[2017] KEHC 995 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 1102 OF 2010

IN THE ESTATE OF GEORGE NG’ONG’A NJIHIA (DECEASED)

LUCY WANJIRU MWANGI……………………………………..APPLICANT

VERSUS

GREGORY MWAURA NG’ONG’A…………………….…..RESPONDENT

RULING

This is a Ruling on the Application of 28th September 2016. Therein the Applicant/Objector sought the following orders:

1. That this application be certified as urgent and be heard ex parte at first instance.

2. That this court reviews its judgment in terms of the share of the minor issue, NN.

3. That costs of this Application be provided for.

The Applicant relied on the grounds that;

a)The Grant issued on 20th April, 2011 and confirmed on 11th March, 2013 was revoked.

b)N N is a minor and is in more need of a bigger share of the deceased’s properties as compared to the adult beneficiaries of the estate; Gregory Mwaura and Ann Nungari.

c)The Applicant is therefore requesting that the minor’s share of the properties be reviewed.

d)The minor’s maintenance be met adequately.

e)Unless this court intervenes and grants the orders prayed, the Applicant will suffer prejudice.

What is clear is that the Applicant wants to have the minor’s share in the deceased’s increased so as to have enough to cater for his school fees. She avers in her affidavit in support of the Application that she is not in any gainful employment to meet the child’s needs. Further, his half sister, Ann Nungari is not opposed to this application. She also avers that Gregory Mwaura collects rent from part of the estate and this she seeks to have divided equally among all children of the deceased. The minor, according to this affidavit, is in need of school fees and this cannot be adequately catered for in share of maintenance.

Attached to this Application is a document marked LWM2which is a fee structure for [Particulars Withheld] School in which the minor attends. The minor is now in class 4. According to the fee structure above mentioned he requires school fees in the amount of Kenya Shillings 19,000 per term, which is inclusive of the optional lunch fee. Also attached are documents marked LWM1 which are certified copies of official receipts from the above mentioned school. These show payments made to the school for the minor/issue by the Applicant/Objector in the months of January, February, March and June, 2016 respectively. The amount therein totals Kenya Shillings 22,000.

In an Affidavit sworn by Ann Nungari, one of the beneficiaries of the estate of the deceased avers that she has no objection to the increase of the minor’s share in the estate. She further asked the court to allow the minor to receive ¾ of the rental income collected by her brother, Gregory Mwaura,

The Applicant further filed submissions on 4th February, 2017. Herein she relied on a Ruling made in the case of

In the Matter of the Estate of John Musambayi Katumanga (2014) eKLR 399particularly where Hon. Justice W. Musyoka held…

“Equal distribution does not always work justice, especially I polygamous situations, where the youngest child of the deceased may be one (1) year old, while the eldest may be over fifty (50) years of age. The infant no doubt would have far greater needs than the fifty year old, who would generally have received education and has probably been settled in life by the deceased. There cannot be justice in equal distribution in such case. The fortunes of one child may be better than those of the other-one could end up in a lowly job, say a driver or office messenger or nurse or nursery school teacher, with the other one becoming a commercial pilot or the Chief Executive Officer of a blue-chip company. There would be no fairness in equal distribution in such a case. The law as currently framed does not do justice in such circumstance. Ideally, equal distribution should be the principle, with some discretion to the court to consider the circumstances of each case.”

It is noteworthy that in this same judgment the learned Judge quoted Hon. Omolo J Ain Rono v s Rono and another (2005) 1 EA 363 who remarked that equal division works injustice especially in the case of a young child who is still to be maintained and educated, and generally seen through life. The Appeal judge further held;

“…if such a child, whether a girl or a boy, were to get an equal inheritance with another who is already working and for whom no school fees and things like that were to be provided, such equality would work an injusticeand for my part, I am satisfied the Act does not provide for that kind of equality…”

According to Hon. Justice W.Musyoka, the Appeal Judge took the view that Section 40 of the Law of Succession Act, Chapter 160; Laws of Kenya did not provide that each child must receive the same or equal portion. He further stated;

“Article 53(2) of the Constitution can ameliorate the situation, by the court looking at the matter from the perspective that the best interests of the child are of paramount importance in every matter concerning the child.”

The Respondent, Gregory Mwaura Ng’onga, filed written submissions on 6th March, 2017 in which he states that he opposes the Notice of Motion filed on 28TH September, 2016 as it seeks a review of the Ruling of 16th August, 2016 on the aspect of equal share of the monthly rental income. He relies on Order 45 Rule (1) (b) of the Civil Procedure Rules which provides stringent and clearly framed conditions for the application of review that have not been met by the Applicant. He submitted that the Applicant and the sister to the Respondent have always teamed up against him and this appears to be one of their schemes geared towards crippling him financially. Further he submitted that his sister is married to a husband who is financially stable and she has no need for her share in the rental income. Therefore her share should go to the minor without interfering with the Respondent’s share.

DETERMINATION

In the Application of 28th September 2016 the Applicant seeks

1. That this court reviews its judgment in terms of the share of the minor issue, NN.

2. Those costs of this Application be provided for.

On the 16th day of August, 2016 a ruling was rendered by this court and the following orders were given;

1. The Applicant did not prove on a balance of probability that she was married under Kikuyu Customary Law to the deceased.

2. The grant issued on 21st April 2011 and confirmed on 11th March 2013 is revoked and new grant to issue to Gregory Mwaura and Ann Nungari jointly and to hold in trust for the share for NN and he paid to his mother Lucy Wanjiru Mwangi.

3. The rent shall be collected by Gregory Mwaura and divided equally into 3 parts and NN’s share shall be paid to his mother Lucy Wanjiru Mwangi.

4. The Matrimonial home shall be for the 3 children of the deceased jointly and equally. The Applicant shall continue to reside in her son’s share of the home.

5. The Old Mutual Investment funds shall not form part of the estate available for distribution as the same was utilized for Gregory’s school fees and school expenses.

6. All other properties of the deceased’s estate shall be held jointly and equally between the 3 children of the deceased.

7. The administrators shall apply for confirmation of grant within 90 days.

8. Any aggrieved party is at liberty to file application in Court for determination

9. Each party shall bear its own costs.

The Applicant seeks a review of this ruling so as to have paragraph three (3) of the orders amended to provide a larger share of the rental income from the 5 single rooms and 1 double room to her son, the minor beneficiary in this cause.

Order 45 Rule 2(1) of the Civil Procedure Rules, 2010 provides the grounds on which a party may seek a review of a decision by the court. These include;

a)The discovery of a new and important matter or evidence.

b)A clerical or arithmetic mistake.

c)An error apparent on the face of the record.

d)Any other sufficient reason.

The Power of Review allows the trial Judge who granted the decision review and correct it if need be.

A proviso under Order 45 further guides thatstrict proof is required where the Applicant relies on the ground of discovery of a new matter or evidence which he alleges was not within his knowledge or could not be adduced by him when the decree or order was passed or made.

In light of this, the Applicant is put to strict proof to convince this court that indeed the minor is in dire need of school fees and she doesn’t have the ability to cater for the same. She attached documents showing the amount of money she spends as payment for the minor’s school fees. This amount totals Kshs. 19,000 per term. The amount of money collected as rent is to the tune of Kshs. 19, 000 in total. This is the amount to be shared equally among the three beneficiaries as per the previous court order. This means that each beneficiary is to receive a total of Kshs. 6,333. 33. The sister to the Respondent averred in her affidavit filed on 28th September, 2016 that she does not mind having a bigger share go to the Minor. She even further requested that he get ¾ of the total amount collected in rent.

DISPOSITION

This court has considered the submissions filed by the Applicant and the Respondent including the evidence adduced and is convinced that the Minor herein is in need of school fees however the distribution that was ordered by this court in the Ruling of 16th day of August, 2016 was equal therefore this court cannot alter its orders unless the beneficiaries consent to their share going to the minor.

Anne Nungari failed to establish in her Affidavit that it is only her share that she wants given to the Minor. She cannot purport to dictate what should be deducted from Gregory Mwaura’s share.

The Applicant not being in gainful employment is not enough reason to ask this court to review its orders. Even if this court was to give the Minor a bigger share in the rental income, it still would not adequately meet his needs.

Therefore the application for review is dismissed however this was not a polygamous family, the Applicant did not prove marriage to the deceased.

If Ann Nungari wishes to forfeit her share for the minor she is at liberty to do so.

The Court orders of 16th August, 2016 remain in force subject to an appeal.

Each party to bear their own costs.

It is so ordered.

DATED AND SIGNED IN OPEN COURT AT NAIROBI THIS 3RD DAY OF NOVEMBER, 2017.

M.W MUIGAI

JUDGE