[2022] KEHC 16989 (KLR)

In re Jamlick Karanja Muiruri (Deceased) (Succession Cause 149 of 2015) [2022] KEHC 16989 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16989 (KLR)

Republic of Kenya

In the High Court at Naivasha

Succession Cause 149 of 2015

GWN Macharia, J

December 15, 2022

IN THE MATTER OF THE ESTATE OF JAMLICK KARANJA MUIRURI (DECEASED)

Between

Mary Mwihaki Karanja

1st Applicant

Maria Wangui Karanja

2nd Applicant

James Muiruri Karanja

3rd Applicant

and

Peter Kamau Karanja

Protestor

Judgment

1. This Cause relates to the Estate of Jamlick Karanja Muiruri who died intestate on March 23, 2008.

2. The matter was previously handled by Meoli, J. hence it is important to highlight its history briefly in order to elicit a better understanding of the issues raised. Sometime in 2012, Joshua Njuguna Muiruri, a brother to the deceased herein filed for and obtained letters of administration in respect of the estate of the deceased in Nakuru Succession Cause No. 333 of 2012. The said grant was confirmed on January 9, 2012. Subsequently, the deceased’s sons James Muiruri Karanja and Peter Kamau Karanja and their nephew Peter Karanja Kinuthia lodged an objection. On June 3, 2016, Meoli, J. revoked the confirmed Grant and directed that a fresh grant be issued in the names of the deceased’s four children namely James Muiruri Karanja, Peter Kamau Karanja, Mary Mwihaki Karanja and Maria Wangui Karanja to administer his estate in accordance with the law. Pursuant to the court’s order of June 3, 2016 a grant did issue to the said Administrators on June 17, 2016.

3. On November 14, 2018, the Administrators filed Summons for Confirmation of the Grant issued on June 3, 2016. This Summons is that subject of this judgment. It was objected to, and parties agreed to canvass the matter by was of filing written submissions.

4. The Summons was supported by a joint affidavit of James Muiruri Karanja, Mary Mwihaki Karanja and Maria Wangui Karanja. In the affidavit, they stated that the deceased was survived by the following dependants;-a.Mary Mwihaki Karanja - Daughterb.Maria Wangui Karanja – Daughterc.James Muiruri Karanja – Sond.Peter Kamau Karanja - Sone.James Karanja Mwaura – Grandsonf.Peter Karanja Kinuthia – Grandson

5. They averred that the Estate of the deceased comprised of five properties and proposed that the same be distributed as follows:a.Title No. Naivasha/Mwichiringiri Block 1/2131a.(a) Peter Kamau Karanja - 0. 5 acres.b.(b) Maria Wangui Karanja- 0. 25 acres.c.(c) James Karanja Mwaura -0. 25 acres.a.Title No. Naivasha/Mwichiringiri Block 1/2133 (1 acre)a.James Muiruri Karanja - 0. 5 acres.b.Mary Mwihaki Karanja -0. 25 acres.c.James Karanja Mwaura - 0. 25 acres.a.Title No. Naivasha/Mwichiringiri Block 1/2135 (1 acre)a.Mary Mwihaki Karanjab.Maria Wangui Karanja- jointlya.Title No. Naivasha/Mwichiringiri Block 4/1477(3 acres)a.Mary Mwihaki Karanja - 1 acre.b.Maria Wangui Karanja - 1 acre.c.James Karanja Mwaura - 1 acre.a.5. Title no. Naivasha/Mwichiringiri Block 4/1478(3 acres)a.James Muiruri Karanja - 1 acre.b.Peter Kamau Karanja - 1 acre.c.Peter Karanja Kinuthia - 1 acre.

6. This prompted an Objection against the proposed mode of distribution by their brother Peter Kamau Karanja. In the Objector’s Affidavit dated November 16, 2018 and filed in court on November 20, 2018, Peter Kamau Karanja averred that on September 15, 2016, he lodged an affidavit dated September 13, 2016 which contains the spirit and wish of how the estate of their late father should be distributed. He averred that their father had one wife namely Julia Njeri (deceased) who had the following children in order of seniority.a.James Muiruri Karanjab.Geoffrey Kinuthia Karanja (deceased)c.Joseph Mwaura Karanja(deceased)d.Peter Kamau Karanjae.Mary Mwihaki Karanjaf.Maria Wangui Karanja

7. He averred that their late father had three pieces of land known as Naivasha/ Mwichiringiri Block 1/1777 which he subdivided into 5 plots measuring 3½ acres before he died. The 5 plots were to be distributed as follows:a.Naivasha/Mwichiringiri Block 1/2131 measuring one acre - was given and assigned to him (Peter Kamau Karanja) and he proposes that it be distributed to him since he has resided on it and developed it for the last 28 years.b.Naivasha/Mwichiringiri Block 1/2132 measuring one acre – was given and assigned to Mary Mwihaki and Maria Wangui jointly and thus should be distributed to them as they reside thereon.c.Naivasha/Mwichiringiri Block 1/2133 measuring one acre – was assigned to James Muiruri Karanja and Joseph Mwaura Karanja and the same should be distributed to them jointly.d.Naivasha/Mwichiringiri Block 1/2134, a commercial plot - was assigned and given to the deceased’s 4 sons namely James Muiruri Karanja, Geoffrey Kinuthia Karanja, Joseph Mwaura Karanja and Peter Kamau Karanja and should be distributed accordingly.e.Naivasha/Mwichiringiri Block 1/2135, a commercial plot - was given to their sisters but they sold and he proposes that it be distributed to them if they have not transferred it.f.Naivasha/Mwichiringiri Block 1/2163 measuring one acre – was given it to their deceased brother Geoffrey Kinuthia who left children that reside thereon namely Peter Karanja Kinuthia and Margaret Wambui.g.Naivasha/Mwichiringiri Block 4/1477 & 1478 measuring three (3) acres each – were assigned and given to the four sons James Muiruri Karanja, Geoffrey Kinuthia Karanja, Joseph Mwaura Karanja and Peter Kamau Karanja and thus should be distributed accordingly. He averred that these properties were distributed before the sub chief of the area and annexed a copy of the said letter.

8. Subsequently, on July 24, 2019, two of the Administrators being the deceased’s daughters, Mary Mwihaki Karanja and Maria Wangui Karanja, swore an affidavit in which they averred that searches conducted revealed that the following titles are not part of the deceased's estate.a.Naivasha/Mwichiringiri Block 1/2135 – registered in the name of Francis K. Muirurib.Naivasha/Mwichiringiri Block 1/2132 - registered in the names of the two daughters Maria Wangui Karanja and Mary Mwihaki Karanja.c.Naivasha/Mwichiringiri Block 1/2163 - registered in the name of their uncle, the deceased’s brother, Joshua Njuguna Muiruri.

9. The Objector responded by way of a Replying Affidavit sworn on September 23, 2019. He reiterated that Naivasha/Mwichiringiri Block 1/2135 was owned by their father but his two sisters sold it to one Francis K. Muiruri and benefited from the proceeds of sale which they received. Further, he averred that Naivasha/Mwichiringiri Block 1/2132 was also given to his two sisters which confirms that they cannot benefit from the remainder of their father’s Estate consisting of Naivasha/Mwichiringiri Block 1/2131, 2133 and 2134. He also contended that there is another land which was owned and occupied by their late brother Geoffrey Kinuthia Karanja but their uncle Joshua Njuguna Muiruri has since taken possession and ownership thereof.

10. Peter Kamau Karanja also filed a Further Affidavit sworn on March 15, 2021 on the distribution of the estate. He contended that the mode of distribution proposed by the Applicants is proof of the fraudulent nature in which several properties forming part of their father’s estate seem to have been illegally transferred to third parties upon his death. In that regard, he faulted his two sisters for failing to address the fact that the court had previously ordered for the issuance of a fresh Grant of Letters of Administration on June 3, 2016 so as to eliminate the interests of their uncle Joshua Njuguna Muiruri in the estate of the deceased.

11. In their written submissions, the Petitioners urged that the Objectors’ mode of distribution be rejected since it includes properties known as Naivasha/Mwichiringiri Block 1/2132, 2135 and 2163 which do not form part of deceased’s intestate estate, the same having been transferred prior to the death of the deceased. They submitted that the mode to be adopted should be the one consented to and proposed in the Affidavit sworn on August 23, 2016 by the three other Administrators of the estate.

12. On the other hand, the Objector contended that the terms and the mode of distribution proposed by the Applicants are not only oppressive and prejudicial but are also contrary to the evidence tendered before the court being the annexed affidavit of Peter Kamau Karanja dated September 13, 2016. He urged the court to note that the Applicants have not expressly or at all denied that there was material non-disclosure as regards the extent of the deceased’s assets. It was also their submission that under the principles of equity, the Applicants should not attempt to enrich themselves at the expense of the Objectors. Lastly, they contended that the Applicants cannot purport that the property known as Naivasha/Mwichiringiri Block 4/2163 was transferred to their uncle Joshua Njuguna Muiruri. They therefore urged that the said property be reversed back into their father’s estate for distribution to his rightful dependants.

Analysis and Determination 13. The court has carefully perused the material relied on by the parties. The issues that arise for determination are: who are the beneficiaries of the estate of the deceased; what are the assets of the deceased available for purposes of distribution; and, how should the estate of the deceased be distributed?

Who are the dependants of the deceased? 14. From the record, it is evident that the deceased had six children, two of whom are now deceased. The Applicants listed the surviving children of the deceased and two of his grandchildren as his dependants while the Objector only listed the six children of the deceased. Under Section 29 of the Law of Succession Act, the spouses and children of the deceased have priority to inherit his or her estate. The said Section provides:“For the purposes of this Part, “dependant” means –(a)The wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;(b)Such of the deceased’s parents, step-parents, grandparents, grandchildren, step children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death;..”

15. The position of grandchildren with reference to estates of their grandparents was dealt with In the Matter of the estate of Veronica Njoki Wakagoto (Deceased) [2013] eKLR by Musyoka, J. as follows:-“…Under Part V, grandchildren have no right to inherit their grandparents who die intestate after 1st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.” (Emphasis added)

16. The Applicants did not tell the court which of their deceased sibling’s was represented by the two grandsons listed as dependants. In the absence of any information in that regard, the court will only consider the six children of the deceased as his dependants for purposes of this Cause. These are:a.James Muiruri Karanjab.Geoffrey Kinuthia Karanja (deceased)c.Joseph Mwaura Karanja(deceased)d.Peter Kamau Karanjae.Mary Mwihaki Karanjaf.Maria Wangui Karanja

What are the assets of the deceased available for distribution? 17. Section 3 of the Law of Succession Act defines “estate” to mean “the free property of a deceased person” while “free property”, in relation to a deceased person, means “the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death.”

18. From the above definitions, it is clear that the only property that forms part of the estate of the deceased is that property which the deceased was legally competent to dispose of during his lifetime and in which by the time of his death, interests had not been terminated.

19. In the instant case, both the Applicant and the Objector are in agreement that the five properties listed in the Applicants’ affidavit proposing the mode of distribution, are part of the deceased’s estate and therefore readily available for distribution. Issues have however arisen with respect to three properties which the Applicants contend that are not available for distribution as they were transferred to third parties during the lifetime of the deceased. The court will therefore interrogate each of the properties to determine the actual position.a.The first is land parcel number Naivasha/Mwichiringiri Block 1/2132. According to the Certificate of Official Search conducted on June 26, 2019 (annexed to the daughters’ affidavit of 24/7/2019), the property was registered in the names of Maria Wangui Karanja and Mary Mwihaki Karanja on September 29, 2006. b.The second is land parcel number Naivasha/Mwichiringiri Block 1/2135. According to the Certificate of Official Search conducted on June 26, 2019, the property was registered in the name of Francis Karanja Muriu on September 29, 2006. c.The third is land parcel number Naivasha/Mwichiringiri Block 1/2163. According to the Certificate of Official Search conducted on July 5, 2019, the property was registered in the name of the deceased’s brother Joshua Njuguna Muiruri on October 11, 2016.

20. The deceased died on March 23, 2008. From the above, it is evident that only two properties namely Naivasha/Mwichiringiri Block 1/2132 and Naivasha/Mwichiringiri Block 1/2135 do not form part of the estate of the deceased as they were transferred to the present registered owners before the deceased died. On the other hand, Naivasha/Mwichiringiri Block 1/2163 appears to have been irregularly and illegally transferred to the deceased’s brother after the death of the deceased.

21. At this point, it suffices to reiterate that the confirmed Grant that was purportedly issued to the deceased’s brother Joshua Njuguna Muiruri was revoked by this court on June 3, 2016. It is therefore not clear under what circumstances Naivasha/Mwichiringiri Block 1/2163 was transferred to the said Joshua Njuguna Muiruri about four months after the revocation.Section 82(b)(ii) of the Law of Succession Act provides that no immovable property shall be sold before confirmation of the grant while Section 45(1) thereof provides as hereunder:“Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.”

22. In Jane Kagige Geoffrey & another v Wallace Ireri Njeru & 2 others [2016] eKLR, the Court held that:“The net effect of the foregoing is clear; before a grant has been issued and confirmed, no part of the estate of the deceased may be dealt with in a manner that amounts to intermeddling. This includes those not entitled therewith taking possession of, disposition, or alienation, as well as trespassing onto the property. Such acts are subject to reversal by the court summarily. The spirit behind sections 45 and 82 of the Act, in my view, is to preserve the property of a deceased person until the beneficiaries and their respective shares are identified, ascertained and distributed. If intermeddling is allowed, the likelihood of the innocent beneficiaries being prejudiced by having their shares affected by reduction is real whereby, there may be no settlement and or peaceful co-existence or end to disputes between of the family members. In this regard, it is for the purposes of preserving the social fabric, cohesion and peaceful co-existence of or end to disputes between family members who are beneficiaries to estates that the law restricts, indeed prohibits any dealings with an estate until the grant is confirmed. The net effect of the aforesaid provisions of the law and decided cases is that, the estate of the deceased cannot be dealt with without the sanction of the court.”

23. Having established that Naivasha/Mwichiringiri Block 1/2163 forms part of the free estate of the deceased as his interest thereon had not terminated as at the time of his death, this court shall order that the title thereof reverts to the name of the deceased. For avoidance of doubt I order that the tittle on the land in the name of Joshua Njuguna Muiruri shall forthwith be cancelled. I will accordingly consider the said property among those available for distribution to the rightful dependants of the deceased in this Cause. The court finds persuasion in Santuzza Bilioti alias Mei Santuzza (Deceased) v Giancarlo Falasconi[2014] eKLR where it was held that: -“…the succession court has powers to order a title deed to revert to the names of a deceased person. This in effect amounts to cancellation of the title deed. Further, a succession court can order a cancellation of a title deed if a deceased's property is being fraudulently taken away by no-beneficiaries such as where the property is being sold before a grant is confirmed.”

24. Consequently, the following is the list of the deceased’s properties available for distribution:-1. Naivasha/Mwichiringiri Block 1/2131 – one (1) acre2. Naivasha/Mwichiringiri Block 1/2133 – one (1) acre3. Naivasha/Mwichiringiri Block 1/2134 – commercial plot consisting of 4 plots.4. Naivasha/Mwichiringiri Block 1/2163 – one (1) acre5. Naivasha/Mwichiringiri Block 4/1477 - three (3) acres6. Naivasha/Mwichiringiri Block 4/1478 - three (3) acres

How should the property of the deceased be distributed among his beneficiaries? 25. Section 38 of the Law of Succession Act makes provision for the distribution of the estate of a deceased who died intestate and has left a surviving child or children but no spouse which is the scenario obtaining in the circumstances of this case. The Section stipulates that in such cases, the net estate shall, subject to Sections 41 and 42 of the Act, devolve upon the surviving child, if there be only one, or equally divided among the surviving children. Of particular relevance to this case is Section 42 thereof which requires that previous benefits given to any child, grandchild or house (gift inter vivos) be taken into account. It provides that: -“Wherea.an intestate has during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grand child or house; orb.Property has been appointed or awarded to any child or grandchild under the provisions of section 26 or 35 that property shall be taken into account in determining the share of the net estate finally accruing to the child, grandchild or house.”(Emphasis highlighted)

26. At this point, it is imperative to emphasize the fact that the deceased died intestate. This is because the Objector/Protestor, Peter Kamau Karanja, purports that his proposed mode of distribution embodies the spirit and wishes of the deceased. That cannot be so. This court could only give effect to such wishes if they were contained in a valid Will. Further and in any event, the Objector/Protestor cannot purport that certain properties were given and assigned to him or be distributed to him and/or any other dependants of the deceased, merely because they have lived on and developed the properties for a long period of time. In re Estate of Chesimbili Sindani (Deceased) [2021] eKLR, Musyoka, J. posited that:“Any gift inter vivos should be backed by some memorandum in writing, and the gift would be complete once title to the subject property is transferred to the name of the beneficiary of the gift. Difficulties arise where transfer is not effected to the beneficiaries before the death of the deceased, in which case such property would remain the free property of the deceased, available for distribution at confirmation, the argument being that such gift was founded on a mere promise which the deceased did not carry through prior to his death… The mere fact of being shown a piece of land and given permission to occupy and use it, without more, is not adequate proof for a gift inter vivos. The deceased, as registered proprietor of the land in question, would have the right to licence a person to occupy the land and use it. A child who has been shown a piece of land to build on and to till, is not in the shoes of an owner, but a mere licencee. The death of the deceased would not upgrade the licence to ownership, if anything the death of the proprietor could mean that the license comes to an end, and the licencee continues to occupy and work the land at the mercy of the administrator.”(Emphasis mine)

27. In distributing the estate of the deceased in this case therefore, the gift inter vivos that will be taken into account is land parcels number Naivasha/Mwichiringiri Block 1/2132 and Block 1/2135 which the deceased gave to his two daughters Mary Mwihaki Karanja and Maria Wangui Karanja during his lifetime, Block 1/2135 being a commercial plot which was later sold and transferred to one Francis Muriu as highlighted above. However, this does not mean that the two sisters cannot benefit from the remainder of their father’s Estate. In re Estate of Benjamin Albert Mulama Osundwa (Deceased) [2020] eKLR, again, Musyoka, J. stated that inter vivos gifting does not make the beneficiaries of such gifts outsiders to the distribution of the estate but rather, ensures that there is justice and fairness in distribution as it helps to determine whether such beneficiaries should benefit from the net intestate estate or not, and if they should, how much of the net intestate estate is to be given to them.

28. Accordingly, taking int account all the material laid before me, the net intestate estate of the deceased herein shall be distributed as hereunder:-a.Naivasha/Mwichiringiri Block 1/2131 – one (1) acre1. Peter Kamau Karanja – 0. 5 acres2. Joseph Mwaura Karanja (deceased) – 0. 5 acresb.Naivasha/Mwichiringiri Block 1/2133 – one (1) acre1. James Muiriri Karanja – 0. 5 acres2. Geoffrey Kinuthia Karanja (deceased) – 0. 5 acresc.Naivasha/Mwichiringiri Block 1/2134 – commercial plot To be shared equally among the below dependants to hold in common in equal shares:1. James Muiruri Karanja2. Geoffrey Kinuthia Karanja (deceased)3. Joseph Mwaura Karanja(deceased)4. Peter Kamau Karanjad.Naivasha/Mwichiringiri Block 1/2163 – one (1) acreTo be shared equally among the below dependants to hold in common in equal shares:1. James Muiruri Karanja2. Geoffrey Kinuthia Karanja (deceased)3. Joseph Mwaura Karanja(deceased)4. Peter Kamau Karanja5. Mary Mwihaki Karanja6. Maria Wangui Karanjae.Naivasha/Mwichiringiri Block 4/1477 - three (3) acres1. Mary Mwihaki Karanja - 1 acre.2. Maria Wangui Karanja - 1 acre.3. Geoffrey Kinuthia Karanja (deceased) – 1 acref.Naivasha/Mwichiringiri Block 4/1478 - three (3) acres1. Peter Kamau Karanja – 1 acre2. James Muiruri Karanja - 1 acre3. Geoffrey Kinuthia Karanja (deceased) – 1 acre

29. Consequently:-a.The grant of Letters of Administration issued herein to James Muiruri Karanja, Peter Kamau Karanja, Mary Mwihaki Karanja and Maria Wangui Karanja be and hereby confirmed accordingly in their names.b.The estate of the deceased shall be distributed as outlined above save as it respects the deceased children to whom the court at (d) below has guided the distribution accordingly.c.The transfer of Naivasha/Mwichiringiri Block 1/2163 to Joshua Njuguna Muiruri and the Title Deed issued as a consequent of the same is hereby cancelled and title ordered to revert back to the name of the deceased and/or the dependants to whom it has been distributed to under this Cause.d.The portions of the estate due to Geoffrey Kinuthia Karanja (deceased) and Joseph Mwaura Karanja (deceased) shall be transmitted to their children.e.Each party shall bear own costs since these proceedings involve close family members.

30. It is so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 15TH DECEMBER, 2022. G.W. NGENYE-MACHARIAJUDGEIn the presence of :Mr. Ngunjiri for the Petitioners.No appearance for counsel for the Objector-duly notified online.