[2017] KEHC 3179 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

SUCCESSION CAUSE NO. 997 OF 2012

(IN THE MATTER OF THE ESTATE OF FRANCIS MURIUKI WAHOME (DECEASED))

ROSE MUMBI MURIUKI…………......PETITIONER/RESPONDENT

-VERSUS-

JAMES GICHERU MURIUKI……………………..……..APPLICANT

AND

LUCY WANJIRU MURIUKI

ROSEMARY WAMBUI MURIUKI

JOSHAT WAHOME MURIUKI

TERESA WANJIKU MUCHOKI

MARY NGIMA MURIUKI………....……...…INTERESTED PARTIES

RULING

The petitioner obtained grant of letters of administration intestate in respect of her late husband’s estate on 25th March, 2013. The deceased himself died on 19th April, 2012 aged 80. He was survived by the petitioner who, according to the petition, is one of the deceased’s two wives, and several children. I gather from the affidavit in support of the petition that they are ten of them.

By summons for revocation of grant dated 23rd February, 2015 and filed in this honourable court under sections 47 and 76 of the Law of Succession Act (cap.160), the applicant sought to revoke the grant on the grounds that it was obtained fraudulently by making of a false statement or by concealment of material facts from the court. The grant is said to have been obtained secretly and without the applicant’s knowledge or consent.

In the affidavit which the applicant swore in support of the petition, he deposed that he is the son of the deceased and that he had even obtained limited grant of letters of administration from this court in Succession Cause No. 587 of 2012 in respect of his estate.

The applicant also swore that the administration of the deceased’s estate is an issue that was discussed between his advocate and the respondent’s advocates before the respondent unilaterally petitioned for grant of letters of administration. He also took issue with the omission from the petition of some of the assets which he alleged comprised the deceased’s estate and inclusion of others which never belonged to the deceased.

The respondent opposed the summons and filed a replying affidavit in which she swore and agreed with the applicant that indeed the applicant’s advocates were in constant contact with her advocates before she eventually petitioned for grant of letters of administration. The reason for the correspondence between them was to agree on the administrators of the estate and that the petitioner only moved to court for the grant when they failed to agree on joint administration of the estate. In any event, so the petitioner deposed, the petition was subsequently gazetted and, since no objection was raised against it, she was given the grant of letters of administration.

The respondent also swore that being the surviving spouse of the deceased she stood in better stead to petition for letters of administration of his estate than the applicant.

As far as the omission of certain assets from the deceased’s estate is concerned, she admitted that she deliberately omitted them because the deceased had disposed of them in his lifetime and therefore, according to her, they were not part of his estate. On the other hand, she believed that all the properties she listed as comprising the deceased’s estate belonged to the deceased.

My immediate appreciation of the material before me is that, in lodging her petition for grant of letters of administration, the petitioner disclosed all the facts that, in my humble view, are material in making an application for grant of letters of administration under section 51 of the Law of Succession Act.

Amongst these material facts was the disclosure of not only the identities of all the survivors of the deceased but also the inventory of what the petitioner believed to the deceased’s estate. It could be, as the applicant has suggested, that the petitioner was mistaken on this latter aspect of the disclosure but I am satisfied with the explanation that based on the information within her knowledge, she deliberately omitted certain assets from the estate in good faith and not for ulterior motives. I appreciate that she has, for instance, given the particulars of the purchasers of these assets. I suppose that whether there was any concluded sale or purchase of any of these assets, or generally the legal effect of any sale or purchase of what would have been the deceased’s estate are matters which will obviously be considered in the summons for confirmation of grant. I reckon that it is in the confirmation proceedings that this court will conclusively determine such questions as whether the alleged purchasers exist; or whether they concluded any contract with the deceased in his lifetime; and, crucially, whether they have any proprietary interest in all or any of the assets that have been omitted from the deceased’s estate on the ground that they are not part of his estate.

Similarly, a conclusive resolution of the question whether there is any asset which the petitioner has included in the deceased’s estate but which, according to the applicant, ought not to be there, will be resolved in the context of confirmation of grant proceedings. Suffice it to say, I do not find the petitioner’s omission from or inclusion into deceased’s estate certain properties is, in the present circumstances, a valid or plausible ground for nullification or revocation of the grant of letters of administration intestate made to the petitioner.

As to whether the respondent was the best suited person to obtain the grant of letters of administration or whether she ought to hold the grant jointly with any other person, section 66 of the Law of Succession is clear that the court has the final discretion on whom this grant is to be made. Subject to this discretion, it goes further to give a general guide on the best placed person eligible for the grant; it states:

66. Preference to be given to certain persons to administer where deceased died intestate

When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—

(a) surviving spouse or spouses, with or without association of other beneficiaries;

(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;

(c) the Public Trustee; and

(d) creditors:

Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.

I am guided accordingly and I would exercise my discretion in favour of the respondent. I am persuaded that the respondent should remain the sole administratrix of the deceased’s estate not only because she is the only surviving widow but also because there has been no allegation and neither has evidence been produced that she has failed to proceed diligently with the administration of the deceased’s estate.

The applicant introduced a limited grant which he obtained in this court’s succession cause No. 587 of 2012 for what I understood to be basis for the argument that he should be the administrator or a joint administrator of the deceased’s estate. My reading of that grant is that it was limited to the applicant being substituted in place of his deceased father in High Court Civil Case No. 142 of 2010. That a grant limited for a particular purpose was made to him, did not thereby give him an upper hand in the administration of the deceased’s estate or otherwise override the provisions of section 66 of the Act.

For the foregoing reasons, I do not find any merit in the applicant’s summons for revocation of grant dated 23rd February, 2015 and it is hereby dismissed. This order applies mutatis mutandis to the applicant’s application dated 4th November, 2014. There shall be no order as to costs.

In order to expedite conclusive determination of this cause in every respect, the administratrix is hereby directed to file and serve the summons for confirmation of grant within fourteen days of the date hereof. The summons shall be served on all the children of the deceased together with the alleged purchasers.

It is so ordered.

Signed, dated and delivered in open court on 6th day of October, 2017

Ngaah Jairus

JUDGE