[2022] KEHC 15557 (KLR)

In re Estate of Ziporah Wanjiku Paul alias Siphora Wanjiku Paul (Deceased (Succession Cause 480 of 2014) [2022] KEHC 15557 (KLR) (16 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15557 (KLR)

Republic of Kenya

In the High Court at Murang'a

Succession Cause 480 of 2014

J Wakiaga, J

November 16, 2022

IN THE MATTERS OF THE ESTATE OF ZIPORAH WANJIKU PAUL ALIAS SIPHORA WANJIKU PAUL (DECEASED)

Ruling

Background 1. Geofrey Kinuthia Mungai petitioned this court for grant of letters of administration of the Estate of Siphora Wanjiku Paul alias Ziporah Wanjiku Paul and cited the following to accept or refuse letters of administration:a.Francis Wanyoikeb.Paul Mungaic.Lucy Wairimu

2. On July 18, 2014 the Citors entered appearance through the law firm of Milimo, Muthomi & Co Advocates and on September 14, 2014 a consent order was recorded in which Geoffrey Kinuthia Mungai and Francis Wanyoike Mungai were appointed joint administrator of the estate of the deceased which was duly gazetted and certificate thereon issued on December 17, 2015. Upon an application herein dated October 19, 2015.

3. By an application dated January 23, 2017, the joint administrators applied for confirmation of grant and proposed distribution of the estate as follows: -Land Loc 14/Muruka/813 – 2. 06 Haa.Geoffrey Kinuthia Mungai - 1. 02 acresb.Lucy Wairimu Njau - 1. 02 acresc.Paul Mungai Richu - 1. 02 acresd.Francis Wanyoike Ngari - 1. 02 acrese.Esther Waithera Ngugi - 1. 02 acres

4. On August 22, 2017 Grace Wangui Njuku Njenga and Agatta Wamaitha Njuguna filed an affidavit of protest to the said conformation on the basis that the deceased had in her life time subdivided the land and settled on therein.

5. It was deposed that she thereafter called the family and in writing exchanged her portion with that of their brother Geoffrey who then took her portion which he had developed for a period of over twenty (20) years and therefore his portion should devolve to the following in equal shares.a.Grace Wangui Njuku Njengeb.Agatta Wamaitha Njugunac.Jane Wambui Nyoike

6. On October 8, 2020 Francis Wanyoike Mungai a co-administrator filed a statement of protest in which he stated that in the year 1996 the deceased directed her first-born son and their brother Ignatius Ngugi Mungai to subdivide her land into 6 equal portions of 1. 0 acres each and each of them balloted for allocation of their representative parcels as follows:a.Francis Wanyoike Ngugu -No 1b.Nazaline Njau Munga - -No2c.Ignatius Ngugi Munga - No 3d.Daniel Ritho Mungai -No 4e.Geoffrey Kinuthia Mungai - No 5f.The deceased - No 6

7. That each of the sons of the deceased took their respective parcels and developed the same and subsequently Geoffrey Kinuthia Mungai moved to the deceased house to assist her due to her advanced age.NAME ASSET SHARE

Francis Wanyoike Mungai Loc acres. 1. 0 acres

Lucy Wairimu Njau “ “ 1. 0 Acres

Geoffrey Kinuthia Mungai “ “ 1. 0 acres

Paul Mungai Ngugi (to hold in trust for himself and in trust for his siblings “ “ 1. 0 acres

Francis Wanyoike Mungai The late deceased portion No 6 0. 2 acres

Lucy Wairimu Njau “ “ 0. 2 acres

Geoffrey Kinuthia Mungai

0. 2 acres

Paul Mungai Ritho

0. 2 acres

Paul Mungai Ngugi (to hold in trust for himself and in trust for his siblings)

0. 2 acres

Access road

0. 37 acres

8. That upon the death of the deceased her family agreed that her land would be subdivided into five equal parts with the said Geoffrey Kinuthia taking the plot where the deceased house was situated and therefore proposed subdivision as follows:

9. On February 22, 2021 the said grant was confirmed with distribution therein as per the application of grant as follows:Name Description of property Share of heirsFrancis Wanyoike MungaiLucy Wairimu NjauPaul Mungai RithoGeoffrey Kinuthia MungaiPaul Mungai NgugiGrace Wangui Njuku NjengaAgatha Wamaitha Njuguna Loc.4/Muruka/813“ ““ ““ ““ ““ “ to get 1. 0 acreto get 1. 0 acreto get 1. 0 acreto get 1. 0 acreto get 1. 0 acre (to hold for himself and in trust for his 8 siblings)to get 1. 0 acre

Loc.4/Muruka/813 To be subdivided in accordance with ground occupation as at the time of death of the deceased Ziporah Wanjiku Paul alias Siphora Wanjiku Paul

10. On March 15, 2021 the applicants herein Paul Mungai Ngugi and Paul Mungai Ritho moved the court under certificate of urgency by way of notice of motion in which they sought the following orders:a.That pending the hearing and determination of the application interpartes an injuction order do issue restraining the administrator, their agent, servants and or otherwise from dealing with the property Loc 4/Muruka/813. b.The certificate of confirmed grant issued here be revoked or annulled.c.The honourable court be pleased to commit one Geoffrey Kinuthia Mungai to prison for malicious damage to property and going against his powers of administration by threatening forceful eviction.

11. The application was supported by the joint affidavit in which it was deposed that the case was filed in 2014 without consulting the other beneficiaries of the estate and that they later agreed that Francis Wanyoike Mungai be appointed co-administrator to act on their behalf.

12. That they agreed upon the mode of distribution of the estate as per the statement of Francis Wanyoike Mungai and a consent order thereon recorded in court in which it was agreed that no daughter of the deceased get a share and they were therefore surprised when they were served with a grant dated February 22, 2021 where Grace Wangui Njuki Njenga and Agatta Wamaitha Nguguna were to get 1. 0 acres hence the protest.

13. That in the proposed distribution they omitted Jane Wambui Nyoike and the children of Esther Waithira Mungai who were also rightful heirs.

14. It was stated that Geoffrey Kinuthia Mungai had started threatening to forcefully evict them from where they were currently occupying without giving them notice to remove their properties. Therefrom and gone ahead and destroyed the said property. It was averred that two of the A beneficiaries, Grace Wangui Njuki Njenga and Agatta Wamaitha Njuguna were intending to sell the portion measuring 1. 0 acres which would change the mode of distribution.

15. While this application was still pending, by another application dated July 27, 2021 the appellants moved the court for injunction on the ground that while the application above was still pending the administrator was pushing to have the land subdivided and had involved District Surveyor who visited the property on July 21, 2021 who had advised them to seek a court order within 14 days from that date and they stood to suffer should the action proceed.

16. The respondent on the other hand on August 11, 2021 by chamber summons under certificate of urgency moved the court for an order that the Officer Commanding Kandara Police Division do provide necessary security to enable a partition of the subject land and that the respondent do pay cost of Kshs 20,000/= incurred for surveyor in accordance with the certificate of confirmed grant.

17. This application was supported by an affidavit sworn by Geoffrey Kinuthia Mungai in which he deposed that upon confirmation of grant he instructed Murang’a District Land Surveyors to partition the land and when they visited the land on January 21, 2021 for the said purpose the respondent engaged goons and the exercise could not take place and hence the need for security, the same having incurred expenses when the exercise aborted which should be refunded by the respondents.

18. In the meantime, the applicant Geoffrey Kinuthia Mungai on August 31, 2021 filed reply to the application for setting aside the grant in which he deposed that in filing the case he cited all persons ranked at par with him and subsequently a consent was recorded. It was stated that at no time did his sisters Grace Wangui Njenga and Agatha Wamaitha denounced their right to inherit and only consented to taking a smaller portion than that of their brothers.

19. He deposed further that prior to filing of the cause the subject land had been subdivided into six equal portions for each brother and that the applicants/respondents who had moved into his land and damaged his crops.

20. On October 21, 2021, Paul Mungai Muturi and Anthony Mungai Muturi filed joint affidavit in which they stated that they were not interested in any share of the estate of the deceased and that it was the applicants who were their cousins who had moved into the portion left for their uncle Geoffrey Kinuthia and causing chaos in the family, not withstanding the fact that the deceased had subdivided her land and settled her children.

21. In response to the application by Geoffrey Kinuthia Mungai the applicants/respondents on November 16, 2021 filed a reply thereto in which they deposed that they were not part of the consent dated November 25, 2021 and that Francis Wanjoike Mungai who was supposed to represent them later colluded with the applicant and lied to the advocate on record that they had consented.

22. It was contended that they wanted to know whether it was constitutionally right for the administrator to collude and start malicious damage to their properties and to sell the estate of the deceased. It was stated further that when the surveyor went to the property, they had served the application dated March 15, 2021 and letters thereon dated June 30, 2021 and July 15, 2021 and therefore no security was needed.

Directions 23. On April 3, 2020 directions were issued that the application for annulment of the grant to be heard by way of viva voce evidence and that parties do file and exchange witness statements with the petitioner being considered as the plaintiffs and the protestors as the defendants. In the meantime on January 28, 2021, the consent order stated herein above was recorded in court.

24. On July 28, 2021, the application dated July 27, 2021 was certified urgent and the status quo then obtaining maintained pending the hearing and in respect to the application dated August 9, 2021, on October 25, 2021 direction was issued that the three applications then pending be heard together.

25. On November 17, 2021 when the matter first appeared before me and upon an informal hearing of the parties, I formed the opinion that the dispute though coached as seeking an access road was actually in respect of the plot which the deceased had retained for herself. I therefore made an order that the local chief do submit a report to court on the actual occupation on the ground and to appear at the hearing as an “amicus curiae”

Proceedings 26. The Chief Ephantus Kanya Mungai testified on oath and stated that the deceased had in the year 2013 left settled all the beneficiaries in the respective portions of land which they occupied and that in 1996 one of her sons Ignatius Njenga Mungai who was a surveyor subdivided the land and each balloted for their respective portions which they settled in as per an agreement dated February 13, 2014.

27. He stated that all beneficiaries attended the meeting and that on November 10, 2005 the deceased invited Geoffrey Kinuthia to settle in her land and in the year 2014 the said portion was subdivided by the village elders. It was agreed at that meeting that each of the beneficiary should settle in the respectful portions and none should cultivate the land until after succession is finalized.

28. In cross examination by the 1st protestor, he said that the land was subdivided and the sons of the deceased took their respective portions through ballot and that in the year 2005 the deceased called Geoffrey Kinuthia to settle in her land which she gave him in exchange with what he had balloted for and that on the ground it is only the protestors who had refused to move out.

29. In cross examination by Ms Mwangi, he stated that each of the persons were to stay in their respective portions and that the mother’s portion was cultivated by Mr Geoffrey Kinuthia who was assisting her.

30. The 1st protestor, Paul Mungai Ritho testified that they first had a meeting before the assistant chief who gave a ruling that Mr Kinuthia had balloted for plot No 5. They then moved to the chief who confirmed that assistant chief’s decision and then to the D.O but did not produce any evidence in support thereof.

31. In cross examination, he stated that at the time when the deceased died Mr Kinuthia was living with her but she did not call a family meeting when he moved into her compound. He stated that when she died they took the dispute to the assistant chief who should have the record of the said meeting. He confirmed that they only moved into the land when the deceased died and that he then planted maize thereat and that what had belonged to Mr Kinuthia is what the daughter of the deceased had settled in.

32. He stated that when his father died they were told that the disputed land will be created into plots for each of the beneficiaries and that Geoffrey did not have any document in support of his claim.

33. The 2nd protestor Paul Mungai Ngugi testified that the deceased had divided her land to each of her dependants who got 1. 0 acres and that since her plot reached the main road, it was agreed that it would be created into plots which was effected by Francis one of the administrators. He stated that Francis later on changed course and left them out.

34. In cross examination by Francis Wanyoike Mungai one of the administrators he stated that he was 16 years old when the deceased died and that he did not know when Kinuthia was asked to go into the land.

35. He stated that his mother was alive when Kinuthia moved into the disputed land but that he was only told to occupy the house. He stated that he did not have any dispute with the daughter’s being given land but was objecting to the mode of distribution.

36. Cross examined by Ms Mwangi he stated that before the deceased died, he was not cultivating the land and that they only moved in 2014, while Mr Kinuthia had been living there since 2005.

37. The administrator Geoffrey Kinuthia Mungai testified as DW1 and stated that he is the last born son of the deceased who subdivided the land in the year 1976 into six portions with each son taking a portion hereof while she retained for herself No 1. In the year 2005 she refused to live alone. So she called him to come into her place in exchange with his plot No 5 which action she reduced into writing and that when she died in the year 2013 after burial the applicants moved into the land and subdivided the same leading to filing of the application herein.

38. That after they recorded consent all the other beneficiaries who had moved into the land left, leaving only the applicants and that they had settled on the ground as per the wishes of the deceased. He stated that contrary to the contention by the applicants there was a six meter access road and that the applicants intention was only to destroy his assets.

39. Cross examined by the 1st protestor, he stated that when he moved into the deceased land, it was agreed that his No 5 was to be hers, so he was using both land. He stated that the objectors had an advocate who signed the consent on their behalf.

40. In cross examination by the 2nd protestor, he stated plot No 5 was thereafter given to the daughters of the deceased and that the deceased had stated that she had a right to sell plot No 5. He stated that Francis Wanyoike left the suit land immediately the grant was issued.

Submissions 41. On behalf of the protestors, it was submitted that they were not involved when the consent filed herein was being prepared and hence seek to have the same amended or set aside and the property shared as proposed in the affidavit of protest earlier sworn by Francis Wanyoike Mungai, who was then on their side and was agreed by the family members.

42. It was submitted that, the said Francis Wanyoike Mungai later colluded with the petitioners without their knowledge and changed the mode of distribution and included the daughters of the deceased namely Grace Wangui Njuki Njenga and Agatha Wamaitha Njuguna who were not to share the suit property as per the wishes of the deceased. It was contested further that if they had invaded the land of Geoffrey Kinuthia Mungai as alleged for seven years then he should have taken steps to prosecute them for trespass.

43. On behalf of the respondent it was submitted that the applicants had not met the terms and conditions for setting aside a consent order as was stated in the cases of Brooke Bond Lubis v Mally(1995) EA 266 to the extent that once a consent order is recorded it becomes a consent judgement which can only be set aside on the grounds of fraud or collision. Reference was also made to the case of Flova N. Wasike v Destimo Wanboko (1988) eKLR where the court stated that any consent made in the presence and with the consent of counsel is binding on all the parties unless obtained by fraud or collusion.

44. It was submitted further that under section 76 of theLaw of Succession the court may revoke a grant on the general grounds namely;-a)Where the process was defectiveb)Where the administrator fails to exercise its duties.c)Where it has became useless and in operative.

45. It was contended that in this action the mode of distribution is per the provisions of section 38 of theLaw of Succession that all the beneficiaries of the estate of the deceased including the daughters have been provided for as per the consent filed.

46. It was submitted that the deceased intestate had during her life time subdivided the land into six portions and put the beneficiaries into occupation in terms of the provisions of section 42(a) of the Law of Succession Act which the courts should be guided with as was stated in theEstate of the late Murogo A. Mugah Alias Muroku Mukumu [2019] eKLR

Determination 47. In this matter the following facts are uncontested and proved by evidence tendered before me. That the protestors are grandsons of the deceased and are claiming through their deceased fathers. That the deceased had in her life time subdivided the land into six equal portions which she gave to her then five sons retaining a portion thereof for herself but left out her daughters.

48. That sometimes in the year 2005 she invited her last born son Geoffrey Kinuthia Mungai to move into her portion referred to as parcel No 1 and according to the said Kinuthia it was in exchange of her taking over his portion No 5 which she reduced into writing as a resolution dated November 10, 2005 and as confirmed by the testimony of the area chief in court.

49. That upon the death of the deceased the beneficiaries including the applicant have together with one of the administrators Francis Wanyoike Mungai invaded the portion of land which the deceased had given to the said Geoffrey Kinuthia and subdivided the same into equal portion, but the said Francis Wanyoike for reasons he did not state to court changed his mind and contested to mode of distribution challenged here and moved out of the disputed land leaving the protestors therein.

50. Upon hearing the parties herein and having taken into account the evidence of the area chief I find and hold that the deceased in her life time had given the said Geoffrey Kinuthia Mungai her portion known asNo 1 and therefore the same is exclusively entitled to the said portion and therefore dismiss the objectors claim thereto.In arriving at this determination, I have taken into account the affidavit sworn by Agatha Wamaitha Njuguna and Grace Wangui Njuku Njenga on one hand and that sworn by Paul Mungai Nyoike and Anthony Mungai Muturi. All the beneficiaries of the estate save for three are in agreement and therefore find that they can not all be wrong.

51. The other issue for determination is whether the protestors/applicants have made out a case for revocation of grant. The protestors from the evidence tendered before me have no issue with the grant save for the proposed mode of distribution which as was identified by Justice Kimondo is clearly challenging the consent order dated December 8, 2020 and recorded in court on January 28, 2021, which as submitted by the petitioner advocate become a judgement or order of court.

52. The protestors were therefore under a duty to satisfy the court that they have met the conditions set out for the setting aside of a consent order or judgement and for the court to set aside a consent order or must be demonstrated that it was provided through fraud, non disclosure of material facts, mistake or for a reason which would enable the court set is as was stated in;-Brooke Bond Liebig v Mulya and Flora N. Wasike v Destimo Wamboko(supra)

53. In this matter the consent order was entered into by the advocate then representing the protestors and Francis Wanyoike on one hand and the advocate representing the administrator on the other hand upon which the grant herein was confirmed. In the case of Hirani v Kassam [1952] 19 EACE 131The then Court of Appeal held:-“It is now well settled law that a consent judgement or order has a 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, which are not carried out”

54. InBoard of Trustees National Board Security Fund v Michael Mwalo (2015) EKLR the Court of Appeal had this to say;-“A court of law will not interfere with a consent judgement except in circumstances such as would provide a good ground for varying or rescinding a contract between parties. To impeach a consent order or a consent judgement it must be shown that it was obtained by fraud or collusion or by an agreement contrary to the policy of court”.

55. In this case, the protestors made a general allegation that they were not involved in the preparation of the consent but provided no evidence in support thereof. I take notice that what they have done is to dismiss the services of their advocate on record but did not call the same as a witness or joined the same to the application and of much interest to the court is that one of the co-administrator who had allegedly sided with them has seen the ‘damascus light’ and in honour of the deceased wishes changed side.

56. I am therefore satisfied that the protestors have not tendered in any evidence upon which the court may set aside the consent order on the distribution herein having noted from the evidence that the said mode of distribution is supported by the wishes of the deceased and has also taken care of the interest of the daughters of the deceased in line with the provisions of the Constitution, 2010.

57. It therefore follows that the protest herein has no merit which I hereby dismiss and confirm the certificate of grant issued here as per the consent order.

58. Having dismissed the application by the protestors dated March 15, 2021, it logically follows that the two other applications dated May 18, 2021 and June 27, 2021 have no foundation upon which they can rest and is therefore subsequently dismissed.

59. The only issue remaining therefore is the application by the administrator dated August 9, 2021 seeking that the Officer Commanding Kandara Police Division do provide the necessary security to enable a partition of the suit land and for the respondent to pay cost of Kshs 20,000/= incurred for survey on July 21, 2021.

60. From the evidence tendered before me, it seems to me that the protestors were guided by commercial greed being the need to get a commercial plot next to the road and that this made them go against the wishes of their grandmother, which I doubt their fathers would have done were they alive and would therefore give the time to repent and turn around and honour the wishes of their grandmother, uncles and aunties.

61. I therefore grant the parties herein a period of 21 days from the date here to enable the surveyor to move into the suit property if need be and to carry out the assigned duties to effect the certificate of confirmed grant herein, failure of which the administrator shall be at liberty to apply for the necessary security to be provided for the exercise.

62. On the issue of cost, whereas costs follows the event, this being a family dispute involving the sons, daughters, daughters in law and grandchildren of the deceased and noting that the members of this family must now learn to love and live together will each other as they await the coming of our Lord Jesus Christ each party shall bear their own cost including the cost incurred for survey.

63. And it is ordered.

DATED SIGNED AND DELIVERED AT MURANGA THIS 16THday OF NOVEMBER, 2022J. WAKIAGAJUDGECourt Assistant Caroline Mutai