[2017] KEHC 3727 (KLR)

REPUBLIC OF KENYA

HIGH COURT AT NAIROBI

MILIMANI LAW COURTS- FAMILY DIVISION

IN THE MATTER OF THE ESTATE OF DANIEL NJOROGE KAIYARE (DECEASED)

SUCCESSION CAUSE NO. 3213 OF 2013

BETWEEN

PETER KANJA NJOROGE

ANTHONY WANGONGU NJOROGE

STANLEY NGUGI NJOROGE...........................................APPLICANTS

AND

HILDAH WAIRIMU WATAARU……………………... RESPONDENT

RULING

INTRODUCTION

The deceased died on 19th April, 2000. The deceased’s property forming substantially his estate namely Land Reference No. Karai/Karai/952 (hereinafter the Estate) is un-preserved thus open to wastage, interference and alienation.

Thereafter, Hildah Wairimu Wataaru (hereafter ‘the Respondent’) was issued with Grant of Letters of Administration on 4th March, 2003 in the Chief Magistrate’s Court at Kiambu, in Succession Cause No. 114 of 2012.

Peter Kanja Njoroge, Anthony Wangongu Njoroge and Stanley Ngugi Njoroge (hereafter ‘the Applicants’) filed the Summons of Application for Revocation of the said Grant on 11th December, 2013, in which they sought the following orders:

(1) The Interim injunction/conservatory order be and is hereby issued restraining the Respondent either by herself, her agents, servants, employees or whomever from wasting, dealing, leasing, sub-dividing, transferring or interfering with the Estate of the Deceased namely Land Reference No. KARAI/KARAI/952 pending the hearing and determination of this Application.

(2) An interim injunction/conservatory order be and is hereby issued restraining the Respondent either by herself, her agents, servants, employees or whomever from wasting, dealing, leasing, sub-dividing, transferring or interfering with the Estate of the Deceased namely Land Reference No. KARAI/KARAI/952 pending the hearing and determination of the Summons for Revocation of Grant herein filed dated 11th December, 2013.

THE APPLICANTS CASE

The Applicants stated that on 2nd May, 2013 the Respondent obtained consent from Kikuyu Land Control Board to sub-divide the Deceased’s property, even though the Applicants had registered a caution against the property on 5th August, 2013 and subsequently a restriction was placed against the property on 13th September, 2013 where there was reasonable apprehension that the same may be removed at the Land’s Registry and the Estate wasted, alienated and interfered with before the summon herein are heard.

The Applicants claimed there is imminent danger of the Respondent proceeding with the sub-division of the Deceased’s Property pursuant to the consent granted by Kikuyu Land Control Board thus rendering the Summons herein nugatory and occasioning the Applicants and other beneficiaries irreparable loss and damage.

They contended that the Respondent has leased out and/or is in the process of offering a portion of the Estate for leasing to strangers who are non-beneficiaries at the detriment of the Applicants rights which has and/or will consequently lead to wastage of the Estate.

The Applicants pleaded that the Honourable Court to intervene and grant the orders sought to protect the Deceased’s Estate that is estimated to be valued at more than Kenya Shillings Eight Four Million and Five Hundred Thousand (Kshs.84, 500,000/-) the Estate will be wasted, interfered with and alienated therefore defeating the purpose of the Summons herein filed.

They urged the Court to allow their Application and grant the order sought therein to ensure the Deceased’s Estate is well preserved from wastage and alienation.

THE RESPONDENT’S CASE

In response to the Application, the Respondent filed an Replying Affidavit on 12th April, 2016 that in reply to paragraph 6 and 7 of the Supporting Affidavit whose contents were denied she deponed that her name was entered in the registry records for purposes of division of title number Karai/Karai/952 as per Kiambu Succession Cause No. 114 of 2012 and not as a proprietor. She stated that in reply to paragraph 18 and 19 of the Supporting Affidavit whose contents were denied, she claimed that her Advocate on record had advised her which advice she verily believe to be sound that having participated fully in Succession Cause No. 114 of 2012 at Kiambu without any objection, the Applicant is stopped by the doctrine of waiver and Section 120 of the Evidence Act.

She further stated that having directed on 28th September, 2015 the summons dated 11th December, 2013 be heard viva voce, the honourable court is functusofficio and the Applicant’s only option is appeal. She also argued that the Applicant was present in Court when summons were issued by the judicial officer and did not object and he is therefore estopped by acquiescence and laches.

She averred that the Applicant will suffer no injustice or prejudice as he will have an opportunity to cross examine the witness. She also claimed that the Applicant is an indolent and dilatory suitor and should not be had to blame the honourable court for his failure to prosecute his summons.

She claimed that the application is counter-productive as it scuttled the hearing of the summons on 1st February, 2016 as directed by the honourable court on 28th September, 2015. She stated that the summons is inimical to the beneficiaries as the Applicant is actuated by unbridled ego, greed and chauvinism.

She further claimed that the summons is in bad faith and in contempt on the face of the Court.

SUBMISSIONS

The parties opted to proceed by exchanging and filing written submissions. The Applicant filed submissions on 3rd June 2016 and the Respondent filed on 19th December 2016.

The Applicants in reliance on Section 48(1) & 49 of Law of Succession Act Cap 160 sought revocation of grant issued in Succession Cause 114 of 2012as the Court lacked pecuniary jurisdiction. They contended and attached Valuation Report marked PKN4 of the suit property Karai/Karai/952 the subject of the confirmed grant which is valued at Ksh 84,000,000/- yet the pecuniary jurisdiction of the Magistrate's Court was at Ksh 100,000/- at the time (2013). It is noted that the said jurisdiction has since been increased.

The Applicants relied on the following authorities on the issue of jurisdiction of the Court;

OWNER OF THE MOTOR VESSEL LILIANS VS CALTEX OIL (KENYA) LTD 1989 KLR FRANCIS MUTERU GATHOGO VS WINNIE NYANJUGU & 2 OTHERS [2014] EKLROMARI ABUD VS HAFUSA NDUTA KANYI [2014]ARISON MURITHI KAUMBUTHU VS CELINA MUTHONI BERNARD & 7 OTHERS [2014]

The above cases reiterate the issue of jurisdiction being central to hearing and disposition of a matter and therefore the issue ought to be raised at the earliest opportunity.

Secondly, John Mwangi Gakeri and James Kiarie Kariuki the guarantors' for guarantee by personal sureties who allegedly signed the documents attached to the Petition for grant of letters of administration filed their sworn affidavits attached marked PAS 9 to the effect that they were not consulted and they did not sign the sureties' documents and hence they are a forgery. These revealed events resulted in Criminal Case 186 of 2014 in Kikuyu Courtagainst the Respondent.

The Applicants relied on Section 76 (a) of Law of Succession Act that the proceedings were defective in substance. they based their claim on the following claims; that they were not involved as beneficiaries,

their signatures were forged, the deceased's Will was not considered in the proceedings to obtain the grant and the value of the estate was falsified.

The Respondent through Counsel stated that on 29th January 2013 the letters of administration were confirmed in the presence of 10 beneficiaries and none of them objected to confirmation of grant and mode of distribution. The proceedings from the Court file in Succession Cause 114 of 2012are missing from the Court file.

This Court notes the alleged annexed copies of the proceedings marked HWW1-11 are also missing from the submissions filed in Court. There are annexed copies of proceedings attached to the Respondent's affidavit but even then it is not sufficient to confirm the consents of all beneficiaries to the deceased's estate to the confirmed grant. It is difficult for this Court to conclusively determine the issue of written consents and or presence of all beneficiaries at the time the Trial Court in Kiambu Court Succession Cause 114 of 2012; considered the Summons for confirmation of grant.

The Respondent relied on the case of

AGNES MUTITU MWAURA & 2 OTHERS VS JANE NJOKI GACHOKI 2015 EKLR

Where the court declined to revoke the grant on the basis of lack of jurisdiction by the Court because the issue of the value of the property that comprised of the estate of the deceased was not raised in Court at the time and the Valuation Report was not presented to the Trial Court at the time.

DETERMINATION

The revocation of grant is governed by Section 76 of Law of Succession Act Cap 160.

In the case of ALEX MWENDA MWIRIGI V RODAH KARIMI JADIEL, SUCCESSION CAUSE NO 337 OF 2011,in a decision rendered on 2nd November, 2016Gikonyo J. held that:

[5] I will not re-invent the wheel. This is an application for revocation of under Section 76 of the Law of Succession Act CAP 160 of the laws of Kenya and I only need to ask whether it satisfies the threshold provided in law? Given the arguments being presented, the most apt grounds to be met are, whether:

(a) The proceedings to obtain the grant were defective in substance;

(b) 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; and

(c) 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.

[6] Upon consideration of all the facts of the case, the affidavit, oral and documentary evidence before me, I see three major arguments emerging, namely; (1) the Respondent forged the signatures of the Applicant in applying for grant of letters of administration; (2) the Applicant was not provided for at all; and (3) the Respondent concealed some of the assets of the deceased. The Respondent argued that the Applicant and his grandfather were aware of these proceedings and she gave the example of the presence of the father in law at the issuance of and signed the letter by the chief. Here, I must state that forgery is a very serious allegation and would require strict proof based on quite preponderant amount of evidence. But, none was adduced in this case. I expected some report to the police or investigation to have been afoot on that allegation. I will not, therefore, rely or make any finding on the allegation of forgery at this stage. That matter ends there for now.(Emphasis added)

The allegation posited by Applicants is that the proceedings to obtain grant of letters of administration was defective due to various anomalies. The irregularities are that the Trial Court exceeded its pecuniary jurisdiction over the estate in view of its value; the guarantors who allegedly signed guarantee documents did not sign the documents and their signatures were forged. The Applicants did not consent to the confirmation of grant and their signatures were forged.

This court finds that in the absence of the Kiambu Court Succession Cause 114 of 2012, and especially in light of the fact that the original record is missing and or tampered with; this Court cannot conclusively confirm the truth of the allegations.

However, the allegations regarding the signing or forgery of the personal sureties to the petition for letters of administration for the deceased's estate is substantiated by the affidavits filed by the deponents that they were not consulted and did not sign the documents. The matter is the basis of ongoing Criminal Case 186 of 2014arising from the instant issues. The forged signatures casts doubt whether the process of obtaining the grant and confirming the same was legal, valid and regular. I find not.

The second issue is that the fact that it is presented to this Court that the value of the suit property exceeds the pecuniary jurisdiction of the Magistrates Court then, it cannot be wished away. Even if not raised before the Trial Court, the matter of jurisdiction goes to the root of the suit. The Trial Court albeit not informed by the parties at the time as to the value of the property, it is valued now and the value exceeds the Court's jurisdiction at the time.

The third issue is that the Applicants did not sign consents to confirmation of 29th January 2013 yet the Respondent stated that the Applicants and all beneficiaries were present in the Trial Court and they did not raise any objection and all consented. In the absence of the original record which is missing this Court cannot conclusively determine the truth of either allegation. It is one's word against the other's word.

DISPOSITION

For the above reasons the Court finds that the proceedings to obtain grant and confirm the same were defective under Section 76 (a) of Law of Succession Act Cap 160 and there is a Criminal Case against the Respondent arising from the said process.

Therefore this Court orders as follows;

1. The grant and confirmed grant of 29th January 2013 issued to the Respondent is hereby revoked.

2. The beneficiaries to appoint administrator(s) and

3. Each party to bear its own costs.

DELIVERED SIGNED & DATED IN OPEN COURT ON 2ND FEBRUARY 2017.

M.W. MUIGAI

JUDGE

IN PRESENCE OF:

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