[2017] KEHC 3207 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 1723 OF 2015

IN THE MATTER OF THE ESTATE OF BETH WAGO KIMANI (DECEASED)

LOISE NJERI MUNA……………………..……………...PROTESTORS

-VERSUS-

CATHERINE MUGURE NJOROGE

RAHAB WAMBUI KAIRO

SHEILA WARUGA KIMANI

AYUB MUHUNI KIMANI………………………...……ADMINISTRATORS

R U L I N G

1. The two proceedings herein relate to the estates of two deceased persons. The first is a Probate Cause being P&A Cause No. 2814 of 1997 In the matter of the estate of Stephenson Kimani Njuguna. The second is an Intestate cause, being Succession Cause No. 1723 of2015 In the matter of the estate of Beth Wago Kimani. The two proceedings were consolidated.

2. In P&A Cause No. 2814 of 1997 in the matter of the estate of Stephenson Kimani Njuguna (hereinafter Stephanson), a Grant of Probate dated 3rd March 1998 was issued to Beth Wago Kimani and Wilson Murunyu Njuguna. The two executors passed on and as a result Catherine Mugure Njoroge, Rahab Wambui Kairo, Sheila Waruga Kimani and Ayub Muhuni Kimani applied and were issued with Grant of Letters of Administration with Will attached on 30th November, 2015.

3. In Succession Cause No. 1723 of 2015 in the matter of the estate of Beth Wago Kimani (hereinafter Beth), the deceased died intestate and a Grant of Letters of Administration intestate was made to Catherine Mugure Njoroge, Rahab Wambui Kairo, Sheila Waruga Kimani and Ayub Muhuni Kimani on 23rd October 2015. The late Beth was survived by:

Catherine Mugure Njoroge,

Rahab Wambui Kairo,

Sheila Waruga Kimani

Ayub Muhuni Kimani

The list of assets in the estate is as set out below:

i) Title No. Ruiru East/Juja East Block 2/4777

ii) Plot for: Title No. Ruiru East/Juja East Block 2/4777

iii) Plot No. F/287 Githurai LP No. 8788/5

iv) Title No. Galu Kinondo 3

v) Standard Chartered Bank (K) Ltd, Harambee Avenue A/c No.[particulars withheld]

vi) Kenya Commercial Bank Ltd Gatundu Branch A/C No. [particulars withheld]

vii) Family Bank A/c No.[particulars withheld]

By a consent recorded on 22nd March, 2017 the two children of the late Margaret Njanja, a daughter to the two deceased persons were included as beneficiaries in place of their mother.

4. The Administrators argued that the Will in P&A 2014 of 1997 has never been challenged neither was an application brought under Section 26of theLaw of Succession Act for a dependant’s provision to be made. As such the assets of this estate can only be distributed according to the Will. Further that under paragraph 5 of the Will the property known as L.R. No. 209/84061/14 was bequeathed to Ayub Muhuni Kimani.

5. The Administrators submitted that under paragraph 6 of the Will, the testators’ wife namely the late Beth had a life interest in the residue of the estate. Upon the death of Beth, the net estate was to devolve to the testator’s children who survived him. The testator passed away on 8th February 1997 and was survived by the following children:-

a) Catherine Mugure Njoroge,

b) Rahab Wambui Kairo,

c) Sheila Waruga Kimani

d) Ayub Muhuni Kimani

e) The late Margaret Njanja Muna (hereinafter ‘the late Margaret’)

The Administrators hold that the above five children should share equally the assets that belong to this estate. In this regard, the assets should be divided equally amongst the four administrators and the late Margaret’s.

6. The Administrators urge that the estate of the late Margaret was represented by her two children namely Loise Njeri Muna (hereinafter Protestor) and Stephenson Ngethe Muna. The Protester and her brother Ngethe have not taken out letters of administration for the estate of their late mother, Margaret and do not have capacity to administer her estate. The share going to the estate of the late Margaret should therefore be held in trust until such a time as the Protestor and her brother take out succession proceedings so as to administer the said estate, as the Protestor cannot administer the estate of the late Margaret in these proceedings. The Administrators pray that the court do issue directions in this regard.

7. The Administrators also argue that the proposal set out by Protestor is not sustainable because she, being a grandchild of the two deceased persons, is not a beneficiary under the Will and cannot purport to make a proposal for the distribution of the assets in the Will. She is only entitled to half the share of the estate of her late mother, Margaret under Section 38of Cap 160 Laws of Kenya the net intestate estate of Beth devolves upon her five children to share equally.

8. Mr. Kangethe, Learned Counsel for the Protestors submitted that the Protestors have not been involved in the management of any of the Estate properties or been privy to how the income from any of the Estate properties, is utilized. The Protestor proposes that the estates of Stephen and Beth be distributed as follows:

i. All the money in various bank accounts be withdrawn and shared equally among the five children of the two deceased persons.

ii. That the various parcels of land and house be valued and sold and the sale proceeds be shared equally among the five children of both deceased persons.

iii. That in the alternative to (ii) above, upon valuation of the Estate properties, the other beneficiaries can buy the Protestor out and continue holding the remainder of the Estate in equal shares.

iv. Property L.R. No. 1/579 Kindaruma Road generates rent per month and the same should be accounted for and shared equally between the beneficiaries.

9. Counsel submitted further that the Protestors are entitled to half share that will go to their late mother in both estates.That by virtue of Section 66 of the Law of Succession Act, the surviving spouse should have priority over everybody else. He or she has prior right to the administration of the estate of their departed spouse. In this case the Protestor and her brother are children of Margaret a dead sibling, and are beneficiary to the estates of Beth Wago Kimani and Stephenson Njuguna Kimani just as the Administrators are. They are therefore entitled to make proposals on the mode of distribution of the said estates contrary to what the administrators alleged.

10. Counsel also pointed out that the value of the two estates can only be determined after a valuation has been done and the Protestor is within her rights as heiress of both Estates to ask for a valuation of the Estate. That it would be unfair to force the Protestor to hold any property jointly with the Administrators and other beneficiaries of the two estates while it is very clear that they are incapable of holding any property jointly. Counsel further submitted that assets like money held in Bank accounts cannot be held jointly indefinitely, and that such accounts should be closed and the money shared out. That the assets that generate income need also to be ascertained and the income disclosed fully.

11. I have considered the arguments from the Protestor and the Administrators keenly. To determine the fate of these estates I must start at the beginning. In the beginning the assets of the estates herein belonged to one Stephenson Kimani Njuguna who died testate on 8th February 1997. A grant of probate was made on 31st March, 1998 to his widow Beth Wago Kimani and his brother Wilson Murungu Njuguna whom he had named as executors in the Will. Paragraph 5 and 6 of the said Will provide as follows:

I GIVE my house L.R. Number 209/8406/14 and the income therefrom but subject to any charge or duties thereon to my Trustrees ON TRUST for my son AYUB MUHUNI KIMANI if he survives me and attains twenty-one (21) years.

MY TRUSTEES shall hold the residue of my estate UPON TRUST either to retain or sell the same (with power to postpone sale) and:

(a)To pay my debts funeral and testamentary expenses and death duties;

(b)Subject theretofore my said wife for life and thereafter for such of my children who survive me and attain twenty-one (21) years and if more than one in equal shares absolutely.

12. In paragraph 5 of the Will Stephenson Kimani Njuguna bequeathed house L.R. Number 209/8406/14to Ayub Muhuni Kimani and it is therefore not available for distribution in the estate of Beth. Beth had a life interest in the residue of the estate and when she died the residue of the estate which now forms her intestate estate shall devolve in accordance with paragraph 6 of the Will. The Protestor and her brother shall divide between them in equal share, the share due to their late mother Margaret.

13. Grandchildren have no right to inherit directly from their grandparents who die intestate after 1st July 1981. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased, who inherit first. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead as in the present case. The grandchildren step into the shoes of their parents but can only take directly the share that ought to have gone to the said parents. See - the decision of Musyoka J in P&A 1974 of 2008 in the matter of the Estate of Veronica Njoki Wakagoto (Deceased) [2013] eKLR.

14. Looking at the arguments from the two sides it is not clear why these parties are in court. The Will of Stephenson Kimani Njuguna did not make specific bequests to each of the beneficiaries. It made a general provision for all the beneficiaries to share equally the residue of the estate upon the demise of Beth Wago Kimani. Both parties have submitted that the estate should be divided into five equal shares for distribution among the five children of the two deceased persons. This is in accord with the Will which has not been contested. By giving to the Protestor and her brother a fifth of the intestate estate the Administrators are not doing them a favour but merely giving them their fair share as stipulated under the Will.

15. Upon careful consideration of the foregoing I am persuaded that the proposal that best lends itself to the circumstances of this case and which does so with clarity, is the one put forward by the Protester. Indeed to arrive at the value of the estate and what the value of a fifth of the estate entails, the estate must be subjected to valuation. Reasons wherefore I find and hold that the interests of the estate will best be served in this case if I order as I hereby do that the grant made to Catherine Mugure Njoroge, Rahab Wambui Kairo, Sheila Waruga Kimani and Ayub Muhuni Kimani on 23rd October 2015 is hereby confirmed in the following terms:

i. All the money in various bank accounts be shared equally among the five children of the two deceased persons.

ii. That the various parcels of land and house be valued and sold and the sale proceeds be shared equally among the five children of both deceased persons.

iii. That in the alternative to (ii) above, upon valuation of the assets the other beneficiaries can buy out the Protestor and continue holding the remainder of the Estate in equal shares if they so desire.

There shall be no orders as to costs.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 5th DAY OF October, 2017.

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L. A. ACHODE

JUDGE

In the presence of: