Agnes Wangui Mutiga v Pepetuah Muthoni Mutiga & Anne Wanjiru Mbogori [2017] KEHC 9263 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 3110 OF 2014

IN THE MATTER OF THE ESTATE OF TITUS MUTIGA WAMWEA (DECEASED)

AGNES WANGUI MUTIGA …………………....................…….….APPLICANT

VERSUS

PEPETUAH MUTHONI MUTIGA……..1ST ADMINISTRATRIX/RESPONDENT

ANNE WANJIRU MBOGORI……...…..2ND ADMINISTRATRIX/RESPONDENT

JUDGMENT

1. The deceased  Titus Mutiga Wamwea died on 9th June 2014. He died intestate.  On 19th November 2014 the respondents Perpetua Muthoni Mutiga (1st administratrix) and Anne Wanjiru Mbogori (2nd administratrix) petitioned this court for the grant of letters of administration intestate.  They stated that the deceased had been survived by one widow (the 1st respondent) and six children:- Lydia Wakonyu Gitau, David Maina Mutiga, Jane Wairimu Katuga, James Murimi Wamwea, Anne Wanjiru Mbogori (2nd respondent) and Serah Wangari Wamwea.  The grant was issued on 18th April 2016.

2. The deceased’s estate comprised Kiambu/Municipality Block 1/253; LR No. 209/7388/182 (Uhuru Estate Phase III, Buruburu Road, House No. U14; and Plot No. 367, Mweiga in Nyeri County.  In the certificate of the confirmation of the grant, the properties went to the respondents to hold in trust for the rest of the family.

3.  On 8th March 2017 the applicant filed the present application seeking the revocation/annulment of the grant issued to the respondents.  The basis of the application was that the applicant was the second wife of the deceased with whom she got two children:-  David Maina Mutiga  born on 16th  July 1982 and  Judy Lydia Wakonyo born on 11th November 1988.  The applicant stated that their marriage was celebrated under Kikuyu customary law in 1980, following which she lived with the deceased in the house on LR No. 209. 7388/182 at Uhuru Estate.  She was the one who, upon the deceased’s death, had paid his hospital and funeral expenses.  The respondents had, however, applied for and obtained letters of administration in respect of the estate of the deceased, and had the letters confirmed, without her knowledge and consent.  Her and her household had consequently been excluded from any benefit in the estate of the deceased.  Her case was that the grant was revocable as it had been obtained fraudulently and by concealment of information material to the case.

4. The application was served on the respondents who neither filed any response nor attended the hearing.  It follows that the factual position contained in the affidavit sworn by the applicant is support of the application was not challenged.

5. The result is that the deceased had two houses, the first being that of the 1st respondent and the second being that of the applicant. The first house had six children and the second house had two children.  Under section 52of the Law of Succession Act (Cap 160) and rule 7(1)(e) of the Probate and Administration Rules made under the Act, the respondents were under a duty to include the names and addresses of the applicant and her children in the petition which they filed for the grant of letters of administration intestate in respect of the estate of the deceased.  The respondents concealed the fact of the existence of the second house (In the Matter of the Estate of Wahome Mwenje Ngomoro, H.C. Succession Cause No. 196 of 2005 at Nyeri).  Under section 66 of the Act and rule 26(1) of the Rules, the applicant was ranked in the same degree with the 1st respondent when it came to applying for the grant.  She had not renounced her right, and neither had she provided a written consent to the petition.  It is now trite that 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 consent to the petition is not sought (In the Estate of Ngaii Gatumbi alias James Ngaii Gatumbi, NRB, H.C. Succession Cause No. 783 of 1993).

6. It is clear to me that the intention of the respondents in quietly going to petition for the grant without reference to the applicant and her children was so that they could exclude them from benefiting from the estate of the deceased which they were entitled.  They knew the applicant’s family lived in LR 209/7388/182 at Uhuru Estate which belonged to the deceased.  After they obtained the grant they went on to file a suit to evict her from the house.  This is how she came to learn of the grant.  These citations were fraudulent.   Under section 76 of the Act, the grant has to be revoked.

7. Consequently, I allow with costs the applicant’s application dated 7th March 2017 and filed on 8th March 2017.  The grant issued on 27th July 2015 and certificate of confirmation of grant issued on 18th April 2016 are hereby revoked.

8. So that this matter is not left in abeyance, and in the wider interest of justice, a joint grant is hereby issued to the applicant Agnes Wangui Mutiga and 1st respondent Perpetuah Muthoni Mutiga.  Both of them, or either of them, shall be at liberty, within 60 days from today, to apply for the confirmation of the grant.

SIGNED at NAIROBI this 14TH day of SEPTEMBER 2017.

A.O. MUCHELULE

JUDGE

DATED and DELIVERED at NAIROBI this 18TH day of SEPTEMBER 2017.

W. MUSYOKA

JUDGE