In re Estate of Fredrick Burini Muthara (Deceased) [2023] KEHC 25195 (KLR)

In re Estate of Fredrick Burini Muthara (Deceased) (Miscellaneous Succession Cause 31 of 2019) [2023] KEHC 25195 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25195 (KLR)

Republic of Kenya

In the High Court at Chuka

Miscellaneous Succession Cause 31 of 2019

LW Gitari, J

November 7, 2023

IN THE MATTER OF THE ESTATE OF FREDRICK BURINI MUTHARA (DECEASED)

Between

Margaret Kaari Mbutu

Administratrix

and

Njagi Mutwaburini Muthara

Administrator

Judgment

Background 1. This Succession Cause relates to the estate of Fredrick Burini Muthara (deceased) who died intestate on 23/4/2009. A petition for letters of Administration was filed in the Principal Magistrate Court at Chuka by Njagi M’twaburini Muthara who is the protestor in this Succession Cause before the High Court. He was issued with a temporary grant of letters of administration which was later confirmed on 18/6/2014 and the estate of the deceased was distributed to the persons who were listed as his beneficiaries under the said grant.

2. This however did not go well with Margaret Kaari Mbutu the Petitioner herein and she therefore moved this court with a summons for revocation of grant under Section 76 of the Law of Succession Act and Rules 44(1), 49 and 73 of theProbate and Administration Rules. The application was based on the ground that the magistrate who issued the grant lacked the requisite pecuniary jurisdiction, that the proceedings to obtain the grant were defective in substance and the grant was obtained fraudulently by making of false statements, concealment from court of something material to the case and the grant was obtained by means of untrue allegations.

3. The protestor conceded the application on 16/10/2019 the said grant was revoked. The court appointed the Petitioner and the Protestors as co-administrators and were given liberty to file the summons for confirmation of grant collectively or individually. The Petitioner filed the summons for confirmation of grant individually while the Petitioner filed an affidavit of protest. The Court further gave directions that the summons be disposed off by way of oral evidence.

4. Vide the Summons for Confirmation of Grant dated 12th November, 2019, the Applicant herein made an application to have the said grant confirmed. The application is supported by the affidavit sworn by the Administratix/Applicant on the same 12th November, 2019. In the said affidavit in support of her application, the Applicant depones that the was polygamous and was survived by the following.A)i.Njagi Mutwaburini – Sonii.Johnson Gitonga Burini – Soniii.Dancan Mbae Burini - Soniv.Ntwiga M’burini – Sonv.Fredrick Kithinji Burini – Sonvi.Accrington Njeru Burini – Sonvii.Murithi Bundi – Sonviii.Dibora Mukwanjiru Burini – Daughterix.Wilson Nyaga Derebia – Sonx.Bernard Micheni Muthiga – SonB)i.Magaret Kaari Mbutu – Wifeii.Purity Wanja – Daughteriii.Joy Karimi Daughteriv.Daniel Murithi – Sonv.Lilian Nyawira – Daughtervi.Brian Munene - Son

5. Further that the decease left behind the following properties which comprise his estate:a.Muthambi/Erega/733b.Chiakariga/A/591 - 6. 08 Hac.Chiakariga/A/1263 - 0. 05 Had.Chiakariga/A/1321 - 4. 02 Ha

6. At paragraph 4 of the affidavit in support of the application, the Applicant proposed the following mode of distribution of the deceased’s estate:a.Muthambi/Erega/733i.Njagi Mutwaburini Muthara – 1. 55 Acresii.Dancan Mbae Burini – 1. 33 Acresiii.Ntwiga M’burini – 4. 015 Acresiv.Johnson Gitonga Burini – 4. 08 Acresv.Njagi Mutwaburini Muthara – 2. 08 Acresvi.Dancan Mbae Burini – 2. 33 Acresvii.Ntwiga M’burini – 0. 15 Acresviii.Johnson Gitonga Burini – 0. 19 Acresix.Fredrick Kithinji Burini – 3. 76 Acresx.Fredrick Kithinji Burini – 0. 54 Acresxi.Accrington Njeru Burini – 4. 3 Acresxii.Murithi Bundi – 0. 5 Acresxiii.Dibora Mukwanjiru Burini – 0. 5 Acresxiv.Wilson Nyaga Derebia – 0. 5 Acresxv.Dancan Mbae Burini – 0. 7 Acresxvi.Njagi Mutwaburini Muthara – 0. 7 Acresxvii.Bernard Micheni Muthiga – 0. 5 Acresb.Chiakariga A/591 – 6. 08 Ha (15. 02 Acres)i.Magaret Kaari Mbutu – 9. 02 Acresii.Purity Wanja – 2 Acresiii.Daniel Murithi – 2 Acresiv.Lilian Nyawira – 2 Acresc.Chiakariga A/1321 – 4. 02 Ha (9. 93 Acres)i.Magaret Kaari Mbutu – 3. 93 Acresii.Joy Karimi – 2 Acresiii.Ann Kanini – 2 Acresiv.Brian Munene – 2 Acresd.Chiakariga/A/1263 - 0. 05 Hai.Magaret Kaari }ii.Purity Wanja }iii.Joy Karimi } ALLiv.Daniel Murithi }v.Lilian Nyawira }vi.Brian Munene }

7. Upon filing of summons for the confirmation of the grant, the Administrator/Protestor filed an affidavit of protest sworn on 26th June, 2020. The Protestor deposed that he is completely in agreement with the Applicant’s proposed mode of distribution in respect of L.R. No. Muthambi/Erega/733. That he was however not comfortable with the proposal in respect of Chiakariga “A”/591 and 1321 for the reason that the persons indicated therein as Purity Wanja, Joy Karimi, Ann Kanini, and Brian Munene were strangers to the estate of the deceased. Further, that there is a dispute before the Adjudication Office relating to a substantial portion of the estate of the deceased.

8. The summons application was then canvassed by way of viva voce evidence.

The Protestor’s Evidence 9. The Protestor herein, Njagi Murithi Muthara M’Mtwaburi, testified as PW1. He stated that the deceased in this case was his father. That he is the firstborn in the family and that there are two wives who are surviving namely: Susan Mukwanjiru and Deborah. He stated that he knew the Applicant as his late father had told him that he had a woman called Kaari who had a young baby and who he wanted to assist educate him. According to PW1, the deceased had four wives. That his biological mother was Susan Muiru. That as per his Affidavit of Protest, he did not know Purity Wanja, Joy Karimi, Ann Kanini and Brian Munene. He further stated that Lilian Nyawira is the child of the Applicant and that by the time the Applicant was marrying the deceased, she already had Lilian Nyawira. It was PW1’s testimony that he came to know about the other alleged children of the Applicant in court. According to PW1, his aunt called Lydia Mukwanyaga is the one who is supposed to get Chiakariga A/1321 because she is the one who assisted the deceased in acquiring the said land. He stated that he was not opposed to the Applicant getting the land in Chiakariga.

The Petitioner’s Evidence 10. The Applicant testified as DW1. It was her evidence that she comes from Tharaka and that the deceased was her husband. That the deceased had another wife called Mukwanjiru and that the Protestor is her co-wife’s son. According to her, there are many parcels of land that are involved in this dispute and they came to court to seek for assistance to acquire land because the Protestor wants to evict them. The Applicant relied on her affidavit which she swore on 11th July, 2020 as her evidence.

11. In addition, the Applicant denied the allegation by PW1 that some of the children listed as beneficiaries of the deceased’s estate were not children of the deceased. It was her testimony on cross-examination that she never had any children before she married the deceased and that the deceased never disowned the said children. She further stated that the Protestor did not inform the Applicant when he filed the succession cause. It finally her case that the Chief’s letter used to file this cause was authored by a chief in Muthambi and not from Tharaka where she stays. Further, that the chief from Muthambi could not have known her children when he issued the Protestor with the introductory letter as of Chiakariga “A”/591 and 1321 are in a place called Nyaki Njeru.

12. DW2 was Dick Micheni Murungi. It was his testimony that he is a doctor and farmer and that he stays at Nyaki Njeru. That he knows DW1 as when he went to stay in Nyaki Njeru, he called for premises to set up his clinic. That it was there that he met the deceased and they became friends. That the Applicant was the deceased’s wife and Murithi was his son. DW2 stated that in 2007, the deceased sold him half an acre of land so that he could set up his work premises. That he used to see the children of the deceased and that they included Kanini, Wanja, Karimi, Nyawira, Daniel Muriithi, and Munene. DW2 also swore an affidavit on 11th July, 2020 which he relied on as his evidence in chief.

Applicant’s Final Submissions 13. At the close of the case by the Protestor and the Administratix/Applicant, the Applicant opted to put in her final submissions which were filed on 25th April, 2023. It was her submission that the deceased had two houses and that there is no contestation between the parties herein regarding the children from the 1st house who were borne by the Mukwanjiru, the deceased’s first wife. That on the other hand, the Protestor is disputing whether the children of the Applicant were children of the deceased. According to the Applicant, the Protestor did not table any evidence to prove that the children named by the Applicant as her were not children of the deceased. It was thus the Applicant’s submission that without evidence from the Protestor to substantiate his claim, nothing should stop this court from treating the Applicant’s children as the children of the deceased and proceed with the distribution of the net intestate estate of the deceased.

14. In addition, it is the Applicant’s admission that there was an error in her affidavit as the name Ann Kanini is omitted as one of the children who survived the deceased. According to the Applicant, the mistake was inadvertent and not intentional and that the same was not proof that the said Ann Kanini was not a child of the deceased.

15. As for Brian Munene, it was the Applicant’s submission that he was his stepson. That the deceased had married a woman by the name Mary who deserted the deceased and left behind Brian Munene. For this reason, the Applicant submitted that the said Brian Munene ought to be treated as a child or dependent of the deceased. Further, that the Protestor did not contest that Daniel Murithi and Lilian Nyawira were children of the deceased and borne by the Applicant.

16. As to which properties comprised the estate of the deceased, it was the Applicant’s submissions that the net estate of the deceased was made up of the following:a.Muthambi/Erega/733b.Chiakariga/‘A’/591c.Chiakariga/A/1263d.Nyaki Njeru/593e.Nyaki Njeru/1321

17. It was submitted that due to the illiteracy and old age of the Applicant, she could not clearly tell the numbering of the land parcels during the hearing of her application. That although she stated that there were only four parcels of land, she clarified that the four parcels were in Tharaka and clarified that there was also L.R. Muthambi/Erega/733. It was thus the Applicant’s submission that there was no much debate as to the actual properties of the deceased that were available for distribution.

18. On the issue of whether Section 28(d) and 42 of the Law of Succession Act affected the distribution of the net intestate estate of the deceased, the Applicant submitted that these two sections of the Act envisage a situation where a beneficiary benefit inter vivos from a gift by the deceased. That in that regard, there is no child that can be said to have benefited inter vivos through a gift by the deceased and that as such, Section 28(d) and 42 of the Act did not affect the proposed mode of distribution by the Applicant or even the Protestor himself.

19. Finally, it was submitted that there was consent between the beneficiaries can adopt as an order of the court on how best the estate of the deceased should be distributed. That the two houses of the deceased cannot seem to agree and especially the Protestor who does not seem to be at peace with the Applicant and her children. It was further submitted that two houses of the deceased are separated by a distance of between 20 and 70 kilometers. That the first house lives in Muthambi whereas the second house lives in Nyaki Njeru. According to the Applicant, Nyaki Njeru is in the extreme end of Tharaka Sub-County whereas the Muthambi is next to Mount Kenya forest and near the tarmac of Chuka Meru Road. It was thus her submission that the four properties in Tharaka are next to Tana where L.R. Muthambi/Eregi/733 is in a prime area. Further, that while the properties in Tharaka may look big in area and size, they cannot supersede L.R. Muthambi/Eregi/733 in productivity and value. The Applicant thus urged this court to adopt the mode of distribution proposed by the Applicant at paragraph 31 of her affidavit evidence with a little modification regarding the descriptions of the parties. That is:a.L.R. Muthambi/Erega/733i.Njagi Mutwaburini Muthara – 1. 55 Acresii.Dancan Mbae Burini – 1. 33 Acresiii.Ntwiga M’burini – 4. 015 Acresiv.Johnson Gitonga Burini – 4. 08 Acresv.Njagi Mutwaburini Muthara – 2. 08 Acresvi.Dancan Mbae Burini – 2. 33 Acresvii.Ntwiga M’burini – 0. 15 Acresviii.Johnson Gitonga Burini – 0. 19 Acresix.Fredrick Kithinji Burini – 3. 76 Acresx.Fredrick Kithinji Burini – 0. 54 Acresxi.Accrington Njeru Burini – 4. 3 Acresxii.Murithi Bundi – 0. 5 Acresxiii.Dibora Mukwanjiru Burini – 0. 5 Acresxiv.Wilson Nyaga Derebia – 0. 5 Acresxv.Dancan Mbae Burini – 0. 7 Acresxvi.Njagi Mutwaburini Muthara – 0. 7 Acresxvii.Bernard Micheni Muthiga – 0. 5 Acresb.L.R. Tharaka Nithi Chiakariga ‘A’/591 – 6. 08 Ha (15. 02 Acres)i.Margrate Kaari Mbutu – 3 Acresii.Purity Wanja – 1. 5 Acresiii.Daniel Murithi – 3 Acresiv.Brian Munene - 3 Acresv.Lilian Nyawira – 1. 5 Acresvi.Joy Karimi - 1. 5 Acresvii.Ann Kanini - 1. 5 Acresc.L.R. Nyaki Njeru/1321i.Margrate Kaari Mbutu - to hold in trust for her benefit and the benefit of:1. Joy Karimi2. Ann Kanini3. Brian Munene4. Daniel Murithi5. Purity Wanja6. Lilian Nyawirad.L.R. Tharaka Nithi/Chiakariga/‘A’/1263 - 0. 05 Hai.Margrate Kaari Mbutu }ii.Purity Wanja }iii.Joy Karimi }iv.Ann Kanini } JOINTLYv.Daniel Murithi }vi.Lilian Nyawira }vii.Brian Munene }e.L.R. Nyaki Njeru/593i.Margrate Kaari Mbutu

Issues for Determination 20. I have considered the summons for confirmation of grant dated 12th November, 2019 as well as the affidavit sworn in support and opposition of the said summons application. I have also considered the final submissions by the Applicant. Before distributing the estate of the deceased under Section 71 of the Law of Succession Act Cap 160, this Court must satisfy itself that the beneficiaries of the estate are the legitimate beneficiaries of the estate; that there are assets that comprise of the deceased's estate and are available for distribution after settling all liabilities, and having the net estate for distribution. The section provides as follows:-Section 71(1) 2, & 3 of the Law of Succession Act.“(1)After the expiration of a period of six months, or such shorter period as the court may direct under subsection (3), from the date of any grant of representation, the holder thereof shall apply to the court for confirmation of the grant in order to empower the distribution of any capital assets.(2)Subject to subsection (2A), the court to which application is made, or to which any dispute in respect thereof is referred, may-(a)if it is satisfied that the grant was rightly made to the applicant, and that he is administering, and will administer, the estate according to law, confirm the grant; or(b)if it is not so satisfied, issue to some other person or persons, in accordance with the provisions of sections 56 to 66 inclusive, a confirmed grant of letters of administration in respect of the estate, or so much thereof as may be unadministered; or(c)order the applicant to deliver or transfer to the holder of a confirmed grant from any other court all assets of the estate then in his hands or under his control; or(d)postpone confirmation of the grant for such period or periods, pending issue of further citations or otherwise, as may seem necessary in all the circumstances of the case:Provided that, in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled; and when confirmed the grant shall specify all such persons and their respective shares.(2A)Where a continuing trust arises and there is only one surviving administrator, if the court confirms the grant, it shall, subject to section 66, appoint as administrators jointly with the surviving administrator not less than one or more than three persons as proposed by the surviving administrator which failing as chosen by the court of its own motion.(3)The court may, on the application of the holder of a grant of representation, direct that the grant be confirmed before the expiration of six months from the date of the grant if it is satisfied-(a)that there is no dependant, as defined by Section 29, of the deceased or that the only dependants are of full age and consent to the application;(b)that it would be expedient in all the circumstances of the case so to direct.”The section requires that the consent of all the beneficiaries has been given. In this matter it is only the administratix who filed written submissions as directed by the court. She identified three issues for determination by this court. In line with the above section I will proceed to consider these issues. These are:a.Who are the legal, lawful, and legitimate beneficiaries of the estate of the deceased?b.Which properties comprise the estate of the deceased and are available for distribution after settling all liabilities?c.Which mode of distribution should be adopted by the Court?d.Whether Section 28 and Section 42 of the Act applies.e.Whether without a consent from the beneficiaries the court can order distribution of the estate.

Analysis Who are the legal lawful beneficiaries: 21. The Law of Succession Act defines dependants. At Section 29 of the Law of Succession Act it is provided as follows:“(a)the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;(b)such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and(c)Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.”

22. In this case, the protestor has disputed the children of the 2nd house as listed in the affidavit of the applicant. The protestor contends that they are strangers to the estate. The protestor has named these children as Purity Wanja, Joy Karimi, Daniel Muriithi, Lilian Nyawira, Brian Munene and Kamiru. The court is therefore supposed to determine whether they are dependants of the deceased as provided under Section 29 of the Act (supra). The protestor stated Lilian Nyawira is not a child of the deceased as the administratix came with her when she was young and she wanted to educate him. On the other hand the administratix maintains that she was sired by the deceased. I have considered these contentions. The assertion by the protestor that the administratix wanted the deceased to educate her children confirms that she was a dependant. The Law of Succession Act recognizes some individuals who are dependants despite the fact that they were not sired by the deceased. Section 29(b) (supra) states that step children whom the deceased had taken into his family as his own are deemed to the dependants in the meaning of dependants defined under the Section. As such a step child cannot be excluded as dependants by the mere fact he was not sired by the deceased. Such a child is dependant by virtue of having been taken by the deceased as his own and having maintained him/her during his life-time.

23. As regards the other four that is Purity Wanja, Joy Karimi, Ann Karimi and Brian Munene, the protestor loudly stated that he does not know them as the only child of the administratrix is Nyawira. I have considered the evidence of the administrator. I find that it is trite law that he who alleges must proof. Section 107, 108 & 109 of the Evidence Actis very clear on this.“107. Burden of proof(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108. Incidence of burdenThe burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109. Proof of particular factThe burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

24. The burden of proof in civil cases is on a balance of probabilities. The person who alleges must therefore adduce evidence which tilts the scales in his favour. The Black’s Law Dictionary 9th Edition at page 1335 defines the ‘standard of proof’ as,‘ the degree or level of proof demanded in a specific case in order for a party to succeed.’

25. In this case I find that the protestor did not justify his claim that the four persons he has mentioned are not children of the deceased. He conceded that the deceased had cared for them without hesitation or discrimination. Mere assertion by the protestor without supporting or material evidence to support the allegation is for no probative value and fails to discharge the burden on a balance of probability. The applicant adduced evidence and called a witnesses who confirmed that he knew the four as children of the deceased. The applicant further adduced evidence that Brian Munene is a son of deceased by another mother. I find that on this limb of the protest that the four are not children of the deceased, the claim must fail. I find that the children named by the applicant at paragraph 2 above are dependants of the deceased as defined under Section 29 (supra).

(b) Which properties comprise the Estate of the deceased 26. The protestor has mentioned the following properties in his affidavit of protest.1. L.R. No. Muthambi/Erega/7332. Chiakariga “A”/591 and 1321.

27. On the other hand, the administratix has listed the following properties:1. Muthambi/Erega/7332. Chiakariga/ “A”/5913. Chiakariga/A/12634. Nyaki /Njeru/5935. Nyaki/ Njeru/1321

28. I have looked at the certificate of the confirmation of grant which was revoked by this court and I note that the protestor had distributed the properties which the administratrix has listed. In the circumstances I find that the properties which belong to the estate of the deceased are:-1. Muthambi/Erega/7332. Nyaki Njeru/5933. Nyaki Njeru/13214. Tharaka Nithi/Chiakariga A/5915. Tharaka Nithi/Chiakariga A/1263They form the tree and net intestate estate which is available to distribution to his dependants.

3) Which mode of distribution should be adopted by the court: 29. It is not in dispute that the deceased was polygamous and is survived by his two wives and children. The law requires that in the absence of an agreement between the parties on the mode of distribution, the estate shall be distributed in accordance with Section 40 of the Law of Succession Act. The Section provides as follows:-“(1)Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.(2)The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38. ”

30. There being consensus that the deceased was survived by two wives and several children, the estate should be distributed as provided under Section 40 (supra)

4) Whether Section 28 and Section 42 of the Law of Succession Act applies 31. Section 28 of the Succession Act provides as follows:“In considering whether any order should be made under this Part, and if so what order, the court shall have regard to-(a)the nature and amount of the deceased’s property;(b)any past, present or future capital or income from any source of the dependant;(c)the existing and future means and needs of the dependant;(d)whether the deceased had made any advancement or other gift to the dependant during his lifetime;(e)the conduct of the dependant in relation to the deceased;(f)the situation and circumstances of the deceased’s other dependants and the beneficiaries under any will;(g)the general circumstances of the case, including, so far as can be ascertained, the testator’s reasons for not making provision for the dependant.”

32. The Section provides for the circumstances which the court should consider to determine what orders to make under this part. These include the nature and amount of the deceased’s property, any past or present capital or incomes of the dependant, existing or future needs of the dependant, gift inter vivo and so on as provided under the Section.

33. On the other hand, Section 42 of the Law of Succession Act provides in general terms that previous benefits should be brought into account. The section provides:-“Where-(a)an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or(b)property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.”The gift intervivos contemplated under the Section are such that the owner of the property donates it to another person during his life time. The characteristics of the gifts inter vivos are that they are made and settled for the person to whom it was given. Furthermore, it must be done absolutely during the lifetime of the donor. It is a gift made to a beneficiary when the deceased was alive and is considered when distributing the net intestate estate so that the person who received it may be considered as having received his share and may reduce or diminish any entitlement to the net intestate estate. So, the gift which is transferred and settled for the beneficiary during the lifetime of the deceased will not form part of his estate but it will be taken into account in determining the share of the net intestate estate finally accruing to that beneficiary.

34. Having considered the evidence tendered by the parties, there is no evidence to proof that the deceased settled any of his properties or assets to any of his children or his wives. The fact of occupation of the parcels of land during the lifetime of the deceased is not what is envisaged under Section 42 of the Act. I agree with Counsel for the administrator that there is no child or wife of the deceased that can be said to have benefited inter vivos through a gift by the deceased and as such the provisions of Sections 28 & 42 of the Act (supra) does not apply.

5) Whether without the consent of all the beneficiaries the court can order distribution of the estate. 35. Section 71 of the Law of Succession Act (supra) makes a proviso that in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled. As has been observed by the administratrix there was no consent filed by the protestor or even herself on the mode of distribution.

36. It is also evident that the beneficiaries proposed by the protestor and the administrator have not appeared in court and have not been given an opportunity to be heard. In the absence of a consent on the mode of distribution, it is will be futile for this court to distribute the estate. Although the protestor had filed a consent, it did not include all the persons mentioned in the Chief’s letter. It also included one person, Humprey Mutwiri Kithinji who was not mentioned in the Chief’s letter. Majority of the dependants did not sign the consent and it is not clear whether they appeared in court. Section 71 (3) of the Act supra requires that the dependants sign a consent before the grant is confirmed.

37 .In the circumstances I find that it is premature to confirm the grant. In ConclusionFor the reasons stated, I find that the protest is without merits and is dismissed.I direct that the matter shall be fixed for confirmation of grant. The beneficiaries of the estate who are listed under paragraph 2- of this Judgment shall be summoned to appear in court on the date of the confirmation of grant.I make no orders as to costs.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 7TH DAY OF NOVEMBER 2023. L.W. GITARIJUDGE