[2016] KEHC 1857 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO 305 OF 2008

IN THE MATTER OF THE ESTATE OF THURUAINEMWITARI ALIAS THIRWAINE (DECEASED)

M’NABEAM’IMANYARA

LUDIA KAINDA................................................................PETITIONERS

VERSUS

STANLEY BUNDI

PAULINA NKURUGUCHUM’WAMWAARI.........INTENDED OBJECTORS

AND

CHARITY M’NABEA............................................................APPLICANT

RULING

Deceased beneficiary

[1] The significant order sought in the application dated 2nd October 2015 is that:-

(a) Charity J. M’Nabea, the legal representative of the deceased 1st Petitioner to be made a party in these proceedings.

The application is expressed to be made under Order 24 rule 3(1) of the Civil Procedure Rules and is supported by the affidavit of the Applicant. The major reason for applying is that she was appointed as the legal representative of the deceased 1st Petitioner on 29th September, 2015 in MERU HC MISCAPPL NO 287 OF 2015, and as such representative she should be made a party in these proceedings in order to pursue this cause on behalf of her late husband. She amplified these arguments in the submissions that were filed on 8th April 2016 and placed much emphasis on the fact that her later husband was one of the administrators and direct beneficiaries of this estate and as such beneficiary, part of the estate property herein was transferred to her late husband. But, there is now a challenge to the appointment as administratorof and entitlement as a beneficiary of his late husband in the estate, and, therefore,unless she is joined as a party she and other dependants of the late 1st Petitioner will lose their said land. He appealed to the court to deem it fair and just to join her as a party in these proceedings.

Respondent: Nothing left to pursue

[2] The 2nd Petitioner opposed the application dated 2nd October, 2015 through a Replying Affidavit sworn on 22nd October, 2015 and submissions filed on 19th August, 2015. Her main opposition is that this matter was concluded way back on 17th July, 2012 after the deceased 1st Petitioner entered into an agreement in which he exchanged his land being L.R. Nyaki/Chugu/234 for L.R Nyaki/Chugu/356 which belonged to the family of the 2nd Petitioner. These lands were transferred, registered and title deeds issued to the parties. Both families have since lived and worked on their respective lands after the exchange. The agreement for exchange was witnessed by MuchiriNkuruu. To her, the court finished its work and there is nothing, thereforeto pursue in this cause.She suggested that the only available option to the Applicant is to file a cause in respect of her deceased husband’s estate. She termed this application as frivolous and abuse of court process and urged that it be dismissed.

DETERMINATION

Court not functus officio

[3] Before, I delve into the merits of this application;I should ask whether these proceedings have been concluded in the manner suggested by the Respondent. I need not remind that this is a probate and administration cause which is governed by the Law of Succession Act and should be viewed as such. I note that there is an application dated 3rd November, 2914 for revocation of the grant made to the petitioners. From the record, unless I am shown a proceeding to the contrary- the application was only marked SOG; meaning that the said application is still pending resolution; and the prospects of whether that application for revocation will succeed or not is a different thing altogether and cannot be argued in this application. Therefore, once such application is filed the court becomes seized of the matter and properly exercises jurisdiction on the case; in such case, the court is not functus officiounder the Law of Succession Act; it must decide the application on arguments presented including those on functus officio. Accordingly, I do not agree with the submission by the Respondent that the court has finished its work in this cause,or that there is nothing for the Applicant to pursue in this matter. On the contrary; any impeachment of the grant will invariably affect the estate of the 1st petitioner, and any such eventuality can only be defended by the personal representative or holder of letters of administration of the estate of the deceased petitioner/beneficiary. I say this because in law, the said application for revocation of grant must be served upon all administrators (living) as well as all beneficiaries and personal representative of any deceased beneficiary as is the case here. The record shows that the deceased petitioner was both an administrator as well as a beneficiary of the estate and he received land No Nyaki/Chugu/356 which was the estate property. Now therefore, as his status as a beneficiary and administrator of the estate of the deceased is challenged, his personal representative must be a party in these proceedings.

Solid advice

[5] A necessary detour; Upon consideration of the facts of this case, I am inclined to agree with the Respondent on one thing; that there will be need for the Applicant to also apply for full grant of representation of the estate of the deceased 1st Petitioner. There is real worth in taking that course because of the nexus between this estate and that of the 1st Petitioner following the exchange of the two pieces of land in question. In addition, the estate property still stands in the name of the deceased 1st Petitioner, a state of affairs that should cease as soon as possible. In that manner, all issues that the Applicant seems to be raising will be on the two lands will be accordingly addressed. In so suggesting, I am not oblivious of the fact that the limited grant of letters of administration issued herein is sufficient for purposes of joinder of parties in these proceedings. I hope the Applicant will abide by this advice and apply for full grant of representation of the estate of the deceased petitioner.

The upshot

[6] Back on the main. The upshot of my above analysis is this. The Applicant is a holder of limited grant of letters of administration ad litem of the estate of M’NABEAM’IMANYARA, for purposes of pursuing Succession cause No. 305 of 2008. She is in law the Personal Representative of the estate of M’NABEAM’IMANYARAfor that limited purpose. See section 3 of the Law of Succession Act that:-

‘’personal representative’’means the executor or administrator as the case may be, of a deceased person;and

‘’administrator’’ means a person to whom a grant of letters of administration has been made under this Act.

Of great significance, the said M’NABEAM’IMANYARAwas one of the Administrators as well a beneficiary of the estate to which these proceedings relate; he received the estate property being land number Nyaki/Chugu/356; this is an accrued right so far. And as the Court of Appeal held in the case of TROUISTIK UNION INTERNATIONAL & ANOTHER vs. MBEYU& ANOTHER (2008) 1 KLR (G&F) 730:-

‘’To determine who may agitate by suit any cause of action vested in the deceased at the time of his death, one must turn to section 82(a) of the Law of Succession Act. That section confers that power on personal representatives and them alone’’.

Accordingly, the entitlement of the deceased 1st petitioner to the estate property has been challenged through application for revocation, and his personal representative should be the one to agitate this challenge; the Applicant must, therefore, be made a party in these proceedings. In the result, I order that the Applicant shall be joined as and is now a party in these proceedings as the personal representative of the estate of M’NABEAM’IMANYARA,the deceased 1st petitioner and beneficiary herein. The application dated 2nd October, 2015 succeeds in whole. Costs shall be in the cause. It is so ordered.

Dated, signed and delivered in open court at Meru this 3rd day of November, 2016

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F. GIKONYO

JUDGE

In the presence of:

Kiget for Mwarania for Applicant

Ludia Kainda

Intended objectors

Plaintiff

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F. GIKONYO

JUDGE