[2017] KEHC 3847 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

SUCCESSION CAUSE NUMBER 160 OF 2012

IN THE MATER OF THE ESTATE OF JANE WANGARE NGURE (DECEASED)

LUCY NJOKI KAMANJA .................................................................... APPLICANT

VERSUS

EZEKIEL MUENJA NGURE........................... ADMINISTRATOR/RESPONDENT

RULING

The Application

1. The application before Court is dated 10/2/2015; the prayers sought are;

1. Spent

2. THAT the grant of letters of administration to EZEKIEL MUENJA NGURE made on 29th September, 2012 and subsequently confirmed on 7th June, 2013 be revoked.

3. Spent.

4. THAT the Honourable Court do issue directions as to the administration of the estate.

2. The application is premised on the affidavit of Lucy Njoki Kamanja (hereinafter the applicant) and on grounds that;

1. THAT the proceedings to obtain the grant were defective in substance.

2. THAT the grant was obtained fraudulently by the concealment from the court of the person’s beneficiary entitled under the estate.(sic).

3. THATthe administrator herein did not disclose to the Court the relationship between the deceased and the applicant herein.

4. THAT consent was not sought nor given by persons entitled and with capacity to apply for letters of administration in the capacity of the present administrator as the administrator applied for the same without the knowledge of the applicant herein.

5. THAT the administrator herein misled the court in the application for letters of administration to the detriment of the person beneficiary entitled therein.

6. THAT the applicant is entitled to benefit under the estate whose interests have been vested in the administrator who misled the court in application for the same.

7. THAT the administrator vide his actions has every intention of disinheriting the applicant herein from the only estate she is dependent on.

8. THAT it is therefore mete and just that this honourable court do revoke the grant as prayed to take into account all the persons entitled to the properties as beneficiaries in respect of the estate.

3. The gist of the grounds and the supporting affidavit is that the respondent herein (administrator) is a brother to Jane Wangare Ngure (deceased) and an uncle to the applicant.

4. The administrator applied for letters of administration in secrecy with intention of disinheriting the applicant.

5. The applicant is a daughter of Njeri Ngure (deceased) who is a sister to Jane Wangare Ngure the deceased herein. She is therefore a niece to the deceased herein.

6. The mother to the applicant died at the birth of the applicant and it is the deceased herein who brought up the applicant and was her only source of financial assistance.

7. Deceased was not married and had no children of her own.

8. The estate of the deceased comprises property known as Nyandarua/Ndemi/513 whose property has been registered in the name of the administrator herein as the sole and absolute proprietor.

9. The applicant avers that she is a dependant within the meaning of Section 29 of the Law of Succession Act.

10. It is urged that the applicant misled the court that he had sought the necessary consents of all persons entitled to the estate of the deceased.

The Response

11. The application is opposed and an objection in points of law has been raised together with affidavit opposing (sic) the summons.

12. The preliminary objection (P.O.) is premised on grounds that the court lacks jurisdiction to entertain, try and determine the matter, the applicant lacks the necessary locus standi and/or has squandered her right to appeal.

13. The 30 days for lodging objections provided by the Law upon gazettement of cause have lapsed.

14. The application is said to be in breach of the Advocates Act and the Evidence Act.

15. The applicant is accused of misrepresenting facts especially on blood linkages between the applicant and Jane Wangari Ngure, Ezekiel Muenja Ngure, Lucy Njoki Kamanja, Njeri Ngure and Johanna Kamanja Ngure.

16. The Advocates on record for the applicant are said to have a conflict of interest having represented the Respondent in other matters which are finalized.

17. The substance of the affidavit opposing the summons is to the effect that the cause was duly gazetted as in Legal Notice No. 8081.

18. The Applicant never sought the respondent’s “consent for her provision”(sic) to the Estate of Jane Wangari Ngure.

19. The Applicant has never involved the Respondent in the marriages of her children pursuant to Kikuyu Customary Law.

20. The Applicant has never sought in vain at all the Respondent’s consent enabling her involvement in the medical treatment and subsequent funeral of Jane Wangari Ngure who died aged 57 years (sic).

Submissions

21. The application was disposed off by way of written submissions. Both parties duly filed.

22. For the applicant, it is submitted that the applicant herein was brought up by the deceased who catered for her educational and other needs. The deceased was the family that the applicant knew.

23. Reliance is placed on the case of the estate of PWMDeceased [2016] eKLR in reference to Section 29 where the meaning of dependant for the purposes of that part is given as follows;

“Dependant” means-

"a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;

b) such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters; as were being maintained by the deceased immediately prior to his death; and

c) where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death."

24. It is urged that according to Black’s Law Dictionary 9th Edition, a dependant is a person who relied for support or necessities on or is sustained by another person and dependency is the relationship between the 2 persons.

25. The applicant herein was a dependant within the meaning of Section 29 of the Law of Succession Act (Cap 160 Laws of Kenya).

26. She is thus entitled to benefit from the estate as the deceased had taken her as her own. The administrator concealed this material fact.

27. Reliance is placed on the case;

RE: ESTATE OF PHILIP KIPRONO BETT (DECEASED, [2005) eKLR where it was held that consent of all adult survivors for both the grant of administration as well as the confirmation and mode of distribution ought to be given. Non disclosure of all beneficiaries is therefore a defect that goes to the root of the administration cause. Rules 7(e) of the Probate and Administration Rules requires that all survivors of the deceased ought to be disclosed.

28. It is submitted that the Respondent had full knowledge of the relationship between the applicant and the deceased but nevertheless failed to disclose this to court and/or include the applicant in the succession cause.

29. Emphasis is laid that a grant of representation whether or not confirmed is liable to be revoked where under Section 76 (a)of The Law of Succession Act:

“the proceedings to obtain the grant were defective in substance and where the person to whom the grant is made in terms of Section 76 d (ii) and (iii) of the Act has failed to proceed diligently with the administration of the estate or has produced such inventory or account which is false in any material particular.”

30. The preliminary objection raised is challenged and the case of Samwel Waweru V. Geoffrey Muhoro Mwangi [2014] eklr is relied on as quoting the definition of a p.o. as set out in the celebrated case of Mukisa Biscuit Manufacturing Company Limited V. West End Distributors Limited (1969) EA 696

“so far as i am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose off of the suit”

31. It is urged, and correctly so, that a preliminary objection cannot be raised if any fact is to be ascertained or if what is sought is the exercise of discretion.

32. For the respondent, it is submitted that the summons herein ought to be dismissed for reasons that the applicant is not a biological child/daughter of the late Jane Wangare. Deceased never bore any child and never adopted the applicant. The Advocates for the applicant have violated client – advocate confidentiality having acted for the Respondent in Times Insurance AgenciesV.Mwenja Ngure Saw Mills Limited.

Analysis and Determination

33. I have had occasion to consider the summons for revocation of grant, the affidavit and grounds in support as well as the affidavit opposing the application.

34. I have had reference to the submissions by both sides. I must indicate that the affidavit in response and the preliminary objection by the respondent presented some challenges in discerning the actual import given that some sentences or words were unintelligible and unclear. I however appreciate that the same were drawn by the Respondent in person hence the expected lapses. I have, however, been able to make out the respondents case and I am in a position to deliberate on all issues raised.

35. From the material on record, the questions for determination are;

1. Whether the preliminary objection raised is merited and should cause the summons to be dismissed.

2. Whether, the Applicants Advocates are in conflict of interest having represented the respondent in another matter earlier.

3. Whether the applicant has achieved the threshold set under Section 76 of the Law of Succession Act for the revocation of grant.

36. On the preliminary objection raised, the decision in Mukisa Biscuit(Supra) readily knocks off the sails from the purported preliminary objection.

37. There are so many facts that need to be ascertained. The preliminary objection as drawn does not raise a pure point of law which requires no ascertainment of facts. All matters raised would require prove through evidence. The preliminary objection must dramatically fail.

38. On whether the Advocate on record for the applicant have breached Advocate-Client confidentiality having represented the respondent – Times Insurance Agencies V. Mwenja Ngure Sawmills Limited, it is trite law that conflict of interest does not merely arise by the fact of representation of a client in another matter alone. Evidence must be laid that in the present matter, the representation by counsel of an opposing party may lead to mischief and a danger of any breach of confidence.

39. No evidence is offered by the respondent to show the nature of suit Times AgenciesV. Mwenja Ngure Sawmills Limited. No nexus is drawn between that suit and the current succession cause.

40. In RakusenV.Ellis Munday & Clarke,(1912) Ich.831 the learned Judge had this to say;

“That there is no general rule that a solicitor who acted for some person either before or after litigation began could in no case act for the opposite side. The court must be satisfied in each case that no mischief would result from his so acting; that there could be no danger of any breach of confidence if the solicitor acted for the company.”

41. I am persuaded that the matters in which counsel acted for the respondent are different from the current succession cause. No bearing has been shown as between the two matters and no evidence is laid at all to show a ground for conflict of interest. That objection must fail.

42. As to whether the applicant has achieved the threshold for the revocation of grant, the starting blocks should inevitably be at Section 76 of the Law of Succession Act. That Section provides:

"Section 76: 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 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 has ordered or allowed; or

(ii) to proceed diligently with the administration of the estate or

(iii) to produce to the court, within the prescribed, any such inventory or account of administration as is required by the provisions of paragraph (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."

43. In our instant case, the applicant seeks the revocation of grant on what she considers to be the material non-disclosure by the respondent about her (the applicant’s) relationship with the deceased.

44. She readily admits that she is not a daughter of the deceased but indicates that she is a niece to the deceased and the deceased raised her and met her needs. She therefore lays claim to the estate as a dependant within the meaning of Section 29 of the Law of Succession Act.

45. That section is reproduced here for its full meaning and effect;

Section 29 “For the Purposes of this Part, “dependant” means-

(a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;

(b) such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased has taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and

(c)Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.”

46. Throughout his response, the respondent has either by design or otherwise evaded to confront the issue of whether the applicant was raised by the deceased who met all her needs. Indeed, the respondent is economical on facts failing even to state how he knows the applicant if at all.

47. The fact of the matter is that he does not deny that the applicant is a daughter to Njeri Ngure, a sister to the deceased.

48. It is confirmed from both divides that the deceased did not have children of her own. Nor was she married.

49. The question that follows then is who would be her heirs’ in the circumstances.

Section 29(b) of the Law of Succession Act provides;

“such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased has taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death;”

50. I emphasize the provision for “children whom the deceased had taken to his family as his own” as one of the categories of dependants recognized in law.

51. Indeed, brothers and sisters come after such children.

52. In the absence of children or husband of the deceased, my considered view is that a party petitioning for letters of administration must disclose the parents, step parents, grandparents, grandchildren, step children, children whom the deceased had taken into his family as his own, brothers and sisters, half-brothers and half-sisters as were being maintained by the deceased prior to his death. This is the information that must be indicated – form P & A 5.

53. I have looked at the form P & A 5 filed in these proceedings. The Respondent indicates that he is the only survivor of the deceased.

54. The Applicant has shown by evidence that she had been taken in by the deceased as a child of her own. This fact must have been in the knowledge of the respondent. He nevertheless failed to include the applicant as a surviving dependant of the deceased.

55. This was a material non-disclosure and concealment of something material to the case. By stating, that he was the only survivor, the respondent made a false statement.

56. As held – RE: ESTATE OF PHILIP KIPRONO BETT (Deceased [2005) eKLR, non-disclosure of all beneficiaries is therefore a defect that goes to the root of the administration of the estate. Where there is no disclosure, the grant whether or not confirmed cannot stand.

57. From the foregoing, I am satisfied that the grant of letters of administration issued and confirmed herein was achieved through concealment of material fact and the making of a false statement.

The applicant has thus achieved the threshold for revocation of grant.

58. With the result that the grant of letters of administration issued on 20/9/2012 and confirmed on 7/6/2013 is hereby revoked.

To move the matter forward a fresh grant of letters of administration is to issue in the names of Ezekiel Muenja Ngure and Lucy Njoki Kamanja.

A summons for confirmation of grant be filed within 45 days hereof.

Orders accordingly.

Dated, Signed and Delivered in Nakuru this 18th day of June, 2017.

A. K. NDUNG’U

JUDGE