[2022] KEHC 3309 (KLR)

Irowa v Karuku (Succession Cause 7 of 2010) [2022] KEHC 3309 (KLR) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3309 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause 7 of 2010

HK Chemitei, J

July 7, 2022

Between

Agnes Nyambura Nancy Njoki Patrick Irowa

Administrator

and

Benson Wathai Karuku

Objector

Ruling

1. The ruling herein is in respect of two applications namely; Summons for revocations and a Notice of Motion dated February 4, 2022 and February 7, 2022 respectively.

2. In the Summons for revocation dated February 4, 2022 the objector prays for the following orders;a.That the Certificate of Confirmation of Grant of Letters of Administration issued to Agnes Nyambura, Nancy Njoki and Patrick Irowa on the May 23, 2018, be revoked for misrepresentation and concealment of material facts and the assets in quo revert to the estate of Wangari Karuku Wathiai for fresh and fair distribution.b.That any and all registrations, transfers, sales and dispositions of the deceased’s Wangari Karuku Wathiai’s properties and any subdivisions arising therefrom and other subsequent dealings with the said properties be declared unlawful, null and void and all titles issuing therefrom be cancelled forthwith.c.That this honourable court issues orders for the administrators to furnish accounts in respect of the rental income collected from the estate since the deceased passed on.d.That this honourable court takes action against the administrators for undertaking developments on the estate in flagrant violation of the court order for maintenance status quo in regards to the deceased's parcels of land and other assets of the estate.e.The costs of this application be in the estate.

3. The application is premised on the grounds that the grant was obtained through misrepresentation and concealment of material facts since it had not been disclosed that the applicant’s father, one James Wathiai Karuku who died in 2002 pre-deceased both his father, one Benson Karuku Wathiai who died in 2003 and his mother Wangari Karuku Wathiai who died in 2008 both of who were the applicant's grandparents.

4. That despite existence of maintenance of status quo order in the estate herein issued on April 14, 2019 and extended in this court’s ruling of April 21, 2021, the administrators had flagrantly flouted and disobeyed the same as they had proceeded to interfere in the applicant's residence by hiving off the entire compound therein and proceeding to erect permanent structures for their own benefit.

5. That further, the assets of the estate of Wangari Karuku Wathiai were all obtained from the estate of Benson Karuku Wathiai via Nakuru High Court Succession Cause Number 599 of 2003, Estate of Benson Karuku Wathiai and the grant issued to Wangari Karuku Wathiai was obtained by fraud and concealment of material facts to the extent that it was not disclosed to court that the said James Wathiai Karuku, the applicant's father, was survived by two (2) children, the applicant and his sister, one Helen Wangari Wathiai

6. In addition, that the applicant and his sister were dependants of their deceased grandmother to the extent that they were maintained by her ever since their father passed on yet they were not considered in the distribution of the deceased's assets. That they - had been fraudulently and unfairly been disinherited from their share of the deceased's estate that would rightfully belong to them as dependants.

7. The summons is supported by an affidavit sworn by the applicant where he reiterated the contents of the summons. In addition, he deposed that in line with the court’s ruling of April 21, 2021 there have been two family meetings in the presence of lawyers for both parties, seeking amicable resolution of the impasse on distribution of the estate. That however, the same had not been successful as his proposal was not acceptable to the administrators.

8. He deposed further that he and his sister resided in Block 15/65 within Nakuru town Section 58 which was their grandparents’ home and they had always resided with them ever since their father passed on in 2002. That great injustice continues to be occasioned against him and his sister despite the express court orders for maintenance of status quo. He prayed that the grant issued on May 23, 2018 be revoked and the assets listed therein be restored to his grandmother’s name for fresh and fair distribution.

9. The respondents in response to the summons filed an affidavit dated June 7, 2022 and sworn by Patrick Irua. He deposed that at the time of distribution of their deceased parents’ estate, the applicants were minors and had no capacity to be involved in succession. That the applicant’s application was only an afterthought, evidently meant to frustrate the beneficiary’s efforts in administration of the estate. That further, the right of the beneficiaries crystallized in 2008 when their mother died. Additionally, that substantive investments had been made to improve their father’s assets and that it was now almost fifteen years (15) since their rights crystallized.

10. He deposed further that the administrators had made every effort to ensure that the estate had been divided equally, their brother though indirectly had been considered in the grant in that the applicants had directly been issued with assets in their original names equal to the other siblings. That the applicants were guilty of material non-disclosure as they have failed, refused and or ignored to mention that they had benefited from the estate. Additionally, that they continued to derive rental income from the estate and held property in their names.

11. He went on to depose that the whole family had agreed to have the name of their brother inserted in the grant and to have equal share as other beneficiaries. That no part of the deceased estate or property had been transferred, subdivided or sold since the issuance of the orders in ruling delivered on April 29, 2019 by this honourable court. That further, the real dispute was on the Section 58 matrimonial home as the applicants during the family meeting claimed the same at the exclusion of all the beneficiaries. That upon rejecting that proposal, they were subsequently served with the instant application.

12. In the Notice of Motion dated February 7, 2022 the applicant prays for the following reliefs;a.Spent.b.That the honorable court be pleased to set aside and lift the orders of injunction issued on April 29, 2021 restraining the Administrators from transferring, sub-dividing and selling of the deceased parcel of land and other assets of the estate until determination of the suit herein.c.That the parties be directed to the court annexed mediation forum to agree on the remaining issues.d.That the said injunction order be limited only to the extent of the deceased matrimonial home being section 58 house.e.That the costs of this application be in the cause.

13. The application is supported by the grounds on the face of the application and the supporting affidavit of Patrick Irua one the administrators sworn on the same date.

14. He deposed that in its ruling delivered on April 29, 2019 this honourable court issued injunctive reliefs as prayed by the applicants to the extent that the appointed administrators were barred from transferring, sub-dividing and selling of the deceased parcel of land and other assets of the estate until determination of the suit herein. That further the family members were given a duration of 60 days to solve and deliberate on matters pertaining to the deceased estate.

15. He went on to depose that the family members held two different meetings on June 26, 2021 and July 10, 2021 and made deliberations on equitable distribution of the deceased estate save that they failed to agree on the issue of the deceased matrimonial home. That it was in the interest of justice and fairness that the injunction order in place be lifted and only be allowed to operate and limited to the question of the deceased matrimonial home which question would be addressed by this honourable court during hearing. Additionally, that the objector will not suffer any prejudice should the said orders be lifted as they stand to benefit from the same and that therefore in the interest of justice and fairness their application be allowed as prayed.

16. There was no response filed by the objector in regard to the notice of motion dated February 7, 2022.

17. When the matter came up for directions the court ordered the same to disposed by way of written submissions.

Applicant’s Submissions 18. The applicant submitted that under section 47 of the Law of Succession Act and rule 73 of the Probate and Administration Rules, this court has wide discretion in succession matters to make orders towards meeting the ends to justice. That he had demonstrated under paragraph 8 and 9 of the affidavit in support of the summons, that he and his sister were dependants of their deceased grandparents. He urged the court to enforce their full rights as dependants under section 29 (b) of the Law of Succession Act. He further urged the court to issue an order for the administrators to render account in respect of funds obtained from the rental assets over the 10 years and on how funds obtained from banks accounts were expended.

19. In conclusion, he submitted that the homestead should bequeathed to them as they lived there with their grandparents since they were 10 years old and continued to live there to date. That the assets listed in the rectified certificate of confirmation of grant to also be re- distributed in a manner factoring in their interests. He urged the court to set aside an asset of the estate for sale and subsequently settlement of costs arising and due to the estate, including surveyors and legal fees, all be payable from the estate.

Administrators’/Respondents’ Submissions 20. The respondent in their submission in opposition to the summons identified three issues for determination namely; whether the deceased herein held a life interest and whether a life interest was transferable to 3rd parties (grand children) who were not the deceased husband’s dependants. The respondents cited section 35(1) of the Law of Succession Act and submitted that when a surviving spouse held life interests over a property as in the present cause, the property does not pass to her absolutely. That such property cannot be registered in her name absolutely since she only enjoys a life interests and effectively only holds it in trust for the children and other heirs. They placed reliance on the cases of Mary Wanjiku Kamonde v Daniel Muriithi Kamonde [2016] eKLR, Tau Katungi v Margrethe Thorning Katungi &another [2014] eKLR and in the estate of John Musambayi Katimanga (deceased)[2014] eKLR.

21. The respondents submitted further that the applicants herein were not dependants of the late Benson Wathai Karuki (their grandfather) whose assets and estate was only being held in trust for the children by their late mother. That the applicants did not apply as they should have for provision under section 26 of the Law of Succession and that there was no court order making them dependants of their grandfather. They draw the court’s attention to the case of Re Estate of John Musambayi Katumanga(supra).

22. On the second issue, whether the applicants were entitled to the reliefs being sought they submitted that what the applicants had received in the confirmed grant was equal to what their brother as an individual would have received.

23. Lastly, on who should bear costs of the application they submitted that this court should exercise its discretion in their favour and order that the applicants bear the costs of the application.

Analysis and Determination 24. I have carefully considered both applications, the affidavits and the submissions tendered by both parties. The issue at hand it seems has to do with the section 58 property. In other words, how should it be shared out.

25. I have also noted that the parties had a family meeting (two) and the contentious asset is the same one. I find the application to have it referred to a mediator acceptable for now. This is expected to be a neutral party and may assist them come up with an amicable solution. The parties if need be can still revisit the other issues which they may consider necessary.

26. As to whether or not the grant should be revoked, this court stated much in its ruling of April 29, 2019. It may cause greater harm to the parties and others who have no issues with the estate. At any rate nothing stops the court from exercising such discretionary action should it find the parties unreasonable.

27. At the same time, it is too late for the rest of the beneficiaries to discuss the entitlement of the objectors to the estate. Again much was said about them in the said ruling.

28. On the question of the injunction, the court ordered the same for a good measure. This will ensure that such position would ensure that no party is disadvantaged in the event of any disagreement by the beneficiaries. This as well will ensure that they expeditiously sort out the thorny issue of the objectors.

29. In the premises, this court hereby refers this matter to the court annexed mediation (Alternative Dispute Resolution) which should arrive at its findings within the next 90 days from the date herein. This matter be mentioned before the Deputy Registrar for further directions.

DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 7TH DAY OF JULY 2022. H K CHEMITEIJUDGE