[2017] KEHC 2476 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

SUCCESSION CAUSE NO. 614 OF 2015

(FORMERLY CHUKA SUCCESSION CAUSE NO. 138 OF 2011)

IN THE MATTER OF THE ESTATE OF THE LATE THAMBU BAIMUNDI (DECEASED)

PURITY KAARI GILBERT.....................................................1ST APPLICANT

ROSEMARY KIRUMI............................................................2ND APPLICANT

VERSUS

DAVID NJERU MUGWIKA.....................................................RESPONDENT

R U L I N G

1. This cause relates to the estate of the late THAMBU BAIMUDI (Deceased) who died on unknown date domiciled at Ganga Location. The respondent herein (David Njeru Stanley) was appointed the administrator of the estate of the deceased herein on 1st September 2011. The said grant was confirmed on 28th October, 2015 and the estate comprised in that parcel known as LR. No.MWIMBI/MUGUMANGO/41 was distributed by this court as follows:-

a) David Njeru Stanley- 1. 5 acres

b) Daniel Njiru Kalarwo- 1. 5 Acres

c) Rosemary Kirumi- 1. 5 Acres

Morris Mwenda Kabandi)- jointly

2. Purity Kaari Gilbert and Rosemary Kirumi have both taken out summons for revocation of said grant dated 19th November, 2015 and 14th January 2016 respectively. Both applications were heard simultaneously and therefore this ruling is in respect of the two application though I will consider them separately because the grounds upon which the applications have been brought are distinct and different.

3. To begin with the summons dated 19th November, 2015, Purity Kaari Gilbert the 1st applicant has moved this court under Section 76 of the Law of Succession Act (Cap 160) to revoke a grant issued to David Njeru Mugwika on 22nd August 2011 and confirmed on 21st October, 2015 on the following grounds namely:-

(i)That the proceedings to obtain the grant were defective in substance.

(ii)That the grant was obtained fraudulently by the making of a false statement or by the concealment from court of something material to the cause.

(iii)That the applicant is a legal representative of one Gilbert Mugambi Chabari (deceased) who was a purchaser of a parcel meant for Bernard Kamundi Stanley (deceased).

(iv)That the distribution going to Rosemary Kirumi should have been excised to cater for her interests as were purchased by the late Gilbert Mugambi Stanley.

In her supporting affidavit sworn on 19th November 2015, Purity Kaari Gilbert has deposed that she is the appointed legal administrator of the late Gilbert Mugambi Chabari and that her late husband was purchaser of 0. 75 acres of land comprising the estate having purchased it from Bernard Kamundi Stanley (deceased) who was a son of the deceased in this cause. She contends that the administrator was aware of her interests in the estate and that the grant should be revoked so that her interest in the estate can be catered for.

4. The respondent opposed the applicant's application through a replying affidavit filed on 4th December, 2015 where he faulted the late Bernard Kamundi for forgery & fraudulently dealing with the estate. He has further deposed that the applicant was not a dependant nor a creditor to the deceased. His view is that, the applicant should pursue Rosemary Kirumi the legal representative of Bernard Kamundi.

5. The provisions of Section 76 of the Law of Succession Act allows any party to move the court for revocation of grant on grounds set on that section. While the applicant has stated that the proceedings to obtain the grant were defective she has not cited any of the defects in the proceedings. I am also not pursuaded that the administrator was fraudulent by failing to cater for her interest. In the first place she is not a beneficiary or a dependant to the late Thambu Baimundi. Secondly, she has not demonstrated that she is a legal representative of the late Gilbert Mugambi Chabari and even if she had demonstrated the same, I would still have found that her claim on the estate cannot be entertained by this court as a probate court. Thirdly, claim lies on the estate of Bernard Kamundi Stanley and not the estate in this cause. I agree with the respondent that the application dated 19th November, 2015 is untenable basically for above reason and the fact that this court's jurisdiction under Section 2 of the Law of Succession Act is limited and does not extend to matters that are clearly under the armpit of the ELC court. For that reason the application must fail as it is not sustainable here. Any claim she may have should as a matter of law should be directed to the legal representative of the late Bernard Kamundi. I am also pursuaded that the transactions that gave rise to the applicant's claim having been reversed vide a court order issued on 12th August 2015 in the lower court, the applicant's rights in this cause and particularly in respect to the estate of Thambu Baimundi (deceased) were legally extinguished and trying to revive it through this application is an abuse of court process and improper. The application dated 19th November, 2015 for the above reasons is dismissed with costs.

6. Now turning to the application dated 14th January, 2016, Rosemary Kirumi and Daniel Karalwa the other applicants herein have also sought for revocation of the same grant on the following grounds namely:-

(i)That the proceedings to obtain the grant were defective in substance.

(ii)That the grant was obtained through fraud.

(iii)That the grant was obtained through untrue allegation of fact.

(iv)That some beneficiaries were left out.

7. In her supporting affidavit sworn on 14th January, 2016, the 1st applicant has deponed that the summons dated 27th April 2015 which cancelled the subdivision of the estate herein was heard exparte without notice to them. She has accused the respondent for moving the court without any notice to them. She has also alleged that the respondent is not a son to the deceased and should not have been appointed the administrator.

8. It is the applicant's contention that the deceased herein died leaving behind the following children:-

(i) Benard Kamundi Stanley (deceased)

(ii) Daniel Njiru Karalwa

(iii) Janet Ithiru

(iv) Ariel Njeru (deceased)

(v) Ndiga Stanley (deceased)

(vi) Samuel Kaburu (deceased)

(vii) Murungi Stanley (deceased)

(viii) Micheni Stanley (deceased)

The applicant has also listed the following other dependants:-

a) Rosemary Kirumi

b) Wakuthe Njeru

c) Poly Kawira Njeru

d) Esther Kathambi Njeru

e) Kaimuri Njeru

f) Janet Kaari Njeru

g) Mwaniki Njeru

h) Kawira Samuel

The applicants have deposed that the interest of these other dependants were not catered for.

7. The 1st applicant has acknowledged that her late husband sold part of the estate and that Purity Kaari Gilbert should be given a share in the estate on account of that.

8. The 1st applicant strongly denied in her testimony in this court that the respondent here is a son to the deceased. She testified that she never found him in the family of the deceased when she was married to Bernard Kaburi Stanley- the deceased son of the deceased herein. She also testified that the deceased called several family meetings when he was alive and the respondent never attended any. It was her position that the respondent never stepped in the land comprising the estate when the deceased was alive and that he only came when the deceased had passed on with the intention of subdividing it. According to her the persons occupying the estate are herself, Daniel Njiru, Rosemary Kirumi and Purity Kaari.

9. The 1st applicant was supported by Janet Ithiru (PW3) who told the court that she was aged 90 years and was the 1st born child of the deceased and by that virtue she knew or had more information concerning the deceased than any other child. She also denied that the respondent was a son of the deceased pointing out that he had his own parents and that her mother was known as Marion Riungu. It was her testimony that Marion Riungu was never married to her father. According to her as per her sworn affidavit which she adopted as part of her evidence the beneficiaries of the estate should be as follows:-

(i) Janet

(ii) Samuel

(iii) Muriungi

(iv) Njiru Ndiga

(v) Njeru

(vi) Kamundi

She further testified that the only child of the deceased who is still alive is Daniel Njiru. According to her, the deceased herein passed on 6th July, 1987 and that prior to his demise he had given the responsibility of administration of his estate to his son KABUNDI STANLEY (now deceased) and WILLIAMM'MWOGA. She accused the said William of not taking his responsibility and instead conspiring with the respondent herein to prejudice the interests of other beneficiaries. She reiterated that the father of David Njeru (respondent) was Mugweka. She argued that her deceased brother Anvil Njeru was the only child with the family name "Njeru"and that the respondent could not have called the name "Njeru" again as in her view there could only one child named after "Njeru" in their family.

10. The respondent opposed this application and contested the evidence given by the 1st applicant (PW1) and Janet Ithiru (PW2). It was his evidence that the deceased was his father and that his mother, the late Marion Riungu was a wife to the deceased. According to him, the deceased was married to three wives namely:-

(i) Marion Riungu

(ii) Naomi Mugai &

(iii) Belinda

He also testified that Naomi had two children:-

(i) Samuel Njiru

(ii) Janet Ithiru and Belinda had the following children:-

(i) Micheni

(ii)Henry

(iii) Ndiga Njeru

(iv) Kamundi Stanley.

He further added that the only children of the deceased who are still alive are:-

(i) David Njeru (respondent)

(ii)Janet Ithiru and

(iii)Daniel Njiru

12. The respondent produced a certificate of dedication (P.Exh 1) from the Salvation Army denomination as proof that he was a son to the deceased. He conceded under cross-examination that he was on land parcel L.R.No. MWIMBI/MUGUMANGO/23 and that he never went to the deceased when he was alive to ask where he was to cultivate. He also admitted that Daniel Njiru has a mental condition that makes him unstable mentally.

13. The respondent's testimony was supported by William M'Ndubai M'Mwoga (RW2) who testified that he was a brother of the deceased and according to him the respondent was a son to the deceased. He also testified that the respondent's mother, Marion Riungu was a 1st wife to the deceased. He however conceded under cross-examination that David Njeru (the respondent) lives in the land belonging to M'Mugwika in whose name he was named. He conceded that there had been family meeting to sort out the paternity dispute involving the respondent.

14. Elias Mukindia (PW3) testified too and stated that he was a nephew to the deceased. He too confirmed that the respondent was a son to the deceased that he brought the petition for letters of administration after the family had agreed that he does so. Under cross-examination he conceded that he did not know all the children of the deceased and in particular did not know that Janet Ithiru was a daughter to the deceased. He also did not know Aniel Njeru though he stated that he was a neighbour to the family of the deceased.

15. Cyrus Kaburu M'Ithara (PW4) also testified and generally agreed with the testimony given by Elias Mukindia (PW3). He knew that the estate should be divided into three according to the wives of the deceased Marion, the mother of the respondent included as according to him, she was one of the three wives of the deceased. He confirmed that the respondent was tasked to be the administrator and was advised to involve and include all the children to the deceased.

16. This court has gone through the evidence tendered and affidavits filed in this cause. The issue for determination at this stage is not who is entitled to share of the estate comprised in that property known as L.R No. MWIMBI/MUGUMANGO/41 but rather the issue is whether or not the applicants have satisfied this court that grounds exist to revoke or nullify the grant herein in accordance with the provisions of Section 76 of the Law of Succession Act. Section 76 provides five grounds upon which a grant can be revoked by this court either on an application by a interested party or on its own motion in brief the grounds are:-

(i) Defect in proceedings to obtain the grant

(ii) Fraud and concealment by a petitioner

(iii) False allegations

(iv) Failure to diligently carry out the administration

(v) When a grant becomes inoperative or useless through subsequent circumstances.

17. The parties to this application went to great lengths to establish facts and matters that were really either not relevant to the summons for revocation of grant dated 14th January, 2016 which is what is before this court or were premature at this stage. This court expected the parties to restrict themselves to the merits or demerits of the summons for revocation of grant. For clarity, this court will only address the same in this ruling because that is what is relevant. The other issues as to who is entitled to what will be addressed at the appropriate time.

18. For good measure, both counsels in their submissions before me restricted themselves to the above relevant issues. I have looked at the form P & A 5 which is the affidavit filed by the respondent when he was petitioning for letters of administration. He listed the following as the children surviving the deceased :-

(i) David Njeru Mugwika

(ii) Stanley Micheni

(iii) Kamundi Stanley

(iv) Njeru Stanley

However in his evidence before this court, the respondent conceded that Janet Ithiru was the elder daughter to the deceased. This is what he said in cross-examination.

"Janet is my sister. She is older than me."

The question is, if the respondent knew that Janet Ithiru was a daughter to the deceased why did he conceal that fact from court when the provisions of Section 51 (i)(g) of theLaw of Succession Act placed an obligation on him to reveal the names of all surviving children of the deceased? This court finds that even from that fact of concealment alone, the applicant has made out a good ground for revocation of grant herein.

19. This court is also pursuaded by the applicant's counsel that the petition for letters of administration were defective in substance because of non compliance of rule 26(1) of Probationand Administration Rules. The respondent was required to notify all persons entitled in the same degree or in priority to the respondent when applying for letters of administration. All the beneficiaries were required to give a consent in Form 38 to the applicant but going by the evidence of PW1 and PW2 it is obvious that there were objection to him being an administrator leave alone being a beneficiary. This court has noted from the petition filed, that no Form 38 or 39 as required by the cited rule above was filed and that rendered the petition for letters of administration herein defective and this court finds so. I have also perused at the petition presented and noted that the petitioner (respondent) did not state when the deceased herein passed on. This court was not told why but perhaps the respondent had no idea as to when the deceased passed on which could explain the insistence by the applicant and especially Janet Ithiru (PW2) that the respondent was not a son to the deceased. This court noted the demeanor of the respondent when he was testifying and noted that the applicants could be having a good case in regard to the paternity of the respondent. Nonetheless as I have already observed above, the issue is premature at this stage and we shall cross that bridge when the time comes.

20. The respondents submissions mainly direct on the 1st applicant and only stated that the 2nd applicant's interest is to get a larger share in the estate to cater for the illegal sale of part of the estate to the 1st Applicant. That may be true but at this stage as I have observed this court is not concerned with the distribution of the estate and who is to get what. This court is concerned with whether grounds exist as to whether to revoke the grant herein. The issue of forgeries by the 1st applicant's deceased husband was dealt with decisively by the lower court and it is no longer an issue in this court. I am also not pursuaded by the respondent's contention that the lower court's jurisdiction to issue the grant herein cannot be raised now because of failure to raise it in that court. It is also not correct that a jurisdictional issue is a technical matter. When a court lacks jurisdiction like it is clear in this cause it lacks and not be expected to entertain the matter. Section 48 of the Law of Succession Act clearly limited the magistrates court's monetary jurisdiction to only Kshs.100,000/-. In this cause the value of the estate was placed at Kshs.200,000/- which meant that the lower court lacked jurisdiction. I also find from the proceedings that that issue was brought to the attention of the lower court but inadvertently no decision was made in that regard. That however does not change the position of the law. The lower court when it entertained the cause and granted the letters of administration on 22nd August, 2011 lacked the jurisdiction to do so. That defect is not curable even by Article 159 of the Constitution as contended by the respondent's counsel. That was an inadvertence whose cure is only found under Section 76(c) of the Law of Succession Act.

The long and short of this is that this court finds merit in the application dated 14th January 2016. The same is allowed under the following terms:-

a) The grant issued on 1st September 2011 and confirmed on 21st October, 2015 is hereby revoked.

b) All subdivisions and other steps taken as per the confirmed grant are hereby reversed and the property known as LR. MWIMBI/SOUTH MUGUMANGO/41 shall revert back to the deceased pending the distribution of the said estate by this court.

c) In exercise of my discretion under Section 66 of the Law of Succession Act, I hereby appoint Janet Ithiru as the administrator of the estate of the late Thambu Baimundi (deceased).

d) In view of the age of the administratix and the history of this matter, this court gives liberty to the appointed administratix to apply for confirmation of grant before the expiry of the statutory period of six months.

e) there shall be no order as to costs at this stage.

Dated and delivered at Chuka this 9th day of October, 2017.

R. K. LIMO

JUDGE

9/10/2017

Ruling signed, dated and delivered in the open court in the presence of the applicant and the respondent.

R.K. LIMO

JUDGE

9/10/2017