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In re Estate of Njoroge Samwel Kiniti (Deceased) (Succession Cause 60 of 2014) [2022] KEHC 13898 (KLR) (13 October 2022) (Ruling)
Neutral citation:
[2022] KEHC 13898 (KLR)
Republic of Kenya
Succession Cause 60 of 2014
TM Matheka, J
October 13, 2022
IN THE MATTER OF THE ESTATE OF NJOROGE SAMWEL KINITI (DECEASED)
Ruling
1.Dr. Samwel Kiniti Njoroge died on 6th June 2004. According to the letter from the Chief Lanet Umoja Location dated 25th July, 2013 to the Deputy Registrar Nakuru High Court he was survived by;1.Ruth Mary Wangui - widow2.Roy Njoroge Kiniti - son3.David Githiomi Wanguhu - son4.Charles Mbugua - sonand left the following estate; Land No. C.R. 26338 – 0.4286 Ha – Mombasa Plot No. 360/M Share certificate No. 549
2.Ruth Mary Wangui filed this cause on 30th January 2014, and obtained grant of letters of administration, which was confirmed on 6th April, 2017 and she shared the property amongst herself and her children.
3.On 2nd October 2019, a Summons was filed under Section 45, 47, 76(d) and 94 of the Law of Succession Act and rules 49, 59(3) and 73 of the Probation and Administration Rules, by Sabina Wanjiku Ndung’u who stated that she was married to Dr. Samwel Kimiti Njoroge on 9th April 1983 after he had divorced Ruth, and they had four (4) children. That this cause was filed without her knowledge/inclusion of her family, and she sought the orders;a)Spentb)Pending hearing and determination of this application, the Honourable Court be pleased to grant an injunction restraining the Respondent either in person or through her servants, employees, agents or howsoever otherwise, from disposing of, alienating and or dealing with the following properties comprising the Estate Of Njoroge Samwel Kiniti Title Number Nakuru Kiamunyeki Co. Ltd Plot No. 360M and LR NO. MN/1/6809 (CR NO. 26388).c)The Respondent to give a full and accurate account of all dealings in the estate and a full and accurate inventory of the assets and liabilities of the Estate of Njoroge Samwel Kiniti (Deceased).d)The grant intestate confirmed to Ruth Mary Wangui, the Respondent herein be revoked.e)Costs.She annexed to the affidavit in Support a copy of her marriage certificate and certificates of birth of her children, the confirmed grant and funeral announcement with respect to the deceased herein in the Daily Nation. According to her, the deceased was survived by herself and her four (4) childrena)Pearl Kagure Njoroge - daughterb)GN- Sonc)RKN - daughterd)AWN- daughter
4.On 2nd October 2019, I gave directions in the matter with respect to prayer (2) and the matter went before Court 4. Upon transfer of Court 4 the file came back to me on 20th June, 2022.
5.The directions taken were that parties were to proceed by way of written submissions.
6.The applicant’s submissions were filed on 2nd December 2020 by the firm of Maumo & Company Advocates. None were filed for the respondent at the time of writing this Ruling.
7.The record will show that the respondent was served, again, on 5th May 2022, but did not file any response/submissions.
8.Upon considering the application and submissions the only issue is whether the application is merited: whether the application meets the threshold of Section 76 of the Law of Succession Act and if so whether the prayer for injuction ought to be granted.
9.Section 76 of the Law of Succession Act provides;“S.76.Revocation or annulment of grantA 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 by means of an untrue allegation of a fact essential in point of law to justify 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 order or allow; or(ii)to proceed diligently with the administration of the estate; or(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (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.”
10.The record clearly shows that when the deceased died he had been married to Sabina from 1983, and had been divorced from the petitioner herein. Being the surviving spouse, she was in priority than anyone else or the other beneficiaries to obtain letters of administration.
11.That besides, the petitioner blatantly lied to the court that she and her children were the sole beneficiaries of the estate, yet she was aware she was divorced from the deceased and that he had another family. There is no way she could have not known that information, noting that he died twenty one (21) years after marrying the applicant, and his obituary was in the public domain. Hers was a deliberate effort to inherit the estate of the deceased to the exclusion of the prima facie rightful heirs without involving them.
12.The petitioner concealed this information from the court, and made untrue allegations to the court with respect as to who the beneficiaries to the estate ought to be and persuaded by the holding in Estate of Julius Ndubi Javan (deceased) [2018] eKLR cited by the applicant, the prayers sought by the applicant are allowed in the following terms;The grant made on 4/4/2014 and confirmed on 6/4/2017 be and is hereby revoked. A fresh grant to issue to the applicant.
13.With respect to the applicant’s prayer for injunctive orders against the petitioner with respect to the estate, not evidence was placed before court that the respondent had started to do naything to the estate that would be cured by injuctive orders. My view is that such orders may not serve the purpose of preserving the deceased’s estate, and in view of rule 73 of the Probate and Administration Rules.
14.I direct that;i.Any transactions that may have flowed from the Certificate of Confirmation of Grant, be and are hereby revoked, and all the properties to revert to the name of the deceased. To that end, this order be served upon the requisite Land Registrars for appropriate action.ii.The applicant is to file summons for confirmation of grant within 30 days hereof and to serve the same on the respondent.iii.Any protest be filed within 15 days of serviceiv.The matter be assigned a mention date by the court assistant for directions within 45 days hereof as per the court diary.v.Each party to bear its own costs.
DATED, SIGNED AND DELIVERED VIA EMAIL THIS 13TH DAY OF OCTOBER, 2022.MUMBUA T MATHEKAJUDGEC/A JenniferWambeyi & Co. AdvocatesMusungu, Miriti & Naliaka Advocates, LLP
