[2022] KEHC 9880 (KLR)

Karega & 2 others v Kiama & 2 others (Succession Cause 6 of 2019) [2022] KEHC 9880 (KLR) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9880 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause 6 of 2019

TM Matheka, J

July 8, 2022

IN THE MATTER OF THE ESTATE OF JAMES KAREGA KIAMA (DECEASED)

Between

Leah Murigi Karega

1st Applicant

Dorcas Njambi Karega

2nd Applicant

Nancy Waitherero Karega

3rd Applicant

and

Aggrey Kangethe Kiama

1st Respondent

Ibrahim Chege Karega

2nd Respondent

Moses Kiama Karega

3rd Respondent

Ruling

1. James Karega Kiama died on 29th August 2017.

2. At the time of his death he was an administrator in Nairobi High Court Succession Cause Number 655 of 2003 Re-Estate of Leah Murigi Kiama, his mother. He was co-administrator with Aggrey Karega Kiama.

3. He was also a beneficiary of that estate, having been bequeathed, 2 properties, NKU/MUM BK 3/484 and farm LR 12167/5 Lanet Nakuru 3. 762 ha.

4. On 11th March 2019 Aggrey Kangethe Kiama. Ibrahim Chege Karega and Moses Kiama Karega filed a Petition for Special Limited grant with respect to the estate of James Karega Kiama. The purpose of the grant was –[to substitute] the deceased in an application for rectification of the grant to be filed in Nairobi High Court Succession 665 of 2003 as Administrators of the deceased’s and [to facilitate] the transmission of the deceased’s share in the rectified grant to the deceased’s estate under [their] names as administrators.

5. They described themselves as the brother and sons of the deceased. In the Supporting Affidavit to the application they listed all the children of the deceased, the two (2) properties he had been bequeathed and in addition his Family Bank Account No. xxxxxx.

6. It was their averment that the purpose of this grant was to enable the rectification in the Certificate of Confirmation of Grant in the Cause 665 of 2003 which was issued on 25th June 2007, and which in which mistakes had made it difficult to transfer the shares of the estate to their respective beneficiaries. They annexed the Certificate of Confirmation of Grant, minutes of a meeting held on 18th August 2018 to discuss the estate of James Karega, in which it was resolved that the three of them become the administrators of the estate, and a letter from the chief Lanet Umoja Location to the Deputy County Commissioner Bahati listing all of the 9 beneficiaries of the deceased’s estate viz;Leah Murugi Karega – xxxx - DaughterEsther Muthoni Karega – ID xxxx - Daughter Dorcas Njambi Karega – ID xxxx - DaughterFaith Wanjiku Karega – ID xxxx - DaughterNancy Waitherero Karega – ID xxxx - Daughter Josephine Ngeno Karega – ID xxxx - Daughter Moses Kiama Karega – ID xxxx - Daughter Ibrahim Dominic Chege Karega – ID xxxx - SonChristopher Kangethe Karega Bk No. xxxx - SonSeeking to close the deceased’s Family Bank Account through one Moses Kiama.

7. The Limited Grant of Administration Ad Litem was issued on 19th March 2019 (A. K. Ndung’u) in the following terms;“Limited for the purpose of substituting the deceased in an application for rectification of grant in Nairobi High Court Number 665 of 2003, as Administrators of the deceased’s estate.”

8. On 31st May 2021 Leah Murugi Karega filed Summons for Revocation of Grant under Section 76 (d) of the Law of Succession Act, rules 44 and 73 of the P & A Rules. Seeking orders;1. Spent;2. The Special Limited Grant issued to Aggrey Kangethe Kiama, Ibrahim Chege Karega And Moses Kiama Karegaon 19th March, 2019 be revoked;3. This Honourable Court be pleased to issue an order of inhibition against Land Parcels known as Farm No L.r No. 12167/ 150 Lanet Nakuru And Farm No. L.r No. 12167/157 Lanet Nakuruand the same be registered by the registrar of Lands Nakuru pending hearing and determination of this application inter-parties.4. This Honourable Court be pleased to issue a temporary order of injunction restraining all the respondents by themselves, their servants, agents, assigns, or any person claiming title in any way from sub dividing, alienating, selling, transferring or disposing off or in any other manner whatsoever dealing with the entire Land Parcels known as Farm No L.r No. 12167/150 Lanet Nakuru And Farm No L.r No. 12167/157 Lanet Nakuru pending hearing and determination of this application inter-parties.5. The Ocsfor Lanet Police Station do enforce these orders and ensure that peace and order prevails until full determination of this application.

9. In the Supporting Affidavit sworn on 27th May, 2021 Leah Murugi Karega. Deponed that the Special Limited Grant herein issued on 19th March ,2019 was issued to the respondents herein through deceit and concealment of material facts and that the petition for the said grant was filed without the Applicant’s and other deceased’s children knowledge and consent.

10. She averred that the Applicants herein were not invited and did not even attend any family meeting purporting to appoint the Respondents as administrators of their father’s estate and that in particular the documents/pleadings presented by the Respondent in support of their petition for Special Limited Grant contained forged signatures in an attempt to hoodwink and mislead this court, which matter had now been reported to the Dciooffices.

11. It was her deposition that she learnt of the existence of this suit when the Respondent’s started subdividing their late father’s property Farm No L.r No. 12167/150 Lanet Nakuru and Farm No.L.r No. 12167/157 Lanet Nakuru with an intention to sell the same.

12. She averred that Special Limited Grant did not grant the respondents powers to distribute the deceased’s estate.

13. She stated that when she reported the matter to the Chief he referred her to the National Legal Aid Service (NLAS) for assistance and upon registering her issue the NLAS wrote to the 1st Respondent requesting him to attend a mediation session but he ignored the request and failed to attend the meeting.

14. She deposed that she and her sisters have now been unlawfully evicted by the Respondents from their father’s property and they have reported the matter to Lanet Police Station under OB numbers 11/25/03/21 and 9/06/05/2021.

15. She averred that unless prohibitory orders are issued and the Special Limited Grant herein is revoked, her sisters and her as the biological daughters of the deceased and rightful heirs of his property stand being disinherited and rendered destitute, and resultantly they will suffer irreparable loss and damage.

16. It was her deposition that the 1st respondent who is a brother to the deceased does not have a right to inherit and or administer the deceased’s estate in the priority of rights set out in Section 39 of the Law of Succession Act.

17. The Application is opposed by Aggrey Kangethe Kiama who swore a Replying Affidavit on 1st July 2021.

18. He deposed that he is the joint administrator to the deceased estate with the 2nd and 3rd respondents and that his only interest in the estate is to distribute the same as per the deceased’s wish to his beneficiaries.

19. He averred that he is willing to relinquish his position as an administrator of the estate herein if the beneficiaries deem it fit and in their best interests.

20. He stated that his role as an administrator was limited to fulfilling the deceased wishes in distributing his estate amongst his children as the deceased had known them to disagree a lot therefore he needed an impartial and reasonable elder to assist.

21. He deponed that the Affidavit of Leah Murugi Karega is laced with falsehoods meant to achieve her selfish interests to the exclusion of other beneficiaries of the deceased’s estate.

22. He stated that on 11th August 2018, the family of the deceased held a meeting in which he attended together with Peter D. Thanangah who is his uncle, Rogers Kiama and Patrick Kiama who are his brothers and that the minutes and signatures presented before court are genuine.

23. He averred that in the said meeting, the Applicants were absent. That the 1st Applicant chose not to attend the meeting, 2nd Applicant was not reached on phone while the 3rd respondent after receiving the information about the meeting stated that she would abide by its outcome.

24. It was his deposition that was resolved that, in line with the deceased’s wishes, he be appointed a joint administrator together with the 2nd and 3rd respondents and it was upon that foundation that he moved this Honourable Court on 11th March, 2019 seeking for a Special Limited Grant whose sole purpose was to substitute the deceased’s estate herein in the application for Rectification of Grant to be filed in the Nairobi High Court in Suit Number 665 of 2003 and his place. He stated that it is evident that in the said Petition for a Special Limited Grant, they duly disclosed all the beneficiaries to the Estate of the deceased; that the Limited Grant was for purposes of filing the Application for Rectification and nothing further and he has not in any manner tried to distribute the estate of the deceased among the beneficiaries.

25. He averred that the 1st applicant is on frolic of her own as she had not stated anywhere that she had authority of the other applicants to swear the Supporting Affidavit and that he had been informed by the other beneficiaries that the 2nd and 3rd applicants were not even aware of the instant suit.

26. It was his deposition that the Special Limited Grant served its purpose therefore revoking the same would be causing unnecessary prejudice to the beneficiaries of the larger estate of Leah Murigi Kiama.

27. Leah Murugi Karega swore a further Affidavit on 7th October, 2021. She deponed that the 1st Applicant had immense interest in the Estate of their Deceased father and especially in Farm No.L.R No.12167/157 Lanet Nakuru which parcel he has sold to third parties who have illegally constructed permanent houses.

28. She disputed that the 1st respondent obligation is to fulfill the deceased’s wish as the deceased never left any will and that the 1st Respondents claim was aimed at disinheriting the rightful heirs of the deceased.

29. It was her deposition that the letter to the Deputy County Commissioner dated 20th September 2018 at page 14 of the Replying Affidavit was altered to conceal the respondent’s action designed to take control of the deceased’s bank account at Family Bank without the requisite authority.

30. She accused the respondents of continuing to use the said limited grant to manage and collect rent from the deceased’s rental properties at Plot No. NKR/Mun Block 3/484 measuring 0. 0674 Ha to the exclusion of other beneficiaries.

31. On 25th November, 2021 parties through their respective counsel took directions to canvass the Application by way of written submissions.

Applicants’ Submissions 32. The Applicants filed their submissions on 2nd February, 2022.

33. They framed the following as issues for determination:-1. Whether or not the issuance of the Confirmed grant to the Respondents was proper in light of clear failure to obtain consent from all beneficiaries at the confirmation thereof.2. Whether or not the Respondents have intermeddled with the deceased’s estate and the consequence thereof.3. Whether or not the Grant of Letters of Administration issued jointly to the Respondents on 2019 should be revoked on basis of fraud.

34. On the first issue, the Applicants’ advocate argued that it is a mandatory requirement for a person who seeks to administer the estate of a person who died intestate to obtain consent under Rule 26 of the Probate and Administration Rules.

35. That the evidence on record shows that the Applicants consent was not obtained and the unjustified failure by the respondents to comply with the provisions of Rule 26 of the Probate and Administration Rules should lead to the inevitable nullification of the grant. For this proposition reliance was placed on the cases of Al-amin Abdulrehman Hatimy Vs Mohamed Abdulrehman Mohamed & Another [2013] eKLR & In The Matter of The Estate of Isaac Kireru Njuguna (deceased) Succession Cause No. 1064 of 1994

36. On the second issue, the Applicants submitted that the estate of a deceased person is protected under Section 45 of the Law of Succession Act which lays down the rule on intermeddling.

37. The applicants cited the case inGitau & 2 Others Vs Wandia & 5 Others(1989) KLR231 where the court held that “Any act done concerning the estate of the deceased by a person who has not obtained representation amounts to intermeddling with estate.” and the case In The Matter Of Wilson Nzuki Ngolo (deceased) Machakos High Court Probate And Administration Cause Number 152 Of 2000 (mwera. JJ) held that:-“Only a person who has a grant or other legal authorization may handle the property of a deceased person.”

38. The applicants submitted that the respondents having subdivided the deceased property in particular Farm No L.r No L.r No. 12167/150 Lanet Nakuru And Farm No. L.r No.12167/157 Lanet Nakuru,placed beacons on the property, started negotiation with a potential buyer, evicted the Applicants from the deceased’s property and continued to collect rent from the deceased’s rental properties at Plot No. NKR/Mun Block 3/484 measuring 0. 0674 Ha to the exclusion of the other beneficiaries without a valid grant amounts to intermeddling.

39. On the last issue, the Applicants cited the provisions of section 76 of the Law of Succession Act and the cases of Estate Of L A K (deceased)(2014) eKLR, Jesse Karaya Gatimu Mary Wanjiku Githinji [2014] eKLR, Matheka & Another Vs Matheka[2005]2 KLR 455 & Joyce Ngima Njeru & Another Vs Ann Wambeti Njue[2012] eKLR where the courts discussed circumstances under a which a grant can be revoked as provided for under Section 76 of the Law of Succession Act. 40. The applicants submitted that the grant was obtained fraudulently in that the respondents made false allegations by stating that:-i.the estate of the deceased held a meeting on 18th August 2018 and agreed that the respondents be appointed as administrators;ii.forging documents during the petition for special limited grant in particular the minutes of the alleged meeting held on 18th August ,2018 and accompanying resolution;iii.petitioning for special limited grant without the consents of applicants and other family members &iv.Failing to disclose to the court that applicants neither participated nor consented to the proceedings.

41. It was their contention that concealment of material facts is a ground for revocation of a grant. To bolster this position reliance was placed on the case of Priscilla Ndubi & AnothervsGerishon Gatobu Mbui 2018 eKLR where the Court ordered revocation of a grant on grounds of non-disclosure of material facts during the confirmation of the Grant.

Respondents’ Submissions 42. The Respondent filed their submissions on 28th February, 2022.

43. They submitted on two issues. Namely:-a.Whether the Applicants have locus standi to commence the instant proceedings.b.Whether the Special Limited Grant issued to the Respondents should be revoked.

44. On issue (a), the Respondents submitted that section 3(1) of the Law of Succession Act defines an administrator as a person to whom a grant of letters of administration has been made under the Act and that under Section 82 of the same Act personal representative have powers to enforce, by suit or otherwise, all cause of action which by virtue of any law survive the deceased or arising out of his death for his personal representative.

45. They submitted that the Applicants do not have any authority to bring any action against the respondents as they ought to have first moved the Court to be clothed with such authority that is vested in an administrator to the estate of the deceased. The respondent relied on the cases of In Re Estate Of David Kiamba Muli(Deceased) [2021]eKLR, MKS HC Succ.Cause No.80 Of 2011: Alexander Mutunga Wathome vs Peter Lavu Tumbo & Anor[2015] eKLR, Millicent Mbatha Mulavu & Another Vs Annah Ndunge Mulavu & 3 Others [2018]eKLR and Ibrahim vs Hassan & Charles Kimenyi Macharia, Interested Party [2019] eKLR where it was held that a person is clothed with authority to represent the estate of the deceased person upon obtaining a grant of representation.

46. The Respondents submitted that failure by the Applicants to obtain such authority amounted to a fundamental breach that cannot be sustained by this court.

47. On the second issue, the Respondents’ Advocate argued that section 76 of the Law of Succession Act is inapplicable to the Special Limited grant since the said grant did not authorize the respondent’s to undertake any of the actions contemplated under section 76 d . He stated that the purpose of the special limited grant ended the moment the deceased was substituted and any further action to be undertaken by the respondents had to be done after applying for grant of letters of administrations and its confirmation.

47. The respondent further argued that Section 26 of the Law of Succession Act is applicable to parties applying for a full grant or letters of administration but not to parties applying for a limited special grant as is the case herein. For this proposition reliance was placed on the case of Winrose Emmah Ndinda Kiamba vs Agnes Nthambi Kasyoka [2021] eKLR.

48. On the issue of intermeddling, the respondents’ counsel submitted that the same is not a ground for revocation of a grant.

49. The respondents added that allegation of fraud, intermeddling, subdivision of suit land, placing of beacons; negotiations with potential buyers and alteration of a chief’s letter are unproved.

50. That if the court is inclined to grant inhibition orders then the same should subsist until the final distribution orders in respect of the deceased’s estate are made in the substantive succession cause.

52. They prayed for dismissal of the summons herein with costs to the 1st respondent.

Issues for determination 53. The following issues arise for determination:-i.Whether the Applicant has locus standi to file and prosecute this Applicationii.Whether this court should grant the orders soughtAnalysisIssue No.1- Whether The Applicant Has Locus Standi To File And Prosecute This Application

54. It is trite law that pleadings filed in court by persons with no locus standi are void ab initio and the court does not have jurisdiction to hear and determine such matters. R. Nyakundi J in Ibrahim Vs Hassan & Charles Kimenyi Macharia, Interested Party [2019] eKLR:“Locus standi is basically the right to appear or be heard in court or other proceedings. That means if one alleges the lack of the same in certain court proceedings, he means that party cannot be heard, despite whether or not he has a case worth listening. The issue herein is whether the Applicant lacks the requisite locus standi to seek relief from the court to revoke the grant in question issued to the Respondent. In my view, issues as regards locus standi are critical preliminary issues which must be dealt with and settled before dwelling into other substantive issues.”

55. Section of the Law of Succession Act states Revocation or annulment of grant;“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—”The Applicant brought this summons as a beneficiary of the estate of her deceased father. She did not need any letters of administration to seek the revocation of the grant. No such requirement is placed on an applicant by Section 76.

Issue No.2- whether this court should grant the orders sought 56. The applicant seeks revocation under Section 76(d) of the law of Succession Act which states as follows;(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;

57. It is evident from the grant itself that it was not capable of any of the actions provided for under this provisions of the law. It is therefore not revocable under these provisions, unless it is demonstrated that the respondents indeed carried on actions that would fall under those provisions which would definitely be contrary to the grant.

58. On the issue of fraud, the 1st Applicant accused the 1st respondent for forging the minutes of 18th August, 2018 and accompanying resolution she has not tendered any proof that the meeting of 18th August 2018 never happened and that the signatures of the other beneficiaries who were in attendance were forged. Save for the 1st Applicant, the 2nd and 3rd applicants have maintained a studious silence and more particularly they have not challenged that they were informed about the said meeting. All other beneficiaries too have not raised any complaint regarding the meeting in question. The 2nd witness to the said meeting one Rodgers Mwangi Kiama, a brother to the 1st Applicant swore an Affidavit on 7th October, 2021 deposing that he never appended his signature on the said minutes and that the signature that appears therein is a forgery.

59. This court cannot ascertain whether the meeting was held on 18th August, 2018. What is clear is that the 1st applicant never participated in that meeting and there is no evidence that she declined to attend. However, there is no evidence on record to show that the 1st Applicant forged the minutes of the meeting of 18th August, 2018 and accompanying resolution.

60. On the issue of concealment of material facts, the 1st applicant accused the 1st respondent for filing this succession cause without the consents of applicants herein and other family members and for failing to disclose to the court that the applicants never participated or consented to the proceedings. It is imperative to point out that the 1st Applicant have not demonstrated that she obtained the authority of the 2nd and 3rd applicants to depose the supporting affidavit also on their behalf. As such this proceedings is essentially between the 1st applicant and the 1st respondent. As indicated above other than the 1st Applicant, the 2nd and 3rdApplicants and other beneficiaries/ alleged family members have not challenged that their consent was not obtained prior to petitioning for the grant herein.

61. The 1st respondent has not proved that the 1st Applicant was aware of the meeting of 18th August, 2018. The evidence on record shows that the 1st Applicant did not sign the documents before the court and her consent was not obtained. There is absolutely no evidence that she was involved in the succession process as the rightful beneficiary.

62. However I did find the case of Winrose Emmah Ndinda Kiamba vs Agnes Nthambi Kasyoka illuminating as it dealt with an almost similar issue. The court was of the view that consent with regard to special limited grants of representation need not be mandatory.

63. The court in its Ruling in that case observed that the grant intended to be reinstated was a Limited Grant of Letters of Administration ad litem which was limited for the purpose of filing suit until further representation was granted by it. The court stated that it was aware that a limited grant could also be revoked if any or more of factors in section 76 of the Law of Succession Act Cap 160 of The Laws of Kenya were present. The court cited the provisions of section 54 and 55 of the law of Succession Act which provides that;“A court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act.”

64. The court opined that that such a grant was normally issued due to the exigencies arising in relation to the estate and which could not wait for issuance of full grant through the normal way; that it was also without prejudice to the right of any other person to apply for full grant of representation to the estate of the deceased and as such, limited grant may not be subjected to full and strict compliance with the requirements meant for afull grant of representation. That again, the person to whom the grant is so made undertakes to administer the estate according to the law but limited for the purpose for which the grant was issued until a further grant of representation is made by the court. In the aspect of consent of the other beneficiaries, the court stated that Law of Succession Act explicitly provides that, a court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act. The aforementioned, clearly depicted that the aspect of consent with regard to special limited grants of representation need not be mandatory.

65. This court however under section 73 has inherent powers to make orders in the interest of justice or to prevent abuse of the court process. The rule imposes a duty on the Court to make orders to protect from waste or to preserve the estate of a deceased person. From the foregoing, it is clear that a special Limited Grant for the estate of James Karega Kiama that was issued on 19th March, 2019 to the Respondents herein was for limited purposes of Substituting the deceased in an Application for Rectification of Grant to be filed in the Nairobi High Court in Suit Number 665 of 2003, as Administrators of the Deceased’s Estate. It was not issued for the purposes of distributing the estate of the deceased.

66. The applicant is a beneficiary of the estate of her father, and may have genuine fears over the actions carried out by the 1st respondent using the Limited Grant. The letter from the chief seeking to close the deceased’s estate was not intended by the Limited Grant hence the attempt by one of the administrators in the Limited Grant to exceed that power was wrong.

67. The 1st respondent has conceded that it is in order for the order of inhibition and injunction to be confirmed pending the administration of the estate of the deceased. He has demonstrated that a revocation of the limited grant would render chaos in the estate of Leah Murigi Kiama which is under transmission.

68. It is clearly evident that the beneficiaries of the estate of James Karega Kiama have not taken out letters of administration for the estate of their father and may be mistaken that the Limited Grant issued to the three is a bar to their filing a Petition for Full Grant, I say to them, nothing could be further from the truth.

69. The Limited Grant remains in force “until further representative be granted.”

70. In view of the foregoing, I do not find it necessary to revoke the Limited Grant.

71 .However, the temporary orders be and are hereby confirmed:A.A. An order of inhibition against Land Parcels known as Farm No L.r No. 12167/ 150 Lanet Nakuru And Farm No. L.r No. 12167/157 Lanet Nakurube and is hereby issued and the same be registered by the Registrar of Lands Nakuru pending the taking out of letters of administration by the Beneficiaries of the Estate of the deceased herein.B.B. an order of injunction be and is hereby issued restraining all the respondents by themselves, their servants, agents, assigns, or any person claiming title in any way from sub dividing, alienating, selling, transferring or disposing off or in any other manner whatsoever dealing with the entire Land Parcels known as Farm No L.R No. 12167/150 Lanet Nakuru and Farm No L.R No. 12167/157 Lanet Nakuru pending the taking out of letters of administration by the Beneficiaries of the Estate of the deceased herein.

72. The beneficiaries of the estate of the deceased to proceed to file Petition for the full grant of the estate of their deceased father and upon the appointment of an administrator or administrators, the limited grant will stand revoked.

73. The prayers sought therefore are untenable and the application is dismissed.

74. Each party to bear their own costs.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF JULY, 2022. MUMBUA T. MATHEKA,JUDGE.CA EdnaN/AKabuthia Kamau & Associates Advocates