In re Estate of Eunice Wanjeri Kibia (Deceased) (Succession Cause 1834 of 2000)  KEHC 15830 (KLR) (Family) (4 November 2022) (Judgment)
Neutral citation:  KEHC 15830 (KLR)
Republic of Kenya
Succession Cause 1834 of 2000
MA Odero, J
November 4, 2022
Florence Mumbi Gitau
Grace Mwihaki Ndungu
John Njau Kibia
1.Before this court is the summons for Revocation of Grant dated 8th February 2019 by which Applicant/Objectors FLORENCE MUMBI GITAU and GRACE MWIHAKI NDUNGU seek the following orders:-
2.The summons which was premised Upon Section 76 of Law of Succession Act Cap 160, Laws of Kenya, Rules 44 and 55 of the Probate and Administration Rules was supported by the Affidavit of even date sworn by the Applicants.
3.The Respondent/Administrator JOHN NJAU KIBIA vehemently opposed the application through his Replying Affidavit dated 13th September 2020. The application was canvassed by way of viva voce evidence. Each side called one (1) witness in support of their case.
4.This Succession Cause relates to the estate of the late EUNICE WANJERI KIBIA who died intestate at the Kenyatta National Hospital on 13th January 1980. A copy of the Death Certificate Serial No. 80126 marked as Annexture ‘A’ is annexed to the Petition for Grant of letters of Administration Intestate dated 16th August 2000.
5.In the said Petition it was indicated that the Deceased was survived by the following persons:-i.Mary Wambui Njukiii.Loise Wanjiru Ndungire - (Deceased)iii.Grace Mwihaki Ndunguiv.Florence Mumbi Gitauv.Ruth Wanjiru Kibia - (Deceased)vi.Mary Kanini Kibia - (Deceased)vii.Kamau Kibiaviii.Muturi Kibiaix.Samuel Gathaiya Kibia - (Deceased)x.Martha Wambui Ngaruiya - (Deceased)xi.John Njau Kibiaxii.Margaret Wakanyi Kibia
6.Following the demise of the Deceased, her son Samuel Gathaiya Petitioned for Grant of letters of Administration Intestate in Kiambu Succession CMCC No. 206 of 1993. He was issued with a grant on 4th November 1993 which Grant was confirmed on 12th February 1996. However following a summons for revocation of Grant dated 28th April 1997 filed by John Njau Kibia ((the Respondent herein), Mary Kanini Kibia, Grace Mwihaki Ndungu, Loise Wanjiru, Florence Mumbi Gitau and Mary Wambui Njuku, the Grant issued to Samuel Gathaiya was revoked vide the Ruling dated 18th November 1999 in which Hon Justice Etyang (as he then was) found that the Magistrates court had no jurisdiction to handle the matter. In the same Ruling the Hon Judge held that married daughters were not entitled to inherit from the estate of the Deceased.
7.Following the Ruling of 18th November 1999 a fresh Grant was issued to John Njau Kibia (the Respondent) on 15th February 2001. That Grant was confirmed on 9th October 2011 and was later amended on 9th February 2015. In that confirmed Grant it was indicated that the estate of the Deceased would be distributed in the following manner:-
|Name of Heirs||Description of Properties||Shares of Heirs|
|John Njau KibiaJohn Kamau KibiaMuturi KibiaMargaret Heta GathaiyaGrace Wangari KibiaMargaret Wakanyi KibiaHezekiah Kibia KaniniHenry Maina KibiaNancy Wanjiku Kibia||LR Githunguri/Nyaga/680||0.0971 Hectares0.0971 Hectares0.0971 Hectares0.0971 Hectares0.0971 Hectares0.0971 Hectares|
|John Njau KibiaMargaret Wakanyi KibiaHezekiah Kibia KaniniHenry Maina KibiaNancy Wanjiku KibiaHezekiah Kibia Kanini||LR Githunguri/Githunguri /2061||0.0617 Hectares0.0617 Hectares0.0617 Hectares0.0617 Hectares0.053 Hectares|
8.The Applicants who are both daughters of the Deceased have now filed this present application seeking to have the confirmed Grant which had been issued to the Respondent on 9th February 2015 revoked.
9.The 1st Objector FLORENCE MUMBI GITAU testified as PW1. She confirmed that she and the 2nd Objector GRACE MWIHAKI NDUNGU are both daughters of the Deceased EUNICE WANJERI. The Objector avers that the Respondent proceeded to court and obtained the Grant without informing and/or consulting the Objectors.
10.The Objectors assert that the Deceased had a total of twelve (12) children who included five (5) daughters namely:-i.Mary Wambui Njukuii.Loise Wanjiru Ndungire – (Deceased)iii.Florence Mumbi Gitauiv.Mary Wambui Ngaruiya – (Deceased)v.Grace Mwihaki Ndungu
11.The Objectors allege that only seven (7) out of the Deceased twelve (12) children were included and participated in the Succession Cause but that the five (5) daughters of the Deceased were excluded and sidelined. That the Respondent obtained the Grant by concealing material facts. That the Objectors have not been included in the distribution of the estate of their late mother. The Objectors state that distribution of the estate is not fair and pray that the Grant issued to the Respondent be revoked.
12.The Respondent JOHN NJAU KIBIA testified as DW1. He confirms that he is the Administrator of the estate of the Deceased who was his late mother. DW1 confirms that the Deceased had twelve (12) children but states that six (6) of them have now passed away.
13.The Respondent denies that he obtained the Grant fraudulently. He insists that at the time of the demise of the Deceased in the year 1980 the Law of Succession Act had not been enacted. That the applicable law at the time in Succession matters was customary law.
14.The Respondent reads malice in the filing of this summons for revocation of Grant given that the Objectors did not raise any issue when the Grant was initially issued to their other brother Samuel Gathaiya. He argues that the summons has come too late in the day as it was filed several years after the Grant was issued.
15.The Respondent denies that the mode of distribution of the estate is discriminative against the Objectors as the Deceased had given each objector 1.5 acres of land during her lifetime. The Respondent maintains that under Kikuyu Customary Law the Objectors being married daughters are not entitled to inherit from the estate of the Deceased. He urges the court to dismiss this summons for Revocation of Grant.
16.Upon conclusion of the oral evidence the parties were invited to file and exchange written submissions. The Objectors filed the written submission dated 27th July 2022 whilst the Respondent relied upon the submissions dated 25th July 2022.
Analysis and Determination
17.I have carefully considered this summons for revocation of Grant, the Reply filed by the Respondent the evidence adduced in court as well as the written submissions filed by both parties.
18.The Objectors have sought to have the Grant issued to the Respondent revoked
19.Section 76 of the Law of Succession Act, Cap 160, Laws of Kenya provides as follows: –
20.The Objectors state that they were neither consulted nor involved in the Succession Cause. That the Respondent in obtaining the Grant failed to make full disclosure to the court regarding all material facts.
21.I have carefully and anxiously perused the record of this matter leading up to the issuance of the Grant. Although the Objectors were named as survivors of, the Deceased in the Petition dated 16th August 2000 the objectors did not sign any consent for the issuance of the Grant. That consent dated 4th December 2003 was only signed by the following persons:-i.John Kamau Kibiaii.Muturi Kibia – (did not sign)iii.Margaret Wakanyi Kibiaiv.Kinuthia Kibochav.Waweru Mugo
22.I note that when the Grant was issued to the Respondent on 15th February 2021 the two objectors did not sign any consents yet they were recognized as beneficiaries to the estate. In the distribution of the estate contained in the confirmed Grant dated 9th February 2015 the Objectors are not included.
23.The Respondent insists that the Objectors were fully aware of the Succession Cause and claims that they did not object to the mode of distribution of the estate. There is no evidence to support this assertion by the Respondent. The only way the Objectors would have signified their consent to the entire process would be by signing of consents. In the absence of such consents, there is no proof that the objectors consented to the mode of distribution of the estate.
24.The law requires that consent be sought and obtained from all the beneficiaries. The Respondent did not make it known to the court whether the objectors had either consented to the mode of distribution of the estate or whether they had renounced their right. By omitting the names of the Objectors in the consent. I find that material facts were concealed from the court.
25.The Respondent argues firstly that the objectors were not entitled to inherit anything as they had already received 1.5 acres of land each from the Deceased during her lifetime. PW1 admits that indeed she and her sister were given 1.5 acres each by their mother as a sign of gratitude for looking after the Deceased. In her own evidence the 1st Objector admits that:-
26.The 1st Objector goes on to assert that “even John Njau (the Respondent) was given a plot while my mother was still alive”. The Objectors take issue with the fact that they were excluded in the distribution of the estate yet the Respondent who also received a gift of land from the Deceased benefited from the estate.
27.The fact that the objectors were gifted with parcels of land by the Deceased during her lifetime does not mean that they were are automatically excluded from receiving any benefit from the estate. What should happen is that the gifts given to the objectors are to be taken into account during the final distribution of the estate in line with Section 42 of the Law of Succession Act. The Respondent in his evidence concedes that he too received a gift of land from his mother while she was still alive. In his evidence the Respondent states –
28.Why would the Respondent exclude the Objectors in the distribution of the estate on grounds that they had received land from the Deceased during her lifetime yet he does not exclude himself despite admitting that he also received a gift of land from the Deceased? It is clear the Respondent has excluded the Objectors merely due to their gender and marital status. Thus the decision of the Respondent to exclude them altogether was wrong.
29.The Respondent argued that as married daughters the Objectors are not entitled under Kikuyu Customary Law to receive any inheritance from the estate of their late mother. The Respondent in his evidence stated that Hon Justice Etyang had held in a Ruling dated 18th November 1999 married daughters were not entitled to inherit from the estate.
30.I have perused the annexed copy of the Ruling delivered on 18th November 1999 in which the Honourable judge held as follows:-
31.It is clear that the deceased died before the enactment of the Law of Succession Act in 1981. Does it then follow that the applicable law to her estate is the Kikuyu Customary Law? Section 2(1) and (2) of the Law of Succession Act provides as follows:-
32.Section 29 of the Law of Succession Act which sets out the meaning of a ‘defendant’ under the Act does not discriminate amongst the beneficiaries of a deceased person on account of gender or marital status. This position has been upheld by the Kenyan courts.
33.In the case of ELISEUS MBURA M’THARA VS HARRIET CIAMBAKA & Another  eKLR, the Court held as follows:-
34.“The law of Succession Act does not discriminate between gender in matters of succession or inheritance. Under the law of Succession Act and indeed under the Constitution a child is a child and every person has equal rights under the law irrespective of gender. The Law of succession Act does not discriminate between married or unmarried daughters but gives them equal rights to inheritance as the other children (sons) of a deceased person.” (Own emphasis)
35.In making any decision this court must adhere to the Principles of the Constitution of Kenya 2010. Article 27 of the Constitution outlaws all forms of discrimination by stating as follows:-
36.Section 3(2) of the Judicature Act provides for the manner in which courts in this country are to apply African Customary Law as follows:-
37.Therefore while African Customary Law has a place in our society and is recognized by the Kenyan courts such customary dictates cannot be upheld by courts when they are unjust and/or discriminative. To deny the Objectors their right to inherit solely on grounds that they are married daughters is in my view discriminative against a section of our society.
38.Hon Justice Luka Kimaru (as he then was) in the case of PETER KIARUMBI KIENGATI & 4 OTHERS VS DR ANN NYOKABI NGUITHI  eLKR in debunking the logic that is commonly cited to disinherit married daughters stated as follows:-
39.I therefore find that although the Deceased died in the year 1980 before the Law of Succession Act was enacted, this court cannot uphold the retrogressive practice under customary law of denying married daughters the right to inherit property. Indeed under cross-examination the Respondent admits that –
40.The Respondent also concedes that he too received a gift of land from his mother whilst she still alive. These gifts given to the Objectors, to the Respondent, to any other beneficiary ought to be taken into account when determining the final distribution of the estate.
41.Finally although I have found that sufficient grounds exist to warrant the revocation of the Grant, I am also mindful of the fact that this is a very old matter, which commenced in the year 2000. To revoke the Grant now will take the mater several steps backwards as the parties have to begin the entire succession process afresh. Moreover, it seems that the objectors have no quarrel with the Respondent remaining in place as the Administrator of the estate, they merely object to their exclusion in the distribution of the same.
42.In line with the powers granted to this court under Section 47 of the Act and Rule 73 of the Probate and Administration Rules, I find it is more appropriate to have the confirmed Grant reviewed to as to include the objectors in the distribution of the estate of the Deceased.
43.Finally I direct that the Administrator file a summons for review/amendment of the Grant and vary the mode of distribution of the estate of the Deceased to include the Objectors herein and to include all the beneficiaries save for those who specifically choose in writing to waive their right to inherit and taking into account the provisions of section 42 of the Law of Succession Act, to consider any ‘gifts’ made by the Deceased during her lifetime. This being a family matter each side will meet its own costs.
DATED IN NAIROBI THIS 4TH DAY OF NOVEMBER, 2022.…………………………………MAUREEN A. ODEROJUDGE