[2017] KEHC 957 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

MILIMANI

SUCCESSION CAUSE 512 OF 2009

IN THE MATTER OF THE ESTATE OF JAMES GITUNGO (DECEASED)

MILICENT WANGECI KARIKO……….......…….….......1ST APPLICANT

KENNETH MWAURA………..………...………….........2ND APPLICANT

VERSUS

TABITHA WANJIKU MWAURA………….…………...…RESPONDENT

JUDGMENT

The Deceased died intestate on 20th November 2008 at Kihumbuini, Thika as shown by his death certificate of serial no. 246056.

Tabitha Wanjiku Mwaura; widow to the Deceased petitioned for grant of letters of administration intestate in respect of the Estate of the Deceased by a Petition dated 16th February 2009 which was accompanied by a letter from the Chief and an Affidavit in Support. According to the Affidavit in Support of the Petition for Letters of Administration Intestate, the Deceased was survived by the following:

I. Tabitha Wanjiku Mwaura – Wife

II. Joseph Gitungo Mwaura – Son (adult)

III. Annie Nyambura Gatati – daughter (adult)

IV. Rose Wambui Mwaura – daughter (adult)

V. Mary Ngonyo Mwaura – daughter (adult)

VI. Esther Wanjiru Mwaura – daughter (adult)

VII. Peter Kariko Mwaura – son (adult)

Consent to the making of Grant of letters of Administration Intestate was also signed by all the Children of the Deceased.

The assets that were listed as having been left by the Deceased as at the time of his death were:

I. LOC1/KIHUMBUINI/376

II. LOC1/KIHUMBUINI/569

III. LOC1/KIHUMBUINI/822

IV. LOC1/KIHUMBUINI/821

V. LOC1/KIHUMBUINI/820

VI. LOC1/KIHUMBUINI/635

VI. LOC1/THUITA/373

VIII. LOC1/KIHUMBUINI/624

IX. NAIVASHA/MARAIGUSHU BLOCK 4/1357 (KIHUNYURO)

X. NAIVASHA/MARAGUSHU BLOCK 4/1334 (KIHUNYURO)

The Petitioner/Respondent herein Tabitha Wanjiku Mwaura on 13th July 2009 was issued with Grant of Letters of Administration Intestate of all the Estate of the Deceased. The Administrator of the Estate then filed an Application by way of Chamber Summons and an Affidavit in Support dated 17th March 1995 for the Grant of Letters of Administration granted on 13th July 2009 to be confirmed. The beneficiaries filed consents to confirmation of grant dated 14th February 2011. Accordingly, the Grant was confirmed and a Certificate for confirmation of grant dated 23rd February 2011. It indicated that all the properties of the Deceased were to be registered in the name of the Petitioner to hold in trust for all the beneficiaries of the Estate and herself.

Millicent Wangeci Kariko and Kenneth Mwaura, widow and son of the deceased's son Peter Kariko Mwaura, the Applicants herein then filed Summons under Section 45 and 47 of the Law of Succession Act, Cap 160 and Rules 63 and 73 of the Probate and Administration Rules dated 27th October 2016. The sought Orders that the Deputy Registrar of the Court be allowed to sign transfer forms and other documents to necessitate the distribution of the estate to the beneficiaries. The Summons were premised on the grounds inter-alia that; they are the Administrators of the Estate of Peter Kariko Mwaura, one of the beneficiaries of Deceased’s Estate who died on 23rd January 2015 and are now desirous of getting his share of the Estate, that the Petitioner/Respondent herein refused to sign the requisite papers to enable distribution and facilitate transfer of Peter Kariko Mwaura’s share and that she has refused to discharge her duties as Administrator.

The grounds were reiterated in her Applicants Affidavit in Support and Further Affidavit wherein the 1st Applicant deponed that she is the wife to the late Peter Kariko Mwaura and 2nd Applicant is their son. She deponed that they are Administrators of Peter Karoki Mwaura’s Estate vide Succession Cause 395 of 2016 and in possession of a limited granted of letters of administration ad-litem issued wherein they were appointed personal representatives. She submitted that the Deceased’s properties were currently registered in the name of the Petitioner/Respondent herein and were at risk of being disposed off. She alleged that in 2011, the Petitioner/Respondent herein sold L.R No. Naivasha/Maraigushu Block 4/1357 Kihunyoro and L.R No. Naivasha/Maraigushu Block 4/1334 and she was not given her share which amounted to intermeddling (copies of the green cards were produced and marked M.W.K1 (a) and (b). She further deponed that her efforts to cause the Petitioner/Respondent herein to subdivide the Estate have been futile and that they need to subdivide the properties of the Deceased so that each of the beneficiaries can get their respective share.

The Petitioner/Respondent replied to the Summons Application vide her Affidavit dated 28th November 2016. She denied the allegations of her intention to sell the properties; more so without the consents of the beneficiaries as she holds them in trust and not as an absolute owner. She denied disposing the alleged parcels of land. In the alternative, she submitted that if she at all sold the parcels as alleged (which is denied), the 1st Applicant’s husband was still alive and would have thus raised the issue before the confirmation of grant. Additionally, she argued that the Applicants Application is misconceived as she only holds the property in trust and there was no provision that it should be sub-divided. She prays that the Application be thrown out.

HEARING:

On 13th March 2017, PW1 Kenneth Mwaura Kariko testified that during his grandfather's life he pointed out to his son, Peter Kariko Mwaura,the witness's late father, the portion of land on Loc 1 Kihumbuini /822 to construct a permanent house. His father built their home in 1999. The deceased had 6 children and the witness's father was his last born child. After his death in 2009, their mother and his grandmother as administrator sold the following properties;

a) Naivasha- Maraigushu 1357- 36 acres

b) Block 4/1334 Kihunyuro- 12 acres

as confirmed by greencards marked MWK1 a) & b) that the suit properties were sold in 2011 long after the deceased died. His father was not paid any part of the proceeds of sale of the suit properties and after his death; they were not paid his father's share of the proceeds of sale. He and is 2 siblings are struggling to complete his studies due to lack of school fees.

He complained that they were sent away from their home and would like to relocate back to where their late father built their home.

Their father did not participate in confirmation of grant proceedings and his consent was not availed or obtained.

Tabitha Wanjiku Mwaura DW1; the widow of the deceased testified that

she did not sell the suit properties. The deceased authorized the sale and he sold the same to offset debts of the estate. She confirmed that her late son Peter Mwaura Kariko father to PW 1 built the house on the suit property Loc 1 Kihumbuini /822. Their son Peter Mwaura Kariko was violent and he assaulted his siblings and parents. In 2005; after a meeting held on 17th August 2005 in the presence of village elders and Sub Chief as confirmed by the minutes annexed to her affidavit and marked TWM 1; it was agreed that the deceased's son Peter Mwaura Kariko and his family leave the home due to his violent behavior and disrespect and he called his parents ''dogs''. Later he was charged with malicious damage to property and assault on his father in Thika Criminal Case 3299 of 2001 and 365 of 2004

The suit properties that were sold in 2011, they were sold during the life of her late son who died in 2015. So the right person to claim his share from sale proceeds is the deceased's son and not his family.

Thirdly, she allocated the deceased's son's family L.R. Thuita/373 as she would not want them to come back to the family land and home after they stressed and harassed them from 1995-2005.

DETERMINATION:

The Court considered the evidence on record and the issue before this Court for determination is whether the application to authorize the Deputy Registrar to sign transfer documents is granted or dismissed.

The Law of Succession Act prescribes the transmission of beneficial interest of the deceased's estate by virtue of Section 35 - 40 of the Act. The beneficiaries of the deceased's estate are the immediate family of the deceased; the surviving spouse(s) and children of the deceased. Where there are dependants they are provided for upon determination of their claim to reasonable provision of the deceased's estate as provided by Sections 26-29 of the Act.

In the instant case, there is no dispute as to the beneficiaries of the estate of the deceased; they are widow of the deceased who is administrator of the estate and 6 children of the deceased. However, the conduct of the deceased's son Peter Mwaura Kariko (deceased) to his family as documented by minutes of meeting held in 2005 confirm that he was violent to his parents and siblings and they were sent away from the family home. His widow and son now claim their share of the estate, particularly, to return to their home and to have their share of the estate.

Is it automatic that by virtue of being spouse and /or child of deceased one is entitled to the share of the deceased's estate? I think not.

Section 27 of the Act prescribes;

In making the provision for a dependant the Court shall have complete discretion to order specific share of the estate to be given to the dependant, or to make such other provision for him by way of periodical payments or a lump sum, and to impose such conditions ,as it thinks fit.

Section 28 of the Act prescribes that;

In considering whether any order should be made under this part, and if so what order, the Court shall have regard to;

(e) the conduct of the dependant in relation to the deceased;...

With regard to the instant case and applying the above provisions

the widow and son of the deceased son are dependants of the deceased's estate. The evidence on record is that the deceased's son

Peter Mwaura Kariko subjected his parents and siblings to instances of violence and total disrespect from 1995 -2005. The parents resulted to Law Enforcement Agencies who intervened and in a meeting held in 2005 in the presence of the family, village elders and Chief it was resolved that the Deceased's son and his family were banished from the family home Loc 1 Kihumbuini /822 as confirmed by the annexed minutes of the meeting and copy of translation. There were Criminal cases against the deceased's son of assault and malicious damageThika Criminal Case 3299 of 2001 and 365 of 2004. This evidence was not controverted or disputed by the Applicants herein except for mere denial.

Therefore in light of the evidence on record, although the Applicants are dependants to the deceased's estate, since their beneficial interest emanates from the deceased's son interest and his conduct towards the deceased during their lifetime was deplorable, the Applicants cannot demand better claim to the deceased's estate.

The widow and administrator of the deceased's estate offered to transfer to the Applicants L.R. Thuita/373. That parcel of land should be transferred to the Applicants for development, settlement or sale. From the antecedents the deceased's son's family cannot in the interest of prevailing peace be allowed back to the family home.

With regard to the issue of sale of the 2 properties, the green cards confirm sale and transfer of the 2 parcels in 2011 after the deceased's death and before the deceased's son's death. The rightful claimant ought to be the deceased's son. Finally, on the question of Succession, the effects of Section 35 of the Law of Succession Act, the Court in

BOB NJOROGE NGARAMA VS MARY WANJIRU NGARAMA & ANOTHER, SUCCESSION CAUSE NO. 307 OF 1995pointed out thus:

“The imports of these provisions of the law are to my mind clear and unequivocal. The petitioner/respondent as the surviving widow of the deceased has a life interest in the net residue of his estate. Her life interest would only come to an end upon her death or re-marriage. There is no evidence (neither is it alleged/that the petitioner/respondent has re-married). The surviving children of the deceased are only entitled to a bequest by way of gift under section 35(2) of the Law of Succession Act but such gift will be made at the sole discretion of the widow. As such the objector/applicant does not have a legal right to any portion of the estate of the deceased while his widow is still alive.”

The widow as administrator of the estate shall exercise life interest as trustee of the estate on behalf of all beneficiaries and after her interest , the estate shall revert to the beneficiaries unless gifts are made during the life interest.

DISPOSITION

1. The Application 27th October 2016 is dismissed.

2. The Applicants shall have the suit property L.R. Thuita/373 transferred them absolutely for development settlement or sale.

3. The rest of their beneficial interest shall await the administrator's expiry of life interest over the estate of the deceased.

4. Each party to bear own costs.

DELIVERED SIGNED & DATED IN OPEN COURT ON 10TH

NOVEMBER 2017

M.W.MUIGAI

JUDGE

IN THE PRESENCE OF:

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