In re Estate of Sebastian Ngutu Waganagwa alias Nguru Waganagwa (Deceased) [2018] KEHC 4095 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

SUCCESSION CAUSE NO. 445 OF 2013

(FORMERLY RUNYENJES SUCCESSION CAUSE NO. 142 OF 2013)

IN THE MATTER OF THE ESTATE OF SEBASTIAN NGUTU WAGANAGWA alias NGURU WAGANAGWA (DECEASED)

AND

ANISIA GATARA RUVIO................................................................................APPLICANT

VERSUS

CATHERINE GICUKU NJERU..............................ADMINISTRATOR/RESPONDENT

R U L I N G

1. This cause relates to the estate of the late SABASTIAN NGUTU  WAGANAGWA (deceased herein) who died sometime in the year 1967  domiciled at Gichera Sub-Location within Embu County.  As per the petition lodged via Runyenjes Principal Magistrate's Court Succession Cause No.142 of 2013, the deceased died intestate and left behind the  following dependants namely;

(i) Niceta Thaara Nguru

(ii) Isabela Wanjuki Njeru

(iii) Catherine Gicuku

2. Catherine Gicuku Njeru was appointed the administratrix of the only estate  of the deceased comprising KAGAARI/WERU/1073 on 17th October, 2013  by this court and on 24th July 2014 the  said grant was confirmed where the  estate  was distributed by this honourable court as follows:-

(i) Catherine Gicuku Njeru  - 0. 53 ha

(ii) Niceta Thaara Nguru  - 0. 53 ha

(iii) Isabela Wanjiku Njeru  - 0. 53 ha  &

(iv) Marie Njoki Nderi   - 0. 40 ha

3. Anisia Gatara Ruvio took out summons for revocation of grant dated 5th November 2014 seeking for revocation of aforesaid grant on the grounds  inter alia that the cited beneficiaries save for Niceta Thaara Nguruto are all  strangers and not the legitimate heirs or children of the deceased herein. This is the application now before court and the subject of this  ruling.

4. The applicant claims that she is a sister to the deceased herein and has been  in occupation of the estate since 1967.  In her Supporting Affidavit sworn on 4th November 2014, the applicant has deposed that the appointed  administratrix/Respondent is not a beneficiary though she concedes that she  is a daughter of the late Rosemary Ndiiri who was once married to the  deceased herein. According to her the only biological child to  the deceased  is Niceta Thaara Nguruto who was left under the care of the  applicant  when her mother left and that she is the one  who brought her  up and was  staying with her until she got married. She has faulted the Respondent  for secretly filing the petition of letter of administration  without involving  her knowing that she was in occupation of  the estate.

5. At the oral hearing of this application the applicant added that the late  Rosemary Nderi, the Respondent's mother was to her late brother, and that  when she got married she already had two children who came with her and  lived with the deceased.  The two children according to her are the  Respondent and Isabela Wanjuki Njeru.  She further testified  that upon  the demise of her brother the deceased herein, her late father, the late Waganagwa Ruvio gave her the land comprising the estate herein.  She  further claimed that she was unmarried and that is her late father gave her the estate because according to her the widow to the deceased  herein had  left the homestead.  In her view the estate herein belongs to her as she lives  there with her children.  She has therefore moved this court to nullify the  grant so that she can get back what she believes is her land.

6. The Administratrix/Respondent on the other hand has opposed this  application through a Replying Affidavit sworn on 24th December, 2014.  According to the Respondent the applicant is her aunt being  a sister of her  late father the deceased herein.  She has deposed that the applicant claim  herein is untenable because in her view, her claim restes on her father's  estate  which was a subject in Embu Succession Cause No.436 of 2013.  She  has listed the properties in that estate of, Rubiu Gatugo alias  Ruvio  Gatugo (deceased) as KAGAARI/KIGAA/840, KAGAARI/WERU/1074  and KAGAARI/NTHAGAIYA/T.161.  She has  argued that the applicant  should be staking her inheritary rights over those  listed assets with her  brother Genesio Kathuri Waganagwa and not the estate  herein.

7. The Respondent has further deposed that their late mother left her  matrimonial home after the demise of the deceased to look for work in order  to take care of them and that she died before petitioning for letters of  administration of her late husband, the deceased herein.

8. At the hearing of this application, the Respondent  told this court that she is  the first born in the family having been born in 1963 while Niceta Thaara is  the second born with Isabella being the last born.  According to her, her  mother was chased away when their late father, the deceased herein passed  on and that  deceased's brother Genesio Kathuri is the one who chased her  late mother  out of the matrimonial home.  She further added that her uncle  Genesio later accepted them back after they agreed to slaughter a he-goat  and that they were given 1/2 acre to plough which was however later taken  away.

9. The Respondent has stated that she went to the Area Chief who issued her  with an introductory letter filed herewith the petition for Letters of  Administration.  She justified the inclusion of Marie Njoki Nderi in the  distribution of the estate stating that she helped in financing the Succession  Cause.

10. The Respondent further disputed the applicant's claim that she will be left  landless if the grant herein is not revoked.  She tendered the proceedings in  Succession Cause No.130/2013 as D Exhibit 1 which is a cause relating to  the estate of Applicant's father the late RUBIA GATUGO alias RUVIO  GATUGO.

11. This court has considered this application and the written submissions done  through Muthoni Ndeke and Co. Advocate. This is an application brought  under Section 76 of the Law of Succession Act which provides for elaborately grounds upon which a grant may be revoked or annulled. The applicant has submitted that her application has demonstrated that the grant was obtained fraudulently by making of a false statement or concealment  from court of something material.  The applicant considers that the fact that  she is  in occupation of estate and has developed it since 1967 is material.

12. The issues for determination in this application in my view are basically as  follows:-

a) Whether the applicant was a dependant and therefore a beneficiary of the estate herein.

b) Who are the dependants to the estate of the late Sebastian Ngutu Waganagwa, the deceased herein?

13. To begin with the 1st issue, is that there is no dispute that the applicant is a  sister to the deceased herein. Both the applicant and the Respondent are in  agreement on this fact but what is contested is the question of dependency.

The applicant for good measure has been candid that her claim on the only  property comprising the estate is based on the fact that she has been in actual occupation of the same since 1967 when her late father RUIO GATUGO  (deceased) reportedly gave her the parcel. The question of occupation is not  denied but the Respondent states that they (deceased's children)  were forced  out of the estate. The question of occupation however is neither here nor  there because the law of succession provides the meaning of what constitutes dependency and hence the right to inherit or benefit from an  estate of a deceased person. Section 29 of Law of Succession Act provides  as follows:-

...................................... a dependant means,

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 prior to his death......................." (Emphasis added).

14. For one, the applicant has deposed and testified  that she is a sister to the  deceased herein.  This clearly places her claim in section 'b' of the cited section which provides that for a claim to be sustained it has to be  qualified by the fact that the deceased maintained the claimant immediately  prior to his/her death. There is no such claim in the applicant's application  because as  observed above, her claim is not hinged on "dependency" per  se pursuant to Section 29(b) of the Law of Succession Act,  but the fact that  she is in actual occupation of the estate  and the fact that she treats it as a gift  by her late father.  This claim in my view is not tenable in law for the simple  reason that  'occupation' per se does not make one a dependant unless one  is able to prove that the deceased gave her/him a share in the estate as gift  intervivos or as gift during deceased's lifetime which is not the case here.   The applicant's father did not have capacity to distribute or give out an  estate  belonging to his late son to anyone because Section 3 of Law of  Succession Act clearly shows that the estate herein was "free property"  property and exclusively belonged to the deceased herein.  So apart from the  fact that there is no evidence showing that the late RUVIO GATUGOintermeddled with the estate herein, I find that he had no right or capacity to  dispose it or  give it out as a gift to any of his children.

15. Secondly the applicant has insisted that Niceta Thaara is the only child to the  deceased and that the Respondent and Isabela Wanjuki are not biological children as they came with  their late mother.  But even if this was a proven  fact, which is not the case here, the two could still stake their claim under  Section 29(b) as cited above because the deceased took them as his children  and provided for them.  I have considered the evidence tendered by the  Respondent and perused through the chief's letter dated 19th July, 2013 filed  together with the petition for Letters of Administration and I am satisfied  based on the same that the Respondent  has proved to the required standard  in law (balance of probabilities) that the deceased died living a widow the  late ROSEMARY NDIIRI and her three children Catherine Gicuku, Niceta  Thaara Nguruto and Isabela Wanjiru Njeru surviving him as the only  dependants within the meaning of Section 29 of  Law of Succession Act.That finding settles the second issue for determination in this application. Rosemary Ndiiri is now said to be deceased which leaves the three children  namely; Catherine Gicuku Njeru, Niceta Ngurto and Isabela Wanjiku Njeru  as the only children and  dependants in the estate of the deceased herein.

16. The applicants claim as correctly deposed by the Respondent rests on her  father's estate through Succession Cause No.436 of 2013.  I have looked at the copy of the summons for confirmation of grant tendered as D.Exh 1 and  clearly and correctly the applicant herein is named as one of the dependants  of the estate of RUBIA GATUGO alias RUVIO GATUGO.  She has every  right in that cause but certainly not in this cause because the estate herein  exclusively relates to the estate of her late brother Sebastian Ngutu  Waganagwa alias Ngutu Waganagwa and she was not a dependant or  beneficiary of that  estate. Her summons for revocation of grant dated 5th  November, 2014 is for that reason disallowed.

17. However having made the above findings, I have noted that the Respondent  included one Marie Njoki Nderi as a beneficiary on account that she had advanced her some money to file the succession cause. The advancement of  the money did not contravene the law but doing so with the view of purchase  or as a consideration of part of estate clearly offends Section 82 of Law of  Succession Act. There was an inadvertent mistake to include her as a  beneficiary  and it is only in that regard that this court on its own  motion  hereby revokes the grant issued on 17th October, 2013  and confirmed on  24th July, 2014.  This court in view of the aforesaid reasons and in the  exercise of this court's discretion under Section 66 of Law of Succession  Act hereby issues a fresh grant to Catherine Gicuku Njeru to administer the  estate of the late Sebastian Ngutu Waganagwa alias Nguru Waganagwa  (deceased) as provided for by the law.  In view of the age of this cause I  grant her the liberty/leave to apply for confirmation of the grant before the  expiry of the statutory period of six months.  I shall not make any order to  costs as this is a family matter.

Dated, delivered and signed at Embu this 27th day of September, 2018,

R.K. LIMO

JUDGE