In re Estate of Milka Njambi Njuguna (Deceased) [2022] KEHC 11387 (KLR)

In re Estate of Milka Njambi Njuguna (Deceased) (Succession Cause 399 of 2019) [2022] KEHC 11387 (KLR) (Family) (6 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11387 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 399 of 2019

AO Muchelule, J

June 6, 2022

IN THE MATTER OF THE ESTATE OF MILKA NJAMBI NJUGUNA (DECEASED)

Between

Edward Kanja Kamiti

1st Applicant

Mary Njoki Kanja

2nd Applicant

and

Njuguna Gathogo

1st Respondent

Peter Ndungu Kanja

2nd Respondent

Ruling

1. The deceased Milka Njambi Njuguna died on 26th December 2016. On 13th May 2019 the respondents Njuguna Gathogo and Peter Ndungu Kanja petitioned the court for the grant of letters of administration intestate. They stated that the deceased’s estate comprised Dagoretti/Mutuini/1373 measuring 0. 34 Ha. The title that they annexed to the petition showed that the parcel was in the joint names of the deceased and Mary Njoki Kanja (the 2nd applicant).

2. The grant was issued to the respondents on 26th July 2019. The grant has not been confirmed.

3. The applicants Edward Kanja Kamiti and Mary Njoki Kanja filed this application dated 20th November 2020 seeking the revocation of the grant issued to the respondents. The application was brought under sections 29 and 76 of the Law of Succession Act (Cap. 160) and rules 44 and 73 of the Probate and Administration Rules. The grounds were that the proceedings to obtain the grant were defective in substance and procedure; and that the grant was obtained fraudulently by the making of false statements or the concealment of information. The concealed information was that the applicants were also beneficiaries of the estate of the deceased. The other prayer sought in the application was that 50% of the estate belonged to the 2nd applicant.

4. The respondents opposed the application and denied that they had concealed any information or that the grant was obtained irregularly or unprocedurally.

5. It is not in dispute that the deceased was unmarried and had no child. She had two brothers (Kimiti Njuguna and Peter Kanja Njuguna) and one sister (Priscilla Wanjiku Gathogo). They predeceased her, but each left children. The 1st applicant is one of the children of Kimiti Njuguna. He (the 1st applicant) is the husband of the 2nd applicant. The complaint of the applicants was that all the nephews and nieces of the deceased had each an equal claim to her estate, and each ranked equally to the respondents. Each niece and nephew of the deceased was a person with equal priority and yet she/he was not notified of the petition and neither was her/his consent sought at the time of the petition. Indeed, the only three persons who consented to the petition were the respondents and Virginia Wambui Njuguna. This complaint was not materially challenged. The respondents filed grounds of opposition.

6. Under section 39(1)(c) of the Act, the deceased was survived by her nephews and nieces. Under rule 26 of the Probate and Administration Rules, the respondents were required to notify all the nephews and nieces of the deceased that they were going to petition for the grant, and each was required to provide consent, unless they had renounced their claim to the grant. On the basis that they were entirely excluded from the petition and grant, I find that the proceedings leading to the grant were defective in substance (In re Estate of Eston Nyaga Ndirangu (Deceased) [2017]eKLR). In Anthony Karukenya Njeru –v- Thomas M. Njeru [2014]eKLR, a grant of letters of administration was revoked because persons with equal priority did not consent to the petition brought by the petitioners.

7. It is also material that the 2nd applicant was a co-owner of the parcel subject of the petition. No proceedings could commence and grant issued without reference to her.

8. Further, the applicants stated that the deceased left a written Will in which she bequeathed 0. 227Ha of the parcel to the 2nd applicant and 0. 113ha of the parcel to the children of her late brother (Peter) Kanja Njuguna. The Will that was dated 26th May 2015 was annexed. At an appropriate time, the Will will have to be proved, if it will be challenged. All that I am saying at this time is that, if the deceased left a written Will, there ought to have been a petition for the grant of probate, and not petition for the grant of letters of administration intestate.

9. There are other issues that the application raised, but dealing with them would be an academic exercise, in view of the finding that the grant was defectively obtained.

10. For the above reasons, I allow the application and revoke the joint grant issued to the respondents on 26th July 2019.

11. I ask that the petition shall be set down for hearing on 8th November 2022 to determine whether the deceased died testate or intestate.

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 6TH DAY OF JUNE 2022. A.O. MUCHELULEJUDGE