[2017] KEHC 6173 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

(FAMILY DIVISION)

MILLIMANI LAW COURTS

SUCCESSION CAUSE NO. 1865 OF 2010

IN THE MATTER OF THE ESTATE OF GEORGE KAMAU NJUGUNA (DECEASED)

KIBUE KAMAU..................................................1ST APPLICANT/ADMINISTRATOR

SCHOLASTICA WAITHERERO AKWALE.....2ND APPLICANT/ADMINISTRATOR

VERSUS

MARY NDUNDU KAMAU.............................1ST RESPONDENT/ADMINISTRATOR

SALOME NGUNGA KAMAU.......................2ND RESPONDENT/ADMINISTRATOR.

RULING

1. On the 13th of July 2013 Mary Ndundu Kamau, Scholastica Waithera Akhwale, Kibue Kamau and Salome Ngunga Kamau were appointed administrators of the estate of George Kamau Njuguna who died intestate, by Justice Musyoka after hearing two applications for revocation filed by Kibue Kamau and Scholastica Waithera Akhwale. The court ordered that Kimani Kamau and Kibue Kamau shall be entered in the list of the surviving children. That Peter May Nyambura, Kinyanjui Mary Nyambura, Muthoni Mary Nyambura and Beatrice Mary Nyambura shall be entered into the list of survivors to represent their deceased mother, Mary Nyambura Kamau. That Mohamed Ali Adulrahman, Abdulrahman Ali Abdulrahamn and Ibrahim Ali Abdulrahman shall be entered into the list of survivors as representing their deceased mother, Anne Mumbi Kamau

2. On the 5th of February 2016 Kibue Kimani filed a summons for confirmation of grant seeking that the grant of letters of administration intestate made to the said Mary Ndundu Kamau, Scholastica Wathera Akhwale, Kibue Kamau and Salome Ngunga Kamau in this matter on the 12th July 2013 be confirmed. Parties failed to agree on the mode of distribution and it was then agreed that they file written submissions in respect of the same. They relied on the affidavits filed together with their written submissions.

3. Kibue Kimani in his affidavit dated 28th January 2016 lists the children, dependents and beneficiaries as follows.

a. Mary Ndunda Kamau Widow

b. Scholastica Waithera Akhwale Daughter

c. Kibue Kamau Son

d. Salome Ngunga Kamau Daughter

e. Kimani Kamau Son

f. Peter Mary Nyambura Grandson

g. Muthoni Mary Nyambura Granddaughter

h. Beatrice Mary Nyambura Granddaughter

i. Mohamed Ali Abdulrahamn Grandson

j. Abdulrahma Ali Abuldrahman Grandson.

k. Ibrahim Ali Abdulrahman Grandson.

4. He depones the estate of the deceased is comprised of the following assets.

i. Land Reference No. 36/1/942

ii. Riruta Gati Plot No 181

iii. Naivasha/Mwichirigiri/Block 1/2148

iv. Naivasha/Mwichirigiri/Block 1/2147

v. Kijabe/Kijabe Block J/2840

vi. Longonot PH 11/55H/D Comm.

vii. Longonot PH 11/JL/R/Res

viii. Longonot PH 11/54H/D Comm

ix. Dundori/382/DL/D Res

x. Longonot PH/56H/d Comm

xi. Utheri Wa Ureri Mem/No 472

xii. Mirima Ssuswa Farm

xiii. Bank Account-Standard Chartered Bank

xiv. Toyota Mark II Registration No. KAD 355N

5. Kibue Kamau avers that the estate should be distributed equally between the two houses of Esther Wanjiru Kamau (deceased) and Mary Ndundu Kamau represented by Mary Ndundu Kamau and Salome Ngunga Kamau on one part and Scholastica Waithera Akhwale and Kibue Kamau on the other part. That the following properties be inherited by Mary Ndundu absolutely,

a. Naivasha/Mwichirigiri/Block 1/2148

b. Naivasha/Mwichirigiri/Block 1/2147

c. Longonot PH 11/55H/D Comm.

d. Longonot PH 11/JL/R/Res

e. Longonot PH 11/54H/D Comm

f. Utheri Wa Ureri Mem/No 472

g. Toyota Mark II Registration No. KAD 355N

That the following list of properties to be inherited by Kibue Kamau Scholastica Waithera Akhwale for themselves and in trust for the other beneficiaries entitled to inherit under the late Esther Wanjiru Kamau

a. Land Reference No. 36/1/942

b. Riruta Gati Plot No 181

c. Dundori/382/DL/D Res

d. Longonot PH/56H/d Comm

e. Mirima Ssuswa Farm

f. Bank Account-Standard Chartered Bank

g. Kijabe/Kijabe Block J/2840

6. Salome Ngunga Kamau in her replying affidavit dated 9th March 2016 sworn on her behalf and on behalf of Mary Ndundu Kamau her Co-administrator states that the deceased was survived by the following persons forming the two houses of Mary Ndundu Kamau and Esther Wanjiru Kamau (deceased)

Mary Ndundu Kamau Family

a. Mary Ndundu Kamau Widow

b. Salome Ngunga Kamau Daughter

c. Moses Kariuki Kamau Son

d. Sammy Njuguna Kamau Son

e. Regina Waithera Kamau Daughter

Esther Wanjiru (Deceased) Family

a. Kibue Kamau Son

b. Kimani Kamau Son

c. Scholastica Waithera Akhwale Daughter

d. Mary Nyambura (deceased) Daughter

Muthoni Mary Nyambura Granddaughter

Beatrice Mary Nyambura Granddaughter

Peter Mary Nyambura Grandson

e. Anne Mumbi Kamau (deceased) Daughter

Mohamed Ali Abdulraham grandson

Abdulrahman Ali Abdulraham Grandson

Ibrahim Ali Abdulrahman Grandson.

She admits the list of assets of the deceased is as narrated by Kibue Kamau. She however states that they have not had a meeting to discuss the mode of distribution nor has there been identification of the shares that everyone is entitled to. Her proposed mode of distribution is as follows;

Mary Ndundu Kamau Family

a. L.R. 36/1/942 to be used for the widow upkeep and medical expenses

b. Riruta Gatina No. 181

c. Naivasha/Mwichigiri Block 1/2148

d. Naivasha / Mwichigiri Block 1/2147

e. Toyata Mark II KAD 355N

f. Kijabe/Kijabe Block 1/2840

Esther Wanjiru Kamau (deceased) Family

i. Longonot PH 11/55H/D Comm.

ii. Longonot J/L/D

iii. Longonot PH 11/54H/D Comm

iv. Dundori/382/DL/D Res

v. Longonot 56H/D

vi. Utheri Wa Ureri Mem/No 472

vii. Mirima Ssuswa Farm

viii. Bank Account-Standard Chartered Bank

7. In a further affidavit dated 20th April 2016 Kibue Kamau states that he has established that there were certain assets that were sold to third parties in 2013 and Title Deed issued in 2014, these being Nairvasha/Mwichigiri Block 1/2147 and Naivasha/Mwichigiri Block 1/2148 sold and transferred to on Robert Gachie Mbugua on 7th July 2014. He also established that Longonot 544/D was also sold in 2013 yet in 2011 at the time of the Petition, it was in the name of the deceased and available for administration and distribution. That Mary Ndundu Kamau and her family retained the deceased matrimonial home in Loresho, house no. 25 Nairobi and already has the title for the home in her name and the only other asset with the title in Nairobi L.R. No. 36/1/942 out to be given to the family of Esther Wanjiru Kamau. That the LR. No. 36/1/942 has several rental houses from which the respondent have been collecting rent and it would be fair and just that the accounts be rendered before the decision on final distribution.

8. The administrator applicant in his submissions adopts what is deponed in his affidavits on the mode of distribution. It is submitted that the core administrator Scholastica Waithera has consented to the mode of distribution and the beneficiaries listed have given their consent. That though the respondents proposed that Naivasha/Mwichigiri Block 1/2147, Naivahsa Block 1/2148 and Longonot 544/D be given to the applicants they have the full knowledge that they sold the property for their own benefit. That the property was sold and transferred to Robert Gachie Mbugua in 2014 despite the court order of 2013 cancelling all the transactions done on the basis of the grant issued 2011 to the respondents.

9. The respondents submit that the grant should not be confirmed as there has been no meeting between the administrators to agree on the mode of distribution nor has there been identification of the shares that each of the beneficiaries is entitled to. The respondent’s attempt at having a round table discussion with regard to identification of the deceased properties and distribution of the estate thereof have been frustrated owing to lack of co-operation by both applicants and the unavailability of the 2nd applicant/administrator who resides and works in the United States of America. That there is no consensus to some extent with regard to the net estate of the deceased and part of its distribution. That they do not oppose the allocation of Naivasha/Mwichigiri/Block 1/2147 and Block 1/2148 to them. It is submitted that two parcels were sold to Robert Gachie in the year 2011 under the previous grant which was issued to the administration on the 3rd March 2011 and confirmed on 10th October 2011. This was done to offset the deceased’s estate liabilities. That the house in Loresho in which the 1st respondent resides is not part of the estate. It is solely owned and has been registered to the 1st respondent and therefore does not form part of the estate of the deceased. That the 1st respondent is 80 years old she constantly requires medical care as she is diabetic and given age and health her only source of livelihood is from the rental income she receives from LR No. 36/1/942 and Riruta Gatina Plot No. 181 which caters for her medical bills and upkeep. That parcels of land namely Longonot PH 11/54H/D, Longonot PH 11/55H/D, Longonot PH 11/JL/D/Res and Longonot PH/56H/D Comm should devolve to the house of Esther Wanjiru Kamau (deceased). That the 1st applicant is amicable to Longonot PH/56H/D Comm devolving to the house of Esther Wanjiru Kamau. That given the same other parcel of land at Longonot devolve to the same house as the applicants who are from the said house are in a capacity to oversee the properties.

10. It is further submitted that the affidavit of Kibue Kamau filed on 28th January 2016 does not disclose all the beneficiaries of the deceased’s estate. That Moses Kariuki Kamau, Sammy Njuguna Kamau and Regina Waithera Kamau, who are children of the deceased with his surviving wife have been left out. He has also left out Kinyanjui Mary Nyambura and Wanjiru Mary Nyambura who are adult grandchildren of the deceased and his late wife Esther Wanjiru Kamau, and children of the decease’s late daughter Mary Nyambura. That if the grant is confirmed as proposed, a number of bona fide beneficiaries of the deceased’s estate stand to be disinherited in contravention of section 38 of the Law of Succession Act Cap. 160 which provides “ where an intestate has left a surviving child or children but no spouse, the net intestate shall subject to the provisions of sections 41 & 42 devolve upon the surviving child, if this be only one, or be equally divided among the surviving children. That there is no consent on record by some of the beneficiaries namely; Mary Peter Nyambura, Kinyanjui Mary Nyambura, Muthoni Mary Nyambura and Wanjiru Mary Nyambura, who are entitled to inherit by virtue of being grandchildren of the deceased as required under rule 40 (8) of the Probate and Administration Rules. That it is clear that properties forming part of the estate of the deceased are yet to be identified and ascertained. That this is evidenced in the further affidavit by Kibue Kamau sworn on 20th April 2016 in which under paragraph 6 he alludes to the supposed sale of Longonot 544/D which allegedly belonged to the deceased. That they are not aware of the existence of such property belonging to the deceased. That under section 71 of the Law of Succession Act the Court has to satisfied to the respective identities and shares of all persons beneficially entitled and when confirmed such grant shall specify all such persons and their respective shares. That therefore the grant cannot be confirmed as the application for confirmation of grant is misconceived and the matter is not ripe for confirmation of grant and distribution of the estate. The respondent submits that the court should exercise its discretion. Under section 71(2) (d) of the Law of Succession Act Cap. 160 by postponing confirmation of the grant to such time when the issues mentioned are resolved.

11. Having considered the application, affidavits and submissions, I note that the applicant has not obtained the consents of other beneficiaries namely; Peter Mary Nyambura, Kinyanjui Mary Nyambura and Muthoni Mary Nyambura and that the following beneficiaries are not listed, Moses Kariuki Kamau, Sammy Njuguna Kamau and Regina Waithera Kamau. This is contrary to the provisions of Rule 40 (8) which provides that all beneficiaries need to give consent to the mode of distribution. I also note that the parties have failed to agree on some properties namely Riruta Gatina Plot No. 181, Land Reference 36/1/942, Kijabe/Kijabe Block J/2840, some properties at Longonot and Utheri wa Ureri Mem/No. 472. They need to agree on the same and also ascertain all the properties of the deceased which are in existence. The applicant has also raised the issue of having the respondents account for the rent they have been collecting from LR. NO. 36/1/942 which has several rent houses. I agree with the respondents submissions that the application for confirmation of the grant is premature. I will postpone the same and order the parties to resolve the issues on the above mentioned properties. The parties shall have a meeting to discuss the above mentioned issues, mode of distribution and identification of the shares that each beneficiary is entitled to and return to court within 30 days for further directions. Costs shall be in the cause.

Dated, signed and delivered this 2nd Day of February 2017

R. E OUGO

JUDGE

In the presence of:

………………………....For the Applicants

………………………....For the Respondents

Ms Charity Court Clerk