[2022] KEHC 1757 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

SUCCESSION CAUSE NUMBER 115 OF 2017

IN THE MATTER OF THE ESTATE OF ZIPPORAH WAIRIMU HOSEA (DECEASED)

JAMES NGIGE NJOROGE............................................................1ST APPLICANT

BETTY KIMANI...............................................................................2ND APPLICANT

VERSUS

JAMES MUNGAI NJOROGE...........................................................RESPONDENT

R U L I N G

1. The applicants vide Summons for Revocation or Annulment of Grant dated 5th November 2018 brought under Section 47 and 76 of Law of Succession Act CAP 160, Rules 44(1),49 and 73 of the Probate and Administration Rules seek for orders:-

1. THAT the grant of letters of administration issued to the respondents herein on 18th September, 2017 in respect of the estate of ZIPPORAH WAIRIMU HOSEA be revoked and or annulled.

2. THAT the grant of letters of administration of the estate of ZIPPORAH WAIRIMU HOSEA be issued to the Public Trustee as provided for under section 71 of the Law of Succession Act, Cap 60.

3. THAT the costs of this application be borne by the Respondent in any event.

2. The application is premised on the grounds on its face and supported by an affidavit of JAMES NGIGE NJOROGE sworn on 5th November, 2018. He deponed that he is the first born son to the deceased herein who died on 11th June 2017 domiciled in Nakuru.

3. That he was surprised to learn that he was excluded as one of the beneficiaries in the letters of administration that was issued to the respondent herein.

4. He deposed that the mode of distribution set out in the consent is biased, discriminatory and unfair.

5. He proposed that the following properties be distributed as follows;

1) KABAZI/MUNANDA BLOCK 1/639 be distributed equally amongst all beneficiaries including himself and co-applicant.

2) SUBUKIA /SUBUKIA BLOCK 4 (NGAMINI/14) be held by the 2nd Applicant in trust for her children.

3) Plot Number 541 DANDORA be held in trust by the 2nd Applicant in trust for his daughter ZIPPORAH WAIRIMU NGIGE claiming that the deceased held the same in trust for her.

4) Rent in PLOT NO 541 DANDORA be collected by a neutral party until the property is rightly transferred to ZIPPORAH WAIRIMU NGIGE.

5) The Bank Statement from Post Bank A/C NO. KNAK 31005 be produced by the respondents and upon production the said funds be distributed equally amongst all beneficiaries including himself and the 2nd Applicant.

6) KABAZI/MUNANDA BLOCK 1/639 with coffee plantation be included in the list of Assets of the Deceased.

6. He deposed that the respondents should prove that he was given land by his father and should render a true and just inventory of the estate of the deceased and that the grant which was obtained on the basis of untrue facts has been rendered inoperative by the malicious conduct of the respondents. He asked that the Public Trustee be made the administrator.

7. The Application is opposed by the James Mungai Njoroge vide his Replying Affidavit sworn on 2nd March, 2019. He deposed that the Application is frivolous and an abuse of the court process as the deceased had children competent enough to administer her estate.

8. That the 1st applicant is his long lost brother and had been given Land in Turi, Molo by their parents before their death and as such he has no claim on the remaining estate’s property.

9. He averred that Kabazi/Munanda Block 1/639 is occupied by the family of his late brother Kamau Njoroge and one acre of this land is occupied by their sister Josephine Njeri Njoroge as it was directed by their late mother.

10. That Subukia/Subukia Block 4(Ngamini/14) was shared equally among himself, his late brother Kimani together with his wife Betty Kimani and that Betty Kimani is in actual use of the four acres to date.

11. He averred that Plot No. 541 Dandora belonged to their mother and that there is no evidence to prove that the same was owned by the 1st respondent’s daughter. His intention of taking the Account No. KNAK 31005 Post Bank was to get money for distribution to the beneficiaries of the estate.

12. The 2nd Applicant swore a further Affidavit on 27th June, 2019. She deposed that she is the wife to the deceased Kimani Njoroge who was a son to the deceased herein. That she is the best person to hold the 4 acres in Subukia/Subukia Block (Ngamini/14) in trust for her children.

13. James Ngige Njoroge, the 1st Applicant also swore a further affidavit on 28th June, 2019. He disputed he was given land in Turi Molo by his parents and that Plot No. 541 Dandora was bequeathed to their sister Josephine Njeri Njoroge by their mother.

14. He stated that he had entrusted his mother with safe keeping of title document of Plot No.541 Dandora and upon her demise the respondent took custody of all documents including the said title which could have been availed to prove that the said plot belongs to his daughter Zipporah Wairimu Ngige.

15. He averred that the respondent should produce bank statements of the post bank account to enable fair distribution of funds.

16. Parties agreed to proceed by way of oral evidence.

17. The 1st applicant testified and reiterated the evidence in his affidavit. On cross examination, it came out clearly that all he was asking for was his rightful share of his parents’ estate, and that there was no proof that he was allocated any land by the parents before their deaths. He challenged the petitioner to point out the said land if it existed.

APPLICANT’S SUBMISSIONS

18. The applicants filed their submissions on 6th September 2021. They submitted on three issues namely:

i. Whether the 1st applicant is entitled as a dependent to the estate.

ii. Whether the applicant case/evidence can be adopted as uncontroverted.

iii. Whether grant issued to the respondent on 18th September 2017 should be revoked.

19. On the first issue it was the applicants’ submissions that under Section 29 of the Law of Succession Act in his capacity as the son to the deceased he is entitled to a share of the deceased’s estate.

20. On the second issue, the applicant contended that pursuant to Section 107 of the Evidence Act a party who alleges must prove. He argued that there was no proof that his parents bequeathed him land prior to this cause. He invited this court to be guided by the principles set out in the cases of Interchemie Ea Limited vs Nakuru Veterinary Centre Limited Nairobi (Milimani) HCCC No. 165 B of 2000, Peter Ngigi Kuria & Another (suing as the legal representatives of the estate of Joan Wambui Ngigi) vs Thomas Ondili Oduol & Another [2019]eKLRand the case of Shaneebal Limited vs County Government of Machakos [2018] eKLR where the courts therein observed the importance of proving the allegation raised and that without any evidence to support the assertion raised against a party will amount to mere allegations.

21. On the last issue, the applicants submitted that the respondents had failed to disclose that he is a son to the deceased and such material non-disclosure is a prerequisite for revocation of letters of administration intestate issued on 18th September 2017 under section 76 (b) of the law of Succession Act .

RESPONDENT’S SUBMISSIONS

22. The petitioners filed their submission on 21st September, 2021.

23. The only submission was that he withdrew the petition herein on 17th June, 2021 and as such there is no petition before the court for determination.

ISSUES FOR DETERMINATION

24. The issues that arise for determination are as follows:-

(i)Whether there is petition before court for determination;

(ii)Whether the Grant of Letters of Administration intestate issued to James Mungai Njoroge on 18th September, 2017 should be revoked;

(iii)Whether thegrant of letters of administration of the estate of Zipporah Wairimu Hosea should be issued to the PublicTrustee.

ANALYSIS & DETERMINATION

(i)Whether there is Petition before court for determination

19. The petitioner in this matter filed a Notice of Withdrawal of the Petition dated 17th June, 2021. It was his submissions that based on this Notice there is no petition for determination in this matter.

20. It was submitted that the notice was served on the respondents hence the matter stood as withdrawn.

21. This was after we heard the applicant’s evidence and gave the petitioner time to appear and give his evidence. The petitioner never showed up, and counsel gave numerous excuses, including that they were out of Nakuru, that their mother had told them not to litigate over the estate. The court bent backwards in the interests of justice to give that opportunity from 11th November 2019 when the applicant closed his case.

22. Rule 14 (2) of the Probate and Administration Rules, which headed, “Amendment or withdrawal of application for grant”provides that:

“(2) An applicant for a grant may withdraw his application at any time before the making of the grant by notice in Form 65 and shall pay to the other parties to the proceedings such costs (if any) as the court may direct.”

23. The notice herein was filed after the grant had been made. It is not even filed in the requisite form and there is no evidence that it was served on the objector herein. More importantly it was filed after a grant was made and hence that space was not available to the petitioner. The only avenue available would be the revocation of the grant and a new administrator appointed.

24. The Court of Appeal decision inBeijing Industrial Designing & Researching Institute vs Lagoon Development Limited, 2015 eKLR,with regards to discontinuance of a matter observed as follows;

“..The above provision presents three clear scenarios regarding discontinuance of suit or withdrawal of claims. The first scenario arises where the suit has not been set down for hearing. In such an instance, the Plaintiff is at liberty, at any time to discontinue the suit or to withdraw the claim or any part thereof. All that is required of the Plaintiff is to give notice in writing to that effect and serve it upon all the parties. In that scenario, the Plaintiff has an absolute right to withdraw his suit, which we agree cannot be curtailed. The second scenario arises where the suit has been set down for hearing. In such a case the suit may be discontinued or the claim or any part thereof withdrawn by all the parties signing and filing a written consent of all the parties. The last scenario arises where the suit has been set down for hearing but all the parties have not reached any consent on discontinuance of the suit or withdrawal of the claim or any part thereto. In such eventuality, the Plaintiff must obtain leave of court to discontinue the suit or withdraw the claim or any part thereof, which is granted upon such terms as are just. In this scenario too, the Plaintiff’s right to discontinue his suit is circumscribed by the requirement that he must obtain leave of the court. That such leave is granted on terms suggests that it is not a mere formality.”

25. In the instant case the matter has progressed. The respondent even opposed the application. There is no consent by parties to discontinue this petition and neither did the respondent obtain leave of court to withdraw the petition. If it is true that their mother warned them not to litigate over the estate, that would have been the first sentiment he would have made at the point the applicant showed up. But he chose to oppose the application while at the same time confirming that the applicant was his eldest brother.

26. Further the notice was never endorsed by this court as such there is a valid petition on record for determination.

27. That Notice of Withdrawal though inconsequential, was not filed in good gait. The same is rejected and struck out.

(ii) Whether The Grant Of Letters Of Administration Intestate Issued To James Mungai Njoroge On 18th September, 2017 Should Be Revoked.

28. For this issue to succeed, the party applying must prove one or more of the grounds set put in Section 76 of the Law of Succession Actwhich provides as follows:

“ S. 76 Revocation or annulment of grant

A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—

(a) that the proceedings to obtain the grant were defective in substance;

(b) that 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) that 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) that 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; or

(ii) to proceed diligently with the administration of the estate; or

(iii) 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; or

(e) that the grant has become useless and inoperative through subsequent circumstances.”

29. This application is grounded more on sub-section (b)and(c)of the above Provision. In that regard, the 1st applicant contends that he is the first born son of the deceased yet he was excluded in the grant of letters of administration as one of the beneficiaries and that property Kabazi/Munanda Block 1/639 was not included in the list of assets of the deceased’s estate.

30. The respondent on his part did not dispute this position but asserts that the applicant herein was given land in Turi by his parents prior to their death and as such he is not entitled to more property from the deceased’s estate. It is trite that he who alleges must prove. The respondent did not tender any proof to show that indeed the applicant herein had been bequeathed property by their parents.

31. The issue that property Kabazi/Munanda Block 1/639 was not included in the list of assets of the estate was uncontroverted by the Respondent.

32. The Applicants also blamed the respondent for failing to render true and just inventory of the estate of the deceased as required by the law. It is a statutory obligation for a personal representative to account for the assets, liabilities and dealings of any estate.Section 83(e) of the Law of Succession Actrequires an administrator to within six months from the date of the grant, produce to the court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account. Under Section 83(g) an administrator is obligated to complete the administration of the estate in respect of all matters within six months from the date of confirmation of the grant and to produce to the court a full and accurate account of the completed administration.

33. In this case there is no evidence that the respondent has rendered a true and just inventory of the deceased’s estate.

34. With respect to the share of the estate of the deceased husband of the second applicant, that is an issue that will be dealt with at the distribution of the estate, and whether she will have established her relationship with the deceased.

35. The Application for the revocation of grant of letters of administration intestate herein is merited.

(iii) Whether theGrant of Letters of Administration of the Estate of Zipporah Wairimu Hosea should be issued to the Public Trustee

36. The conduct of the Petitioner herein in trying to sidestep the law of succession attracts the scrutiny that the office of the Public Trustee would bring on board. The petitioner failed to attend court to testify on the allegation that their mother told them not to litigate on the estate but he filed responses to the application for revocation, opposing the same. He instructed counsel who cross examined the applicant at length. He cannot hide under an unlawful withdrawal of the petition. He must account for the grant.

37. It is noteworthy that the applicant is not asking to take over the position of the administrator but would like a neutral person to administer the estate.

38. The applicant is only asking that the estate be distributed in such a way that he too as a child of the deceased gets a share of his mother’s estate.

39. Under those circumstances it is fair and just for this court pursuant to the provisions of Rule 73 of the Probate and Administration Rules to ensure that the properties of the deceased are safeguarded for the benefit of all beneficiaries. Vesting the administration of the estate in the Public Trustee would not be prejudicial to parties and the estate of the deceased as the assets will not be wasted or intermeddled with and there will be no prejudice suffered by any of the parties.

40. To that extent the grant issued to James Mungai Njoroge be and is hereby revoked. A fresh grant to issue to the Public Trustee to proceed with the administration of this estate.

41. Applicant to serve the order on the Public Trustee.

42. This being a family matter each party should bear their own costs.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 3RD DAY OF MARCH, 2022.

Mumbua T Matheka

Judge

In the presence of;

C/A Lepikas

Mr. Njoroge for the applicants

N/A for Mr. Gakinya for respondents