[2020] KEHC 1978 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

CORAM BEFORE: HON. JUSTICE R. MWONGO, J

MISCELLANEOUS CIVIL APPLICATION NO. 54 OF 2017

IN THE MATTER OF THE ESTATE OF THE LATE PETER KAMAU NJOROGE

ISABELLA NJERI KAMAU...................ORIGINAL APPLICANT/OBJECTOR

RACHEL WANJIRU KAMAU

ANN NDUTA MUNGAI ...............................................................APPLICANTS

FRANCIS WACHIRA KAMAU

-VERSUS-

FLORENCE NDUTA KAMAU........... ..........................................RESPONDENT

RULING

Background

1. An application filed by the Original Applicant/Objector sought the revocation of a grant of letters of administration intestate issued on 28th June 2017, in favour of Florence Nduta. The grant had been issued in Succession Cause No. 215 of 2016 in the Lower Court. The Petitioner, Florence Nduta Kamau, who is the Respondent herein, applied for the grant as the wife of the deceased.

2. The original applicant, Isabella Njeri Kamau passed away on 3rd February, 2017 before her application could be heard. Accordingly a fresh objection dated 11th March, 2019 was filed on behalf of the Children of the deceased Objector by: Rachael Wanjiru Kamau, Ann Nduta Mungai and Francis Wachira Kamau. (hereinafter referred to as the Applicants).

3. For reasons of pecuniary jurisdiction, when the application for revocation was filed it was accompanied by an application for transfer of the Lower Court file to the High Court. Administratively, upon transfer, a High Court Succession file should have been opened and this Miscellaneous Civil file closed, so that all mattes in the succession are dealt with under a substantive succession file.

4. Accordingly, it is proper at this stage to direct, as I hereby do, that a High Court Succession file be opened and this Miscellaneous file be closed. Both the Lower Court Succession file and this Miscellaneous file shall therefore be tied together at all times to the new Succession file to be opened.

5. In the original application, Isabella Njeri Kamau, the Applicant, also claims to be the wife of the deceased. She claims she was not notified of the application for grant of administration of her husband’s estate. She contends that her children with the Deceased were excluded. The application is dated 2nd October, 2017.

6. Parties agreed that the matter should proceed by way of viva voce evidence. Accordingly, they agreed that the affidavits filed should form the evidence-in-chief and thereafter the deponents should be cross-examined.

The Applicant’s Case

7. Rachel Wanjiru Kamau gave evidence on behalf Ann Nduta Mungai and Francis Wachira Kamau who filed a joint Affidavit in support of the revocation. They annexed to the affidavit a document written in Kikuyu language allegedly confirming the marriage between their late father and late mother. They also attached the eulogy booklet relating to the deceased’s funeral (JRAF2). They listed the children of the marriage as:

1. Nancy Muthoni Kamau - Born 1967 (deceased)

2. Humphrey Njoroge - Born 1969 (deceased)

3. Florence Wamboi - Born 1971 (deceased)

4. Judy Kamau - Born 1974

5. Benson Ng’ang’a - Born 1975

6. Rachel Wanjiru - Born 1977

7. Anne Nduta - Born 1983

8. Francis Wachira - Born 1987

They annexed birth certificates for each of the children named in No. 4, 5, 6 and 8 above. The father is indicated as Peter Kamau Njoroge.

8. Further, they annexed copies of a Petition filed in Matrimonial (Divorce) Cause No. 197 of 2014 in Nairobi, wherein their mother sought nullification of her marriage to the deceased (JRAF4), and in which Florence Nduta was named as a Respondent. A ruling emanating from the Matrimonial Cause was also annexed as JRAF5a and5b, as was a Replying Affidavit of the deceased (JRAF6). In addition, they annexed JRAF 5b being Originating summons in a suit by Florence Nduta Kamau seeking division of the matrimonial property as between her and the deceased.

9. From the ruling of Muigai J, in Divorce Cause No. 197 of 2014 aforesaid, and affidavit, it is clear that the deceased and the Applicants’ mother had a relationship as husband and wife, and that the deceased was their father. Similarly, from the Originating Summons and annexed affidavit of Florence Nduta it is clear that she and the deceased also had a relationship as husband and wife from which they sired children.

10. It is on the basis of the asserted relationship with the deceased that the Applicants are aggrieved that they have been omitted from the grant issued to the Respondent, Florence Nduta.

The Respondent’s Case

11. The Respondent applied for the grant on the basis that she was the lawful wife of the deceased. In her Replying Affidavit deponed on 11th April, 2019 in response to the applicant’s affidavit, she asserts that there is no basis for the revocation sought by the applicants.

12. She asserts that: the applicant’s mother has never been a wife of the deceased and therefore had no right to be notified before the filing of the petition; that she did not fail to disclose any material fact as the applicant’s mother was not married to the deceased and they were not known to be children of the deceased; and that the applicants are not bonafide beneficiaries of the deceased’s estate.

13. The Respondent annexed a copy of her marriage certificate with the deceased (FNK 1) under the Marriage Act. It indicates that before her civil marriage she was married under customary law. The marriage is certified to have been on 9th October 2001 between Peter Kamau Njoroge and Florence Nduta Kuria. The deceased’s profession is indicated as a Hotel Manager and Respondent’s profession is indicated as Waitress. The certificate also indicates that the two were married under Customary Law.

14. She decries as a hopeless cause the Miscellaneous Divorce Cause No. 197 of 2014 filed by the applicants’ mother on the basis that the Judge therein ruled at page 10 that“the Petitioner has no legal capacity to petition for annulment of a Marriage to which she is not a party.” A perusal of the ruling shows that the statement was made by the Judge in the context of and in answer to the question: “whether the Petitioner (Isabella [INK]) has capacity to file for annulment of the marriage between the 1st (PJKN) and 2nd (FNK) Respondents, as only a party to a marriage can petition for its dissolution.”

15. She admits at Paragraph 9 of her Replying Affidavit that she had filed a Matrimonial Cause No. 53 of 2014 to protect their property “since the deceased was wasting the same with his mistress the Applicant’s mother.” Further that the applicant’s mother did not enjoin herself in that suit.

16. Finally the Respondent states that the applicant’s mother was merely a home wrecker, who had a misconceived motion that she and her children were beneficiaries of the deceased. As such, there was no concealment of necessary information when filing her Petition for grant of letters of administration.

The Hearing

17. Rachel Wanjiru Kamau (PW1) testified as the daughter of Isabella Njeri Kamau and on behalf of her siblings. The affidavit, signed jointly by the Applicants in support of the summons for revocation, was adopted as her evidence-in-chief.

18. In the lengthy cross examination of PW1, it was evident that she did not have a strong relationship with her father, who was not much involved in her life; that he was not present at her wedding in 1990; that from 1990 she was not dependant on her father, that she had not produced any pictures of herself with her father; that her father died in their home, that for 25 years from 1990 to 2015 she did not know where her father had gone, until he returned to her mother’s house. She was aware her father was with another woman but could not tell when they met or where they lived.

19. In re-examination she testified that her father educated the children; that when her father died all her siblings were involved in the funeral arrangements at Limuru; that Florence Nduta’s children were also involved in the arrangements; that the Eulogy was done by all children and family members on both sides.

20. The Respondent, Florence Nduta testified as DW1. Her Replying Affidavit was adopted as her evidence-in-chief. In cross-examination she testified that the deceased was not living in Limuru when he died but had in fact gone for a funeral there; that during the funeral of the deceased the children were meeting; that after the court case in Limuru stopping the burial, they participated in the funeral arrangements and her name was put in the Eulogy; that she never met or sat with the children of Isabella Njeri; that the children who made the funeral arrangements were hers and Isabella’s; that she did not know Isabella could not meet with her.

21. Further, she stated that the deceased lived in Kasarani where he had a house; that he also had a house in Gilgil; that when applying for the grant she used a letter from the Kasarani Chief where the deceased was living.

22. The parties filed written submissions following the viva voce hearing.

23. The Applicants’ submissions are that Isabella Kamau was the deceased’s wife, and her children were the deceased’s children. They referred to unchallenged documentary evidence annexed to their summons for revocation. Counsel supported his submission with the case of the Estate of Wilfred Kihara Kariuki (Deceased) [2018] eKLR.

24. Counsel further submitted that the reason the Respondent agreed to a joint funeral arrangement for the deceased was because she recognized the existence of a relationship between the deceased and Isabella Njeri, the Applicants’ mother. He further adds that the Respondent’s failure to include the Applicants in the petition reeks of malice and extreme bad faith. Thus, if the grant was not revoked, the deceased’s property will not devolve to all the person’s property entitled.

25. The Respondent in her submissions stated that for revocation to arise the applicants must prove a relationship to the deceased as would entitle them to be beneficiaries. Counsel argued that Isabella Njeri was merely a mistress even if she lived in the same house with the deceased, and that does not connote a marriage relationship. Counsel referred to the case of Raphael Ratemo & Another v Emily Nakhanu Musina [2017] eKLR.

26. Counsel argued that the only attempt to make a nexus between the applicants and the deceased, was in respect of the burial and eulogy. On this, however, he argued that the Respondent conceded to joint funeral arrangements to avoid the trouble and pain of a protracted battle and the unnecessary burden and tussle over the dead body.

27. I have carefully considered the evidence, the documents availed and the parties’ submissions. What arises for determination is whether it has been shown that there are lawful grounds on which the Applicants’ application for revocation or annulment of the grant can be made.

Analysis and Determination

28. Section 76 of the Law of Succession Act provides the basis for a court to reject an application for revocation.

“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. It is important to note that a revocation or annulment can be initiated either by application by a party, or by the court on its own motion. A court would act on its own motion where material is presented before it that discloses any of the grounds or factors set out in Section 76 (1) (a) - (e). That power is, without getting into too much detail, both statutory and inherent. This answers the Respondent’s concern as to whether or not the Applicants had obtained a grant ad litem to their deceased mother’s estate before filing their application herein. Further, as will be seen later, their degree of consanguinity to the deceased properly places them in line as Applicants in their own right. Accordingly, the title of this proceeding has been amended to reflect this situation.

30. The Applicants’ kernel complaint, in my understanding, was that there was concealment from the court, of material information critical to the Petition, or that there were untrue allegations of fact essential in point of law to not justify the grant.

31. The question therefore is whether the Respondent had any information at the time of filing the Petition in CM’s Succession Cause No. 215 of 2016 on 25th October, 2016, that would be material to the grant and the Succession Cause.

32. The facts laid out herein show that the Respondent had been a party to a Matrimonial matter, namely Divorce Cause No. 197 of 2014 - INK v PJKN and FNK. She refers to it in her Replying Affidavit (Miscellaneous Cause No. 197 of 2014). She cited page 10 of the ruling delivered on 19th June 2015. The Petitioner was the Applicants’ mother and the deceased and the Respondent were the Respondents. The Ruling of Muigai Jdated 19th June, 2015 states at Page 1 as follows:-

“According to the petition, it is said that the Petitioner and the 1st Respondent celebrated a marriage under Kikuyu customary law which was witnessed by the relatives of both parties. This position is accepted by the 1st Respondent in his answer to petition and cross-petition that was filed on 16th December 2014. Details of the Kikuyu customary marriage ceremony between the Petitioner and the 1st Respondent demonstrate that all the relevant elements of a valid marriage were present, and on that basis this Court can make a finding that there is a valid marriage between the Petitioner and the 1st Respondent.”(Emphasis added)

33. There is no indication that the said Ruling was set aside or has been appealed against. Unless such evidence is available, the finding of the Divorce Court in that suit is evidence of high probative value as to the existence of a marriage between the Petitioner (INK) who is the Applicants’ mother herein and the Respondent (PJKN), the deceased.

34. In addition the said Ruling at page 1 and 2 states:

“It is the admission of both the Petitioner and the 1st Respondent that they have lived together as husband and wife since the celebration of their marriage in 1969 and that their marriage has been blessed with eight (8)children, six (6) of whom are surviving. They also agree that the Petitioner and the 1st Respondent are currently living together in their matrimonial home in Limuru.”

35. If from no other source then from the above statement in the ruling, the Respondent would have been aware that there was another family or other persons being presented in, and accepted by, a court of law as children of the marriage between the deceased and the mother of the Applicants. Despite this, in her Replying Affidavit the Respondent referred to the Applicant’s mother as the mistress of the deceased.

36. At paragraph 4 of the petition in the said Divorce Cause it is asserted by the Petitioner (the Applicants’ mother) that the Petitioner and 1st Respondent were blessed with 8 issues. The names of their eight children are mentioned therein, and they include the Applicants herein. This is information which the present petitioner had, even if she did not accept it, at the time of filing the petition for grant herein.

37. In his Replying Affidavit (JRAF6) to the Respondents in Matrimonial Cause No. 53 of 2014 Florence Nduta Kamau v Peter Kamau Njoroge (the suit filed by the Respondent herein for division of their matrimonial property) the deceased stated as follows:

At Paragraph 4: that he met and married his wife the Applicants’ mother Isabella Njeri Kamau;

At Paragraph 6: that they formalized their marriage under Kikuyu Customary Law in 1969, and he subsequently named her as his beneficiary in his insurance policy with British American Insurance Policy No. 710717 dated 5th January 1982 where Isabella Njeri is named as his wife and beneficiary;

At paragraph 7: that his marriage with Isabella Njeri Kamau was blessed with eight (8) children (therein named); and he attached copies of each such child Birth Certificate at (PKJ 3a-f).

At paragraph 10: that his said wife Isabella Njeri and he, disposed of their Buruburu House to enable them develop their home in Thogoto where they lived until 1995.

At Paragraph 11-12: that he and his wife Isabella Njeri sold their Thogoto house and invested in several assets including vehicles and land parcels.

At Paragraph 33: that the Respondent, Florence Nduta, had never claimed or alleged that he was the biological father of any of her children.

38. All the aforesaid assertions of the deceased were made in response to Florence Nduta’s application for division of the matrimonial property. The affidavit is dated 8th September 2014, almost two years before the deceased’s death on 22nd June 2016.

39. There is also the evidence, admitted to the record by consent of the parties, of the case filed by Florence Nduta in SPMCC No. 123 of 2016 Limuru, Florence Nduta Kamau v Isabella Njeri Kamau and Francis Wachira.Wachira is the son of Isabella Kamau, the Applicants’ mother. The suit sought an injunction to restrain the defendant from burying or interring the body of the deceased.

40. A temporary injunction was granted to the Plaintiff, Florence Nduta. Eventually however, the parties entered into a consent that: a post mortem be conducted on the deceased’s body; that funeral arrangements be made jointly; that the deceased be buried on 22nd June 2016 and that the suit be withdrawn.

41. The above suit is further evidence that there existed a contest between the two families each alleging to be the family of the deceased, viz; the family of Florence Nduta and Peter Kamau and the family of Isabella Njeri and Peter Kamau.

42. Florence Nduta admitted in her oral testimony that after the said court proceedings the arrangements for the funeral were made, that she participated and her name was included in the eulogy. The eulogy which was exhibited by the Applicants (JRAF2) states concerning the deceased’s family:

“God blessed Peter, his wives Florence Nduta Kamau and Isabella Njeri Kamau with children, namely the late Nancy Muthoni, the late Humphrey Njoroge, Henry Kuria Kamau (SA), Benson Nganga Kamau (UAE), Rachel Wanjiru Kamau, Anne Nduta Mungai and Francis Wachira Kamau.”

43. Four months after the consent order and burial of the deceased, and despite knowing of the existing contestations concerning the disputing families, Florence Nduta solely filed the petition for grant of letters of administration dated 25th October, 2016.

44. Further, in her oral testimony, Florence Nduta confirmed that in her application for grant she obtained a letter from the Chief of Kasarani Location in Nairobi, which lists only her children as heirs. This was despite most of the deceased’s listed properties being outside Nairobi and the deceased living outside Nairobi.

45. I think that the evidence adduced and analysed herein adequately discloses the existence of relationships with contesting rights as to the deceased families. It is abundantly clear that both sides were aware of the long drawn out disputes, and that there would be a looming clash concerning the property of the deceased, both before and after, he died.

46. The Respondent, Florence Nduta, has argued that the assets contained in the Petition she filed are only those to which she contributed and acquired during the pendency of the marriage between her and the deceased. She referred to the case of CWM v JPM [2017] eKLR where the Court of Appeal defines “contribution” in relation to the Matrimonial Property Act.

47. In Succession Law, Section 53 of the Law of Succession Act provides for grants for testate succession where there is a valid will, and interstate succession where no will was left by the deceased. With regard to the latter, Section 53 (b) of the Law of Succession Act provides for grants:-

“(b) if and so far as there may be intestacy, letter of administration in respect of the intestate estate.”(Emphasis added)

Further,Section 34 of the Law of Succession Act provides that:

“A person is deemed to die intestate in respect of all his freeproperty of which he has not made a will which is capable of taking effect.”(Emphasis added)

48. Thus, the argument by the Respondent that she has applied only for administration of the deceased’s property in which she contributed, cannot stand. The administration of the estate of an intestate covers all his free property. To add further meaning to the concept of free property of an intestate, the Law of Succession Act has defined “net intestate estate” as follows in Section 3:-

“ ‘Net intestate estate’ means the estate of a deceased person in respect of which he has died intestate after payment of the expenses, debts, liabilities and estate duly set out under the definition of “net estate” so far as the expenses, debts liabilities and estate duty are chargeable against that estate.”

49. In effect therefore, the estate of a deceased person is considered as a composite, covering all his free property and taking into account all his liabilities. The estate of the deceased cannot be administered in dribs and drabs. All the deceased’s free property is pooled together - so to speak - in one basket, the liabilities paid off and then the lawful beneficiaries are identified, following which distribution is done from the basket in accordance with the law.

50. The next question is who is entitled to administer the estate of a deceased person who died intestate. That question is answered by Section 66of the Law of Succession Actwhich provides:

“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference-

(a)surviving spouseor 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; and

(d)creditors

Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.”(Emphasis added)

51. It is clear that the court has discretion as to whom a grant of letters of administration should be issued. In the present case, the evidence shows that there is Florence, a surviving spouse and her children with the deceased. Then there is credible evidence that Isabella was also the deceased’s spouse, but she being deceased, there are children. There is evidence from birth certificates exhibited that the deceased had children with Isabella. Applying Section 66 (a) of the Law of Succession Act, preference is given to the surviving spouse with or without association of other beneficiaries.

52. In this case, it would be prejudicial in my view not to include beneficiaries from the demonstrated relationship between Isabella and the deceased. I accept the children named in the birth certificates as children of Isabella with the deceased on the strength of Section 12 of the Births and Deaths Registration Act Cap 149 which provides:-

“No person shall be entered in the register as the father of any child except either at the joint request of the father and mother or upon the production to the registrar of such evidence as he may require thatthe father and mother were marriedaccording to law or in accordance with same recognized custom.”

53. From that Section, a presumption in law is made that the issuance of a birth certificate presupposes that there was either admission or sufficient evidence of parentage of the children and or marriage of the parents. The birth certificates were not challenged or put to doubt or impugned during the proceedings herein.

54. Finally, Rule 7 (1)of the Probate and Administration Rulesrequire that an application for grant of representation should contain the particulars specified therein. In cases of intestacy, as in the present case, the provision states:

“(e) In cases of total or partial intestacy

(i) the names, address, marital state of all surviving spouses and children of the deceased or persons who would succeed in accordance with Section 39 (1) of the Act.

(ii) ………

(iii) for the purposes of determining the degree of consanguinity reference shall be made to the table set out in the Second Schedule.” (Emphasis added)

55. The degree of consanguinity refers to the relationship of, or denotes people descended from, the same ancestry or blood. The table of consanguinity in the Second Schedule shows that children of the deceased are related in the first degree to the deceased.

Disposition

56. From all the foregoing, I draw the following conclusions: the Petitioner, Florence Nduta, when filing the petition failed to disclose the existence of all the children of the deceased although she was seized of that information. This amounted to material non-disclosure, that could exclude them from being involved in the administration of the intestate estate of the deceased.

57. The Petitioner asserted that she included in the petition only property of the deceased in respect of which she had made a contribution. This means that property of the deceased in which she did not make a contribution was excluded. Given that a person is deemed to die intestate in respect of all, not part of, his free property of which he has not made a will, it is necessary that all free property of the deceased should be included in the administration of the estate.

58. The following orders therefore commend themselves to me and I hereby order as follows:

1. The grant of letters of administration issued on 28th June, 2017 to Florence Nduta Kamau is hereby revoked, and shall be substituted with a grant in the joint names of Florence Nduta Kamau and Rachel Wanjiru Kamau. The latter shall be included as a representative of the children of the deceased with Isabella Njeri Kamau.

2. The parties shall within thirty (30) days from the date hereof file Supplementary Affidavits disclosing all the free property of the deceased forming part of his intestate estate.

3. Costs are in the cause.

Administrative Directions

59. Due to the current inhibitions on movement nationally, and in keeping with social distancing requirements decreed by the state due to the Corona-virus pandemic, this Judgment has been rendered through Teams video/tele-conference with the consent of the parties noted hereunder, who were also able to participate in the conference. Accordingly, a signed copy of this judgment shall be scanned and availed to the parties and relevant authorities as evidence of the delivery thereof, with the High Court seal duly affixed thereon by the Executive Officer, Naivasha.

60. A printout of the parties’ written consent to the delivery of this judgment shall be retained as part of the record of the Court.

61. Orders accordingly.

Dated and Delivered in Naivasha by video conference this 13th Day of October, 2020

_____________________________

RICHARD MWONGO

JUDGE

Delivered in the presence of:

1. Ms Fexsi for the Objectors/Applicants

2. Mr. Omondi for the Respondent

3. Court Clerk: - Quinter Ogutu