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In re Estate of Manunga Kirangi (Deceased) (Succession Cause 521 of 2014) [2022] KEHC 16656 (KLR) (14 December 2022) (Ruling)
Neutral citation:
[2022] KEHC 16656 (KLR)
Republic of Kenya
Succession Cause 521 of 2014
LM Njuguna, J
December 14, 2022
Between
Patricio Njiru Kirangi
Applicant
and
Priscilla Gatui Kirangi
Respondent
Ruling
1.The matters for determination before the court are two applications dated January 17, 2022 and May 24, 2021 wherein the applicant sought for orders inter alia that:
2.The applications are premised on the grounds on their faces and are supported by the affidavits of the applicant.
3.The applicant states that he is the administrator of the estate herein albeit him being a prisoner. That Plot No. Nthawa/ Siakago/22 had previously been erroneously distributed in Succession Cause No. 952 of 2002 and that the same was rectified and that the respondent has taken the liberty to collect rent emanating from the buildings from the suitland. He urged this court to grant a temporary injunction to stop the respondent from collecting the said rent and further, rectify the grant to read as per the schedule in his supporting affidavit.
4.The respondent via a replying affidavit sworn on June 3, 2022 deposed that the applicant misled this court that there was a family agreement on how to share the estate of the deceased herein. That in the year 1992 or thereabouts, the deceased herein sub divided his 26 acre land, Nthawa/Riandu/312 as follows;
5.That the deceased’s family did not have any agreement on how to distribute the estate of the deceased because whatever the deceased had, he personally distributed to his children before his death in 1992. It was her deposition that the deceased sold 6 acres so as to raise money for survey costs and other expenses. She stated that the signature appearing in the said affidavit which is purported to be hers is not hers and that she does not know the alleged advocates and commissioner for oaths who purported to have witnessed her signature. It was her case that she lived with her father on land parcel number Nthawa/Riandu/2134 up to the date of his death in 1992 and he gave this land to her, as she is a single mother of five children who wholly depend on her. That her two brothers Patricio Njiru Kirangi and John Njuki Kirangi were given eight acres each and some other parcels of land for the reason that they are sons, and sons were favoured more than daughters during that time.
6.It was her case that upon the death of the deceased herein, the applicant filed for substitution in place of the deceased in Civil Case No. SRMCC No. 245 of 1989 at Embu where the deceased had been sued by his brothers over Plot No. 22; which his brothers had claimed belonged to their father, Manunga Ngoci (Deceased). The respondent stated that the applicant thus filed Succession Cause No. 256 of 1994 at Embu High Court but was jailed before the same could be concluded. That she filed Succession Cause No. 521 of 2014 to have the land registered in her name which case was finalized and, the court ordered that she inherits parcel number Nthawa/Riandu/2134 and plot No. 22 Siakago Market be followed through Succession Cause No. 595 of 2002. That none of the deceased’s family herein supported her financially or otherwise to retrieve Plot No. 22 Siakago Market from the estate of Manunga Ngoci. She therefore urged this court to dismiss the prayers by the applicant and instead order that she is the sole owner of Plot No. 22 Siakago Market.
7.The court gave directions that the application be canvassed by way of written submissions and both parties complied with the said directions.
8.The applicant submitted that he is oppressed for the reason that the respondent has been trying to take over Plot No. Nthawa/ Siakago/22 which belongs to the deceased herein. That in the year 2002, the respondent, John Njuki Kirangi, Kivuria Manunga, William Mugo Manunga and John Njue Manunga succeeded in distributing Plot No. Nthawa/Siakago/22 and further to that, a mediation process, Med/No/110 of 2019 contrary to the agreement reached on December 14, 1994 where it was agreed that the said Plot No. Nthawa/Siakago/22 should belong to the applicant. He has urged this court to order for rectification of grant to read that the said Plot No. Nthawa/ Siakago/22 be transferred into his name as per the said mediation agreement.
9.The respondent on the other hand submitted that the plot in issue was not one of the listed properties in Succession No. 952 of 2002 as the same had been alleged to be comprising the estate of Maringa Ngoci (deceased) who was a grandfather to the parties herein. That the respondent solely filed the application dated 03.05.2017 in which she sought among other orders, revocation of the grant issued in Nairobi High Court Succession Cause No. 952 of 2002. It was her submission that the said summon for revocation was settled on 24.09.2020 and an order was issued on 25.09.2020 and in reference to order number 5, it was resolved that she collects the money/rent from the premises. It was her case that she should inherit Plot No. Nthawa/Siakago/22 for the reason that in the original distribution of her father’s estate, she was discriminated in that, she inherited only 4 acres out of the estate; that she single handedly filed the application for revocation of grant which brought back Plot No. Nthawa/Siakago/22 to the estate of the deceased herein and further, she expended money in the process of recovering the said plot.
10.With regard to the mediation report and purported agreement, it was submitted that the purported agreement dated 14.12.1994 is already time barred and therefore, the same is incapable of being implemented; further that, in 1994, she was too young to have capacity to enter into an agreement and by then, the said plot was not in control of the applicant’s family and there is no way an agreement could be reached over a property which was in control of third parties and lastly that the handwritten mediation agreement by the applicant is suspicious for it does not disclose the name of the alleged mediator. On whether the applicant should remain as a sole administrator of the estate herein, it was submitted that the applicant is a convicted murderer and as such, he has no right to administer the estate herein. Reliance was thus placed on Article 24 of the Constitution and Rule 73 of LSA and in the end, she prayed that the applications be dismissed with costs for lack of merit.
11.The court has considered the applications herein and the submissions by the respective parties and this court forms the view that it has been called upon to determine whether the orders sought can issue.
12.Section 47 of the Law of Succession Act vests the court with wide discretion in granting orders to preserve the estate of a deceased person. It provides;
13.In the same breadth, Rule 73 of the Probate and Administration Rules provides that: -
14.Rectification of grants is provided for in section 74 of the Law of Succession Act, Cap 160, Laws of Kenya and Rule 43(1) of the Probate and Administration Rules. Under section 74, errors in names and descriptions, or in setting forth the time and place of the deceased’s death, or the purpose in a limited grant, may be rectified by the court, and the grant of representation, whether before or after confirmation, may be altered and amended accordingly.
15.Rule 43(1) on the other hand provides that :-Where the holder of the grant seeks pursuant to the provisions of section 74 of the Act rectification of an error in the grant as to the names or descriptions of any person or thing or as to the time and place of death of the deceased or, in the case of a limited grant, the purpose for which the grant was made, he shall apply by summons in Form 110 for such rectification through the registry and in the cause in which the grant was made.
16.From the above provisions, it is clear that the power of a court to order rectification of a grant is not general but only limited to instances specified therein. That is; where the errors which are sought to be rectified relate to names or descriptions, or setting out of the time or place of the deceased’s death. [See in the matter of the estate of Geoffrey Kinuthia Nyamwinga (deceased) [2013] eKLR and also in re Estate of Kathuita Kavira (Deceased) [2019] eKLR].
17.These matters specifically refer to correction of errors which the court may order without changing the substance of the grant. These include errors in names, description of any person or thing or an error as to the time or place of death of the deceased or the purpose for which a limited grant was issued. An error which is envisaged under this section is a mistake which may occur on the face of the grant like typing errors in names of persons or description of person or thing.
18.The issue of rectification of grant has been addressed in various decisions in the High Court which I have considered here as persuasive authorities. In the matter of the Estate of Hasalon Mwangi Kahero [2013] eKLR
19.The court has taken the liberty to peruse the record herein and it notes that the applicant seeks to inherit Plot No. Nthawa/ Siakago/22 relying on the agreement dated 14.12.1994 while on the other hand, the respondent submitted that the purported agreement is time barred and therefore, the same is incapable of being implemented; that in 1994, the respondent was too young to have had capacity to enter into an agreement and further, the said plot was not in the control of the applicant’s family and there is no way an agreement could be reached over a property which was in control of third parties and lastly that, the handwritten mediation agreement by the applicant is suspicious for it does not disclose the name of the alleged mediator.
20.From the record, it is clear that the disputed Plot No. Nthawa/ Siakago/22 was previously registered under the name of Maringa Ngoci (deceased) and via Succession Cause No. 521 of 2015, the said land was vacated and that the money collected from the building from July to December, 2020 was to be used by the respondent herein. In my view therefore, the orders sought by the applicant herein to have the grant rectified in order for him to acquire the said Plot No. Nthawa/Siakago/22 are not in line with situations that are set out in Section 74 and Rule 43 of the LSA.
21.I find guidance in In the Matter of the Estate of Geoffrey Kinuthia Nyamwinga (Deceased) [2013] eKLR:-
22.As such, it is my humble view that the orders sought herein, in that regard, are not tenable. On the second limb that this court should order temporary injunction to stop the respondent from collecting rent from Plot No. Nthawa/Siakago/22, it is trite that this court is bestowed with wide powers to do what is necessary to ensure that the ends of justice are met. [See Millicent Mbatha Mulavu & another v Annah Ndunge Mulavu & 3 others [2018] eKLR] where the court affirmed that the High Court has powers to issue injunctions for purposes of preserving the estate of a deceased person. It therefore means that this court has jurisdiction to issue orders including the issuance of conservatory orders against the wrongful disposal and/or intermeddling with the estate/free property of the deceased. [See Section 45 of the LSA].
23.In re Estate of Jeremiah Ngiri Kibati (Deceased) [2019] eKLR and Re Estate of Elijah Ngari (Deceased) [2019] eKLR, the court in dealing with the issue of issuance of conservatory orders in succession matters cited with approval the decision of this court in Japhet Kaimenyi M’ndatho v M’ndatho M’mbwiria [2012] eKLR noting that an applicant in an application for preservatory orders: -
24.Similarly, In the Matter of the Estate of Paulo Kiplagat Boiwo (Deceased) (2012) eKLR, the court while affirming that conservatory orders are similar to injunctive orders noted that applicants have to abide by the conditions set out in the celebrated case of Giella v Cassman Brown (1973) E.A 358 namely the applicant must make out a prima facie case and show that they will suffer irreparable loss which loss cannot be compensated by damages and lastly that the balance of convenience should tilt in their favour where doubt exists.[ also See the Court of Appeal decision in Nguruman Limited v Jane Bonde Nielsen and 2 Others NRB CA Civil Appeal No. 77 of 2012 [2014] eKLR].
25.What constitutes a prima facie case? The Court of Appeal in Mrao Ltd v First American Bank of Kenya Limited and 2 Others [2003] eKLR explained that it is,
26.It is apparent then that prima facie case is therefore one that is not frivolous but one which is easily discernable from the pleadings even before the party is heard as it will show a right exists which may be infringed if an injunction is not issued and the onus of establishing the existence of a prima facie case lies with the applicant.
27.Further, In the Nguruman case (supra), the court stated as follows;
28.In the case herein, the applicant seeks injunctive orders to stop the respondent from collecting rent from Plot No. Nthawa/ Siakago/22 alleging that he should be the rightful owner of the said land. He has relied on an agreement entered into 14.12.1994 that he is the rightful owner and that the same should be transferred into his name. Having gone through the record herein, I note that indeed via an order dated, 28.11.2016, this court ordered that Nthawa/Siakago/822 be inherited by the applicant herein while Nthawa/Siakago/2134 be inherited by the respondent. Further, that Plot No. 22 be followed through Succession Cause No. 952 of 2002 by way of revocation of grant if need be. The respondent has submitted that she inherited 4 acres of land from her father and therefore sought that, she be allowed to inherit Plot No. Nthawa/ Siakago/22 for reasons that her brothers inherited 8 acres of land from the estate herein; one Njuki Kirangi, a son of the deceased herein too also corroborated the testimony of the respondent and further stated that he had no objection to the respondent inheriting the Plot No. Nthawa/ Siakago/22.
29.As a consequence of the above, has the applicant convinced this court that the suit property is at the risk of being disposed of or alienated or transferred to his detriment of the applicant unless conservatory orders of inhibition are issued? In my view he has not.
30.In the end, I find and hold that the applicant has not satisfied the court that he is deserving of the orders that he has sought in both applications.
31.The applications are hereby dismissed with no order as to costs.
32.It is so ordered.
DELIVERED, DATED AND SIGNED AT EMBU THIS 14TH DAY OF DECEMBER, 2022.L. NJUGUNAJUDGE………………………………….…..………..for the Applicant…………………..………………………….for the Respondent………………………………………..for the Interested Party
