Case ID:170410

In re Estate of Josephine Wambui Mwangi (Deceased) [2021] eKLR

Case Metadata

Case Number:

Succession Cause 2505 of 2004

Parties:

In re Estate of Josephine Wambui Mwangi (Deceased)

Date Delivered:

22 Feb 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Aggrey Otsyula Muchelule

Citation:

In re Estate of Josephine Wambui Mwangi (Deceased) [2021] eKLR

Court Division:

Family

County:

Nairobi

Case Outcome:

Application partly allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 2505 OF 2004

IN THE MATTER OF THE ESTATE OF JOSEPHINE WAMBUI MWANGI (DECEASED)

DAVID NDUNGU KINUTHIA..............OBJECTOR/APPLICANT

VERSUS

CAROLINE WAMBUI.......................................1

ST

RESPONDENT

JOHN HENRY MWANGI.................................2

ND

RESPONDENT

IRENE WANJIKU.............................................3

RD

RESPONDENT

RULING

1. The deceased Josephine Wambui Mwangi died on 6

th

March 2004. She had two children: the applicant David Ndungu Kinuthia and Jane Njoki. Jane Njoki died living four children whom are the respondents; Caroline Wambui (1

st

respondent), Joseph Henry Mwangi (2

nd

respondent), Irene Wanjiku (3

rd

respondent) and David Ndungu Kinuthia. On the basis that the deceased left a written Will dated 28

th

April 2000, the 1

st

respondent (the executrix in the said Will) petitioned this court and on 4

th

April 2005 was issued with a grant of probate. The grant was confirmed on 21

st

February 2006. This followed an application by the 1

st

respondent who produced a consent to the confirmation purportedly signed by the applicant.

2. In the certificate of confirmation, the deceased’s estate was shared as follows:-

(a) Dagoretti/Riruta/T.103 and Ngobit/Supuko/Block 1/169 went to the 2

nd

respondent;

(b) Dagoretti/Riruta/T.102 went to the 1

st

respondent;

(c) plot No. 336 in Njiru Ageria Development Company Limited went to the 3

rd

respondent;

(d) parcels Nos. 1218 and 236 at Dagoretti Nyakinyua Cooperative Society Land No. 3 went to David Ndungu Kinuthia;

(e) household goods and personal goods of the deceased were to go to the 2

nd

respondent, and upon her marriage to go to the 2

nd

respondent; and

(f) the residue of the properties was to go to the 2

nd

respondent.

3. In the application dated 7

th

July 2009 by the applicant, he sought the revocation of the grant of probate on the basis the deceased had not left any Will and that the purported Will was a forgery; that he had not participated in the proceedings leading to the grant of probate and the confirmation of the grant, and that the consent attributed to him was a forgery. The 1

st

and 2

nd

respondents filed each a replying affidavit to reiterate that the deceased was the author of the said Will, and also stated that the applicant had consented to the confirmation of the grant.

4. There is no dispute that the applicant had complained to the police that the said written Will and consent were a forgery. This led to the successful prosecution of the 1

st

and 2

nd

respondents in

C.M. Criminal Case No. 3413 of 2013 at Kibera

with forgery contrary to

section 349

of the

Penal Code

on the Will and the consent. They were jointly convicted on each charge. Each was sentenced to serve seven years in jail on the charge in regard to the Will and three years on the charge in regard to the consent. Their appeal to the High Court was not successful. They have moved to the Court of Appeal.

5. I find that the convictions bind the 1

st

and 2

nd

respondents and also bind this court. It follows that the deceased left no written Will and that the applicant did not consent to the confirmation of the grant. Under

section 76

of the

Law of Succession Act (Cap 160),

I find that the grant of probate issued to the 1

st

respondent was obtained fraudulently. I further find that the confirmation of the grant of probate was obtained fraudulently. Each is revoked and set aside. Any titles issued to any of the respondents are recalled and cancelled. The 1

st

respondent shall pay costs of the application.

6. The applicant filed application dated 25

th

April 2019 seeking orders against the respondents and/or their agents to deposit with court monthly rental income in respect of Dagoretti/Riruta/T.103 pending the outcome of the application dated 7

th

July 2009. In response to the orders issued by the court to deposit the rent income, the 2

nd

respondent filed an application dated 21

st

September 2020 seeking orders to vacate, set aside and/or vary the deposit orders. Both applications were opposed.

7. Given the decision over the application dated 7

th

July 2009, I find no reason to interfere with the orders issued over the rental income. At least, not in the manner sought by the 2

nd

respondent. The application dated 25

th

November 2019 is allowed with costs and the one dated 21

st

September 2020 is dismissed with costs.

8. I find that, on the evidence, the deceased died intestate. Under

section 47

of the

Act

and

rule 73

of the

Probate and Administration Rules

, and so that the estate does not go to waste for want of administration, I appoint the applicant and the 1

st

respondent as joint administrators of the estate of the deceased. I ask that both, or any of them, should within 60 days file and serve to all beneficiaries an application for the confirmation of the grant intestate. Whoever is served shall have 14 days to file a response. The cause shall be mentioned on

28

th

April 2021

for directions.

DATED and DELIVERED NAIROBI this 22

ND

day of FEBRUARY 2021.

A.O. MUCHELULE

JUDGE