[2022] KEHC 11206 (KLR)

In re the Estate of Late James Ngengi Muigai (Deceased) (Succession Cause 523 of 1996) [2022] KEHC 11206 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11206 (KLR)

Republic of Kenya

In the High Court at Mombasa

Succession Cause 523 of 1996

M Thande, J

May 13, 2022

IN THE MATTER OF THE ESTATE OF LATE JAMES NGENGI MUIGAI (DECEASED)

Ruling

1. The Court of Appeal in its judgment of June 8, 2018 described the matter herein as “yet another high profile estate of a deceased Kenyan which has defied closure on account of incessant squabbles between the beneficiaries”. Indeed, the matter has been in court for 26 years, having been filed in 1996. The matter relates to the estate of James Ngengi Muigai who died on July 26, 1995 at the advanced age of 92. He left a will dated April 24, 1994 in which he appointed his sons NM and JMM as executors.

2. The record shows that the deceased was survived by EM his former wife and their 4 children, DN, EWM, (E), BWT (B) and Margaret Wanjiru. The deceased was also survived by his second wife MN with whom he had 8 children namely, BW, PN, NM, JM, SK, AK, JW and CW. Upon parting ways with the deceased in 1942, EM had 2 more children namely, PM (M) and PN (N).

3. A grant of probate of written will was issued to the named executors on December 16, 1997. The executors applied for confirmation of the grant on November 3, 1998 However, on January 7, 1999 EM and her children who were not named in the will of the deceased filed a summons for revocation of the grant. At the hearing, the 2 key issues that emerged for determination were whether the will of the deceased was genuine and whether EM, M and N were dependents and whether reasonable provision ought to be made for them. In her judgment of April 21, 2005, Koome, J (as she then was) found the Will of the deceased to be genuine. She further found that EM was a beneficiary and M and N were dependents. The learned judge proceeded to make provision for them on the following terms: house on LR No 209/8229, Runda estate and 10 acres of land at Ichaweri farm in Gatundu,LR No 7785/18 were to be held by EM for life and in trust of M and N in equal shares.

4. The executors being aggrieved by the finding that EM and her sons N and M were dependents and entitled to reasonable provision, preferred an appeal at the Court of Appeal. On their part, E and B were aggrieved with the finding that the will of the deceased was valid and filed their own appeal. The court heard both appeals together and in its judgment of June 8, 2018, found that the will of the deceased was valid. The court further found M “to have been a biological son, although the deceased had not expressly recognized him as such, would be entitled to automatic provision of reasonable dependency provision”. N was however found not to have been a son of the deceased and therefore not entitled to provision from the estate. The court further found that the life interest of EM was spent following her demise and proceeded to award M the house in Runda but reduced the acreage of the Ichaweri land, from 10 acres to 5 acres. The appeal by E and B was found to be without merit and was dismissed. That in a nutshell is the background of this matter as can be gleaned from the record.

5. Following the judgment of the Court of Appeal, the executors filed a summons dated September 19, 2018, seeking confirmation of the grant. They sought that the estate be distributed in accordance of the will of the deceased and that provision be made to the estate of M, pursuant to the judgment of the Court of Appeal. The executors set out the following mode of distribution which they said was in accordance with the will of the deceased:Ngina Mungai Title No Ngenda/Kimunyu/985 2 mercedes benz cars Absolutely

Ngengi Mungai Lr No 10075 LR No 1/396 Absolutely

Beth Ngonyo Margaret Wanjiru Kihanya LR No 11612 55%45%

Josphat Mathia MuigaiSamuel Kungu MuigaiAndrew Kibathi Muigai LR No 9720LR No 8229 1/31/31/3

Eunice Wanjiku Kshs 1,500,000/= Absolutely

Beatrice Wambui Kshs 1,500,000/= Absolutely

Beth Wambui Mugo Kshs 1,500,000/= Absolutely

Pauline Njeri Kshs 1,500,000/= Absolutely

Jane Wangui Kshs 1,500,000/= Absolutely

Catherine Wanjiru Kshs 1,500,000/= Absolutely

6. Pursuant to the judgment of the Court of Appeal, the estate of M was to get the house in Runda,LRNo 7785/18 and 5 acres from title NoNgenda/Kimunyu/985.

7. MWK (M) filed an affidavit of protest dated October 16, 2018. M case is that the proposed mode of distribution is contrary to the will of the deceased; that she and the deceased purchased LR No 11612 vide a sale agreement dated April 7, 1977; that the property belongs to the deceased and herself as tenants in common holding 55% and 45% respectively; that the portion of the property that forms part of the estate, is the deceased’s 55%; that in his Will, the deceased rightfully bequeathed his right title and interest in the property to BN (B) and M; that although the deceased used the word gift in the will, it is clear from the whole paragraph that he intended to transfer 45% of the property to her as tenant in common; that this interpretation was confirmed by the court on October 4, 2013 when it ordered the extraction of 45% from the original title and transferred to her; that M and B have identified their respective portions in the 55% of the land bequeathed to them; that pursuant to the said order, the property was subdivided into 3 portions ie LR Nos 11612/2 and 11612/3 being the 45% while 11612/4 forms the 55% which is part of the estate of the deceased and subject to distribution.

8. B filed an application for reasonable provision and an affidavit of protest both dated October 19, 2018. According to B, the estate of the deceased is worth about Kshs 3. 6 billion. While the bequests of the other beneficiaries are in the hundreds of millions, her bequest is only Kshs 1,500,000/=, a very small fraction. She also noted that her brother Mugo who had been left out of the estate successfully sought reasonable provision and was granted a house in Runda on LR No 7785/18 worth Kshs 120,000,000/= and a 5acre portion of title No Ngenda/Kimunyu/985, worth about Kshs 4,500,000/=. B urged that as a daughter of the deceased, she is a dependent just like all the others and that it is only fair that distribution is done fairly among all the dependents of the deceased. She urged that it was in the interest of justice that the grant is not confirmed until her application for reasonable provision is heard and determined.

9. In their affidavit sworn on March 26, 2019 in response to B claim, the executors reiterated their averments in their affidavit in support of the summons for confirmation. They stated further that the validity of the Will of the deceased was affirmed by this court on April 21, 2005 and by the Court of Appeal on June 8, 2018. Their duty is therefore to execute the will according to the wishes of the deceased. The executors further stated that the issues raised by B were dealt with in the proceedings leading up to this court’s ruling of April 21, 2005 and that of the Court of Appeal. According to the executors therefore, this court is functus officio. The Executors stated that B has brought the issues for re-litigation and this will further derail and delay the matter to the detriment of the beneficiaries, some of whom have become very old. They further stated that upon the finding that the will of the deceased is valid, the duty of the court is to ensure that the wishes of the deceased are brought to effect. Any other interpretation of the will is bound to open a pandora’s box of endless litigation among beneficiaries dissatisfied with their bequest. The executors further stated that reasonable provision does not necessarily mean equal proportion among all beneficiaries.

10. M widow, MWM (M), filed her affidavit in reply sworn on April 2, 2021 opposing the affidavit of protest. Her position is similar to that of the executors.

11. The gravamen of B claim is that the bequest the deceased made to her of Kshs 1,500,000/= is a very small fraction of the estate which is worthKshs3. 6 billion. The other beneficiaries stand to inherit large portions of the estate to her detriment. She submitted that the court had powers to interfere with the testamentary freedom of a testator by making reasonable provision for a beneficiary inadequately provided for. B relied inter alia on the case ofElizabeth Kamene Ndolo v George Matata Ndolo[1996] eKLR, to buttress her contention that the court can interfere with the testamentary freedom of a testator.

12. For the respondents, it was submitted that the court has previously heard and determined the issues presented by B. The court was urged to dismiss the affidavit of protest and confirm the grant in order to bring closure to the protracted litigation herein and pave way for the distribution of the estate in accordance with the will of the deceased.

13. For the executors, it was submitted that B seeks to re-litigate an issue that was dealt with by Koome, J (as she then was) and by the Court of Appeal. They submitted that one of the grounds upon which B contested the will of the deceased was that the same did not “make reasonable provision for the objectors who are the wife, children and dependants of the deceased.” The executors contended that this court did consider the issue and made its determination thereon on April 21, 2005. The executors further submitted that B had opportunity to appeal the said decision and that the present application is an abuse of the court process. The executors therefore urged the court to dismiss the application which is an abuse of the court process.

14. I have looked at the decision of April 21, 2005 and note that Koome, J (as she then was) had this to say on the issue of provision for dependants:I now turn to the issue of whether the deceased failed to make provision for his dependants namely E M, M and N. The other objectors who were provided for did not give evidence on the inadequacy of their provisions. In any event I do not wish to question the deceased choice of the bequests given to his daughters. (emphasis mine).

15. It is clear to me that the issue of reasonable provision of the dependants was in fact before Koome, J for consideration. The learned judge noted that the other objectors who had been provided for in the will of the deceased (who include B), did not give any evidence on the inadequacy of their provision. B had an opportunity to place before the court evidence of the inadequacy of her provision under the will of the deceased, but chose not to. Notably, in the appeal she and E preferred at the Court of Appeal, B did not raise the issue of the inadequacy of her provision.

16. Our courts have stated in many decisions that there comes a time when litigation must come to an end. In the case of William Koross (legal personal representative of Elijah C.A. Koross) v Hezekiah Kiptoo Komen & 4 others [2015] eKLR, the Court of Appeal stated:The philosophy behind the principle of res judicata is that there has to be finality; litigation must come to an end. It is a rule to counter the all too human propensity to keep trying until something gives. It is meant to provide rest and closure, for endless litigation and agitation does little more than vex and add to costs. A successful litigant must reap the fruits of his success and the unsuccessful one must learn to let go.

17. It is quite evident that Beatrice seeks through the present Application and affidavit of protest, to have another bite at the cherry; to revive an issue that was dealt with 17 years ago. She seems intractable and intent on persisting in her quest until something gives. This Court pronounced itself on the issue of provision which she now raises and cannot reopen the matter. Beatrice must learn to let go, for litigation must come to an end.

18. Mary Wairimu Mugo (Mary) moved this Court by her Application dated February 28, 2019 seeking partial confirmation of grant, to give effect to the decision of the Court of Appeal. Mary averred that her husband Mugo died on 14. 9.14 and a limited grant ad litem was issued to her and 3 others. She averred that Mugo died before enjoying his share of his father’s estate, leaving her languishing in abject poverty. She has no other claim against the estate of the deceased herein and only seeks partial confirmation in terms of the decision of the Court of Appeal.

19. Beatrice opposed Mary’s Application vide her replying affidavit sworn on 30. 5.19 on grounds that her application for reasonable provision was pending hearing. According to Beatrice, it was in the interest of justice that her application be heard first. There appears to be no other opposition to Mary’s Application on record.

20. Section 71 of the Law of Succession Act makes provision for confirmation of grant. Sub-section (1) provides:After the expiration of a period of six months, or such shorter period as the court may direct under subsection (3), from the date of any grant of representation, the holder thereof shall apply to the court for confirmation of the grant in order to empower the distribution of any capital assets.

21. A reading of the above provision makes it clear that an application for confirmation of a grant is to be made by the holder thereof. The holders of the grant in respect of the estate of the deceased herein are the Executors. In the premises, it is only the Executors and not any other person who may competently apply for the confirmation of the grant. My finding therefore is that the Application for partial confirmation by Mary who is not a holder of a grant as contemplated in Section 71(1) of the Act, is incompetent and cannot stand.

22. By an application dated January 28, 2021, both Beth and Margaret seek the following orders:1. Spent.2. Thatthis Honourable Court be pleased to issue Beth Ngonyo Ngengi Muigaiand Margaret Wanjiru Kihanyaof P. O. Box Number 48915 Nairobi and P. O. Box Number 43250 Nairobi respectively a confirmed grant with the will dated the April 28, 1994 of the said deceased annexed in respect of LR No 11612/4 situated in Ruiru Sub County.3. Thatthe Deputy Registrar of this Honourable Court be and is hereby authorised and directed to execute all the requisite documents necessary to transfer all that piece of land known as LR No 11612/4 situated in Ruiru Sub County to Beth Ngonyo Ngengi Muigaiand Margaret Wanjiru Kihanyaof P. O. Box Number 48915 Nairobi and P. O. Box Number 43250 Nairobi respectively pursuant to a consent dated August 24, 2020 and the order thereof given on September 1, 2020.

23. It is the Applicants’ case that that following the subdivision of LR No 11612 into 4 portions pursuant to this Court’s order of 4. 10. 13, they entered into a consent to the effect that Margaret is entitled to 28. 42 ha and Beth is entitled to 50. 50 ha of LR No 11612/4. The Applicants forwarded transfer documents to the Executors for execution to give effect to the said consent. However, the Executors responded stating that they were unable to execute the transfer as the grant issued to them was yet to be confirmed. The Applicants who are of advanced age and ailing, seek that they be issued with a confirmed grant as the Executors have failed to apply for confirmation of the grant issued to them.

24. There appears to be no response to this Application on record.

25. The Application is anchored on Section 71(2)(b) of the Actwhich provides:(2)Subject to subsection (2A), the court to which application is made, or to which any dispute in respect thereof is referred, may—a.if it is satisfied that the grant was rightly made to the applicant, and that he is administering, and will administer, the estate according to law, confirm the grant; orb.if it is not so satisfied, issue to some other person or persons, in accordance with the provisions of sections 56 to 66 of this Act, a confirmed grant of letters of administration in respect of the estate, or so much thereof as may be unadministered; orc.…

26. As indicated earlier, Section 71(1) of the Actprovides that an application for confirmation of a grant may only be made by the person to whom such grant has been issued. When such an application is made, the Court may confirm the grant if satisfied that the same was rightly made to the applicant, and that he is administering, and will administer, the estate according to law. Subsection (2) however provides that if the Court is not so satisfied, it may issue a confirmed grant to some other person other than the holder thereof.

27. In the case of In re Estate of Manasse Otieno Eshitubi (Deceased)[2020] eKLR relied on by the Applicants, Musyoka, J. had this to say about the import of Section 71(2)(b) of the Act:Under section 71(2)(b), where the court is not satisfied that the grant was obtained properly or that the administrators had not administered the estate in accordance with the law or were unlikely, after confirmation, to administer the estate in accordance with the law, it should not confirm them, instead it should revoke their grant and appoint fresh administrators. That is the effect of section 71(2) (b) and(c) of the Law of Succession Act.

28. The record shows that the Executors filed their summons for confirmation of grant on September 25, 2018, a period of 3 months after the decision of the Court of Appeal. This is contrary to the Applicants’ averment in their application dated January 28, 2021, that the Executors have not applied for confirmation since 2007. Notably, Margaret, one of the Applicants filed her affidavit of protest dated 16. 10. 2018 opposing the mode of distribution proposed by the Executors. The contention that the Executors had not filed a summons for confirmation of grant is clearly incorrect. Additionally, several applications have since been filed thereby delaying the hearing of the summons for confirmation of grant.

29. The Court is satisfied that the grant herein was rightly made to the Executors. Further, no evidence was placed before the Court to demonstrate that the Executors were not administering, or will administer, the estate of the deceased according to law. Having considered the Application and the submissions filed by the Applicants, I find that the Application lacks merit and the same is for dismissal.

30. There is yet another application by Beatrice dated January 26, 2021 in which she seeks:a.Spent.b.Thatpending the hearing and determination of prayer (c) below, the Court be pleased to stay further proceedings in this matter and to restrain all parties from acting in any manner pursuant to the consent dated August 24, 2020. c.Thatthe Honourable Court be pleased to set aside the Consent Order dated August 24, 2020. d.Thatcosts of this Application be provided for.

31. The grounds upon which the Application is premised are that vide their application dated August 31, 2020, Beth and Margaret sought adoption by the Court of the consent dated August 24, 2020; that the consent did not include all the parties likely to be affected thereby and further that the Application was not served upon all parties herein as required by law; that given that there are pending before this Court an application for confirmation of the grant and her application for reasonable provision as a dependant, the said consent is prejudicial to the interests of Beatrice and the other beneficiaries of the estate who did not give their consent; that the firm of M. M. Gitonga Advocates LLP instructed by Beth and Margaret is not properly on record its appointment having been done contrary to Order 9 Rule 9 of the Civil Procedure Rules.

32. Margaret and Beth have opposed the Application which they contended is riddled with material non-disclosure, deliberate misrepresentation of facts and falsehoods. They accused Beatrice of failing to prosecute her affidavit of protest dated 19. 10. 2018 to the summons for confirmation and her application for reasonable provision. They further submitted that Beatrice had not established any ground of fraud, misrepresentation or mistake on which the consent order should be set aside. Additionally, they contended that the firm of MM Gitonga Advocates LLP came on record vide a notice of change of advocates dated August 10, 2020. The asserted that Order 9 Rule 9 of the Civil Procedure Rules does not apply herein as judgments has not been passed and the grant is yet to be confirmed. There is therefore no requirement for the firm to file consent or seek leave to come on record. They urged that the Application be dismissed with costs.

33. Beatrice relied on the provisions of Oder 9 Rule 9 of the Civil Procedure Rulesto challenge the consent order in question. This is a succession matter that is governed by the Law of Succession Act, a complete code. Rule 63 of theProbate and Administration Rulesprovides for the Application of Civil Procedure Rulesin succession matters as follows:Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and Orders 11, 16, 19, 26, 40, 45 and 50 (Cap. 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules.

34. It is clear that Order 9 of the Civil Procedure Rules is not one of the rules that are applicable in succession matters. In any event, the matter is still live before the Court and the said firm filed a notice of change of advocates. The contention by Beatrice that the said firm is not properly on record is therefore without merit.

35. I now turn to the prayer for setting aside the consent of August 24, 2020. The principles for setting aside a consent order are well settled. In the case ofIntercountries Importers and Exporters Limited v Teleposta Pension Scheme Registered Trustees & 5 others[2019] eKLR the Court of Appeal stated as follows:The principles that appertain to setting aside of a consent orders are well established in a line of cases including Brooke Bond Liebig v Mallya (1975) EA 266 where Mustafa Ag. VP stated thus;“The compromise agreement was made an order of the court and was thus a consent judgment. It is well settled that a consent judgment can be set aside only in certain circumstances, e.g on grounds of fraud or collusion, that there was no consensus between the parties, public policy or for such reasons as would enable a court to set aside or rescind a contract. In this case the parties and their advocates consented to the compromise in very clear terms; they were certainly aware of all the material facts and there could not have been any mistake or misunderstanding. None of the factors which could give rise to the setting aside of a consent agreement existed.”And in the case of Flora N. Wasike v Destimo Wamboko [1988] eKLR Hancox JA cited Setton on Judgments and orders (7th edition) vol 1 page 124, and reiterated that;“Any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and those claiming under them… and cannot be varied or discharged unless obtained by fraud or collusion or by an agreement contrary to the policy of the court…; or if the consent was given without sufficient material facts, or in general for a reason which would enable a court set aside an agreement.”Essentially, the above cited authorities are clear that a consent Order will only be set aside if it can be demonstrated that it was procured through fraud, non-disclosure of material facts or mistake or for a reason which would enable a court set it aside.

36. A party seeking the setting aside of a consent order must demonstrate that the same was obtained through fraud, non-disclosure of material facts or mistake.

37. I have looked at the consent in question. It is between Margaret and Beth and relates to LR 11612 in respect of which the deceased made a bequest to both of them. The consent was expressed to settle the matter between the 2 beneficiaries inter se. The bequest of the said property and consent is in respect thereof, is between Beth and Margaret and has nothing to do with Beatrice or any other beneficiary who have no interest in the said property. Further, Beatrice has not demonstrated to the Court how the consent and the resulting order prejudiced her or indeed the other beneficiaries. Notably, no other beneficiary has raised any issue with the said consent. More importantly, Beatrice has not demonstrated to the Court that the consent between Margaret and Beth was procured through fraud, non-disclosure of material facts or mistake, to warrant the setting aside thereof. Without the existence of any of the factors that could give rise to the setting aside of the consent order, the prayer by Beatrice is clearly without merit. In any event, given the finding of this Court on Beatrice’s Application for reasonable provision upon which this Application is anchored, setting aside the said order will not serve any useful purpose and will only prolong the matter herein.

38. Before I conclude, I wish to decry the incessant squabbles between beneficiaries over property left behind by their deceased loved ones, which result in succession matters remaining in our Courts for inordinately long periods of time. The opportunity cost to such beneficiaries is enormous. Their lives remain stagnant, pending hearing and determination of the matters, while the rest of the world moves on, making great strides. Picture this: The Judge who delivered the judgment herein way back in 2005 continued to serve in this Court for another 7 years. She then moved on to the Court of Appeal in 2012 where she served for 9 years. That Judge today, 17 years after she delivered the judgment, is the Honourable the Chief Justice of the Republic of Kenya! All this while, the family of the deceased herein has remained stuck in their family disputes over the estate. Some members are said to be very advanced in age and ailing, while others have died before enjoying their share of the estate. A very sad state of affairs indeed.

39. In the end and having taken all factors into consideration, I make the following orders which are necessary for the ends of justice:i.The Summons for Partial Confirmation of Grant dated 28. 2.19 by Mary Wairimu Mugo being incompetent, is hereby struck out.ii.The Summons dated October 19, 2018 and January 26, 2021 by Beatrice Wambui Muturi are both hereby dismissed.iii.The Summons dated January 28, 2021 by Beth Ngonyo Ngengi Muigai and Margaret Wanjiru Kihanya is hereby dismissed.iv.The grant of probate issued to Ngengi Muigai and Josphat Mathia Muigai on 16. 12. 97 is hereby confirmed.v.The estate of the deceased shall be distributed in accordance with the Will of the deceased dated 28. 4.94. vi.In addition, Lr No 7785/18, Runda and 5 acres to be excised from Title No Ngenda/Kimunyu/985 shall vest in the estate of the Peter Mugo, pursuant to the judgment of the Court of Appeal of 8. 6.2018. vii.In addition, the Executors shall in the distribution of the estate take into account the order made by this Court on September 9, 2020 pursuant to the consent dated August 24, 2020 between Beth Ngonyo Ngengi Muigai and Margaret Wanjiru Kihanya.viii.The Executors shall proceed with diligence to execute all documents necessary for distribution of the estate of the deceased and in any event not later than 30 days from today’s date.ix.Mention for compliance on June 21, 2022. x.This being a family matter, there shall be no order as to costs.

DATED, SIGNED AND DELIVERED IN MOMBASA THIS 13TH DAY OF MAY 2022. ..........................M. THANDEJUDGEIn the presence of: -.......................for the Executors.............for Beatrice Wambui Muturi..........for Beth Ngonyo Ngengi Muigai...........for Margaret Wanjiru Kihanya..................for Mary Wairimu Mugo................................Court Assistant