[2015] KEHC 8049 (KLR)
The court found that while there were disputes regarding the completeness of the asset list and the inclusion of all beneficiaries, the evidence supported the administrators' proposed mode of distribution with certain adjustments to ensure fairness. The court considered the contributions of Alice Wambui Kihara to...
Source-derived case information.
- Citation
- [2015] KEHC 8049 (KLR)
- Parties
- Applicant: Joel Waweru Kihara; Applicant: Pauline Njeri Kihara; Applicant: Alice Wambui Kihara; Applicant: Lydia Wanjiku Njoroge
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 3561 of 2003
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Grant confirmed and estate distributed as per court's outlined mode; no order as to costs.
- Legal Topics
- Succession, Confirmation of Grant, Revocation of Grant, Distribution of Estate, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joel Waweru Kihara
Applicant
Pauline Njeri Kihara
Applicant
Alice Wambui Kihara
Applicant
Lydia Wanjiku Njoroge
Applicant
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the grant issued on 26th April, 2004 should be confirmed or revoked due to alleged fraud and non-disclosure of beneficiaries.
- 2 Whether the proposed mode of distribution of the deceased's estate is fair and in accordance with the Law of Succession Act.
- 3 Whether the administrators acted in the best interests of all beneficiaries and complied with statutory requirements.
Ratio Decidendi
The court found that while there were disputes regarding the completeness of the asset list and the inclusion of all beneficiaries, the evidence supported the administrators' proposed mode of distribution with certain adjustments to ensure fairness. The court considered the contributions of Alice Wambui Kihara to the maintenance and improvement of specific property, as well as the needs and circumstances of other beneficiaries. The objections regarding fraud and concealment were not sufficiently substantiated to warrant revocation of the grant. The court exercised its discretion under Section 71 of the Law of Succession Act to confirm the grant and order distribution as outlined, ensuring...
Court Disposition
Grant confirmed and estate distributed as per court's outlined mode; no order as to costs.
Orders
- The application for confirmation of grant and the application for revocation/annulment are both confirmed in terms of the mode of distribution outlined by the court.
- The grant issued on 26th April, 2004 is confirmed in accordance with the court's distribution under Section 71 of the Law of Succession Act.
Full Case Text
Judgment text and source record
133 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO 3561 OF 2003
IN THE MATTER OF THE ESTATE OF NAHASHON KIHARA WAWERU (DECEASED)
JOEL WAWERU KIHARA
PAULINE NJERI KIHARA
ALICE WAMBUI KIHARA………………………………………………………….ADMINISTRATORS
VERSUS
AND
LYDIA WANJIKU NJOROGE……………………........…….APPLICANT/OBJECTOR/PROTESTOR
JUDGMENT
PLEADINGS
By an application of summons for confirmation of grant the Applicants JOEL WAWERU KIHARA, PAULINE NJERI KIHARA and ALICE WAMBUI KIHARA administrators of the deceased’s estate sought confirmation of the grant issued on 26th April, 2004.
The application consists in paragraph 2 of the supporting affidavit the beneficiaries, children of the deceased and the remaining widow of the deceased. It also has the list of assets paragraph 4 (a) (b) of the affidavit that comprises of the estate of the deceased. There is proposed mode of distribution outlined in paragraph 4(c) of the affidavit.
On 4th November, 2010 the Applicant/Protestor LYDIAH WANJIRU NJOROGE one of the beneficiaries objected to the confirmation of the grant application. The Applicant brought the summons for revocation and annulment of the grant under Rule 44(1) of Probate and Administrator Rules and Section 76 of Law of Succession Act Cap 160. The Applicant/Protestor relied on the following grounds;
The grant became useless and inoperative after the death of one of the administrators JOEL WAWERU KIHARA in October, 2010.
The grant was obtained fraudulently by fraudulent statement or by concealment of material facts. The administrators did not disclose all the beneficiaries of the estate and did not consult and obtain consents from all beneficiaries.
The administrators have intermeddled with the estate and taken undue advantage over others.
HEARING
On 6th July, 2015 the Petitioner/administrator ALICE WAMBUI KIHARA relying on the Further Affidavit filed on 7TH August, 2014 and the attached mode of distribution in line with affidavit in support to the summons for confirmation application stated as follows;
There were shares that had been left out in the list of assets in the affidavit in support to the application for confirmation of grant;
400 shares – Express Kenya Limited
5,330 shares – Kenya Commercial Bank which she proposed to be held by the widow of the deceased, PAULINE NJERI KIHARA (2nd administrator)
Harambee Estate House No. HL9 is where the Petitioner lives in. She helped the deceased pay off the monthly mortgage repayments to HFCK until 1997 when she got the title over the house.
She developed and refurbished the house and put up a permanent fence and repaired the roof tiles and painted the house at her own cost.
The administrator has resided in the house with her 18 year old daughter. She is not employed and has nowhere to go. She cannot share the house with the Protestor as she was left the house by their late father and she paid his medical bills. She ought to have the house exclusively.
The Petitioner/Administrator attached to the Further Affidavit the mode of distribution and proposed as follows;
L. R. NO. LOC. 3 Mukuria/447- 1. 90 hectares for Pauline Njeri (widow) and 5 children
L. R. NO. LOC. 3 Gichagini /114 – 2. 63 hectares for Mary Wanjiru Mwangi (widow) of administrator Joel Waweru Kihara and 5 children
L. R. NO. LOC. 3 Githumu/344 – 5. 58 hectares to be held in equal shares by the children of the deceased by the 1st wife (deceased)
Pauline Njeri Kihara - 0. 93(2nd wife/widow)
Peris Wandia Masuku - 0. 93
David Wainaina Kihara - 0. 93
Lydia Wanjiku Njoroge - 0. 93
Alice Wambui Kihara - 0. 93
Children of late Jane Wangui – Peris Wandia Wangui
John Kihara Wangui
Joy Wanjiku 0. 93
Monica Waithera
L. R. NO. LOC. 3 Githumu/565/18- Githumu Market held by the widow Pauline Njeri Kihara for herself and 5 children
L. R. NO. LOC 3 Mukuria/554/14 – David Wainaina – ½ share
Children of Jane Wangui Kihara – Peris Wandia Wangui
John Kihara Wangui ½ share
Joy Wanjiku
Monica Waithera
L. R. NO. Nairobi/Block 62/687 – to be held by Mary Wanjiku Mwangi widow of Joel Waweru Kihara and 5 children
L. R. NO. 209/7196/149 – Alice Wambui Kihara – Absolutely
Pauline Njeri Kihara 2nd wife and widow of the deceased filed further affidavit on 7th August 2014 and she supported the distribution of the petition by Alice Wambui and accepted proportion of the deceased’s estate allocated for her and her children.
The Protestor by a Further Affidavit filed on 28th July, 2014 stated that the mode of distribution should be adjusted as follows;
L. R. 209/7196/149 - Alice Wambui Kihara,
Lydiah Wanjiku Njoroge Equally
Peris Wandia Masuku
The Kihara Plot - Joel Waweru Kihara family
David Wainaina Equally
Jane Wangui Kihara family
L. R. NO. LOC 3 Gichagini/114 - Jane Waweru family
Monicah Wangui Kihara family
David Wainaina
L. R. LOC. 3 Mukuria/447 – be distributed
Joel Waweru family
Wangui Kihara family
David Wainaina
Peris Wandia Masuku filed an affidavit in support of the Protestor on 21st July, 2015.
The Court has considered the evidence on record the pleadings filed and more so both proposed modes of distribution. Taking into account all the submissions the Court proposes the following mode of distribution under Section 71 of the Law of Succession Act Cap 160. The Court distributes the estate as follows;
Express Kenya Ltd 400 shares – 1st Family held jointly and share equally. Namely;
Peris Wandia Masuku
David Wainaina Kihara
Lydia Wanjiku Njoroge
Alice Wambui Kihara
Kenya Commercial Bank 5,330 shares – 2nd Family held jointly and share equally.
Josephat Ng’ang’a Kihara
Monicah Wangui Kihara
Joel Waweru Kihara
Mary Wanjiku Kihara
Peris Wandia Kihara
LOC 3 Mukuria 447 – 1. 90 hectares – 2nd Family Pauline Njeri Kihara widow plus 5 children jointly and equally. Namely;
Josephat Ng’ang’a Kihara
Monicah Wangui Kihara
Joel Waweru Kihara
Mary Wanjiku Kihara
Peris Wandia Kihara
L. R. LOC 3 Gichagini/114 - Joel Waweru Kihara (deceased) family Mary Wanjiku plus 6 children. Namely;
Catherine Njeri Mwangi
Emmah Wambui Waweru
Caroline Waithira Waweru
Patrick Kihara Waweru
Michael Mwangi Waweru
Susan Wangui Waweru
L. R. NO. LOC Githumu/344 – Peris Wandia Masuku – 0. 93
David Wainaina Kihara – 0. 93
Lydiah Wanjiku Njoroge – 0. 93
Pauline Njeri Kihara - 0. 93
Alice Wambui Kihara
Lydia Wanjiku Njoroge - 093
Peris Wandia Masuku
Children of Jane Wangui – Peris Wandia Wangui
John Kihara Wangui - 0. 93
Joy Wanjiku
Monica Waithera
L. R. NO. LOC 3 Githumu/565/18 Githumu Market – 2nd family jointly & equally
Josephat Ng’ang’a Kihara
Monicah Wangui Kihara
Joel Waweru Kihara
Mary Wanjiku Kihara
Peris Wandia Kihara
L. R. LOC. 3 Mukuria/554/14 – Wainaina ½ share
Jane Wangui’s family jointly and equally – Peris Wandia Wangui
John Kihara Wangui ½ share
Joy Wanjiku
Monicah Waithera
L. R. NO. Nairobi/Block 62/687
Kihara house – held by Mary Wanjiku Mwangi plus 6 children
Catherine Njeri Mwangi
Emmah Wambui Waweru
Caroline Waithira Waweru
Patrick Kihara Waweru
Michael Mwangi Waweru
Susan Wangui Waweru
L. R. NO. 209/7196/149 – Alice Wambui Kihara- Absolutely
NOTE: Pauline Njeri Kihara 2nd wife of the deceased has other properties. Proceeds from bank accounts of the deceased and Thika houses, Githunguri and the above mentioned properties for her and her children
The 2nd widow will forfeit 400 share of Express Kenya Ltd to the first family.
She will also forfeit part of 0. 93 ha of LOC 3 Githumu/344 and share with Alice Wambui Kihara.
Alice Wambui Kihara will forfeit her 0. 93 of LOC 3 Githumu/344 share to be shared by Lydiah Wanjiku Njoroge and Peris Wandia Masuku to compensate them their share in the home L. R. NO. 209/7196/149 which is to be held and occupied by Alice Wambui Kihara exclusively. She has lived through with her child, she looked after her father and paid medical bills and she renovated the house with her cost and paid the mortgage payments. This evidence was not controverted by the Objector. The Objector is married and Peris Wandia Masuku lives out of the country. They cannot share the house with Alice Kihara.
FINAL ORDERS
The Application for summons for confirmation of grant of 11th June, 2007 and summons for revocation/annulment application of 4th November, 2010 are both confirmed in terms of the mode of distribution outlined by the Court in the ruling of the Court.
The Court confirms the grant of 26th April, 2004 in terms of mode of distribution indicated above under Section 71 of the Law of Succession Act Cap 160.
There will be no costs of the Court.
Any party is at liberty to apply.
READ AND SIGNED IN OPEN COURT AT NAIROBI THIS 1ST DAY OF DECEMBER, 2015
M. W. MUIGAI
JUDGE