[2015] KEHC 61 (KLR)

REPUBLIC OF KENYA

HIGH COURT OF KENYA

AT NAKURU

SUCCESSION CAUSE NO. 488 OF 2003

IN THE MATTER OF THE ESTATE OF ZACHARIA ISHAURA KARIUKI (DECEASED)

SALOME WAMBUI

JOHN RUTA KARIUKI................................PETITIONERS

AND

PHELISTER NJOKI KARANJA......................OBJECTOR

JUDGMENT

The objector (applicant) Pherister Njoki Karanja, took up the Summons, dated 20th November, 2008 seeking the revocation of the grant of letters of administration issued to Salome Wambui ("the 1st respondent) and John Ruta Kariuki ("the 2nd respondent) on 21/10/2005 and to be appointed as the administrator in their place. The applicant also prays that the respondents be ordered to furnish an inventory of the distribution of the estate of the deceased and each party to file its mode of distribution and the list of beneficiaries.

The application is premised on the grounds that the grant was obtained and confirmed fraudulently; that the 1st applicant (Salome Wambui) was not a widow of the deceased at the time as she had divorced the deceased in 1997; that some of the properties of the deceased were bequethed to the 2nd respondent without the court being informed of that fact and that the respondents failed to disclose to the court that the applicant is a widow of the deceased and a beneficiary thereof. It is also contended that the administration of the estate is being carried out in a manner inconsistent with the law and that the applicant's interest therein is threatened as the respondents may waste or unlawfully alienate the estate.

The application is supported by the affidavit of the applicant sworn and filed therewith. Besides reiterating the grounds on the face of the application, the applicant has, by way of evidence, sought to prove that the 1st respondent was not a wife of the deceased at the material time (see annexture , PNK1). She also laments that the respondents neither listed her nor her children as a beneficiary of the estate of the deceased. For those reasons, she urges the court to revoke the grant issued to the respondents and appoint her the administrator of the deceased's estate in order to give her an opportunity to distribute the deceased estate equally among all the beneficiaries.

In reply, the respondents filed the affidavit sworn by 1st respondent on 15th December, 2008. In that affidavit the 1st respondent acknowledges that by the time she took the grant herein her marriage with the deceased had been dissolved. However, she explains that after the rnarriage was dissolved she filed a suit for separation of the matrimonial property to wit, Nakuru High Court Misc. Civil Application No.244 of 1997. Unfortunately the deceased passed on before the application was heard and determined. Consequently the court ordered for maintenance of the status quo pending the appointing of an administrator in respect of the estate.

Following the order of, the court aforesaid, she got into discussion with the 2nd respondent (the deceased's brother) whom she knew to be the only beneficiary of the estate on how to administer the estate. When they were discussing the administration of the estate, it came to their attention that the applicant herein had fraudulently obtained letters of administration in respect of the deceased estate, in Kangema Senior Resident Magistrates Court's Succession Cause No.15 of 2000. Vide Nakuru Misc. Succession Cause No.227 of the 2000 which they filed against the applicant, they managed to have the grant issued to the applicant revoked. Thereafter, they petitioned for the impugned grant of letters of administration in respect of the estate of the deceased.

The respondents argue that their petition was gazette as by law required and after the court was satisfied that there was nothing to warrant their not being issued with the grant, issued them with the grant. After six months the grant was confirmed as by law required.

In view of the foregoing, the respondents argue that it is not true that the objector did not know of the existence of their petition. In any event, their action of revoking the grant the applicant had earlier obtained is said to have been enough notice of their intention to administer the estate of the deceased.

The respondents also argue that the application is an afterthought, the same having been brought more than three Years after the grant was confirmed.

The respondents also accuse the applicant for coming to court with unclean hands. In this regard, the respondents contend that the applicant has not disclosed to the court that she had obtained a grant in respect of the estate which was revoked.

In addition to the replying affidavit herein, the 1st respondent filed the further affidavit sworn on 15/1/2009 where she reiterates that she filed an application for division of the matrimonial property in Nakuru High Court Misc. Civil Application No.244 of 1997 (supra).Although the 1st respondent has not annexed the proceedings in that matter, she has annexed the order for maintainance of the status quo issued in that application.

In that affidavit the 1st respondent, also blames the applicant for having been the cause of her divorce; accuses her of having embezzled all the monies paid to the deceased as gratuity; all monies deposited in the deceased's accounts and having disposed off all motor vehicles belonging to the estate of the deceased; she asserts that the deceased's estate was jointly acquired by the deceased and herself and contends that there is no nexus between the deceased and the applicant. When the matter came up for hearing, three (3) witnesses testified in support of the applicant's case, the applicant included.

The testimonies of the three witnesses are to the effect that the 1st respondent divorced the deceased after he married the applicant. The witnesses blamed the respondents for having applied for and obtained letters of administration of the estate of the deceased without disclosing the interest of the applicant and her three children. The applicant, in particular, blamed the 2nd respondent for having retained all title deeds in respect of the deceased's estate and the birth certificates of her children and urged the court to order him to return them to her.

The witnesses acknowledged that the 1st, respondent lived with the deceased before they divorced and that the applicant was the cause of the divorce between the 1st respondent and the deceased.

PW.2 (John Kitundu Kariuki) one of the two surviving brothers of the deceased informed the court that he had no problem with the 2nd respondent (his elder brother) being made a co-administrator of the estate of the deceased. He also informed the court that he had no problem with the 1st respondent being given part of the deceased's property

On his part, RW.3, Elisha Wandera, a 1st cousin of the deceased who also testified in support of the applicant's case informed the court that it is against their custom for a divorced wife to get all the property, especially where the deceased had children and brothers like in the instant case.

Although P.W.2, and P.W.3 acknowledged that the 1st respondent was a civil servant, they stated that they had no knowledge whether she had contributed in the acquisition of the deceased's estate or whether she had filed a suit for division of the matrimonial property.

In her testimony the 1st respondent informed the court that she married the deceased in 1974 and that they stayed together until 1997 when the marriage was dissolved through the divorce cause she had filed. However, she contended that the order for divorce was never extracted. Following the order for divorce, she brought a claim for the division of the matrimonial property. Unfortunately, the deceased passed on before the application was heard and determined.

Maintaining that she contributed in the acquisition of the deceased estate, the 1st respondent stated that she contributed in the acquisition of the plot at Pangani (Plot 290 Nakuru) and the plot at Kapenguria being Sigoi A57 West Pokot measuring 3 acres.

Maintaining that she is still a wife of the deceased since the order for divorce was not extracted and matrimonial property divided, she explains that she applied for the impugned grant after she successfully applied for revocation of the one earlier on issued to the applicant in Kangema Law Courts.

Concerning the allegation that the grant they have was obtained fraudulently, she denied having filed the petition secretly and that she did not know that the deceased had children with the applicant. She maintains that she contributed in acquisition of the plot at Pangani and at Kapengerua, both of which are registered in the name of the deceased. She urged the court to order that those properties be given to her.

Concerning the plot at Pangani, it was the 1st respondent testimony that she supervised its construction and serviced the loan they had taken to buy the same.

Responding to a question from the applicant's advocate to the effect that she must have known of the applicant's interest in the suit property because she had alluded to her in her divorce cause, the 1st respondent explained that saying that the applicant was living with the deceased did not mean that the two were married.

The respondent referred to some documents which she claimed are proof that they never plotted to take away all the property left by the deceased. (Upon considering the document alluded to by the 1st respondent the court noted that they referred to a loan that the 1st respondent was serving and took issue with the 1st respondent’s. advocate’s failure to produce the documents).

The 1st respondent reiterated her contention that, after the applicant took, the grant, which was later on revoked, she accessed part of the estate of the deceased to wit, Kshs.70,000/= in the deceased's account at KCB Nyeri, Kshs.100,000/= being gratuity disbursed through the office of the Public Trustee and the deceased's death gratuity.

At the close of the cases for the contending parties, advocates for the parties filed submissions which I have read and considered. The issues for consideration are:-

1. Whether the applicant has made a case for the revocation of the grant issued to the respondents?

if yes,

2. Whether the applicant has made up a case for being appointed an administrator of the estate of the deceased?

3. What other or further orders should the court make in respect of the applicant's application?

The Law on revocation or annulment of grant:

The law on revocation or annulment of grant is found in section 76 of the Law of Succession Act. The section provides:-

“A grant of representation, whether or not confirmed, may at: any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion-

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

b) that 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;

c) that the grant was obtained means of an untrue allegation of a fact essential in point of law to iustify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either-

I. to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court has ordered or allowed; or

II. to proceed diligently with the administration of the estate; or

III. to produce to the courts, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and 11.

g) of section 83 or has produced any such inventory or account which is false in any material particular; or

e) that the grant has become useless and inoperative through subsequent circumstances.,"

The instant application seeks to revoke/annul the grant issued to the respondents on grounds (a) and (C) above. This is so because the applicant contends that the grant was obtained fraudulently and that there was material concealment of facts notably the existence of the applicant and her children.

It is the applicant's case that the respondents did not inform the court about her interest and that of her children in the estate of the deceased. In reply to this contention the respondents argue that they followed the law in obtaining the impugned grant and that the applicant ought to have known that the reason for getting the grant that she had obtained revoked was to apply for the impugned grant.

In determining the question as to whether the grant herein was procured by fraud and/or concealment of material facts or unprocedurally, it is noteworthy that under Rule 7 subrule (4) and 7) of the Probate and Administration Rules, the 1st respondent not being one of the persons in the order of preference set in section 66 of the Law of Succession Act (by virtue of having divorced the deceased), the law placed an obligation on her that before making the application for the grant to furnish to the court such information as the court may require to enable it to exercise its discretion under that section and to satisfy the court that every person having a prior preference to a grant by virtue of that section had-

a. renounced his right generally to apply for a grant; or

b. consented in writing to the making of the grant to her; or

c. been issued with a citation calling upon him or her either to renounce such right or to apply for a grant.

Although the respondents contend that they followed the law in applying for the grant there being no evidence that the court was informed of the applicant and her children’s beneficial interest in the estate of the deceased, I agree with the applicant's contention that the respondents concealed from the court, her interest and that of her children in the estate of the deceased. The respondents also failed to follow the procedure contemplated under Rule 7sub rule 7of the Probate and Administration Rules (supra).

In view of the foregoing my answer to the first question is in the affirmative.

Concerning the 2nd issue, the evidence on record shows that the applicant was by operation of law, the deceased's sole surviving wife. As such, under Section 66 of the Law of Succession Act, she ranks higher than the respondent in administration of the estate of the deceased.

Although the respondent has a legitimate claim to the estate of the deceased based on her claim that she contributed in the acquisition of the estate, of course subject to proof of her contribution,

I am persuaded that the applicant has made a case for being appointed the administrator of the estate of the deceased. However since the' deceased was survived byminors, under section 58of the Law of Succession Act, the applicant cannot be appointed the sole administrator of the estate. Consequently, in exercise of the powers conferred on this court under section 47 of the Act (Law of Succession Act, the grant issued herein is revoked. I direct that the applicant and the deceased's other surviving brother (John Kitundu Kariuki) be appointed the administrators of the estate of the deceased.

With regard to the 3rd issue, since there is evidence that the respondent is in occupation of the plot at Pangani, I direct that she will continue having the possession and use of that property pending the hearing and determination of her share of the deceased estate, if any.

The upshot of the foregoing is that, the applicant's application is allowed but only to the extent contemplated herein above.

Each party to bear its own costs.

Dated, Signed and written at Bungorna this 18th day of December, 2014

H.A OMONDI

JUDGE

Delivered and dated this 28th day of January 2015 at Nakuru,

JANET MULWA

JUDGE