[2017] KEHC 1518 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIVASHA

SUCCESSION CAUSE NO. 115 OF 2015

(Formerly Nakuru High Court Successions Cause No. 770 OF 2012)

IN THE MATTER OF THE ESTATE OF NG’ANG’A NGUGI

(DECEASED) AND MARTIN MBURU NGUGI (DECEASED)

MARY WANGUI MBURU...................................APPLICANT

-VERSUS-

HANNAH WANJIRU...............................1ST RESPONDENT

MINNEH WANJIRU GACHIE (Substituted in place of

GACHIE NJONGORO KARIITHI).........2ND RESPONDENT

VIRGINIAH WANJIKU NGANGA.......INTERESTED PARTY

R U L I N G

1. The application before me was filed on 24th November, 2016. In order to put it in context, I find it apposite to set out the history of this matter, which as well explains the relationships between the parties herein. The late Ngugi wa Kimani was husband to Leah Wanjiku Ngugi (also deceased). The couple had the following children:

i) Peter Kimani Ngugi

ii) Paul Gathiongo Ngugi

iii) Solomon Nganga Ngugi (Nganga) – now deceased

iv) Martin Mburu Ngugi (Mburu) – now deceased

v) Hannah Wanjiru Kihoti

vi) Mary Kamwende

vii) Maria Wangui

viii) Catherine Nduta

2. It would seem that before his death, Ngugi wa Kimani distributed most of his landed estate among his children. There is no dispute that through this arrangement the two brothers, Mburu and Ngugi jointly received two parcels of land, namely, LONGONOT/KIJABE BLOCK 3/684measuring 2. 52 hectares and LONGONOT/KIJABE BLOCK 3/2304measuring 0. 67 hectares (the suit land). Other siblings also received their shares from their father, the females through their mother Leah.

3. The two land parcels given to Mburu and Nganga were registered in their joint names in March 1993. Ng’ang’a and Mburudied in November 2000 and November 2003, respectively. At the time of death, each of them was married and had children even though it appears that they were estranged. The family ofNganga surviving him consisted of Virginia Wanjiku Nganga(Interested Party), his widow, and the following children:

a) Hilda Wanjiku Nganga

b) Oscar Ngugi Nganga

4. Mburu was survived by his widow Mary Wangui Mburu(Applicant) and four children, namely:

a) Eric Ngugi Mburu

b) Judy Wanjiku Mburu

c) Gladys Wambuku Mburu

d) Wilfred Ngugi Wanjiru (a son born out of a union with a different woman)

5. The above notwithstanding, in 2006 Leah Wanjiku Ngugifiled two petitions for letters of administration in respect of her two deceased sons Mburuand Nganga who had died intestate These were Naivasha Senior Principal Magistrate’s Court Succession Cause Number 88 of 2006 and 87 of 2006respectively.

6. In the former cause, the Form 38 (Consent to the making of a Grant of Administration Intestate to person Equal or Lesser Priority) listed the siblings of Mburu, namely:

1. Peter Kimani Ngugi

2. Paul Gathiongo Ngugi

3. Mary Kamwenda

4. Mary Wangui

5. Catherine Nduta

6. Hannah Wanjiru

7. Of these, only Peter, Paul and Hannah appended signatures to the form. The same list of consentors is contained in the Form 38 in Succession Cause 88 of 2006 except for Mary Wangui who is excluded. Again, only Peter, Paul and Hannah executed the consent form. All the named siblings were also stated in the Petitions above as beneficiaries/dependents of the deceased persons.

8. The grants subsequently issued in both causes were confirmed in the name of Leah Wanjiku Ngugi on 8th February, 2007, notwithstanding the admitted fact that Leah the Petitioner had died on 14th January 2007.

9. The suit lands comprising the estate of the two deceased men were distributed as follows. Hannah Wanjiru Kihoti(1st Respondent) received the entire parcel number LONGONOT/KIJABE BLOCK 3/684 (2. 52 hectares) and half an acre of LONGONOT/KIJABE BLOCK 3/2304, another half-acre thereof going to Gachie Njongoro Kariithi. This latter person had purportedly been sold the said portion excised from the relevant parcel and identified as Mburu’s, by Leah before her death and therefore confirmation of grants.

10. The saidGachie Njongoro Kariithi is also dead and his wife Minneh Wanjiru Gachie (2nd Respondent) was substituted in the present cause. The cause itself was initially filed before the High Court at Nakuru by the widow of Nganga, Virginiah Wanjiku Nganga and her daughter Hilda Wanjiku Nganga in November 2012, through a summons to revoke the grant to Leah for reasons inter alia that the grant had been obtained through fraud and concealment of material facts, in particular, the existence of Nganga’s family.

11. On 7th February, 2013 the High Court (Emukule J) allowed the widow of Mburu, Mary Wangui Mburu (Interested Party) and his son Eric Ngugi Mburu to be enjoined in the cause. Subsequently, on 7th November, 2013 the application by Virginia and her daughter Hilda was allowed by consent, effectively revoking the grant issued inNaivasha Senior Principal Magistrate’s Court Succession Cause Number 88 of 2006. Both the widows of Mburu andNganga were appointed as joint administrators, no doubt because the estate assets had been jointly owned by their deceased spouses.

12. The foregoing is the uncontested background to the application to revoke the grant issued in respect of Mburu’s estate filed on 24th November, 2016 after the cause was transferred to this court. The said application was filed by Mary Wangui Mburu, widow of Mburu. For the purposes of the said application, the live prayer is number (2) which seeks:

“2. THAT this Honourable Court be pleased to revoke and/or annul the grant Letters of Administration Intestate for the Estate of Martin Mburu Ngugi (Deceased) issued by the Chief Magistrate’s Court in Naivasha under Succession Cause No. 87 of 2006 to Leah Wanjiku Ngugi on the 19th December, 1006 and confirmed on 9th February, 2007. ”

13. The affidavit in support of the Summons is sworn by Mburu’s widow and repeats much of the background that I have already recorded. The affidavit explains that there was a mix up resulting in the succession cause number 87 of 2006 being gazetted in respect of Nganga Ngugi instead of the correct deceased person, Martin Mburu Ngugi whose estate in turn was erroneously gazetted in respect of Succession Cause number 88 of 2007 instead of the correct deceased therein Nganga Ngugi. Equity considers done that which ought to have been done. Thus despite confirming the erroneous switching of details this court views the gazettement in both causes as duly done. And as will become evident, the mix-up is of no consequence.

14. Some of the key averments in the affidavit of Mary Wangui Mburu are contained in paragraphs 2, 3, 15, 17 and 18 which are replicated below as follows:

“2. THAT the deceased person to whose estate this application relates is MARTIN MBURU NGUGI, who died intestate on 29th September 2003 due to a road traffic accident at Kimende and was survived by the following:-

i) Mary Wangui Mburu - Widow

ii) Eric Ngugi Mburu - Son

iii) Judy Wanjiku Mburu - Daughter

iv) Gladys Wambuku Mburu - Daughter – 15 years

3. THAT when the proceedings in Naivasha Chief Magistrate’s Court Succession Cause No. 87 of 2006 were presented by the mother of the deceased, LEAH WANJIKU NGUGI, I was not informed nor was I cited. All the other dependants were still minors and I was still struggling to bring them up.

…………..;

15. THAT another issue is that LEAH WANJIKU NGUGI, the mother of the two deceased persons, is now deceased having passed away on 14th January 2007, even before the grants in respect of her two sons were confirmed.

16. THAT this fact was not brought to the attention of the Court at the point of confirmation.

17. THAT her son, PAUL GATHIONG’O NGUGI, was appointed her Administrator by a grant confirmed on 10th May 2013 vide Nakuru High Court Succession Cause No. 521 of 2009. Attached hereto marked “MWM4” are copies of the death certificate of confirmation of grant.

18. THAT we have been informed that the 2nd Respondent purportedly purchased a portion of the land belonging to the deceased brothers but we do not know how he came to do that.”

15. The Summons for revocation was opposed through several affidavits by Hannah Wanjiru Kihoti (sister to deceased brother Mburu). She takes the position that the grants in respect of the two brothers were properly issued to their mother Leah Wanjiku Ngugi. That the administrator of the mother’s estate was her brother Paul Gathiong’o Ngugi while she herself was listed as a beneficiary of the brothers’ estate and that the suit property belonged to her mother pursuant to a trust.

16. According to her, her deceased brothers Mburu andNgangahad held the suit land in trust of her motherLeahand therefore she (Hannah) is entitled to inherit a portion of the suit property as a beneficiary. In a further affidavit filed on 17th July, 2017, Hannah suggested that this court, rather than revoking the grants to Leah ought to distribute the estate to the brothers’ widows but including her as a beneficiary.

17. Paul Gathiong’o Ngugithe stated administrator of the estate of Leah Wanjiku Ngugiconfirmed in High Court Succession Cause Number 521 of 2009 (see annexture MWM 4 to affidavit by Mary Wangui Mburu of 24th November 2016) by his affidavit filed on 23rd March, 2017 to supported the claims by Minneh Wanjiru Gachie by her affidavits filed herein that her late husband Gachie Njongoro Kariithi had purchased the portion of ½ acre of LONGONOT /KIJABE BLOCK 3/2304which had belonged to Mburu, from Leah, in December 2006. And that the remaining ½ acre thereof was retained in favour of Nganga, all by agreement of the family.

18. He makes no reference to the succession cause in respect of Leah Wanjku Ngugi that is Succession Cause Number 521 of 2009. One Lawrence Njoroge Karuingi an alleged son in law of Leah, by his affidavit field on 23rd March, 2017 supported the assertions in the affidavit of Paul Gathiong’o Ngugi.

19. Further affidavits by Virginia Wanjiku Nganga and Mary Wangui Mburu received support from the contents of the affidavits by Peter Kimani Ngugi (brother to deceased men) that the two parcels of land in dispute were the joint inheritance of the deceased brothersMburuand Nganga and that their mother, Leahsold Mburu’s portion to Gachie Njongoro Kariithi. These deponents dispute that Hannah Wanjiru Kihoti is entitled to any portion of the suit land because all the male siblings received their inheritance directly from their father and mother, while the female siblings including Hannah inherited land portions from Leah – Parcel Number NAIVASHA/MWICHIRINGIRI BLOCK 1/174.

20. In particular the widows ofMburuand Nganga insist upon their priority along with their children in respect of the administration of estate of their deceased husbands and assert to be the rightful beneficiaries thereto. In their view, the sale of part of the suit land to Minneh’s late husband was fraudulent, as the succession process had not been completed. Wilfred Ngugi Wanjiru son of Mburu supported the revocation of the impugned grant.

21. On 31st May 2017 Minneh Wanjiru Gachie filed an affidavit by which she agreed to share equally the ½ acre due to Mary Wangui Mburu out LONGONOT/KIJABE BLOCK 3/2304 and therefore receive a ¼ acre in full settlement of the matter. This was followed by a consent, rebuffed by the 1st Respondent and therefore not adopted by the court on 19th June, 2017.

22. The consent, between Virginia Wanjiku Nganga, Mary Wangui Mburu both represented by Mr. P. K. Njuguna and Minneh Wanjiru Gachie represented by Mr. Mongeri was to the following effect:

“BY CONSENT OF THE APPLICANT, VIRGINIA WANJIKU NGANGA AND THE 2ND RESPONDENT, the following consent be recorded:-

1. THAT the parcel of land known as LONGONOT KIJABE BLOCK 3/2304 (KENTON KIJABE) shall in the first instance be shared equally between VIRGINIA WANJIKU NGANGA and the children of NGANGA NGUGI on the one hand and MARY WANGUI MBURU and the children of MARTIN MBURU NGUGI on the other hand.

2. THAT the Applicant, MARY WANGUI MBURU and the children of MARTIN MBURU NGUGI have agreed to give ¼ aver of land to be excised from their share of parcel of land known as LONGONOT/KIJABE BLOCK 3/2304 (KENTON KIJABE) to MINNEH WANJIRU GACHIE, the 2nd Respondent, which ¼ acre shall be excised on the side on which the said 2nd Respondent has built a semi-permanent house.”

23. The Applicant and Interested Party anchored their submissions on the provision of Rule 26 of the Probate and Administration which is to the effect that the letters of administration shall not be granted to any Applicant without notice to every other person entitled in the same degrees as or in priority to the applicant. Reliance was placed on the decision in John Kibunja Njoka & 3 Others [2014] eKLR where a succession cause was declared defective for failing to involve other entitled persons.

24. Also cited is the case ofAlice Muthoni Mugo alias Muthoni Paul & Another -Vs- Grace Waruguru Njagi (Deceased) 2015 eKLR where it was decided that failure to involve all persons resulted in a miscarriage of justice. And that such wrong finds a remedy in Section 76 of the Law of Succession Act.

25. Moreover, it was argued that under Section 66 of the Law of Succession Act, preference of administration of an intestate estate is to be given to the surviving spouse or spouses of the deceased, other beneficiaries with priority according to their respective beneficial interest; the public trustees and creditors.

26. The Applicant further argued that Ngugi wa Kimani gave property to all his dependents, and that Leah’s portion was divided among the children including Hannah, leaving out the two deceased brothers and their families. The 1st Respondent having received a bigger share thereof, the court should not allow her claim to the brothers’ estates which means disinheriting their spouses and children. The court was also urged to let the Applicant’s and 2nd Respondent’s consent to stand.

27. The Applicant and Interested Party proposed a mode of distribution which shares out the suit land equally between the two deceased brothers’ families while accommodating the consent entered into with Minneh Wanjiku Gachie.

28. The 1st Respondents submitted that as a daughter to Leah Wanjiku she is a beneficiary of her estate. While she acknowledges the Applicant and Interested party as her sisters-in-law, she asserts that she too is entitled to benefit from the estates of her deceased brothers. Her proposal is that the two widows, Gachie Njongoro Kariithi (Minneh’s husband), Wilfred Ngugi (son of Mburu) and herself should each receive 1. 66 acres of the suit property.

29. The court having considered the material and submissions canvassed by the parties, takes the following view of the matter. There is no dispute that the subject pieces of land were the joint inheritance of the brothers Mburu and Nganga from their deceased father Ngugi wa Kimani. As early as 1993, the said land parcels were registered in the joint names of Mburuand Nganga. Both brothers were married and had children at the time they died.

30. It was not open therefore to their mother Leah Wanjiku Nganga,regardless of the alleged soured relations with her daughters-in-law, to exclude them and their children in the administration of the estate of their deceased spouses. The two widows of Mburu and Nganga have established that they were unaware of the Succession Causes Number 87 and 88 of 2006 filed in respect of their deceased spouses. Their consent was not sought by Leah.

31. Section 66 of the Law of Succession Provides that spouses and children of the deceased who dies intestate, have priority over other relations, when it comes to the appointment of administrators for such deceased persons. This provision is further augmented by Rule 26 of the Probate and Administration Rules which provide that:

“(1) Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.

(2) An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.

(3) Unless the court otherwise directs for reasons to be recorded, administration shall be granted to a living person in his own right in preference to the personal representative of a deceased person who would, if living, have been entitled in the same degree, and to a person not under disability in preference to an infant entitled in the same degree.”

32. As stated earlier, the consent Forms 38 in the Succession Cause 87 and 88 of 2006 listed the siblings of the deceased men and none of their spouses or children. Neither their spouses nor children were listed as beneficiaries. The net result was that they were excluded from the proceedings.

33. Further, at the time the grants were confirmed none of the spouses and children of the deceased brothers were named as beneficiaries, the schedule to the confirmed grants indicating that the sister Hannah Wanjiru Kihoti would effectively inherit the entire joint properties of her deceased brothers save for the half acre allegedly sold by Leah to Minneh Wanjiku Gachie’s husband prior to her death.

34. Moreover, by the time the grants were confirmed, Leah had already died. The application for confirmation of the grants to Leah which must have been prosecuted in full knowledge that she was deceased was done irregularly and the confirmation of no effect. The court cannot appoint a deceased person to administer an estate. Hannah Wanjiru Kihoti who stood to gain much from the distribution of her brothers’ estate must certainly have known of this irregularity.

35. Secondly, Hannah Wanjiru Kihoti knew that the two brothers had wives and children, which is evident from her affidavits. How then did she become the sole beneficiary of the deceased brothers estates? The assertion that the suit property was held in trust by the deceased brothers on behalf of Leah or that Hannah was a proper beneficiary in the impugned succession causes was a red herring by Hannah Wanjiru. No evidence of such trust or beneficial relationship was produced inspite of the overwhelming documentary proof, including the two succession causes, that the suit land was the inheritance of the deceased brothers and that Hannah had received her own inheritance from her father.

36. Evidently, having realized that the assertion of the existence of a trust had fallen flat on its face, Hannah proceeded to lay claim on the suit land as a ‘reward’ from her mother vide an annexture “HWK 1”, a document authored and signed by the selfsame Hannah Wanjiru Kihoti some 3 years after Leah’s death. It is possible that the fact that the deceased brothers may have died while separated from, and therefore not living with their respective families may have motivated the irregular actions by Leah and Hannah.

37. In my own view however, by proceeding to obtain letters of administration in respect of the estates without the participation of these known families, Leah and Hannah Wanjiru Kihoti, the latter who purported to be a beneficiary evinced the clear intention to disinherit the said families. In the circumstances I find Hannah’s stance in the present matter perplexing. Hannah Wanjiru Kihoti while clearly not a beneficiary or dependent of her deceased brothers appears to be relentlessly pursuing the same scheme against the estate of the deceased brothers. Yet there is uncontroverted evidence that she already has received her own separate inheritance, which is 1 acre out of the mother’s land parcel number NAIVASHA/MWICHIRINGIRI BLOCK 1/174 which measured 3. 5 Acres.

38. Equally misplaced is Hannah’s reference to the succession cause filed in respect of her mother’s estate (Nakuru High Court Succession Cause Number 521 of 2009). The properties in dispute herein were not the subject of that cause and did not at any point change ownership from the deceased brothers to become part of Leah’s estate. If anything, by the confirmed grant in Succession Causes 87 and 88 of 2006 nothing was to devolve upon Leah. Hannah Wanjiru Kihoti and the purchaser Gachie Njongoro Kariithi were the only beneficiaries therein. I find that Hannah Wanjiru Kihoti could not have been a beneficiary of her deceased brothers and that the entire succession process in respect of their estates was defective and false. I therefore agree with persuasive authorities cited by the Applicant as to the nature and remedy for such proceedings.

39. Section 76 of the Law of Succession Act provides that:

“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 or 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) …………………; or

(e) that the grant has become useless and inoperative throughsubsequent circumstances.”

40. I think I have said enough to demonstrate that the grants issued both in Succession Cause Number 87 and 88 of 2006 were irregularly and fraudulently obtained through concealment of material facts, and deception. The High Court in Nakuru revoked the grant in Succession Cause Number 88 of 2006. The grant in Succession Cause 87 of 2006 must suffer the same fate.

41. Accordingly, I do allow prayer 2 of the Summons for Revocation of Grant filed on 24th November, 2016. Consequently, the two widows of the deceased brothers will be appointed as administrators of the estates concerned in view of the joint ownership of the properties comprising the estates.

42. In light of the age of this dispute, and the fact that the parties have already canvassed the question of distribution, it is prudent in my view to deal with the question so that all the issues are resolved once and for all. Having carefully reviewed the material before me, the identities, of the beneficiaries of the two estates are clearly identifiable. These are the spouses and children of Mburu and Ngangalisted earlier on in this ruling.

43. There is the question whether the Minneh’s husband could legally have purchased any land from Leah when he allegedly did. At no time did Leah have authority to transact in respect of the suit land before or even after the confirmation of the grant, based on the circumstances of this case. That said, Mburu’s widow Mary Wangui Mburu has filed a consent, accepted by Nganga’s widow, that Mary Wangui Mburu and Mburu’s children will cede ¼ acre of their ½ acre share of LONGONOT/KIJABE BLOCK 3/2304 to Minneh. They further agreed that the said quarter acre is to be excised from the portion which is the site where Minneh has constructed a permanent house. This court will allow the consent to stand subject to whatever acts are necessary to perfect the consent.

44. Thus Mary Wangui Mburu and the listed children of Mburu, including Wilfred Ngugi Mburu will share equally a ¼ acre being the remaining portion of their entitlement. The other half of the entire parcel number LONGONOT/KIJABE BLOCK 3/2304 (½ acre) will be shared equally by Virginia Wanjiku Nganga and the three children of Nganga.

45. Regarding parcel number LONGONOT/KIJABE BLOCK 3/684which measures 6. 23 acres, the same will be shared as follows:

A. NGANGA’S FAMILY SHARE

i) Virginia Wanjiku Nganga (Widow) 1. 036 Acres

ii) Hilda Wanjiku Nganga (Daughter) 1. 036 Acres

iii) Oscar Ngugi Nganga (Son) 1. 036 Acres

Total 3. 11 Acres

B. MBURU’S FAMILY SHARE

i) Mary Wangui Mburu (Widow) 0. 622 Acres

ii) Wilfred Ngugi Wanjiru (Son ) 0. 622 Acres

iii) Eric Ngugi Mburu (Son) 0. 622 Acres

iv) Judy Wanjiku Mburu (Daughter) 0. 622 Acres

v) Gladys Wambuku Mburu (Daughter, minor) 0. 622 Acres

Total Acres

46. The share in respect of Gladys Wambuku Mburuwho is a minor will be held in trust by the mother Mary Wangui Mburu and Eric Ngugi Mburupending her coming of age. Thus, the court directs in respect of the estate of Mburu that a new grant does issue herein in the names of Virginia Wanjiku Nganga, Mary Wangui Mburuand Eric Ngugi Mburu and further, a confirmed grant be issued in accordance with the orders herein. Further, in respect of the estate of Nganga, a new grant and the respective confirmed grant will accordingly issue in the names of Mary Wangui Mburu and Virginia Wanjiku Nganga.

47. Parties will bear own costs.

Delivered and signed at Naivasha on this 3rdday ofNovember, 2017.

In the presence of:-

Miss Kithinji holding brief for P. K. Njuguna for the Applicant & Interested Party

Mr. Maina holding brief for Mr. Kimani for the 1st Respondents

2nd Respondent – present in person

Court Clerk - Barasa

C. MEOLI

JUDGE