGN (deceased) (supra) the court held that a daughter-in-law of a deceased, in the sense that she is the widow of the late son of the deceased is a beneficiary of the estate and that she ought to be informed of the filing of the petition and that her consent is a legal requirement. The court proceeded to revoke the grant issued to the respondents in that case under section 76(b) of the Act for having been fraudulently obtained, with the existence of the 1st applicant and her claim having been concealed from the court.

32. In the instant case, it is clear that failure to include the 1st applicant or get her consent means that the grant was obtained fraudulently and with concealment of material facts.

33. I note that the applicants’ father was not listed as a beneficiary in the estate herein and further, I have perused through the court record and it is indeed clear that the said consent is missing. It can therefore be said that the proceedings in obtaining the grant were defective in substance for failure to have the said consent and which makes the grant a candidate of revocation.

34. Considering all the above, it is clear and I am indeed satisfied that the grant made to the respondent herein ought to be revoked.

35. However, revoking a grant means that the estate will be left without an administrator and which is against the objectives of the Law of Succession Act and the duties of the probate court. Section 66 of the Law of Succession Act bestows this court with the discretion to as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made. The court in exercise of the said discretion is mandated to accept as a general guide the following order of preference;-a.surviving spouse or spouses, with or without association of other beneficiaries;b.other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by part v;c.the public trustee; andd.creditors:

36. Having revoked the grant made to the respondent herein, I invoke the discretion bestowed on this court by the said section and appoint the 2nd applicant as a joint administrator with the respondent herein.

37. The applicants also sought for orders that the subsequent sub-division of LR Kagaari/Weru/235 be set aside and the title deeds issued therefrom be cancelled and the same do revert to LR Kagaari/Weru/ 235 being the original number prior to the grant of letters of administration; and that further orders be made that the respondent herein do apply for confirmation of the grant and do serve all the beneficiaries including the applicants herein.

38. However, the grant having been revoked it automatically means that the proceedings in confirming the same becomes null and void ab initio. Further, anything done to the estate pursuant to the said grant cannot stand in the eyes of the law and the estate should revert back to the status before purported confirmation. In Santuzzabilioti alias Mei Santuzza (deceased) v Giancarlo Felasconi (2014) eKLR, the court in finding that probate courts have jurisdiction to order cancellation of titles held as thus;-“This cannot be the case as the succession court has powers to order a title deed to revert to the names of a deceased person. This in effect amounts to cancelation of the title deed. Further, a succession court can order a cancelation of title deed if a deceased’s property is being fraudulently taken away by non-beneficiaries such as where the property is being sold before a grant is confirmed.”[See alsoIn re Estate of Leah Wanguii Nding'uri (deceased) [2020] eKLR].

39. As such, and considering all the above, it is my finding that:a.That the grant of letters of administration made to the respondent herein on November 5, 2009 is hereby revoked.b.A fresh grant of letters of administration intestate shall issue in the joint names of the 1st applicant (Heshbon Njeru John) and the respondent (Ephantus Njiru W Mbogo).c.That the subsequent sub-division of Lr Kagaari/Weru/ 235 be and are hereby cancelled and the same do revert to LR Kagaari/Weru/235 being the original number.d.That the administrators shall file summons for confirmation of grant either jointly or individually within sixty (60) days from the date herein and serve all the other beneficiaries including the applicant herein.e.Each party to bear their own costs.

40. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 14TH DAY OF DECEMBER, 2022. L. NJUGUNAJUDGE……………………………………..………..for the Applicants…………………………………………….for the Respondents………………………………………..for the Interested Party4