Macharia v Githendu [2022] KEHC 13859 (KLR)

Macharia v Githendu (Probate & Administration E0015 of 2021) [2022] KEHC 13859 (KLR) (11 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13859 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Probate & Administration E0015 of 2021

RM Mwongo, J

October 11, 2022

Between

Lucy Mwihiki Macharia

Applicant

and

Solomon Njenga Githendu

Respondent

Ruling

The Ad litem aplication 1. The applicant, Lucy Macharia, approached this court under certificate in September, 2021, and successfully applied for a limited grant ad litem on October 21, 2021, to substitute the deceased, Jackson Njenga Njoroge, with Solomon Githendui Njenga in a suit in Nakuru Court of Appeal Case No 49 of 2019. The basis of the application was that the deceased, Jackson Njenga Njoroge, was the 3rd respondent in the said appeal. Upon his demise, it was necessary to replace him in that suit so that it could proceed expeditiously.

2. In that application, the applicant exhibited a full power of attorney which the deceased had executed and registered in November 2018. In it he had appointed Solomon Githendui Njenga as his attorney to manage all his affairs, defend any actions in courts, and made particular reference to parcel Number Nakuru Municipality Block 4/46.

3. The applicant, whilst applying for the grant ad litem, had deponed in her affidavit dated October 15, 2021,inter alia, that the attorney under the Power of Attorney had been attending the court case in the Court of Appeal at Nakuru. Accordingly, in the absence of any family member of the deceased filing for probate for the deceased’s estate, it was natural for the attorney to be mandated to apply through the ad litem application.

Application to revoke/set aside the grant ad litem 4. In April 2022, the grantee of the grant ad litem, Solomon Giithendu, cited by the applicant, applied for revocation of the said grant. His main grounds are that:a.He was not requested to be involved in the application;b.The said application was grounded on a false/fraudulent affidavit of service which was never served on him;c.The applicant had no legal capacity to apply for the ad litem grant;d.That the power of attorney relied on by the court to obtain the grant, lapsed when the deceased died;On these grounds, the said Solomon Githendu thus seeks revocation of the grant ad litem.

5. Nevertheless, in his affidavit in support of the application for revocation of the ad litem grant, he states at paragraph 5(b) as follows:“My late father did not have cases in court as alleged at paragraph 4 of the Affidavit of service save for Civil Appeal 49 of 2019 and ELC 433 of 2019. In the matters, my late father was duly represented with competent Advocates…”

6. In reply, Lucy Macharia deposed, inter alia, that the death of the deceased was brought to her attention by her counsel; that the application by Solomon Githendu is defective and that the allegation that she did not have power to make the ad litem application is unfounded; that the grant ad litem was not founded on the power of attorney, but instead on the fact that the deceased was a respondent in the Court of Appeal Case; that the said power of attorney was used solely as a guide to pick the best person to represent the 3rd respondent in that Court of Appeal case; that in applying for the grant ad litem under rule 14 of the 5th schedule of theP&A Rules, all that she was required to show was that there was a pending suit to which the deceased was a party, and that the person entitled to take out administration was either reluctant or unwilling to do so.

Parties’ submissions 7. As directed by the court, the parties filed written submissions to dispense of the application for revocation. The submissions are summarised hereunder.

8. In seeking revocation, Solomon Githendu’s submissions raise the following issues for determination:a.Whether service of the petition was effected on him- to which he answered no;b.Whether the property the subject of the appeal comprised the deceased’s estate – to which he answered in the negative stating that the property had been transferred on 27/3/2019 before the deceased’s death and therefore did not belong to the deceased;c.Whether the power of attorney had been extinguished by the deceased’s death – to which his answer was yes;d.Whether the affidavits of Lucy Macharia are admissible – to which he answers in the negative on account of their defective non-notarisation as commissioning could not be done in Kenya since she was living abroad;e.Whether the citation is mandatory – to which h he argues that the citation was not served; that citations are meant to issue in instances where no petition has been lodged; and that a mandatory process has been omitted

9. In support of his arguments, Solomon Njenga relies on the following authoritiesa.John Jandi Kibigo v Ayiego Kibingo [2017] eKLR. In this case the question was who was entitled to take out letters of administration between two brothers who were trying to outdo one another. The court held that if a person cited refused to apply for the grant the citor may proceed with the petition.b.Josiah Muli Wambua Deceased, Nairobi Succ Cause No 2557 of 2012 [2014] eKLR. Here the court held that in intestacy, a citation only issues where no petition has been lodged in court since citations are intended to trigger the process of applying for letters of administration.c.In Re Estate of Anthony George Kimanthi Deceased [2019] eKLR.Check… …?????

10. The applicant, Lucy Macharia, relied on the following authorities:a.Rile 14 of the 5th schedule of the P&A Rules which provides that where it is necessary that the representative of a deceased person be made a party to a pending suit and the executor or person entitled to administer the estate is unable or unwilling, then letters may be granted to a nominee of a party in such suit.b.Elkana Kibingor v Kipkogei Chepsom & Jennifer ChepsomP&Aad litemNo 61 of 2015 [2017]eKLR where the court found that the there was no denial that the appellant had filed a suit against the deceased; that rule 14 of theP&A Rulesdo not require the court to inquire into the validity of a suit before nominating a representative; and that where it had not been disputed that the respondents were the deceased’s biological children, they were in the category of persons who are entitled to apply for grant, but had refused to do so, a petition under citation was merited.c.In the Matter of the Estate of Morarji Bhanji Dhanak (Deceased) [2000] eKLR where it was held that advocates seeking to apply for limited grant should come under Para graph 14 of the P&A Rules though the form of petition has not been prescribed;d.Martin Mbabu Mugoin Re Estate of Miriti M’Muga( Deceased) [2005] eKLR where the court held that it was satisfied that “justice demands that the grant of representation to the deceased’s estate be made to the applicant so that the matters that are in court and to which the deceased was a party may be concluded”

11. I have carefully considered the applications before me, the evidence availed, the authorities relied upon by counsel, and the parties’ submissions before me.

12. The law regarding special forms of grants – in this case grants of administration limited to suits ie ad litem grants – is the fifth schedule paragraph 14 of the LSA which provides as follows:“When it is necessary that the representative of a deceased person be made a party to a pending suit, and the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the nominee of a party in such suit, limited for the purpose of representing the deceased in the said suit, or in any other cause or suit which may be commenced in the same or in any other court between the parties, or any other parties, touching the matters at issue in the cause or suit, and until a final decree shall be made therein, and carried into complete execution.”

13. The conditions for this type of special grant are: first, that there must be an existing suit; second, that there is a deceased person who ought to be a party to the suit; third, that the suit requires the involvement of a representative of a deceased person; fourth, that the person entitled to administration of the deceased’s estate is unable or unwilling to do so; fifth, that there is a party desirous of proceeding with the suit by applying to nominate a suitable person to act on behalf of the deceased’s estate; sixth, that the nominee is capable of being appointed to act for the deceased through a limited grant for that purpose by way of limited grant.

14. The first thing that is crystal clear and is not disputed by any of the parties that Solomon Githendu is the son of the deceased. I have cited a paragraph of his affidavit dated …….wherein he admits so. It bears repeating as hereunder:“My late father did not have cases in court as alleged at paragraph 4 of the affidavit of service save for Civil Appeal 49 of 2019 and ELC 433 of 2019. In the matters, my late father was duly represented with competent advocates…” (emphasis added)

15. He also admits that his father was involved in Civil Appeal No 49 of 2019. It is in respect of Civil Appeal No 49 of 2019 that the application for grant ad litem was issued where the applicant alleged that the deceased –Jackson Njenga Njoroge- Solomon Githendu’s father, was the 3rd Respondent. This is not even an argumentative proposition, but is instead admitted as undisputed fact.

16. In addition, the applicant Lucy Macharia, was herself the 2nd appellant in the said Court of Appeal suit, and said that she filed the ad litem application in that capacity.

17. I have considered the arguments of Solomon to the effect that there was no proper service; that the applicant’s affidavit was inadmissible, and that in any event he was not asked to participate in the application. These are merely technical arguments which do not go to the crux of the issue which is: whether or not the respondent, Solomon, is in law properly capable of being enjoined in the suit in the Court of Appeal.

18. Similarly, his argument that there was no property subject of the appeal comprised in the deceased’s estate, is ineffective, as the issue should and would be the subject of the merits before the Court of Appeal itself. It is not for this court to entangle itself with the competency of the suit before or the merits of the case in the Court of Appeal.

19. The respondent also argued, relying on the case ofJosiah Muli Wambua Deceased [2014] eKLR that citations are only meant to issue in cases where no petition has been lodged since they act as a trigger to the process of applying for grant. Whilst that position is true, as held by Musyoka, J, in Wambua’s case, it does not detract from the fact that where a person has died during the pendency of proceedings, and no beneficiary entitled in law has come up to administer his estate, then a party to the suit may apply for a special grant to force an entitled person from the estate to continue with the suit. That is precisely the gap that paragraph 14 of the fifth schedule is intended to remedy. I so hold.

20. It cannot be that where a deceased has died during the pendency of court proceedings, and no one is forthcoming to take his position or act in his behalf, that the court proceedings should thereby abate and be discontinued. Court proceedings are supposed to be conducted expediently and efficaciously, and to perpetrate any procedure that delays proceedings would be an affront to the administration of justice.

21. I do not even think, as I understood the respondent to suggest, that it was for the applicant to file a citation to force the interested parties to come out of the wood works and force a petition to be filed. Paragraph 14, of the fifth schedule exists to take care of that very situation.

22. I am of course alive to the fact that there is no evidence that a petition or citation has in fact been filed in respect of the estate of the deceased. The applicant indicated in her affidavit dated October 13, 2021, that after the deceased’s death she went to the Chief of Kiandai Village where the deceased hailed from and requested him to issue her a letter confirming his demise. She was unsuccessful in that quest, and is clearly in a weak position to pursue the issuance of a citation.

23. I am aware of sections 54 and 67 of the Law of Succession Act on limited grants which require that:“54. A court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the fifth schedule to this Act”and1. No grant of representation, other than a limited grant for collection and preservation of assets, shall be made until there has been published notice of the application for such grant, inviting objections thereto to be made known to the court within a specified period of not less than thirty days from the date of publication, and the period so specified has expired.

2. A notice under subsection (1) shall be exhibited conspicuously in the court-house, and also published in such other manner as the court directs.

24. In particular section 67(1) appears to prohibit the making of limited grants, except for collection and preservation of the estate assets until publication of a notice to the public. However, an application for any limited grant is required to be under the forms in the fifth schedule, and the applicant’s application is under this schedule, citinf paragraph 14 of that schedule.

25. Thus sections 54 and 67 must be read together with the schedules and the P&A Rules, which are established to implement the provisions of the Act.

26. In light of all the foregoing, I think the appropriate orders which meet the justice of the case are as follows:a.The letters of grant ad litem issued by this court on October 21, 2021 is hereby upheld for ninety days to enable the respondent (grantee named therein) as the deceased’s son, to file or cause to be filed either a petition for grant of letters of administration or a citation requiring the persons most entitled, to do so;b.If after ninety days the grantee has not filed or caused to be filed a citation or petition the grant ad litem shall continue to be in forcec.If a petition or citation is issued as indicated in (a) above, the grantee or grantees who shall be named therein may be substituted for the respondent Solomon Githendu Njenga the grantee in the grant ad litem.d.Orders accordingly.

DATED AT KERUGOYA THIS 11TH DAY OF OCTOBER, 2022. .................................................Richard MwongoJudgeIn the presence of:1. Acheng holding brief for Orenge for Respondents2. No representation for Applicant.3. Court Assistant - Murage