[2017] KEHC 6064 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

SUCCESSION CAUSE NO. 1361 OF 2011

IN THE MATTER OF THE ESTATE OF ALEXANDER MUCHEMI KIAGO (DECEASED)

RULING

1. The deceased died intestate on 18/12/2010. Monica Mumbi Kiago the deceased's widow and her sons John Wachira Kiago, Christopher Kiago Muchemi and Joseph Wahome Muchemi petition for letters of administration to the deceased’s estate and the court granted the same on 28th September 2011. The same was subsequently gazette in the Kenya gazette number 3423. The objectors filed their summons for revocation on 10th October 2011 seeking revocation of the said grant on grounds of non-disclosure of material facts that the objectors were dependants of the deceased.

2. The 1st objector in his affidavit in support to the said application indicates that he has authority from the other objectors to swear the affidavit. He avers that the respondents applied for grant without involving them and only learnt of the same when it was gazette vide gazette Notice Number 3428 of 9th September 2011. However, on seeking to object the said proceedings they were informed that the matter had been gazette earlier on 26th August 2011 and the grant had been issued on 26th September 2011. The objectors argue that they are the widow and children of the deceased and as such they should have been involved in the succession process and that failure to involve them was calculated to disinherit them.

3. The petitioners are opposed to the said summons. John Gachucha Kiago via his replying affidavit dated 11th November 2011 avers that though the 1st Objector Esther Waithiegeni was married to the deceased in the early 1953 and had sired 3 children namely; Margaret Wangechi, John Kiago and Winrose Wachuka. The objector with her children abandoned the matrimonial home in 1961 to an unknown place whilst the deceased was attached to the Kenya Army 5th Battalion based in Nanyuki and later in 1964 whilst attached to East Africa Posts and Telecommunications company at Nairobi married Monicah Wambui and in 1967 the deceased bought her land at Marmarnet Laikipia and later purchased a shop at Rumuruti Town in 1969 and the deceased resigned and went to run the shop and petrol station. In 1970, the 1st petitioner resigned and joined the deceased to run the shop. In 1984 while the deceased was away in Japan the 1st Objector returned home and settled at the deceased’s farm accompanied by her 3 children and 2 other children sired outside. That though the deceased visited the said Kiathanji village he never visited his estranged wife. He avers that the deceased had told him that he did not wish his estranged wife to inherit his portion of Kiathanji property while the other family inherits his remaining properties. He added that under the Kikuyu customary law if a wife deserts her husband her family is allowed to accept her but she will be requested to return to her matrimonial home.

4. Monica Mumbi Kiago the widow to the deceased, in opposition to the said application filed her replying affidavit dated 11th November 2011. She avers that she got married to the deceased in 1964 and lived with the deceased until his demise. That the marriage was blessed with 6 children and 2 stepchildren. The couple lived in various places in Nairobi before the deceased purchased a property in Buruburu where they all lived as a family. Though she acknowledges that the deceased was previously married and had children from his first marriage she avers that during her marriage to the deceased he never provided for the objectors as the objector had abandoned her matrimonial home and the said marriage had been dissolved. However, the deceased had bequeathed the objector and her children Title Number AGUTH/GAKI/303which was subject to the deceased’s father’s estate in Nyeri succession cause no. 1013 of 2011 where they have been living and cultivating. She avers that the objector is not a wife or a dependant for purposes of these proceedings and urges the court to dismiss the same with costs.

5. Stephen Kipkenda an advocate with Kipkenda & Company Advocates and the advocate on record for the respondents in response to issue raise on gazettement of the notice on the gazette notice avers that the firm paid for the said gazettement on 5th July 2011 and a money order was given to the family and probate registry for onward transmission to the Government printers as is normal procedure. The said notice was published in the Kenya Gazette of 26th August 2011 adding that he is a stranger the alleged gazettement of 9th September 2011 and that upon expiration of the 30days notice period the honorable court proceeded to issue the Grant of letters of administration. He points out that the objectors all the same filed their application on 11th October 2011 and as such, they were not prejudiced at all.

6. Parties filed written submissions. The applicant’s in their submissions pointed out that the main issue was the fact that the petitioners did not disclose that the objectors were beneficiaries adding that the respondent Monica Mumbi Kiago admits that the applicant is a widow to the deceased and the other objectors are his children adding that the applicant was entitled to follow up on her husband’s share in succession cause 1361 of 2011 which pertained to his late father’s estate. Adding that this should not bar the applicant and her children from benefiting from the deceased’s estate failing to disclose such information was intent to disinherit them.

7. The objectors in their submissions raised 2 main issues for determination.

i. Whether or not John Kiago Muchemi, Margaret Wangechi Ngati, Winrose Wachuka Muchemi and Esther Waithiegeni are dependants of the deceased? Esther Waithiegeni is not a wife having lawfully separated from the deceased under Kikuyu customary law further that she had benefited from getting the deceased’s share in Aguthi/Gaki/303 in Nyeri succession cause no. 1013 of 2011 which catered to her and her children. Further, it is submitted that Esther and her children were not dependant on the deceased prior to his demise.

ii. Whether or Not Agnes Wambui Gaituuri is a dependant of the estate of the deceased? It is submitted that Esther abandoned her children John Wachira Kiago and his sisters and they were taken care of and catered for by the deceased. I was their submission that the objector had failed to tender any evidence to demonstrate to the court she was a dependant of the deceased.

iii. Whether or not the Gazettement of the petitioner twice rendered the petition a nullity? On this, it they submitted that the petitioner’s advocate had adequately covered the same in his sworn affidavit.

8. I find that there are 3 main issues coming for determination?

(i) Do the applicants qualify to be dependants of the deceased?

Section 29 of the law of Succession Act defines a dependant to mean,

“(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, stepchildren, 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, and

(c) where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.”

It is not disputed that the objector was once married to the deceased and they sired 3 children. However, at some point in 1961 the two parted ways. Though the petitioners argue that the applicant was divorced under Kikuyu customary law no evidence has been tendered to support this. The applicant in this regard is a former wife and the Act recognizes a former wife as a wife for purposes of succession. The petitioner’s argument that the children were not maintained by the deceased before his demise does not disentitle them to claiming as dependents’ from the deceased’s estate. I therefore find that the applicant and her children qualify as dependants for the purposes of succession.

9. Does failure to include the objectors’ amount to non-disclosure of material facts that are important in this case. The petitioner did not state or indicate that the deceased was initially married or had other children. Failure to disclose this information in my view amount to non-disclosure of something material to the case.

Section 76 of the Law of Succession Act provides that,

“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;”

I find that the petitioners failure to include the objectors in the succession proceedings is tantamount to non-disclosure of material facts and have satisfied the requirement of Section 76(b) as such this court revokes the Grant of letters of Administration granted by this court on 28th September 2011 to John Wachira Kiago, Christopher Kiago Muchemi and Joseph Wahome Muchemi. Cost in the cause. It is so ordered.

Dated, signed and delivered this2ndday ofFebruary 2017.

R. E. OUGO

JUDGE

In the presence of;

...............................................For the Applicant/Objectors

.........................................For the Respondent/Petitioners

MS. Charity Court Clerk