[2017] KEHC 3232 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO.2513 OF 2010

IN THE MATTER OF THE ESTATE OF GACHIE KAMAU(DECEASED)

MARY NJERI GACHIE…………….…...1STOBJECTOR/APPLICANT

PETER MBURU GACHIE…………..….2NDOBJECTOR/APPLICANT

VERSUS

PETER NGIGI KAMAU…………………………..…1STRESPONDENT

DAVID NGIGE GACHIE……………..……………...2ND RESPONDENT

FRED KARIUKI GACHIE………………...…………3RD RESPONDENT

R U L I N G

1. The deceased Gachie Kamau died intestate on 3rd December 1964. He was survived by two widows: Jane Wangari Gachie and Teresia Wangari Gachie (both deceased) and the following children:

Peter Ngigi Gachie

David Ngige Gachie

Peter Mburu Gachie

Fred Kariuki Gachie

Beatrice Nduta Gatonye

Milka Warugu

Rachel Wanjiru John

His only property comprising of the estate is a Land Parcel No. Karai/Karai 250.

2. The deceased is alleged to have had another wife (Wairimu Gachie) and two other daughters being Mary Njeri Gachie (the 1st objector herein) and Wamaitha (who left the deceased’s home and has never been heard from). A grant of letters of administration intestate was granted to one of the widows Teresia Wangari Gachie on 13th September 1995 and confirmed on 15th August 1996. The property was registered in equal shares among the deceased’s sons Peter Ngigi Gachie, David Ngige Gachie, Peter Mburu Gachie and Fred Kariuki Gachie.

3. 14 years after the grant was confirmed, the objectors filed summons for revocation or annulment of grant dated 16th December 2010 for orders:

a) That the certificate of confirmation of grant made to Teresia Wangari Gachie on 15th August 1996 be revoked on the grounds that:

i. The administrator Teresia Wangari Gachie is now deceased.

ii. That the certificate of confirmation was issued on defective proceedings that excluded the presence and consents of all beneficiaries including the objectors.

iii. That the grant and certificate of confirmation herein was obtained fraudulently by concealment from the court of the existence of the 1st objector and other beneficiaries.

b) That the objectors Mary Njeri Gachie and Peter Mburu Gachie be appointed as administrators of the estate forthwith.

c) That there be a restriction on all sub-divisions, transfers or any other dealings on the parcel Karai/Karai/250 together with any subdivision thereto pending hearing and determination of this application.

d) That the asset Karai/Karai/250 do revert to the deceased’s name and the same be redistributed upon consent of all beneficiaries.

e) That such other or further orders be granted as the court deem fit.

f) That costs of the application be provided for.

4. The application dated 16th October 2010 proceeded by way of viva voce evidence on 1st July 2014. The 2nd objector, PW1 Peter Mburu Gachie, relying on his affidavits dated 16th October 2010 and 4th February 2014, testified that he is a son to the deceased and that the 1st objector is the deceased’s daughter hence his sister and not his wife. He stated that the deceased had three wives being Jane Wangari, Teresia Wangari and Wairimu, and that the 1st objector was Wairimu’s daughter. He further stated that he did not participate in the division of their father’s land and as such prayed that the asset Karai/Karai/250 do revert to the deceased’s name and the same be redistributed upon consent of all beneficiaries.

5. The 1st objector Mary Njeri Gachie (PW2) relying on her affidavits of 16th December 2010 and of 6th February 2014, stated that: she was born in Ndeiya to Wairimu and Gachie Kamau; that the deceased had two other wives besides her mother who were Jane Wangari and Teresia Wangechi; that her mother was the 3rd wife; that her mother left their home and it was Jane Wangari and Teresia Wangechi, the deceased’s other wives, who raised her; that she moved to live with her brother the 2nd objector in Kisumu; that after her father died she was left out of the distribution of her father’s estate; that her siblings did not inform her about the distribution, except her step brother the 2nd objector; that even if her mother left their home, she is still the deceased’s daughter and is entitled to inherit the deceased.

6. Beatrice Nduta Gatonye (PW3), corroborated the Objectors’ testimony and further stated that: she is the eldest daughter of the 1st wife and the eldest child of the deceased; that the deceased had 3 wives namely Jane Wangari Gachie, Teresia Wangechi Gachie and Wairimu Gachie; that Wairimu later ran away but left a small girl called Njeri (the 1st objetor); that this girl was raised by the deceased’s 1st wife Jane Wangari Gachie but later left to go and live in Kisumu. PW3 said that she is older than all her siblings and she remembers the 1st objector is their sister.

7. The application is opposed by the respondents. The 1st respondent Peter Ngige Gachie, relying on his affidavit of 23rd June 2011, stated that the deceased had only two wives namely Jane Wangari Gachie and Teresia Wangari Gachie and that he is the first born son to the 1st wife. He did not know about a third wife to his father and he has never heard of her. He also did not know anyone called Jane Njeri Gachie and as far as he is concerned she is not their sister. He asserted that the 2nd Objector was present during the distribution of their father’s estate only to later complain that the land was distributed in his absence. He stated that the land was distributed in equal shares between the deceased’s sons Peter Ngige Gachie, David Ngige Gachie, Peter Mburu Gachie and Fred Kariuki Gachie and that at the time of distribution the 2nd objector did not raise the issue of the 1st objector being their sister or being left out of the distribution. He testified that all the sisters were married and have land in their respective matrimonial homes, hence they were not allocated any land during distribution. His evidence was corroborated by the testimonies of the 2nd and 3rd respondents and of Rachel Wanjiru John who relied on her affidavit of 21st June 2013.

8. The respondents also relied on the Limitation of Actions Act Cap 22 Laws of Kenya to argue that the application is time barred to the following extent:

Part II B Section 4(4) on 12 years rule on judgment;

Part II C Section 7 on 12 years rule on confirmation of grant;

Part II B Section 4 (1) (b) on 6 years rule on issuance of Title Deed; and

The Law of Succession, CAP 160 Part III Section 30

9. I have carefully considered all the affidavits on record, the submissions of learned Counsel and the authorities relied on. In my view, the following are the issues for determination in this matter:

a. Whether the application is time barred;

b. Whether the objectors/applicants have established a case to enable this court grant the application for the revocation of the grant of representation; and

c. Whether a fresh grant of representation should be made to the objectors/applicants.

10. The first issue to address is whether the application is time barred as provided under section 4 (4) of the Limitation of Actions Act. The respondents submitted that the application is unjustly seeking to annul a lawfully processed Succession Cause No. 416 of 1995, which was concluded 15 years ago and cannot therefore be enforced. On the other hand, the objectors submitted that no statute of limitation exists for succession matters and that the provisions of section 76 of the Act are not subject to any statute. That section provides:-

"76. A grant of representation, whether or not confirmed, may at any time be revokedor annulled if the court decides, either on application by an interested party or of its own motion..."

11. The use of the words ".... may be made at any time..... "to suggests that there is no time bar as to when the right set out therein can be exercised. That right can be exercised at any time by either an interested party or by the court, whether the grant has been confirmed or not. The question to be answered, however, is whether the deceased’s estate is governed by the provisions of the Succession Act.

12. The deceased herein died on 3rd December 1964 before the Law of Succession Act (Cap 160) came into force. The said law, came into force on 1st July 1981 and at section 2(2) provides that;

"the estates of the persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commence or proceed so far as possible in accordance with this Act."

By virtue of the above provision, his estate is not subject to the Act. As such, section 76 of the Actcannot be invoked in the present case to allow for re-opening of the proceedings for purposes of revoking and or annulling a grand which was concluded more than 20 years ago. To this extent the objector’s application fails.

13. On the issue of whether the objectors/applicants have established a case to enable this court grant the application for the revocation of the grant of representation, I note that the distribution of the estate of the deceased is strictly governed by the applicable customary law and is not subject to the Act bearing in mind that the deceased died before the Law of Succession Act (Cap 160) came into force. The objectors having relied on the grounds for revocation of grant as prescribed by Section 76of theLaw of Succession Act (Cap 160), their application is fatally defective and cannot stand. A fresh grant of representation cannot therefore be made to the objectors/applicants under the circumstances.

14. In view of the foregoing, I see no reason to disturb an estate that was resolved 20 years ago and whose beneficiaries have moved on with their lives. The present application is therefore dismissed.

Each party to bear their own costs.

SIGNED DATED and DELIVERED in open court this 3rd day of October, 2017

…………………

L. A. ACHODE

JUDGE

In the presence of ……advocate for the Applicants

In the presence of ……advocate for the Respondents