[2022] KEHC 554 (KLR)

John & another v Waikunu & 3 others (Succession Cause 45 of 2016) [2022] KEHC 554 (KLR) (Family) (13 May 2022) (Judgment)

Neutral citation: [2022] KEHC 554 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 45 of 2016

MA Odero, J

May 13, 2022

Between

Charles Maina Chui John

1st Objector

James Mwangi Waikun

2nd Objector

and

Margaret Wairimu Waikunu

1st Respondent

Joseph Macharia Waikunu

2nd Respondent

George Chege Waikunu

3rd Respondent

Hellen Njeri Waikunu

4th Respondent

Judgment

1. Before this Court is the summons for Revocation of Grant dated 27th November 2017 by which Charles Maina Chui John (the 1st Objector) and James Mwangi Waikunu (the 2nd Objector) seek the following orders:-1. Spent2. That the grant by Honourable court dated 21st August be revoked or annulled on the grounds that the said Grant was obtained fraudulently by misrepresentation of facts and on the grounds set out in this application.3. That the costs of this application for revocation of this Grant be in the cause”.

2. The summons was premised upon sections 82, 83 and 84 of the Law of Succession Act, Rule 73 of the Probate and Administrator Rules and was supported by the affidavit of Charles Maina Chiui John (the 1st Objector) dated 18th February 2021.

3. The Petitioners/Respondents Margaret Wairimu Waikunu, George Chege Waikunu and Hellen Njeri Waikunu who are the Administrators of the estate of the Deceased opposed the summons through the Replying Affidavit dated 9th February 2018. The application was canvassed by way of viva voce evidence. Although the hearing in this matter was concluded way back in May 2021 the court has until now been unable to prepare a judgment because the handwritten record (proceedings) went missing and were only retrieved in March 2022. The inconvenience occasioned to the parties by this delay is sincerely regretted.

Background and Evidence 4. This succession cause relates to the estate of John Waikunu Chui (herein after ‘the Deceased’) who died at the Aga Khan Hospital on 6th December 2014 (a copy of the Death Certificate Serial No. xxxxx appears as an annexture to the Affidavit sworn by the 1st Respondent on 7th March 2016). Following his demise the Respondents filed a Petition seeking Grant of letters of Administration dated 28th November 2016 in their capacity as widow and children of the Deceased.

5. In the Affidavit filed in support of the Petition the following were named as the persons surviving the Deceased.a.Margaret Wairimu Waikunu – widowb.Charles Maina Chui John – sonc.Teresa Njeri Chui - Daughterd.Joseph Macharia Waikunu – sone.James Mwangi Waikunu – sonf.Eliza Njoki Waikunu – Daughterg.Onesmus Matindi – sonh.George Chege Waikunu – soni.Peter Kihara Waikunu- sonj.Charles Chui Waikunu - sonk.Hellen Njeri Waikunu – Daughterl.Victoria Njuguini Waikunu – Daughterm.Asuntah Wambui Waikunu – Daughtern.Kelvin Mburu Waikunu - son

6. The estate of the Deceased was said to comprise of the following assets:-a.Narumoru/Block 2 Muriru/507b.Narumoru/Block 2 Muriru/646c.Loc 14/Kiru/463d.Loc 7/Gakoigo/1467e.Loc 14/Kiru/2612f.Loc 14/Kiru/1838g.Gikindi/Kambirwa/1173h.Gakawa/Kahurura Block1/Ichuga/355i.Loc 14/Kiru/2791j.Loc 14/Kiru/2055k.Loc 14/Kiru/2060l.Loc 14/Kiru/1965/42m.7800 shares at Kenya Commercial Bank Ltdn.3000 shares of Sasini Ltdo.78,400 shares of Safaricom Ltdp.2,900 shares of Eveready Ltdq.10,000 shares of Uchumi Ltdr.9,333 shares of Co-operative Bank Ltds.675 shares of Kenya Ret.6,000 shares of Mumias Co. Ltdu.6431shares of KENGENv.15,000 shares of Equity Bank Ltdw.11,300 shares of Barclays Bank of Kenyax.10,000 shares of Barclays Bank Ltdy.2,000 shares of British American Insurancez.800,000 Britam Bond.

7. The Objectors however failed/refused to co-operate with the other beneficiaries in pursing the Petition. They were even served with citations but flatly refused to participate in the Petition. Thereafter the matter was referred to mediation but again the Objectors refused to participate in the mediation process leading to the failure of the same.

8. Eventually a Grant of letters of Administration dated 21st August 2017 was issued in the name of the Respondents. At this point, the Objectors woke up and filed this summons seeking revocation of that Grant. The summons is premised on the following grounds:-1. The documents that form the basis of the petition are questionable because of the following:a.That the chief’s letter is from the chief Kariobangi while our deceased father is from Kiuru location Muranga. The family had already obtained a letter from the Chief, Kiru Muranga.b.The death certificate is suspicious because it was given later than the appropriate certificate which is in the objectors possession. The family had obtained the certificate and it is clear from the serial numbers that there are two certificates and the petitioner certificate was obtained later.c.That the list of assets is suspiciously short and different from the one that was given to the Honourable court in mediate case 28 of 2016”.

9. The 1st Objector testified as PW1. He told the court that the Deceased had two wives namely Agnes Wangui Waikinu, the 1st wife who is now deceased and MArgaret Wairimu Waikunu the 2nd wife who is the 1st Petitioner. That he is the 1st born son of the 1st wife. PW1 insists that during a family meeting held on 15th May 2014 the Deceased made an oral will on which he appointed his eldest son to take charge of his estate when he dies. That nobody objected at the time. The position of the 1st objector is that he ought to be appointed as sole Administrator of the estate in line with his late Father’s wishes.

10. According to PW1 it is he who had the right to Petition for letters of Administration and that he is entitled to be the sole Administrator of the estate in line with the wishes of the Deceased. He states that he has called several family meetings to discuss the issue of succession but that the Respondents have incited other family members to snub the meetings.

11. PW1 told the court that despite the citation he did not move to petition the court for letters of Administration as the family had not yet agreed on the mode of distribution of the estate. In the same vein, PW1 states that he declined to participate in the court ordered mediation because he wanted the family to meet and agree on all issues before they met the mediator.

12. PW1 complains that that the Petitioners did not include in their Petition all the assets owned by the Deceased, that several properties belonging to the Deceased have been left out. PW1 denies that he is collecting rental income from any of the properties left behind by the Deceased. He insists that he is only collecting rents from properties which the Deceased had transferred to him during his lifetime.

13. PW1 took issue with the Chief’s letter dated 18th June 2015 which listed the names of the beneficiaries of the Deceased. He objected to the fact that the letter was written by the Chief of Huruma Location. According to PW1 their Rural home is in Kiuru Location Muranga Country where the Deceased was born and was buried, thus the letter ought to have been written by the Chief of Kiuru Location not Huruma Location. PW1 ends by stating that the Deceased directed that there should be no disputes in the family following his death. He warned that the family was inviting a curse if they did not appoint PW1 as sole Administrator in line with the wishes of his late father.

14. PW1 James Mwangi Waikunu is the 2nd Objector. He told the court that he is a Cross-Petitioner in the cause and that he supported in its entirety the evidence adduced by PW1.

15. DW2 Margaret Wairimu Waikunu is the 1st Petitioner in this cause. She told the court that she was the 2nd wife and the only surviving widow of the Deceased. DW1 adopted in its entirety her witness statement dated 24th January 2020. She told the court that following the demise of the Deceased several meetings were held to discuss the issue of selection of Administrators but that the Objectors boycotted said meetings. That even after being served with citations the objectors still refused to act.

16. DW1 stated that the court has twice referred the matter for mediation but the objectors frustrated the mediation process and refused to attend any of the mediation sessions. She accuses the objectors of not being keen to have the succession cause concluded because they alone are currently enjoying the proceeds of the estate in the absence of distribution.

17. That on the other hand the Petitioners with the support of the remaining members of the family are desirous to have the estate of the Deceased concluded thus they took the step of Petitioning for a Grant.

18. DW1 stated that she listed in the petition all the properties of the Deceased of which she was aware. However she accuses the objectors of keeping custody of all the relevant documentation i.e. Title Deeds, and refusing to release the same to the Administrators. That the Administrators have therefore been prevented from identifying all the assets of the estate due to absence of said documentation. DW1 also insisted that since the Deceased resided and carried on his business in Nairobi specifically in the Huruma area, it was quite in order for the Chief of Huruma to write the letter.

19. DW1 accused the objectors of collecting and utilizing rental income from various of the Deceased’s properties without accounting for the same to the estate. That the 1st Objector withdrew Kshs 50,000 from the Mpesa Account of the Deceased which he has not to date accounted for. She further accuses the 1st Objector of having issues with her. She alleges that the 1st Objector disconnected the electricity and water in her residence in Eastleigh and that through the chief of Githima Location, the 1st objector has barred her from accessing her farm in Naro Moru. That the 1st Objector evicted her from her house in Eastleigh L.R No. 36/111/61 and threw out all her belongings valued at approximately Kshs 3,000,000. That the objectors have also denied her access to the safe which is in the family home in Murang’a and have frustrated the work of the lawfully appointed administrators by withholding crucial information relating to the estate leading to wastage of the estate.

20. DW1 concedes that sometime in 2012 after the Deceased had been discharged from the Intensive Care Unit the Deceased summoned his entire family and told them to live in unity after his demise and stated that they were all entitled to benefit from his estate. She denies that the Deceased made an oral will and denies that the 1st Objector was appointed by the Deceased as Trustee of his entire estate.

21. DW1 concludes by stating that the 1st Objector cannot be trusted with the administration of the estate as he has been in the forefront of illegally allocating estate assets to himself. That the objectors have continually frustrated the efforts of the Administrators to administer the estate as they continue to withhold crucial information relating to the estate. She urges the court to dismiss it its entirety this summons for Revocation of Grant. She expresses the fear that if the 1st objector is made the sole Administrator of the estate then there is a real apprehension that the other beneficiaries will not get their rightful share of the estate.

Analysis and Determination 22. I have carefully considered this summons for revocation of Grant, the Affidavit filed in reply as well as the written submissions filed by both parties. The grounds upon which a Grant may be revoked are set out in section 76 of the Laws of succession Act, Cap 160 Laws of Kenya as follows:-“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;(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either—(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or(ii)to proceed diligently with the administration of the estate; or(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(e)that the grant has become useless and inoperative through subsequent circumstances”.

23. The Objectors have alleged that the documents relied upon by the Respondents to obtain the Grant issued on 21st August 2017 were fraudulent. However, they have not demonstrated how said documents were fraudulent or were illegally obtained. Fraud is a serious allegation and must be specifically proved. In the case of Urmila W/o Mahendra Shah Vs Barclays Bank International Ltd& Another [1979] eKLR, the Court of Appeal stated as follows:-“the onus to prove fraud in a matter is on the party who alleges it. Similarly in cases where fraud is alleged, it is not enough to simply infer fraud from the facts…….…”

24. Similarly in the case of Vijay Morjaria Vs Nansingh Madhusingh Darbar& Another [2002] eKLR, it was held as follows:-“it is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts finish.” (own emphasis)

25. To simply allege fraud without particularizing and/or proving the same is not sufficient to warrant the revocation of the Grant.

26. One of the factors which the objectors cite as evidence of fraud is that the Chief’s letter emanated from the Chief of Huruma location instead of from Kiuru location in Muranga County which is the rural home of the Deceased. It is not a requirement in law that the Chief’s letter originate from the rural home of a Deceased person. All that is required is that the letter be written by a Chief who knew the Deceased well and was in a position to identify the genuine family members of the Deceased.

27. The objectors do not deny that the deceased resided and ran businesses in the Huruma area of Nairobi. The objectors have not alleged much less demonstrated that the letter dated 18th June 2015 was fraudulent. The signature on said letter is not shown to be a forgery.

28. Likewise the contents of the said Chief’s letter had not been shown to be false. Under cross-examination, the 1st Objector states that:-“The deceased had some properties in Nairobi but he was buried in Murang’a. My understanding is that the letter should come from the chief who knows the family well. The list of beneficiaries in the letter provided by my stepmother is correct but the chief does not know the family” (own emphasis)

29. The 1st objector concedes that the list of beneficiaries contained in the Chief’s letter is correct. How then can the letter be said to be fraudulent. The Objector is misguided in his belief that the Chief’s letter must be written by the Chief of the rural home. The fact of the matter is that the Deceased resided in Huruma Location in Nairobi. The Death Certificate lists the Deceased’s place of residence as Eastleigh, which is in Nairobi. Clearly, the Chief in Huruma knew the family well and that is why he was able to identify and list all the genuine beneficiaries. There is no basis to the objection to the Chief’s letter and the same is dismissed.

30. The other ground raised by the objectors in support of their summons for revocation of Grant was the allegation that the Respondent had failed to list all the properties/assets left behind by the Deceased. In his evidence, the 1st objector claimed that the Deceased owned about ten (10) parcel of land and that the Deceased had left a sum of approximately 8. 0 million in a bank account which monies have not been included in the list of assets in the Petition filed by the Respondents. According to the objectors, 60%-70% of the Deceased properties have been omitted from the list of assets.

31. The 1st Respondent who is the surviving widow of the Deceased retorted that she included in the Petition all the assets of the Deceased of which she was aware. She laments that the 1st Objector has blocked her from accessing the safe in the family home in Murang’a where all the ownership documents are stored. Further, the 1st Respondent states that she has no knowledge of the Kshs 8. 0 million allegedly lying in a bank account of the Deceased.

32. The 1st Objector has Cross-Petitioned seeking to be appointed as sole Administrator of the estate on the basis that he is the eldest son of the Deceased and that the Deceased left him in charge of all his assets. Aside from the word of the 1st Objector there is no evidence that the Deceased left him in charge of all his assets. The 1st Objector seeks leadership but he has failed to act as a leader.

33. The 1st Objector appears to be suffering from ‘illusions of grandeur’. He believes that as the eldest son of the Deceased he is entitled to take control of the entire estate and to be appointed as sole Administrator. That is not the position in law. The Law of Succession Act does not anywhere rank first born sons as having priority over other children to petitioner for Grant of letters of Administration.

34. In the case of Re Estateof Edward Openi Oracho(Deceased) [2019] eKLR the court of stated as follows: -“…24. He asserts that as the eldest son of the deceased he ought to be appointed administrator of the estate. I have scrupulously pored through the provisions of the Law of Succession Act, and I have not come across a provision that supports that proposition. Under the Law of Succession Act, being a first born child, leave alone being a first born son, of the deceased does not accord such a child any privileges over the rest of the children of the deceased. Under this law, which governs this process, all the children of the deceased are treated equally regardless of gender or seniority in the order of birth. Either of them qualify for appointment as administrators. This argument about seniority in terms of birth is a carry-over form customary law, which has no place in the current scheme of things.” (own emphasis)

35. The person best suited to be appointed as Administrator is the one who has the interests of the estate at heart as well as the interests of all the beneficiaries. That person is not the 1st Objector.

36. From the evidence it is manifest that the 1st Objector has done all that he could to scuttle the Administration of the estate. He failed to participate in the succession even after having been served with a citation. During cross-examination, the 1st Objector conceded that he was served with the citation dated 25th April 2016, but he chose ignore the same. Further the 1st Objector declined to participate in court ordered mediation. The action of the 1st Objector in blocking access to the family safe is clearly in furtherance of his attempt to deny the Respondents access to the Title Documents and thereby control the estate of the Deceased.

37. In his evidence the 1st Objector admitted that he was in custody of all the documents relating to the estate. He stated that said documents were in a safe in the rural home. If as he claims the 1st Objector is aware of all the assets of the Deceased and has all the Title Deeds then the proper thing would have been to avail the list of assets to the court appointed Administrators. He cannot ‘conceal’ the assets and then blame the Respondents for failing to list said assets.

38. It is clear that the 1st Objector has a problem with his stepmother. He has not been open and transparent to the family regarding the estate of the Deceased. It is laughable that in the written submission the objectors are now calling for the family to sit down and discuss the issue of succession yet they have all along refused to participate in the court ordered mediation. The Objectors are being duplicitous in this regard.

39. The decision by the 1st Objector to adamantly refuse to co-operate with the Respondents and his refusal to participate in this succession cause is selfish. It is not far-fetched to posit that the motive of the objectors is to take control of the entire estate for their own benefit. They have shown that they would not act in a manner to benefit the entire estate. In the circumstances the 1st Objector would not be a suitable Administrator for the estate as to date he has not acted to the benefit of the estate.

40. The objector alleges that he Deceased made an oral will in which he appointed the 1st objector to take charge of his estate. The 1st Objector did not state the date when the Deceased made this oral Will. He has not called as witnesses all those who were present when the oral will was made. The details of how the Deceased wanted his properties to be distributed is also omitted. I find that it has not been shown on a balance of probability that the Deceased left an oral Will. Accordingly I find that the Deceased died intestate.

41. The Deceased had two (2) wives and therefore is survived by two Houses. Section 40 of the Law of Succession Act provides as follows: -“40Where intestate was polygamous(1)Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.(2)……………………………….”

42. As a general rule where a Deceased was polygamous then fairness demands that Administrators be selected from amongst all the houses. Thus, the demand by the 1st objector to be appointed as sole administrator is untenable. DW1 told the court that the 1st Respondent is his stepmother, and the 4th Respondent Hellen Njeri Waikunu is her child, whist the 2nd and 3rd Respondents Joseph Macharia Waikunu and George Chege Waikunu are the children of the late 1st wife of the Deceased. The 1st Objector under cross-examination stated that-“The Administrators include persons from both houses…….”Therefore, both houses are represented in the Administration of the estate.

43. My view is that the 1st Objector is a divisive character who seems to have adopted the attitude that ‘its my way or the highway.” His appointment as sole Administrator would not auger well for the estate. I therefore dismiss the Cross-Petition filed by the Objectors.

44. On the other hand I find that the Administrators who are in place are representative of the two houses and are acceptable to all the other beneficiaries. Rule 73 of the Probate and Administration Rules allows a court “to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

45. This is a very old succession cause filed in 2016. The Deceased died in 2014. It is desirable that the succession proceed and the estate be distributed to the genuine beneficiaries. Accordingly, I uphold the appointment of the 1, 2nd, 3rd and 4th Petitioner/Respondent as the Administrators of the estate of the Deceased. I further direct that the 1st and 2nd Objectors provide to the said Administrators within thirty (30) days all the ownership documents for the assets left behind by the Deceased to enable the Administrators prepare a supplementary list of Assets. This summon for revocation of Grant is dismissed in its entirety. This being a family matter each party shall meet its own costs.

DATED INNAIROBITHIS13TH DAY OFMAY 2022**.MAUREEN A. ODEROJUDGE