[2002] KEHC 101 (KLR)
The court found that the mode of distribution of the deceased's estate was fundamentally flawed because not all adult survivors consented as required by law, and not all assets were distributed. The inclusion of the deceased's brother as a beneficiary was contrary to Section 35 of the Succession Act, which...
Source-derived case information.
- Citation
- [2002] KEHC 101 (KLR)
- Parties
- Applicant: Kimani Njuguna; Applicant: Patrick Njuguna; Respondent: Hannah Mwihaki Kireru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 1064 of 1994
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- grant of letters of administration revoked
- Judges
- JA Aluoch
- Legal Topics
- Revocation of Grant, Consent of Beneficiaries, Mode of Distribution, Succession Act Section 76
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kimani Njuguna
Applicant
Patrick Njuguna
Applicant
Hannah Mwihaki Kireru
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration was properly issued and confirmed without the consent of all beneficiaries.
- 2 Whether the deceased's brother was lawfully included as a survivor and beneficiary under the Succession Act.
- 3 Whether there was evidence of joint ownership of property between the deceased and his brother justifying inheritance by the brother.
Ratio Decidendi
The court found that the mode of distribution of the deceased's estate was fundamentally flawed because not all adult survivors consented as required by law, and not all assets were distributed. The inclusion of the deceased's brother as a beneficiary was contrary to Section 35 of the Succession Act, which prioritizes the spouse and children unless there is clear evidence of joint ownership, which was lacking. The consent form attached to the administrators' affidavit only related to the appointment of administrators, not the distribution of assets. The sharing agreement did not include all beneficiaries or all assets. Consequently, the grant of letters of administration was obtained in a...
Court Disposition
grant of letters of administration revoked
Orders
- The Grant of Letters of Administration issued to Njuguna Kimani and Patrick Njuguna on 13th December, 1994 and confirmed on 24th May 1996 is revoked.
- The family of the deceased is to agree on the appointment of new administrators or retain the previous ones, subject to compliance with the law.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 1064 OF 1994
IN THE MATTER OF THE ESTATE OF ISAAC KIRERU NJUGUNA
(DECEASED)
RULING
Kimani Njuguna and Patrick Njuguna, petitioned for a grant of letters of administration to the estate of the late Isaac Kireru Njuguna, deceased.
They are described in form P&A 80 as brother to the deceased and son of the deceased respectively.
The grant was issued, and subsequently confirmed on 24. 5.1996. Subsequently, one Hannah Mwihaki Kireru, the deceased’s widow and some of her sons and daughters petitioned the court to revoke the grant issued to Kimani Njuguna and Patrick Njuguna.
Hannah’s affidavit in support of the application for Revocation was sworn on 17th September 1997 Hannah swore a further affidavit on 6th February 1997. The same was filed in court on 11th February 1998.
Kimani Njuguna, one of the petitioners, filed a replying affidavit on 3rd October 1997. he averred that there was a family meeting at which it was decided that he together with the deceased’s eldest son should petition for the grant to the deceased’s estate. He annexed to the affidavit, consent of all the beneficiaries, authorizing him and his co-administrators to petition for the grant.
In court during the hearing of the application for Revocation, Mr. Musila for the objectors submitted that the widow did not consent to the mode of distribution, which is what is in issue. He further submitted that the deceased’s brother did not involve his co-petitioner the deceased’s eldest son, in the distribution of the estate. A further submission was to the effect that there was no evidence to show that the deceased owned property jointly with his brother, Kimani Njuguna.
Mwangi Chege counsel for the administrators submitted that the estate of the deceased was gazetted after the grant had been issued but not yet confirmed and there was no objection raised by anybody.That besides, there were several family meetings which Hannah, the deceased’s widow has not disputed.
Hannah’s counsel submitted in reply that Hannah’s further affidavit already referred to, denied the fact of the deceased’s brother having owned property jointly with the deceased.
I have also scrutinized the consent form attached to the replying affidavit of Kimani Njuguna, the deceased’s brother and one of the petitioners. The form shows that it was a consent in respect of the proposed administrators.
There is also another handwritten document headed,
“SHARING AGREEMENT BETWEEN EVAN KIMANI
NJUGUNA AND HANNAH MWIHAKI KIRERU”.
It has some calculations of proposed sale of properties, both moveable and immovable, and sharing of proceeds between Evan Kiman Njuguna and Hannah Mwihaki Kireru, but not the other beneficiaries. This was said to be the mode of distribution of the deceased’s estate, yet there is no consent of all the other beneficiaries.
I noted that this “sharing agreement”, did not take into account all the assets of the deceased listed in form P&A 5.
When I considered all this evidence, I came to the conclusion that the mode of distribution of the assets of the deceased in this Succession Cause was flawed!
The deceased survivors and were adults as shown in form P&A 5, never consented to the mode of distribution as required by law. Secondly, not all the properties were “distributed” so to speak. See the list in form P&A 5.
Thirdly, the deceased brother Evan Kimani Njuguna was named as a survivor. This went against the Law in that the Succession Act gives a list of survivors where a deceased had left a spouse and children surviving him or her. See Section 35 of the Succession Act. How does the brother come in?
If, however, the property in question is said to have been jointly owned by the deceased and his brother Evan Kimani Njuguna, where is such evidence of joint ownership to enable the deceased brother to inherit from his estate.
For the reasons, I have considered above, I find that I must proceed under Section 76 of the Succession Act, and Revoke the Grant of Letters of Administration issued to Njuguna Kimani and Patrick Njuguna on 13th December, 1994 and subsequently confirmed, vide Certificate of Confirmation dated 24th May 1996.
It is now upto the deceased’s family to either retain the previous administrators, or agree on who should be the administrator to the deceased’s estate.
Whoever the administrators are, they must ensure that all the survivors of the deceased agree to a mode of distribution of the deceased’s estate.
Dated at Nairobi this 12th day of September 2002.
JOYCE ALUOCH
HIGH COURT JUDGE
Ruling delivered today 17th October, 2002 in presence of Counsel for the Petitioner.
JOYCE ALUOCH
JUDGE