[2013] KEHC 1226 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION NO. 864 OF 2011

IN THE MATTER OF ESTATE OF KIGUTA MUKEI alias KIGUTA MUKII – (DECEASED)

JUDGMENT

The deceased whose estate is the subject of these proceedings died on 28th November, 1977. According to the letter from the Chief of Ikinu Location, dated 2nd November, 1998, he was survived by a widow – Mary Wambui Kiguta, a daughter – Hannah Wangui Kiguta, a son, Joseph Mukii Kiguta, and a purchaser, Joseph Kamau Kiruti.

Representation to the estate was sought on 8th November 1988 by the widow and daughter of the deceased, Mary Wambui Kiguta and Hannah Wangui Kiguta, respectively; and was granted to them on 26th January 1989. In their petition they listed themselves and Joseph Mukii Kiguta and Joseph Kamau Kiritu as the survivors of the deceased. The grant was amended on 18th October 1989 so as to reflect the name of Mary Wambui Kiguta as Hannah Wambui Kamau.

The grant was confirmed on 18th October 1989. The only asset – Githunguri/Rioki/279 was shared out between the four named survivors. Joseph Kamau Kiritu, the purchaser, was allocated 0. 25 acre thereof, while Hannah Wambui Kamau, Hannah Wangui Kiguta and Joseph Mukii Kiguta became the joint proprietors of the balance of 2. 85 acres thereof.

It is that distribution that provoked the revocation application before this court dated 19th April 2011. The revocation proceedings are initiated by Pauline Wakio Kiritu and Margaret Wanjiku Waruinge. The affidavit that supports the application was sworn by Pauline Wakio Kiritu. She avers that the deceased was a polygamist with two wives, their mother, Wambui Kiguta, and their step mother, Hannah Wambui Kiguta. Their mother had two children - the two applicants – Hannah Wangui and Mukii Kiguta. Their complaint is that when representation was sought to the estate their names were omitted. It was not disclosed that they survived the deceased, and they were not allotted any shares in the estate.

The application was served. It transpires that one of the administrators – Hannah Wambui Kiguta alias Mary Wambui Kiguta is dead. It is the surviving administrator who swore the replying affidavit on 23rd August 2011. She agrees with the applicants on the facts stated in the affidavit of Pauline Wakio Kiritu, but states that the applicants were all along aware of the succession of proceedings as indeed it was the husband of the 1st applicant, Pauline Wakio, who guided the respondents during the process of applying for the grant. She also says that the applicants were married and have their own respective parcels of land. She also states that the deceased did not wish that they benefit from the estate for they had neglected him after their mother died before he married the second wife. To this the 1st applicant filed a rejoinder through her affidavit sworn on 27th October 2011.

The application was disposed of by way of affidavits and viva voce evidence. Both applicants and the surviving administrator of the estate testified. Their testimonies largely confirmed the averments in their depositions.

The deceased died in 1977. The Law of Succession Act came into operation on 1st July 1981. Section 2(2) of the Act states:-

“The estate of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death but nevertheless the administration of their estates shall commence or proceed so far as possible in accordance with this Act.”

The law that ought to govern the estate of the deceased ought to be the law that governed the intestate estate of a deceased Kikuyu before the 1st of July 1981. That law was Kikuyu customary law. That law is notorious. There is a wealth of case law and publications by esteemed authors on it. Succession was under Kikuyu customs is patrilineal. It is the sons who are entitled to inherit. Daughters only got a share in the estate if they remained unmarried. The understanding is that married daughters access property through their husbands and therefore they do not have to get another share from their own father's estate. The applicants are married daughters. They appear to be seeking the take advantage of Part V of the Law of Succession Act, which does not discriminate between the children of the deceased. However, Part V of the Law of Succession Act does not apply to the estate of the deceased in this case, in view wives of Section 2(2) of the Act. The applicants, being married daughters, were not entitled to a share in the estate of their deceased father.

Their complaint is that they were omitted from the list of survivors in the petition for grant. They seek revocation on that ground. There appears to be merit in this argument. Section 2(2) of the Act applies Part VII of the Act, which governs administration of estates, to estates of persons who are the subject of Section 2(2) of the Act. Section 51 of Part VII of the Act, governs the process of applying for grant and requires that the application for grant must contain information as to, “in cases of total capacity intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased.”

It is common ground that the applicants were not listed as survivors. This means that the mandatory requires of Section 51 of the Law of Succession Act were not met. This is a fertile ground for revocation of grant as that would amount to a fundamental, defect with process of obtaining grant. It suggests that those whose names are omitted in the petition would also be omitted in the distribution of the estate. The courts, however, when faced with this scenario rather than revoking the grant prefer to order that the names of those omitted be included in the list of survivors. This is the position in cases where the only complaint is that the applicants are missing from the list of survivors, and in circumstances where the grant has not yet been confirmed. Even where the grant is confirmed, the court will order the names omitted to be included and thereafter order cancellation of the confirmation certificate and direct distribution be repeated so as to accommodate the persons initially left out.

Should that be the case here? I have already ruled that Section 2(2) of the Law of Succession Act applies and therefore the estate in question is subject to Kikuyu customary law. Under that law the applicants are not entitled to a share in the estate. Including their names in the list of survivors, cancelling the certificate of confirmation of grant and ordering fresh distribution will not affect the correct legal position. The applicants have no shake in the estate and revoking the grant or the certificate of confirmation will serve no useful purpose.

In view of everything that I have said above, I will make the following final orders:-

1. That the application dated 19th May 2011 is hereby dismissed.

That the court file in respect of Succession Cause No. 238 of 1998 shall be returned to the registry at the Kiambu Chief Magistrate's Court for further handling.

3. That each party shall bear their own costs.

DATED, SIGNED and DELIVERED at NAIROBI this 8th DAY OF November, 2013.

W. M. MUSYOKA

JUDGE