[2017] KEHC 3939 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

SUCCESSION CAUSE NO.459 OF 2011

THE MATTER OF THE ESTATE OF KARUA MUKUA alias M’KARARU M’MUKUA (DECEASED)

STELLA KAGWIRIA MUTUMA.............................................................PETITIONER

- VS -

MONICA MBUTHU KITHINJI.....................................1st APPLICANT/OBJECTOR

KULETA KOVICO FRANCIS.....................................2nd APPLICANT/ OBJECTOR

ROSE KANJA KARARU...........................................3rd APPLICANT/ OBJECTOR

ANN MUKIRI MARETE..............................................4th APPLICANT/ OBJECTOR

LUCY KAIRUTHI KARARU.........................................5th APPLICANT/OBJECTOR

FLORENCE KAGWIRIA KARARU..............................6th APPLICANT/OBJECTOR

RULING

[1] This decision relates to Summons for Revocation of Grantdated 18th February 2015 brought under Sections 45, 47 and 76 Rules 44, 49, 73 of the Probate and Administration of the Law of Succession Act (CAP 160) Section 68 of the Land Registration Act No.3 of 2012 and all other enabling provisions of the law. The substantive order sought in the application are:

1. An inhibition to be registered on L. R. Nos. NYAKI/GIAKI/259 and NYAKI/NKABUNE/ 560 to prevent the registration of any dealings whatsoever thereto pending the hearing and determination of this cause.

2. Revocation or annulment of the grant of letters of administration and certificate of confirmation of grant which were issued to the petitioner on 13/03/2013 and this cause be heard a fresh.

3. An order extending time to allow the applicants to file their protest in this cause out of time.

4. Cancellation of Title Deeds which have been issued to the Petitioner and 3rd parties in respect of L. R. Nos.NYAKI/GIAKI/259 and NYAKI/NKABUNE/ 560 pending distribution of the estate by the court a fresh.

5. Any further orders as may be necessary for the interests of justice to prevent the intermeddling with the estate of the deceased pending the hearing and determination of this cause.

6. An order for costs.

[2] The application is based on the grounds that the Applicants are the daughters of the Deceased yet they have been completely excluded in the distribution of the estate. The Petitioner who is the daughter in law of the Deceased committed fraud and is now seeking to transfer the land to 3rd Parties. The Applicants further state that they will suffer irreparable loss and damage if the intermeddling of the estate continues as they will be deprived of their share. That no prejudice will be occasioned to the Petitioner if the orders sought for are granted as she secretly filed the cause without involving the Applicants.

[3] The application is further supported by the affidavits of ROSE KANJA KARARU and PRISCILLA NKATHA M’NDUBI. According to ROSE KANJA’s affidavit, the Deceased was their father and he was survived by the following children:

a. Monica Mbuthu Kithinji - Daughter

b. Kuleta Kovico Francis - Daughter

c. Rose Kanja Kararu - Daughter

d. Ann Mukiri Marete - Daughter

e. Lucy Kairuthi Kararu - Daughter

f. Florence Kagwiria Kararu– Daughter

g. Genesio Mutuma M’Kararu – Son (Deceased)

Their father was the registered proprietor of the parcels of land L. R Nos:

1. NYAKI/GIAKI/ 259 – Measuring 20. 30 Acres

2. NYAKI/NKABUNE/560 – Measuring 0. 20 Ha

And he left them with the original title deeds.She states that the family had not agreed as to the filing of their father’s succession cause. Whilethey waited to agree, they were surprised when in the monthsof October and November 2014 their sister in law STELLA KAGWIRIA MUTUMA started threatening them with eviction form L. R No. NYAKI/GIAKI/259 alleging that the land belonged to her solely. They instructed their advocate to conduct a search on the parcels of land and they found out that they had been transferred to the Petitioner and SIMON KIAMBI. They further instructed their advocate to check the status of the estate at the High Court of Meru succession registry and were shocked to find out that their late brother had filed this succession cause. She states that their late brother and his wife have committed serious fraud for they omitted the Applicants from the succession cause, mislead the chief, deceived the court that the Deceased had no other beneficiaries and that one FREDRICK THUNGUTHA M’IKABU was included in the estate when he is not a son of the Deceased. She deposed that Petitioner is now seeking to subdivide L.R NO.NYAKI/GIAKI/259 and transfer the same to 3rd parties; she has already transferred L. R NO, NYAKI/NKABUNE/560 to the said FREDRICK THUNGUTHA M’IKABU who has since sold the land. The area chief and other administrators have completely refused to listen to their complaint and instead threatened them with arrest and imprisonment. They have extensively developed on the property and they urge the court to revoke the grant of letters of administration.

Petitioner says the applicant were notified

[4] The Petitioner deposed in her replying affidavit that the Applicants were fully involved during the filing of this succession cause but were only dissatisfied with the distribution. That after the demise of the Deceased the family held a family meeting on 5th November 2005 in the presence of clan elders and agreed on the proposed distribution (SKM ‘1’). The land parcel L. R. NO. NYAKI/GIAKI/259, her late husband would be entitled to a portion of land measuring 13. 30 Acres, 3rd Applicant 3 Acres, 2nd Applicant 2 Acres, 4th 5th and 6th Applicant 2 Acres jointly while the 1st Applicant decided that she was not interested in a share of the estate. The family resolved that land parcel L. R. NO NYAKI/NKABUNE/560 should go to her late husband who was to sell the same and the proceeds would be used to file this cause, sub-divide the estate and process the title deeds in favour of all the beneficiaries. She states that she is ready and willing to transfer the land parcels to beneficiaries as agreed in the family meeting as L. R No NYAKI/GIAKI/259 has already been subdivided.

DTERMINATION

[5] In these proceedings, the question the court should ask is whether there are grounds to revoke the grant herein. Looking at the grounds being cited, the record should be the apt consultant. These proceedings relate to M’Kararu M’Mukua, the Deceased who died on 8th July 2003. The letter from the chief dated 29th July 2011lists GENESIO MUTUMA M’KARARU as the only beneficiary of the deceased. The petition also stated that GENESIO MUTUMA was the only surviving child of the deceased. Based on those facts, a grant letters of administration intestate was made on 19th January 2012 to GENESIO MUTUMA M’KARARU (now deceased). It has now come to light that the deceased was the father of and was survived by the following children:

a. Monica Mbuthu Kithinji - Daughter

b. Kuleta Kovico Francis - Daughter

c. Rose Kanja Kararu - Daughter

d. Ann Mukiri Marete - Daughter

e. Lucy Kairuthi Kararu - Daughter

f. Florence Kagwiria Kararu– Daughter

g. Genesio Mutuma M’Kararu – Son (Deceased)

The law of Succession Act is very clear as to who dependants are and the children of the deceased are dependants of the deceased. None of the daughters of the deceased was listed as a beneficiary of the estate. I have not also seen any consent from them to their late brother to file these proceedings. Notably, all stand in equality to apply for letters of administration. Thus, their contention that they were not involved in the filing of these proceedings and that these proceedings were file secretly holds water.

[6] I move to the next stage of the proceedings and examine what transpired. The late GENESIO MUTUMA M’KARARU applied for confirmation of grant of grant vide application dated 31st January 2012. The affidavit in support of summons for confirmation of grant of letters of administration intestatestated inter alia that:

(i) The Deceased was survived by one child who is GENESIO MUTUMA M’KARARU;and

(ii) Persons beneficially entitled to the estate are GENESIO MUTUMA M’KARARU and FREDRICK THUNGUTHA M’IKABU.

The consent to confirmation of grant Form 37 and to the mode of distribution Form 37B were signed by Stella Kagwiria Mutuma, the wife of Petitioner (now deceased). Base on this information, the grant was confirmed and certificate for confirmation of grant was issued on 26th September 2012. Unfortunately, GENESIO MUTUMA M’KARARU died on 10th October 2012. The Petitioner who was the wife of Genesio filed an application on 10th January 2013 by way of chamber summons to be appointed as the legal representative of her husband. The High Court in Meru after noting that there was no objection to the application from Fredrick Thungutha, granted her orders on 13th April 2013. What does this portend in law?

[7] The appointment of the Respondent made her the administrator of the estate. Technically, as administration of the estate was not yet completed, the death of BENESIO rendered the grant to him useless and or inoperative. Courts have said time and again that in such case, there can never be any substitution of the deceased administrator as an administrator of the deceased; t is a grant that is made to another person who is now duly appointment an administrator of estate. If the deceased administrator was also a beneficiary then the principle of representation will kick in in respect of the share due to the deceased administrator. Therefore, as the Respondent was being appointed as the administrator of the estate of the deceased and not of the deceased petitioner she ought to have followed the laid down procedure. Accordingly, a grant in respect of the deceased was made to her and confirmed as such. She ought to have obtained consent of all persons who were in equality to her; the daughters of the deceased. She did not do so. She only obtained consent from a purchaser FREDRICK THUNGUTHA M’IKABU whose standing in the estate is clearly untenable. She furthered the mistakes committed by her husband and excluded the daughters of the deceased from the estate. She cannot therefore justify a clear violation of the law by stating that her husband committed these wrongs.

[8] Moreover, it is quite disturbing that the Petitioner’s submissions state that the family had a meeting and agreed that land L. R No. NYAKI/GIAKI/259 MEASURING 20. 30Acres which has already been subdivided to be distributed as follows:

1. L.R NO NYAKI/GIAKI/ 4034 measuring 3 Acres to ROSE KANJA KARARU

2. L.R NO NYAKI/GIAKI/4033 measuring 2 Acres to KULETA KOVICO FRANCIS

3. L.R NO NYAKI/GIAKI/4037 1. FLORENCE KAGWIRIA KARARU

L. R NO NYAKI GIAKI/ 4035 2 Acres to 2. ANN MUKIRI MARETE

L.R NO NYAKI/ GIAKI/4036 3. LUCY KAIRUTHI KARARU

4. MONICA MBUTHU KITHINJI

This is not supported by order of the court and confirmed grant which makes it illegal and highly questionable. The Petitioner states that the married daughters were given a less share because they are married while the unmarried daughters were given larger shares. These submissions are tinctured with prohibited discrimination under the Constitution. See Article 27 (1) it which stated that;

“Every person is equal before the law and has the right to equal protection and equal benefit of the law.”

[9] Taking all the above into account, this grant is a perfect candidate for revocation. I hereby revoke the grant issued to the Respondent and I allow the application dated 18th February 2015. More specifically, inhibitions shall be registered in all the estate property namely NYAKI/GIAKI/259 and NYAKI/NKABUNE/560 until this cause is heard and determined. I will consider which titles to be canceled upon receiving better particulars of the specific title number in question. It is so ordered.

Dated, signed and delivered in open court at Meru this 18th day of July 2017

....................

F. GIKONYO

JUDGE

In the presence of:

Muthomi advocate for Kiogora advocate for applicant

Kithinji advocate for Gichunge advocate for petitioner

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F. GIKONY O

JUDGE