REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 286 OF 2007

IN THE MATTER OF THE ESTATE OF THE LATE SOLOMON M’ITUMBIRI M’MUNYUA (DECEASED)

GEOFFREY MURITHI M’ITUMBIRI::::::::::::::::::::::::::::::::::PETITIONER

VERSUS

CATHERINE KIENDE:::::::::::::::::::::::::::::::::::::::::::INTERESTED PARTY

INTERESTED PARTY’S WRITTEN SUBMISSIONS

BACKGROUND

Your honour, SOLOMON M’ITUMBIRI M’MUNYUA ALIAS M’ITUMBIRI M’MUNYUA (deceased)(herein referred to as the deceased was the father to the petitioner, the interested party and one JANE ROSE KARWITHA.

The deceased died domiciled in Kenya on 18th FEBRUARY 2001. He died intestate.

The deceased left behind three beneficiaries as named above who survived him.

The petitioner instituted a succession cause in respect of the deceased’s estate without the knowledge of the other beneficiaries.

Temporary letters of administration intestate of the said estate were issued to the petitioner on the 26th SEPTEMBER 2007 and confirmed on the 16th JUNE 2008 without the consent of the other beneficiaries.

During application for the temporary letters of administration and confirmation thereof, the petitioner concealed the existence

of PLOT NO. KINORU 3B which formed part of the deceased’s estate.

The petitioner after the said confirmation of grant transferred all of the deceased’s property to himself, that is to say Land Parcel Numbers KIIRUA / RUIRI/ 3198 and NTIMA / IGOKI/ 2531.

The petitioner in conjunction with one MAKATHIMO M’ITWERANDU sold PLOT NO. KINORU 3B to RESILIENT INVESTMENTS LIMITED and shared the proceeds between themselves.

The petitioner sold Land parcel No. KIIRUA / RUIRI/ 3198 to one GEOFFREY MURITHI ITUMBIRI.

The interested party only came to learn of the issuance of said letters of administration, confirmation thereof and the said transactions way after the fact, and hence the filing of the current summons for revocation of the said grant by the interested party.

THE LAW.

SECTION 51(2)(h) of the law of Succession Act Cap 160 (herein referred to as “the Act”)provides that during application for a grant of representation, the application should include information as to a full inventory of all the assets and liabilities of the deceased. (emphasis supplied.)

SECTION 38 of the Act provides that where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.(emphasis supplied)

RULE 7(7)(b) of the Probate and Administration Rules (herein referred to as the rules)provides that where a person who is not a person in the order of preference set out in section 66 of the Act seeks a grant of administration intestate he shall before the

making of the grant furnish to the court such information as the court may require to enable it to exercise its discretion under that section and shall also satisfy the court that every person having a prior preference to a grant by virtue of that section has-

a) ……………………….b) consented in writing to the making of the grant to the

applicantc) ………………………

RULE 26(1) of the rules provides that Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.

RULE 26(2) of the rules provides that an application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.

RULE 40(8) of the rules provides for the requirement of a consent in writing and in a prescribed form of all the dependants or other persons who may be beneficially entitled during the application for confirmation of grant.

SECTION 76 of the Act provides for the revocation or annulment at anytime of a grant of representation, whether or not confirmed on the grounds :

1. That the proceedings making the grant are defective in substance

2. Where the grant is obtained on reliance on false statements, non-disclosure or concealment of important matter or information

3. ………………………….4. …………………………..

SECTION 83(h) provides for the duty personal representatives to produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account.

LEGAL ISSUES FOR DETERMINATION

Your Honour we have come up with the following legal issues that we find important for determination in light of the above captioned provisions.

1. Whether the proceedings to obtain the grant were defective in substance and whether the grant had been obtained by means of misrepresentation.

2. Whether temporary letters of administration granted upon the respondent on 16th JUNE 2008 should be revoked or annulled?

3. Who should be appointed as the administrators?

Your honour, the above issues set out for determination have been canvassed under various topics as seen below.

NOTICE TO OTHER BENEFICIARIES)

Your Honour as seen earlier, Rule 26(1) of the Probate and Administration Rules makes it mandatory for an applicant for Letters of Administration to notify every other person entitled in the same degree as or in priority to the applicant of his/her intention, otherwise no such letters should be granted.

Your honour, the petitioner in this matter did not at any one time communicate to the interested party about his intentions to take out a grant of representation in respect of the deceased’s estate.

Your Honour, the Interested Party being a sister to the petitioner, she is equally entitled in the same degree as the petitioner to apply for letters of administration of the deceased’s

estate as espoused by the order of consanguinity as is enshrined in Section 66 of the Law of Succession Act Cap 160.

Your Honour, the Petitioner secretly filed the application for letters of administration to disinherit the interested party and her sister JANE KARWITHA and as such, it forms one of the grounds for revocation of the said grant.

CONSENT TO APPLICATION FOR AND CONFIRMATION OF GRANT

Your Honour, it is clear in the petitioner’s application for grant of administration of the deceased’s estate and his supporting affidavit thereof that the only beneficiaries that survived the deceased are namely, the petitioner, the interested Party and JANE KARWITHA.

The said interested Party and JANE KARWITHA are the only persons that were supposed to consent to the making of a grant of administration intestate to the petitioner being of equal priority to them, pursuant to Rule 26(2) of the Probate & Administration Rules as seen earlier.

Your Honour, instead of having all persons entitled to the administration of the estate of the deceased to the administration of the estate of the deceased in equality to or in priority to the petitioner and in this case the Interested Party and JANE KARWITHA consent to the said letters of administration to the estate of the deceased being granted to him, the petitioner actually sought the consent of one BONIFACE KIMATHI MURITHI and RAEL KARIMI MURITHI who are his son and wife respectively.

Your Honour, substitution of the Interested Party and JANE KARWITHA for the petitioner’s wife and son in the consent to the making of a grant of administration intestate to person of equal or lesser priority was a serious misrepresentation and a complete violation of Rule 26(2) of the Probate and

Administration Rules (supra) and the Order of consanguinity as provided in Section 66 of the Law of Succession Act.

Your Honour, to harmonize topic 1 and 2 above, we refer this Honourable Court to ELIZABETH WANJIRU KAMAU V LUCY WANJIKU [2015] EKLR in which matter the words of KOOME J. in IN THE MATTER OF THE ESTATE OF NGAII GATUMBI NAIROBI H.C. SUCCESSION CAUSE NO. 783 of 1993 were reiterated thus.

“ A grant will be revoked where a person who is entitled to apply is not notified by the petitioner of his intention to apply and that person’s consent to the petitioner’s application is not sought”.

Your Honour, in RACHAEL WANJIRU KARANJA V NANCY WAMBUI KAMAU [2015] eKLR, it was held that in filing the petition for grant of letters of administration intestate, the Respondent did not inform and consult with other beneficiaries of the deceased’s estate as required by law, specifically section 66 of the Law of Succession Act Cap 160 PART III Rule 7(7) (b) of the Probate and Administration Rules. She did not fully disclose all the beneficiaries of the estate of the deceased and obtain the requisite consents.

Court in its finding held that the grant of administration intestate obtained by the Respondent in THIKA SUCCESSION CAUSE NO. 390 of 2007 were obtained fraudulently because of inter alia, non-disclosure of the other beneficiaries and information to the other beneficiaries and family of the deceased. (Emphasis supplied)

Your Honour, in IN THE MATTER OF THE ESTATE M’MUKETHA M’TWAMWARI [2013] eKLR, court held that the petitioner in her form 38 for consent to making of grant of administration intestate to person of equal or lesser priority failed to obtain the consent of the objectors. The Petitioner only obtained consent of only three (3) beneficiaries…….” Court further held that in the instant cause, it was evidently clear that

the petitioner did not comply with the mandatory provision of Rule 26(1) and (2) of the Probate and Administration Rules in that the petitioner did not give notice to every other person entitled in the same degree as or in priority to her when she moved to seek grant”.

JUSTICE J. A. MAKAU stated in conclusion, “in view of the foregoing, I am satisfied that there is sufficient ground to warrant the revocation of grant of letters of administration and confirmed grant issued in this cause.

Your Honour this Honourable Court in ANTONY KARUKENYA NJERU VS THOMAS M. NJERU [2014] eKLR held inter alia that the respondent was required to file FORM 38 as per provisions of Rule 26(2) of the Probate and Administration Rules which mandates a petitioner to obtain consent to the making of the grant of administration intestate to person of equal or lesser priority. The applicant who is of equal priority by virtue of Rule 26(2) of the Probate and Administration Rules which mandates a petitioner to obtain consent to the making of the grant of administration intestate to person of equal or lesser priority. The applicant who is of equal priority by virtue of Rule 26(2) of the Probate and administration Rules did not execute any consent in favour of the respondent nor did he renounce his rights to petition for the grant and as such, the proceedings to obtain grant before subordinate court were defective in substance and grant was obtained by means of untrue allegation of facts essential in point of Law.

Consequently, JUSTICE J. A. MAKAU ordered the annulment of the said grant of administration intestate.

Your Honour, the petitioner in this matter did not, disclose the existence of PLOT NO. 3B KINORU in the list of the deceased’s property during his application for grant of administration intestate. In his replying affidavit, he claims that the said property was owned jointly by the deceased and one MAKATHIMO M’ITWERANDU ( now deceased) who took over the ownership of the Plot after the deceased’s death.

Your Honour, the petitioner in support of the above allegation alluded to a copy of MINUTES OF THE TOWN PLANNING, WORKS AND HOUSING COMMITTEE MEETING held on 30th

October, 2012 in the committee room town hall at 1.40 pm way after the deceased’s death.

Your Honour, in the said minutes, it is clear beyond peradventure that the meeting was held to hear and determine and/or approve an application No. 1036 by M’ITUMBIRI M’MUNYUA and MAKATHIMO M’ITWERANDU to transfer the ownership of Plot No. KINORU 3 B to Resilient Investments Limited.

Your Honour, it would therefore appear that MAKATHIMO M’ITWERANDU never took over the said property as alleged by the petitioner and the truth of the matter is that the petitioner actually used his unlawfully acquired status as administrator of the deceased’s estate to sell jointly with the said MAKATHIMO M’ITWERANDU, PLOT NO. 3B KINORU and share the proceeds thereof.

Your Honour, as such, we humbly submit that the petitioner actually concealed the existence of the said PLOT NO. 3B KINORU from the Honourable Court deliberately so as to dispossess the deceased’s estate of the same, in total violation of Section 51(2)(h) of the Law of Succession Act (Supra).

Your Honour, in IN RE ESTATE OF ONYANGO OGUTU- (deceased) {2004} e KLR, justice W.MUSYOKA stated that,

“ I do not understand why they failed to move the court

appropriately for amendment of the certificate of confirmation of grant once it came to their knowledge that these assets existed. I am of the view that these assets were deliberately concealed from the court”.

He went ahead to note that Revocation of grants is provided for under Section 76 of the Law of Succession Act and that a grant will be revoked if the same was obtained through a process that

was defective, or where there was concealment of matter from the court, or where there was fraud.

Your Honour, the consent to confirmation of the grant of administration issued to the petitioner was a forgery as the interested party never signed any such consent.

Your Honour, the whole process of issuing of the said grant and confirmation thereof was marred by discrepancies in that the Interested Party and her sister JANEROSE KARWITHA evidently never signed the consent to making of a grant to person of equal or lesser priority but are purported to have signed the consent to confirmation of the said grant.

Your Honour, we humbly submit that invariably, the said consent to confirmation of grant was a forgery and in light of the persuasive decision of justice W. MUSYOKA in IN RE ESTATE OF ONYANGO OGUTU- (deceased) {2004} e KLR (supra) the said grant ought to be revoked on the ground among others of fraud, a resultant of the aforementioned forgery.

Your Honour, the whole process of issuance of grant and confirmation thereof as initiated by the petitioner we humbly submit was an attempt by the petitioner to swallow up the deceased’s estate.

SALE OF THE DECEASED’S PROPERTY

Your honour, the petitioner in his replying affidavit alluded to the fact that the interested party asked to have her share of the deceased’s estate registered in the petitioner’s names. We humbly submit that the foregoing is a naked lie only calculated at hoodwinking this Honourable court into relaxing its guards and approve of the petitioner’s fraudulent dealings as seen earlier on in our submissions.Your honour, the petitioner sold the deceased’s property i.e 1 acre out of KIIRUA/ RUIRI/ 3198 and forged an acknowledgement receipt dated 24/6/ 2010 indicating that the petitioner was selling the same as the interested party’s trustee, and that the interested party had received a deposit of Kshs 340,000/-. Your honour, the interested

party never received any such money as she does not even know the purchaser in the transaction.

Your honour, at the time of the aforementioned transaction, the interested party had just lost her daughter to death and suffered from trauma related illnesses. The petitioner approached her and asked her to open a bank account where he would deposit some money to take care of her medical bills. Like any other needy person would, she accepted and the petitioner deposited some Kshs 100,000/-. Little did the interested party know that the petitioner was laying a trap for her so that it would appear as if she had consented to or had taken part in the said transaction.

Your honour, in that regard, we humbly submit that looking at the discrepancies in the application for grant by the petitioner and confirmation thereof, it is only clear beyond peradventure that the petitioner depicts a fraudulent, cunning and obnoctious character by his misdeeds.

CONCLUSION

Your Honour, in light of the foregoing submissions and very persuasive authorities, we humbly submit that the said grant of administration issued to the petitioner and confirmed thereof be revoked for the process of obtaining the same was defective in substance and was also attended by fraud and misrepresentation. Your Honour in IN THE MATTER OF THE ESTATE OF MUIRURI MUCHORO – {deceased} {2014} e KLR it was stated thus,

“Section 76 of the Law of Succession Act allows the revocation of a grant where the process of obtaining the same was defective or attended by fraud and misrepresentation. The failure to comply with mandatory provisions of the law makes a process defective, while the non-disclosure or concealment of as many as eighteen(18) persons distorts the picture presented to the court and amounts to misrepresentations”

Your Honur, we humbly pray that as a consequence of the said revocation, this Honourable Court orders:-

a. THAT all Titles issued arising out of the confirmed grant issued on 16th June, 2008 be cancelled and the same revert back into the name of SOLOMON M’ITUMBIRI M’MUNYUA alias M’ITUMBIRI M’MUNYUA (deceased) as, out of nothing, comes nothing (ex nuhilo nilil fit).

b. That the petitioner to render a full and accurate inventory of the assets and liabilities of the deceased and an accurate account of all dealings therewith up to date and most especially the dealings in Plot No. 3B KINORU .

c. That this honourable Court be pleased to appoint the interested party in this matter and her sister JANEROSE KARWITHA as joint administrators of the estate of the deceased.

Your Honour, we have attached the following very persuasive authorities for your perusal and consideration.

1. ELIZABETH WANJIRU KAMAU V LUCY WANJIKU [2015] EKLR

2. RACHAEL WANJIRU KARANJA V NANCY WAMBUI KAMAU [2015] eKLR

3. IN THE MATTER OF THE ESTATE M’MUKETHA M’TWAMWARI [2013] eKLR

4. ANTONY KARUKENYA NJERU VS THOMAS M. NJERU [2014] eKLR

5. IN RE ESTATE OF ONYANGO OGUTU- (deceased) {2004} e KLR

6. IN THE MATTER OF THE ESTATE OF MUIRURI MUCHORO – {deceased} {2014} e KLR

DATED AT MERU THIS……………………………………………………….DAY OF ………………………….2015

MAITAI RIMITA & CO.

ADVOCATES FOR THE APPLICANT

DRAWN & FILED BY:MAITAI RIMITA & CO.ADVOCATESSTANDARD BANK BUILDING,MOI AVENUEP. O. BOX 3151 -60200MERU.

TO BE SERVED UPON:MITHEGA & KARIUKI ADVOCATESP. O. BOX 612-60200MERU