[2017] KEHC 1532 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT CHUKA

SUCCSSION CAUSE NO. 14 'B' OF 2016

(FORMERLY EMBU MISC APPLICATION NO. 39 OF 2005)

IN THE MATTER OF THE ESTATE OF MUTINDWA MURITHI (DECEASED)

ZACHARIA MBUKI....................................APPLICANT

VERSUS

JAMES MATI MUKIRI(Legal representative

of the Estate ofFRANCIS

MATI MURITHI- Deceased)...................RESPONDENT

R U L I N G

1. This cause relates to the estate of the late Mutindwa Murithi who died intestate on 7th March, 1986 domiciled at Magumoni Location within the then Meru District. The court records before me shows that Francis Mati (now deceased) petitioned for letters of administration vide Embu Senior Principal Magistrate's Court Succession Cause No.58 of 1996. He was granted letters of administration on 25th October, 1996 but the grant was formally issued to him on 3rd February, 2000. The same was confirmed on17th March 1999. The records show that both the grant and certificate of confirmation of grant were issued on 3rd February 2000. The certificate of grant was rectified on 18th October, 2004.

2. Zakaria Mbuki Mutindwa the applicant herein vide summons dated 22nd March 2005 moved this court then sitting in Embu for revocation of grant on the following grounds namely:-

(i)That the letters of administration of the estate of the late MUTINDWA MURITHI was obtained fraudulently by concealment of material fact and the material fact pointed out was the fact that the deceased was survived by a wife who then was still alive.

(ii)That the grant was obtained by means of an untrue allegation of fact essential on a point of law to justify the grant.

3. In his Supporting Affidavit sworn on 22nd March, 2005 the applicant faulted his brothers of sidelining him when they filed the Succession Cause. He also deposed that the cause was filed without his knowledge and that he only came to learn about the cause when the surveyors visited the property forming the estate known as L.R MAGUMONI/THUITA/250,sometime in November, 2004.

4. According to the applicant, his late father (deceased herein) had given each of his sons their respective portions but that the distributions adopted in court had the effect of disinheriting some of the beneficiaries including his mother (now deceased).

5. In his further evidence sworn on 7th February, 2017, the applicant listed the following as children left behind by the deceased namely:-

(i)Zakaria Mbuku

(ii)Ezekiel Njeru- deceased

(iii)Francis Mati (named respondent but now deceased)

(iv)Erastus Mutegi

(v)Justin Mbungu

(vi)James Mati (The substituted respondent in place of Francis Matideceased.)

(vii)Maclus Ndeke

(viii)Janet Kaguri

(ix)Astrind Kagendo

The last two are indicated as married daughters.

6. The applicant has further added that the deceased herein had prior to his death had distributed his parcel of land (MAGUMONI/THUITA/250) to all his sons save for JAMES MATIwho had been given a separate portion elsewhere which measures about 3 acres. He further deposed that their deceased father showed or pointed out to each son where to occupy and demarcated it.

7. The applicant has accused his brothers for colluding to interfere with what their late father had expressed with a view to disposing part of the estate and pointed out John Nyaga Mugambi, as one such beneficiary having purchased a portion of the estate. According to the applicant the subdivision and sale of part of the estate was done secretly with the aim of disinheriting him. He accused his brothers Erastus Mutegi and James Mukiri of selling part of where he was occupying to the interested party. He added that the distribution was skewed because of displacing him from where he buried his late wife, and that he was also displaced from a front facing the road. He added at the hearing of this application that he only came to know the interested party herein (John Nyaga Mugambi) when he went and demolished his toilet.

8. The applicant under cross-examination during the hearing conceded that James Mati bought his parcel of land at Mwonge but added that he was given a cow which he sold and topped up to purchased the three acres he now occupies. He further conceded that he knew about the Succession Cause in Embu but that he did not know when the grant was issued and when it was confirmed.

9. In his submissions done vide his learned counsel Ms Alfred Kitheka & Co. Advocates, the applicant has faulted the respondent for petitioning for letters of administration without seeking consent of all the children of the deceased. It has been submitted that the distribution adopted disinherited some beneficiaries particularly their mother who was then still alive. The applicant has contended that the subdivisions and registrations effected on the estate were initiated and carried out unlawfully and fraudulently and has pointed out that the transfer made to interested parties was illegal. He has urged this court to revoke the grant so that a fresh distribution can be undertaken.

10. The initial respondent, Francis Mati Mutinda (now deceased) opposed this application through a replying affidavit sworn on 8th June, 2005. He faulted the applicant for bringing this application in bad faith though he agreed with him that the deceased herein had pointed to each son where they were to occupy and settle on the estate.

11. The initial respondent denied that he acted without involving the applicant while filing the Succession Cause arguing that they all agreed after clan okeyed the succession arrangements which were in line with the wishes of the deceased herein. The respondent further averred that that the applicant was aware about the filing of succession cause pointing out at the objection filed by him in Embu Senior Principle Magistrate's Court Succ. No. 58 of 1996.

12. The initial respondent deposed that the applicant after being shown his portion by the deceased moved and occupied the portion meant for JAMES MATI MUKIRIthe present respondent who substituted the initial respondent FRANCIS MATI MUTINDWA (now deceased). The initial respondent further averred that when the initial certificate of confirmation was rectified, the applicant was present in court.

13. JAMES MATI MUKIRI, the present respondent who, took over from the initial respondent has further sworn an affidavit. Sworn on 13th October 2016 where he has confirmed the averments made by the initial respondent that the applicant's intention was to take over the portion meant for him. He has contended that that the applicant being the eldest son wants to take advantage of his younger siblings. He has deposed that the applicant's portions upon subdivision became MAGUMONI/THUITA/2557and2560. It is contention of the respondent that upon the demise of the deceased herein, the applicant moved into MAGUMONI/THUITA/2556 which was a portion meant for the present respondent.

14. The respondent has further deposed that the deceased herein planted trees along the boundary of each beneficiary and those trees are now mature and clearly show where each beneficiary was to settle within the estate. The respondent has accused the applicant for using his children to forcefully occupy what was not meant for him and thereby causing disharmony in the family.

15. The respondent conceded at hearing of this application that he had sold his share to the interested party herein (John Nyaga Mugambi) contending that he sold his portion in the year 2004 after the grant had been confirmed on 19th March 1999. He also conceded that Marclus Ndeke got a larger share on account of the fact that he was the one charged to care for their mother who later passed on during the pendency of this proceedings.

16. In his written submissions made through I.C Mugo learned counsel for the respondent, the respondent has faulted the applicant for indolence pointing out that the initial summons for revocation had been dismissed for want of prosecution in Embu and that the same was only reinstated by the court's discretion. The respondent has submitted that the applicant's own affidavit shows that he acknowledges that their late father had informally subdivided his parcel of land comprising the estate and gave each son a portion to settle and utilize. It is submitted that the widow of the deceased was not disinherited as she was to be taken care by Marclus Ndeke, a son of the deceased who was given a larger share on account of that.

17. The respondent has further submitted that the applicant has not established that there was any concealment and has contended that the applicant did not challenge the contents of his affidavit revealing that the applicant was involved all through the succession proceedings. The respondent has reiterated that the certificate of grant was rectified in the full knowledge of all beneficiaries and has faulted the applicant for being greedy and by intending to grab two extra portions meant for the other beneficiaries. It is further contended that that the issue of concealment cannot arise in the face of objections that the applicant filed. The respondent contends that the applicant was duly represented by counsel when the objection was dismissed in court on 17th March 1999. The respondent has faulted the applicant for filing this application six years after the grant had been confirmed submitting that the same was an afterthought.

18. Having gone through the summary of the pleadings filed by both parties and the respective submissions this court considers, the following as the issues for determination in this application.

whether the grant of letters of administration in this cause were obtained through fraud and concealment.

whether there was inadvertent mistake or untrue allegation of fact essential to justify the grant.

whether the interested party's interest in part of the estate is protected by law.

19. (a)whether there was concealment and fraud on the part of the petitioner/respondent. There is no doubt or contest in this cause that though the deceased herein died technically intestate, he had made arrangements prior to his death on how his property comprised the estate herein (MAGUMONI/THUITA/250) was going to be shared among his seven sons namely:-

(i)Francis Mati (the initial respondent and now deceased)

(ii)Zakaria Mbuki (applicant)

(iii)Erastus Mutegi

(iv)James Mati

(v)Marclus Ndeke

(vi)Ezekiel Njeru (now deceased)

(vii)Justin Mati Mukiri (Now the respondent herein).

Apart from the sons the deceased left behind the following:-

(i)Margaret Kanini Mutinda (widow now deceased)

(ii)Janet Kagwi Mati (daughter deceased)

(iii)Astrind Kagendo Mati (daughter married).

The applicant's position in this application is that the petition for letters of administration was filed without his knowledge and that the initial petitioner proceeded with the petition at Embu Resident Magistrate's Court Succession Cause No. 58 of 1996 secretly without involving him. The respondent in answer to this has denied the same and stated that the applicant was very much aware pointing out at the objection filed as evidence that he was aware. I have pieced together the scanty proceedings both in the lower court (Succ. Cause No 58/96 and the High Court at Embu Succession Cause No. 184 of 2004) and what I have noted is that the applicant and the late Ezekiel Njeru filed objection vide a notice dated 24th October 1996 and filed on 25th October, 1996. The cause was listed for confirmation of grant on 17th March, 1999. The record show that the objectors were duly notified as the petitioner' s counsel I.C Mugo filed an affidavit of service on 17th March 1999, the same date matter was coming up for confirmation of grant. The court then presided by Justice Lenaola (as he then was) made the following key observations in regard to the applicant's failure to turn up in court or file any protest to the confirmation of grant;

"Having perused the court file, I have confirmed that no formal protest has been filed by Ezekiel Njeru and Mbuki Mutindwa................."

The court went further and noted that the objector's counsel Mr. Githinji had been duly served but "he and his client were absent." The court went ahead and confirmed the grant noting that the applicant and Ezekiel Njeru had been provided for in the proposed mode of distribution.

20. The issue of concealment therefore in my view does not arise in view of the above clear observations made by Justice Lenaola. The applicant clearly had knowledge in the very least on what was going on in Embu High Court because he instructed Githinji Advocate to file papers indicating that he was uncomfortable with the administration of the estate in this cause and the manner in which distribution had been proposed. So he was aware. He however failed to file any protest as required by law and failed to turn up in court on 17th March, 1999. Having failed to turn up in court on 17th March 1999, for whatever reason, the best the applicant could have done was to move the court to set aside, review, or even appeal against the orders made rather than move the court under section 76 of the Law of Succession Act. To do so is abuse of the court process because he obviously cannot ignore the proceedings and the orders of court made on 17th March, 1999 regarding his absence in court despite service. I therefore find that the applicant was no candid enough when he brought this application. To that extent he did not show good faith by pretending that he was in the dark when the facts, as illustrated above disapproves him. I am not pursuaded that the grant was obtained through concealment. The evidence presented before me and the file records do not support the contentions regarding concealment advanced by the applicant.

21. On the question of fraud, the applicant has not faulted the petitioner on any fraud. There is no evidence presented to prove that the respondent was fraudulent in anyway. For a party to rely on this ground successfully the law obligates him to prove that indeed the grant was obtained through fraud and the standard of prove in much higher because fraud in itself is a criminal offence. The applicant did not discharge that burden.

22. Whether the grant was obtained through untrue allegation of fact or inadvertence. On this ground, the applicant relied on the fact that the petitioner did not include their mother (now deceased) in the list of beneficiaries. While this this court finds that the omission of the widow was wrong, (and contrary to Section 51 of the Law of Succession Act) that ground no longer holds for two simple reasons;

(i)The widow is now deceased therefore that ground has been overtaken by events in all practical respects.

(ii)The widow herself did not swear an affidavit to say that she had been excluded or that she had not been catered for in the administration of the estate.

The respondent has deposed that the deceased had made prior arrangements on how the widow was to be catered for and the fact that the said widow was silent in this application until her demise appears to lend credence to the respondent's contention that she had life interest in the share that went to Marclus Ndeke. The applicant did not file any affidavit to rebut that contention. The applicant cannot use the departed widow of the deceased to advance his cause in this application because this court finds no evidence to show that the widow was incapable of advancing her own cause or interests in the application now before this court. This court is unable to make any finding concerning whether or not the widow was involved in the petition for letters of administration in the absence of any affidavit by the departed widow.

23. Whether the interested party's interest is protected by law. The applicant has contended that part of the estate has been sold to the interested party herein. This contention is conceded by the respondent who has deposed that we sold his share on 9th July 2004 after confirmation of grant on 17th March, 1999. While it is true that a purchase made after the confirmation of grant is protected under Section 92 of the Law of Succession Act, this court is aware that the certificate of confirmation was rectified on 18th October, 2004. I am unable to make any finding on whether or not the rectification can be sufficient to invoke the provisions of Section 76 of Law of Succession Act as urged because a look at both the certificate of confirmation dated 3rd February, 2000 and rectified certificate of grant dated 18th October, 2004 reveal that the name of John Nyaga Mugambi is not included. There is no legal basis to find that the certificate of confirmation should be revoked on account that it contains a name of a stranger. There is nothing that prevents any beneficiary from disposing his or her portion once certificate of confirmation of grant is issued because as observed above such transactions are protected by law.

24. I have looked at proposed mode of distribution that was adopted by the court in this cause and I have noted that by and large, all the children of the deceased, at least those who expressed interests on the estate (the daughters of the deceased did not launch any complaint) were provided for and though the shares are not equal, they are fairly equitable. The applicant got a fair share of the estate and really has no basis to complain. His contention that James Mati (the respondent) was given a cow to go and purchase another portion of land is not supported by facts or evidence presented leave alone whether or not one cow would be sufficient to purchase three acres of land as deposed.

The long and short of this is that I find no merit in the application dated 22nd March 2005. The same is dismissed but each party to bear own costs as this is a family matter. It is regrettable that the application took so many years to be determined but in view of the history of this matter the delay is understandable. Hopefully this ruling will bring the matter to rest.

Dated and delivered At Chuka this 6th day of November, 2017.

R.K. LIMO

JUDGE

6/11/2017

Ruling dated, signed and delivered in the open court in the presence of Kariuki Advocate holding brief for Mugo for Respondent and in presence of James Mati Mukiri.

R.K. LIMO

JUDGE

6/11/2017