1.This cause relates to the estate of M’Rethara Ikuru alias Rethara Ikuru alias Ithaara Gikuru (deceased) who died intestate on 10th December 1987. The Respondent herein is the deceased’s son. He applied for and was issued with a grant of letters of administration in respect to the estate of the deceased.1.It is not in dispute that the deceased was polygamous and left behind two widows:i.Edith Gature M’Itharaii.Anna Kangai M’Ithara (Deceased)2.It also not in dispute who the beneficiaries of the deceased are. The house of Edith Gature M’Ithara had 9 issues:i.Robert Mbae M’Itharaii.Thomas Mbae M’Ithara (deceased)iii.Kiruja M’Itharaiv.Anderson Njiri Simonv.Elias Kithinji Simeonvi.Catherine Kanini Mbaevii.Lucy Muthoni M’Itharaviii.Joyce Mukwanyaga Njagiix.Francis Kamunde3.On the other hand, the second house of Anna Kangai M’Ithara had the following 5 issues:i.Genesio Mndaka M’Itharaii.Anastacia Gaaji M’Itharaiii.Josyline Miuraitheiv.Rose Kainda Kithinjiv.Jane Karimi Linus4.The deceased’s estate comprised of two (2) known properties namely:i.L.R. No. Muthambi/Erega/66 measuring approximately 10 acres; andii.L.R. No. Muthambi/Erega/168 measuring approximately 3.927 acres.5.By a judgment delivered on 20th November 2018, the lower court confirmed the grant in the following terms:i.The 7 sons to inherit Muthambi/Erega/66 in equal shares of 1.42 acres each.ii.The 8 women (including Edith) inherit Muthambi/Erega/168 in equal shares of 0.491 acres each.6.Presently before this court is the summons for revocation of grant dated 14th October 2019. It primarily seeks for the revocation of the certificate of confirmation of grant dated 26/11/2018 issued in Chuka CM Succession Cause No. 339 of 2016 and for costs of the application to be in the cause.7.The application is premised on the grounds on the face of it and it is supported by the affidavit of Rose Kainda Kithinji sworn on 14th October 2019. She depones that the Applicants herein were not involved in the proceedings before the lower court despite being daughters of the deceased. She further depones that proceedings in the lower court were defective on account of the Respondent’s failure to disclose all the material facts.8.The application is opposed by the Replying Affidavit sworn by Robert Mbae M’Ithara on 28th October 2019. He depones that the applicants have always been informed of all developments in the succession cause and attended court, thus should not claim that they were not aware of the proceedings in the lower court. the Respondent further contends that if the applicants were aggrieved by the decision of the lower court, then they ought to have filed an appeal challenging the same.9.The Application was canvassed by way of viva voce evidence as well as written submissions.
The Applicants’ Case10.The 1st Applicant testified as PW1. She is the deceased’s daughter and sister to the Respondent. It was her contention that she was not heard in the lower court proceedings. According to her, the deceased had three (3) parcels of land, but the Respondent only indicated two (2) parcels in the lower court. She alleged that the property that was omitted was land parcel no. 5694 which is located at Rumuruti. She further alleges that she never signed any consent on the mode of distribution that was proposed before the lower court.11.On cross examination, PW1 confirmed that she did not have any document to show that the deceased owned the land she claims. She contends that the deceased had distributed his land during his lifetime and given the two houses their respective shares. The Respondent is also alleged to have received land from the deceased. It was her testimony that the land her mother received was on a valley and hence impossible to build on. She thus proposed that land parcel no. Muthambi/Gatua/168 be shared equally indicating that the family of the Respondent received L.R. No. Muthambi/Erega/66.12.PW2 was Jane Karimi, also the deceased’s daughter. The Respondent is her brother although from a different mother. She also alleged that she was not involved in the lower court proceedings and that she never signed any consent on the proposed mode of distribution of the deceased’s estate. On cross examination, it was her testimony that the deceased had distributed his land to his two wives but did not give the daughters a share of the estate. She further stated that their mother received L.R. No. Muthambi/Erega/66 and the daughters subsequently received land from their mothers.
The Respondent’s Case13.The Respondent testified as DW1. He relied on his Replying Affidavit sworn on 28th October 2019 in which he deponed that the Applicants were called to the Chief’s office after he filed the cause in the lower court. According to him, each of the beneficiaries of the deceased got their share of the estate. He claims that the land in Rumuruti has no title deed and that is why he never mentioned it in the lower court proceedings. He further claimed that he did not know where the said land is located but that he knew that it belonged to the deceased. He stated that L.R. No. Muthambi/Erega/168 was never given to either the daughters of the deceased or their mothers. He confirmed that L.R. No. Muthambi/Erega/66 is the one that was given to them. In addition, the Respondent stated that he had sold a portion of the estate to a buyer before the grant was confirmed. He further confirmed that he did not involve the 1st Applicant.14.DW2 was Anderson Thiri Simon, another son to the deceased. he testified that the deceased had two (2) land parcels L.R. No. Muthambi/Erega/66 and L.R. No. Muthambi/Erega/168. He corroborated DW1’s contention that the deceased distributed his estate in his lifetime and that gave his sons equal shares. He contends that the deceased also gave land to his sister who was unmarried but the did not give land to the Applicant as she was married. According to him, he sold his portion of the land before the proceedings in the lower court were filed.15.DW3 was Joyce Mukwanyaga, a daughter of the deceased. She adopted her Replying Affidavit sworn on 21/7/2021 as her evidence. She deponed that she was not informed when the case in the lower court was filed but was satisfied with the share that her mother was given. She did not know the outcome of the case and stated that she was not interested in any portion of the estate as their mother had already given them a portion of the land.
Issue for determination16.The main issue for determination is whether the applicants have established sufficient ground for the revocation of the subject confirmed grant.
2.The applicant filed submissions through their advocates Basilio Gitonga Murithi & Associates. Her contention is that she seeks revocation of the grant issued by the trial magistrate in Chuka CM Succession Cause No. 339/2016 in favour of the respondent who is the administrator of the estate. They are urging the court to note that they were not parties to the proceedings before the lower court and that crucial information was not disclosed to the court. That the respondent conceded before this court that he had benefitted from the property of the deceased prior to his demise and that had received proceeds of sale of part of the estate prior to the confirmation of the grant. That is the applicant’s contention that the grant was defective in substance and is good for revocation as provided under Section 76 of the Law of Succession Act. (Cap 160 Laws of Kenya) to be referred to as the Act. The applicant relies on. In Re Estate of Joshua Munyi (deceased) 2021 eKLR.
3.The applicant in opposing the submission by the respondent’s contention that the only avenue open to them was appeal, submit that they were not parties in the trial before the trial magistrate and so they reserve the right to seek revocation of the said grant.For the respondent, submissions were filed by Kijaru & Company Advocates who urge the court to find the applicants are daughters of the deceased who had distributed his properties during his lifetime and the daughters had received a share out of land parcel No. Muthambi/Erega/66 where they each got 0.25 acres each and in common share with their respective mothers having a life interest. That the sons were to get equal shares out of Land Parcel No. Muthambi/Erega/168 which measures approximately ten (10) acres.The respondent submits that all the beneficiaries were involved in the proceedings before the lower court. The respondent submits that Section 40, 37-39 of the Act is applicable to the estate of a deceased person who was polygamous and dies intestate. He relies on Mary Rono –v- Jane Rono & Another C.A Eldoret C.A 66/2002 where the court held that Section 40 of the Act is applicable and the distribution should be made to the house s according to the number of children in each house and adding the wives as additional unit to the number of children in each house. The respondent submits that most of the beneficiaries have extensively developed their parcels of land and revocation and redistribution would displace most of the beneficiaries, particularly those who benefitted during the lifetime of the deceased. In this regard he relies on Rahab Njeri Kariuki –v- Joyce Waruguru Kariuki & 2 Others and Morogo A Mugun alias Moroko Makumu (2019). The respondent has urged the court to consider his proposed mode of distribution as it fare and in accordance with the mode of distribution by the deceased during his lifetime.
Analysis17.Revocation of grants is governed by Section 76 of the Law of Succession Act, Cap 160 of the Laws of Kenya (hereinafter the “Act”) which provides as follows:18.Under Section 76 of the Act, a court may revoke a grant if some or all the grounds listed above are disclosed either on its own motion or on the application by a party.19.The Applicants herein contend that they were not parties to the proceedings before the lower court and that crucial information was not disclosed to the court. They further contend that the administrator had failed to seek the consent of all persons protesting the confirmation of the grant contrary to the provisions of the law.20.In determining the protest, the lower court considered the fact that the consent to the confirmation of grant had not been signed by the daughters.21.From the court record, however, there is an affidavit of protest to confirmation of grant sworn by Joseline Mukwanjeru on 3rd February 2016. Paragraph 3 of the said affidavit indicates that the same was sworn for and on behalf of and with authority of Genesio M’ndaka M’ithara, Anastacia Gaji M’ithara, Rose Kainda and Jane Karimi. None of those mentioned in the said affidavit have challenged the authenticity of the said affidavit. The affidavit was a protest to the proposed mode of distribution. This affidavit shows that the applicants were involved in the succession having authorized Joseline Mukwanjeru, one of their own to swear the affidavit on their behalf. The Act requires that before the court confirms the grant of Letters of Administration it must be satisfied that as to who the beneficiaries of the estate are and their respective shares. Section 71 of the Law of Succession Act provides:-This is buttressed by Rule 41 of the Probate and Administration Rules. The grant which confirmed considered all the beneficiaries of the deceased, the estate and what each of them was entitled to out of the known estate of the deceased.22.That notwithstanding, the present application seeks principally for the revocation of the certificate of confirmation of grant. Sections 53 and 54 of the Act provides for forms that a grant may take by stating as follows:23.From the above provision, the question then that arises is whether a certificate of confirmation of a grant is in fact a grant of representation intestate or the equivalent of a grant, to be revoked or annulled through Section 76 of the Act. This question was considered in the persuasive case of In re Estate of Prisca Ong’ayo Nande (Deceased)  eKLR where the court opined that a certificate of confirmation of grant is not a grant of representation. In that case, the court expressed itself as follows:24.At paragraph 14, the court in proceeded to state a follows:Considering the provisions of Section 76 of the Act I am persuaded by this finding. This is the correct interpretation of Section with respect to a grant and certification of grant.25.It is trite that that a party is bound by its pleadings, and the court only decides a matter based on the pleadings before it. The court should therefore not invoke the power to revoke the grant when there is no prayer for it. It thus follows that there is no proper application before this court for revocation of the grant of letters of administration intestate made in this matter. I agree with the respondents contention that the applicants should have filed an appeal as what is challenged is the finding of trial magistrate on the mode of distribution of the estate.On the other hand, I find that the court has had occasion to consider the complaints by the applicant. The respondent has urged the court to find that the deceased had distributed his properties and the beneficiaries moved to their respective portions which they have extensively developed. This is asserted by Joyce M’Kiraithe a daughter of the deceased in her affidavit sworn on 21/7/2021 where she has deponed that all the daughters in house No.1&2 received a share in Land Parcel No. Muthambi/Erega/66 of 0.25 acres each which was done without favourism and there was no objection. She further testified that one unmarried daughter Lucy Muthoni was given her share of 0.25 acres. This is also stated in the affidavit of Thomas Nyaga Muthara. This is confirmed by other beneficiaries. Section 42 (a) of the Act provides that when the estate of the deceased is being distributed, consideration should be had to gifts made by the deceased during his lifetime. These are known as gifts inter vivos. Section 42 (a) provides: -“(a) an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house.”Such gifts are considered and may lead to beneficiary’s share being reduced at the distribution of the net intestate estate being. The distribution by the trial magistrate though stating that the proposed distribution was skewed and prejudiced against some of the beneficiaries, proceeded to give the women a lesser share than the men. The court had discretion to distribute the estate.My view is that consideration should have been made to the distribution made by deceased intervivos so as not to interfere with the ocupation and the development made by the beneficiaries. In the exercise of the discrection the court must therefore consider principles of fairness and equity. See Rahab Njeri Kariuki –v- Joyce Waruguru Kariuki & 2 Others where Justice Ngaa held that-b.LR No. Muthambi/erega/66 -(Sons)- In equal shares of acres.
- Robert Mbae M’Ithara -1.34acres
- Genesio Njeru M’Ithara -1.34. acres
- Thomas Nyaga M’Ithara -(Deceased) (his heirs to get – 1.34 acres
- Kiruja M’Ithara -1.34 acres
- Anderson Njirii M’Ithara -1.34 acres
- Francis Kamundi M’Ithara -1.34.acres
- Elias Kithinji M’Ithara -1.34 acres
- c. LR No. Muthambi/erega/168 - In equal shares of 0.56 acres.
-Thomas Nyaga M’Ithara (Deceased) – to the rightful -beneficiaries .
- -Robert Mbae M’Ithara
- Genesio Njeru M’Ithara
This is line with the way the deceased had distributed his estate in his lifetime. Parties to bear their own costs.
- Kiruja M’Ithara
- Anderson Njirii M’Ithara
- Francis Kamundi M’Ithira
- Elias Kamundi M’Ithara.