Case ID:177880

In re Estate of Wilson Nziuko Kinyao (Deceased) [2021] eKLR

Case Metadata

Case Number:

Succession Cause 1182 of 2012

Parties:

In re Estate of Wilson Nziuko Kinyao (Deceased)

Date Delivered:

28 Jun 2021

Case Class:

Civil

Court:

High Court at Machakos

Case Action:

Ruling

Judge(s):

George Vincent Odunga

Citation:

In re Estate of Wilson Nziuko Kinyao (Deceased) [2021] eKLR

Advocates:

Mr Kituku for the Applicant

Miss Otieno for the 1st Administrator/Respondent

Mr Mukula for the interested party

Court Division:

Family

County:

Machakos

Advocates:

Mr Kituku for the Applicant

Miss Otieno for the 1st Administrator/Respondent

Mr Mukula for the interested party

History Advocates:

Both Parties Represented

Case Outcome:

Application 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 MACHAKOS

(Coram: Odunga, J)

SUCCESSION CAUSE NO.1182 OF 2012

IN THE MATTER OF THE ESTATE OF WILSON NZIUKO KINYAO (DECEASED)

IDA MARGARET NDUMBA..1

ST

ADMINISTRATOR/RESPONDENT

JOHN M. KATUMO...............................................2

ND

RESPONDENT

-VERSUS-

MAGDALENE KAMENE NZIUKO.............................1

ST

APPLICANT

THOMAS CLEOPHAS MUNYASYA.......................2

ND

APPLICANT

VICTORIA KENSLY MUOTI MUIA.........................3

RD

APPLICANT

VERONICAH VIVIEN MAKANA MUIA..................4

TH

APPLICANT

ALPHONSE MAKITIA MUIA....................................5

TH

APPLICANT

FREDRICK FINTAN MBISA......................................6

TH

APPLICANT

RULING

1. By Summons for Revocation of Grant dated 2

nd

August, 2019, the Applicants herein seek the following orders:

a. Spent.

b. THAT

interim preservatory and protection order do issue restraining the Respondents whether by themselves or through their servants, agents and/or employees or any other person whomever claiming under them or through them from selling, transferring, retransferring and/or otherwise intermeddling or interfering in any way with all the assets of the deceased herein and in particular parcels of land and shares vide membership numbers:-

i)

Machakos Konza North Block 1/580

ii)

Kiu Ranch 960 Membership No. 563

iii)

Commercial Plot in Konza

iv)

Kalama/ Muumandu/407

v)

Konza Ranch Plot No. 590

vi)

Konza Ranch Membership No. 357

vii)

Commercial Plot No. 244-Malili

viii)

Malili Ranch Agricultural Plot No. 1762; and any other assets belong to the estate of the deceased herein or from doing any other prejudicial act pending the hearing and determination of this Application.

c. THAT

the grant of Letters of Administration (letter 41) issued on the 27/5/2013 together with the Certificate of confirmation of grant issued on 17/01/2014 and dated 21/11/2014 to Ida Margaret Ndumba be revoked and/or annulled and a fresh grant of letters of Administration intestate be issued in the name of Magdalene Kamene Nziuko.

d. THAT

the court do revoke, annul, nullify and/or cancel any and all registrations, sales, transfers, dispositions, charges, leases or any other transactions made by the Respondents or any person whomever with regard to all the assets of the deceased herein in reliance to the confirmed grant herein or otherwise and the same be reverted to the name of the deceased herein.

e. THAT

the name of Ida Margaret Ndumba be removed from the list of beneficiaries and the following beneficiaries be included in the list of beneficiaries of the deceased.

i. Magdalene Kamene Nziuko

ii. Thomas Cleophas Munyasia

iii. Victoria Kensly Muoti Muia

iv. Veronica Vivian Makana Muia

v. Alphonse Makitia Muia

vi. Fredrick Fintan Mbisa

f. THAT

the costs of this Application be provided for.

2. The facts of the case as narrated by the Applicant were that the 1

st

applicant got married to the late

Jonathan Muia Nziuko

on 20

th

December, 1975 in a monogamous marriage under the then African Christian Marriage and Divorce Act at African Inland Church Bomani in Machakos and remained his wife till his demise. It was averred by the 1

st

Applicant that her late husband was the only child of the deceased herein,

Wilson Nziuko Kinyao

alias

Wilson Nzioka Kinyao

hence the 1

st

applicant and her co-applicants are rightful heirs to the estate of the deceased.

3. The applicants therefore urged this court to revoke the letters of administration issued herein on 27

th

May,2013 together with the Certificate of Confirmation of Grant issued herein on 17

th

January, 2014 since these proceedings were undertaken behind their backs and without their consent. According to the 1

st

applicant, she only became aware of these proceedings when she accompanied her son,

Thomas Cleophas Munyasia

, to Machakos Police Station on or about 14

th

May, 2019 over the property of the deceased herein.

4. The 1

st

applicant also learnt that prior to filing the instant cause, the 2

nd

Respondents filed Machakos High Court Succession Cause (Citation) Number 968 of 2012 citing only

Ida Margaret Ndumba Nziuko

(the 1

st

Respondent) and

Munyasia Nziuko

which citation was dismissed on 28

th

June, 2017 for want of prosecution. That, according to the information received by the 1

st

Applicant from the 2

nd

Applicant herein,

Thomas Cleophas Munyasia

, was not served on the latter hence the purported appointment of the advocate by the 1

st

and respondent and the 2

nd

Applicant was a mere charade as the 2nd Applicant never gave such instructions.

5. It was disclosed that in the said citation, the 2nd Respondents annexed a letter by the assistant chief in which it was purported that the 1st Applicant’s co-applicants, who are her children, were the 2nd Respondent’s. In the said proceedings, the 1st Respondent also annexed a document purporting to be a Will made by the 1st Applicant’s late husband which was a sham.

6. The 1st applicant averred that she was yet to file succession cause in respect of her late husband’s estate hence any such cause if filed was done behind her back and ought to be annulled. It was her averment that todate her matrimonial home is that of her late husband and the deceased herein’s homestead at Muumandu on plot no. Kalama/Muumandu/407.

7. The Applicants were therefore apprehensive that unless the deceased’s estate is preserved and protected and the rant revoked, the deceased’s estate risks being wasted and/or disposed of by the respondent to their detriment. Further, they risked being disinherited and rendered homeless hence suffering irreparable loss.

8. In opposing the summons, the 1

st

Respondent averred that she got married to the late

Jonathan Muia Nziuko,

the only son to the deceased herein,

Wilson Nziuko Kinyao,

in the year 1973 under the Kamba Customary Law with the consent of both parents and were blessed with 2 sons and one daughter namely

Michael Maithya

,

Catherine Mwende Nziuko

and

Stephen Muthiani Nziuko

. According to her, they lived together as a happy family with her late husband and her father-in-law. She disclosed that the 1

st

Applicant herein was also married to

Jonathan Muia Nziuko

as the 2

nd

wife in the year 1975 but they parted ways in the year 1978 and until his demise in 2011, the 1

st

Applicant had never set her foot on her late husband’s home. The 1

st

Applicant, it was averred, only resurfaced after the demise of her husband with her children and threatened to take over the 1

st

Respondent’s matrimonial home and since the 1

st

Respondent was not ready for such threats, she moved from their matrimonial home after the demise of both her father -in -law and her husband respectively. Following the death of her father-in-law, the 1

st

Respondent averred that she petitioned for Letters of Administration as required by the law and the same was gazetted vide gazette legal notice volume CXV. No. 8 and the same was never disputed. To that extent, the 1

st

Respondent refuted the contention that these proceedings were undertaken behind the 1

st

Applicant’s back.

9. It was her case that the properties named in the cause belong to her father in law whose estate is the subject of this succession cause and not that of their late husband hence the 1st Applicant’s case has no merit and amounts to an abuse of the court process.

10. It was averred that the deceased herein died in 2009 while their late husband died in 2011 and posed the question where the 1st Applicant was all along for close to 10 years before petitioning for the grant.

11. The 1

st

Respondent insisted that she was the rightful person to apply for the grant since she had lived with the deceased, nursed him when he was sick until his demise in 2009.

12. It was averred that the late

Jonathan Muia Nziuko

, their husband, had no known assets in his names, a fact well known to the 1

st

applicant. The 1

st

Respondent deposed that prior to his death, the deceased herein disclosed to her all the whereabouts of his properties and how the same ought to have been distributed and safeguarded after his demise.

13. Based on the foregoing the 1

st

Respondent urged this Court to dismiss the summons.

14. In opposing the Summons, the 2

nd

Respondent herein,

John Mumba Katumo

, averred that the Deceased herein owned

inter alia

an Agricultural Plot NO. 1762 and a Commercial Plot No. 244, Malili Ranch Ltd. On 14

th

October, 2008 the Deceased herein sold the aforementioned Agricultural Plot NO. 1762 to

John Mutiso Mbwii

at a Purchase Price of Kshs. 3,200,000.00 who was unable to honour the aforesaid Agreement owing to financial constraints. Thereafter on 10

th

January, 2009 the Deceased sold to him the same Agricultural Plot NO. 1762 and Commercial Plot NO. 244 at a total Purchase Price of Kshs. 6,000,0000/= which he paid fully. However, the Deceased herein passed away on 14

th

June, 2009 before transferring the said Plots to his name.

15. The 2

nd

Respondent averred that on 19

th

September, 2012 through his Advocates on record, he extracted a Citation against the Administrator/1

st

Respondent and the 2

nd

Applicant herein vide Machakos High Court Succession Cause No. 968 of 2012 to which the 1

st

Respondent and 2

nd

Applicant herein entered Appearance vide a Notice of Appointment of Advocate dated 7

th

November, 2012 and filed on 8

th

November, 2012. Consequently, on 15

th

November, 2012 the Administrator/1

st

Respondent herein Petitioned for Letters of Administration Intestate pertaining the Estate of the Deceased herein.

16. He deposed that on 27

th

May, 2013 the 1

st

Respondent herein was issued with a Grant of Letters of Administration Intestate and the same was confirmed on 17

th

January, 2014 and that from the said Certificate of Confirmation of Grant, the Commercial Plot No. 244 & Agricultural Plot No. 1762 Malili Ranch were to be registered in his names. Thereafter on 28

th

February, 2014 and 3

rd

March, 2014 he duly paid the transfer fees for the aforementioned Agricultural and Commercial Plot respectively.

17. It was therefore contended by the 2

nd

Respondent that the Applicants are simply economical with the truth and that it is crystal clear that it is the Applicants who have not only concealed but also suppressed material facts from the Court.

18. He averred that in May, 2012, he was informed that some people were digging and fencing the said Commercial Plot, a fact which he confirmed and reported the matter at Machakos Police Station and on 19

th

August, 2012 upon which an Officer from DCIO Machakos visited the scene, did investigations and took the evidence to Machakos Police Station. Based on the foregoing, the 2

nd

Applicant herein was arrested and released on Police Bond and the matter is still pending. He disclosed that on 18

th

March, 2018 he recorded his statement at Machakos Police Station regarding the above mentioned complaint.

19. According to the 2

nd

Respondent, on 13

th

May, 2019 he paid a visit to Malili Ranch Ltd and discovered that the 2

nd

Applicant herein had fraudulently transferred the said Agricultural Plot No. 1762 unto himself and further that he had fraudulently transferred the said Agricultural Plot to a Chinese by the name

Jin Cook Choi

. Based on the foregoing, the 2

nd

Respondent went to Machakos Police Station and recorded a Further Statement in respect to the aforementioned issue. However, on 13

th

May, 2019 he did a search on the said Plot and I established that the said Commercial Plot NO. 244 is in his name.

20. It was therefore his case that the Applicants’ Application dated 2

nd

August, 2019 is destitute of merit hence should be dismissed with Costs.

21. In her further affidavit, the 1

st

Applicant reiterated her earlier averments that she was the only lawfully wedded wife to the late husband till his demise hence it is only her and her children who are ranking in priority to the letters of administration herein. She further disputed the legality of the sale transaction between the deceased herein and the 2

nd

Respondent.

22. In their submissions, the Applicants reiterated their averments made in the affidavits sworn in support of their Summons herein.

23. On her part, the 1

st

Respondent similarly submitted on the line of her averments made in her replying affidavit.

24. The 2

nd

Respondent, on his part submitted that that this Court lacks jurisdiction to cancel and/or revoke the titles herein based on Article 162 (2) (b) of the Constitution as read with Section 13 of the

Environment and Land Court Act

as well as the decision in

Re Estate of Makai Kaluti Ndunda (Deceased) [2018] eKLR

.

Reliance was similarly placed on Section 93(1) of the

Law of Succession Act

.

25. According to the 2

nd

Respondent, since Commercial Plot No. 244 Malili Ranch Ltd was transferred to the 2

nd

Respondent after Confirmation of the Grant, the said transfer and the subsequent instrument are valid and thus this Court cannot cancel the same because it is devoid of jurisdiction.

26. The Court was therefore urge to dismiss the Application dated 2

nd

August, 2019 with Costs to the 2

nd

Respondent.

Determination

27. I have considered the application, the affidavits both in support of and in opposition to the application and the submissions filed.

28. Section 76(a), (b) and (c) of the

Law of Succession Act

provides as hereunder:

A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—

(a) that the proceedings to obtain the grant were defective in substance;

(b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;

(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

29. According to the 1

st

Applicant she is a daughter in law to the deceased’s only son, the late

Jonathan Muia Nziuko,

having gotten married to him on 20

th

December, 1975 in a monogamous marriage under the then

African Christian Marriage and Divorce Act.

The 1

st

Respondent on the other hand claims that she got married to the said

Jonathan Muia Nziuko

in the year 1973 under the Kamba Customary Law with the consent of both parents and were blessed with 2 sons and one daughter namely

Michael Maithya

,

Catherine Mwende Nziuko

and

Stephen Muthiani Nziuko

.

30. It is therefore clear that while the marriage of the 1

st

Applicant to the said

Jonathan Muia Nziuko

not disputed, that of the 1

st

Respondent is disputed by the 1

st

Applicant. The matter before me however is not the determination of the validity of the marriage between the said

Jonathan Muia Nziuko

and the 1

st

Respondent.

31. Section 66 of the

Law of Succession Act

, Cap 160, Laws of Kenya provides that:

When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—

a. surviving spouse or spouses, with or without association of other beneficiaries;

b. other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;

32. Section 39 of the said Act which falls in Part V thereof provides that:

(1) Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority-

(a) father; or if dead

(b) mother; or if dead

(c) brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none

(d) half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none Powers of spouse during life interest. 8 of 1976, s. 9. Where intestate has left a surviving child or children but no spouse. Where intestate has left no surviving spouse or children.

(e) the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.

(2) Failing survival by any of the persons mentioned in paragraphs (a) to (e) of subsection (1), the net intestate estate shall devolve upon the State, and be paid into the Consolidated Fund.

33. Assuming that the 1

st

Respondent’s contention that she was lawfully married to

Jonathan Muia Nziuko

is right, it would follow that she would rank in priority with the 1

st

Applicant in so far as the administration of the Estate of the deceased herein is concerned since they both would only be entitled to the estate of the deceased herein through the said

Jonathan Muia Nziuko.

34. It therefore follows that both the 1

st

Applicant and the 1

st

Respondent, if the 1

st

Respondent is to be believed, are daughter in law to the deceased. They do not therefore fall within the ambit of section 29 in order to be considered as dependants. They may well have been able to put forward a case had they put brought their claim on behalf of the said

Jonathan Muia Nziuko,

who was a son to the deceased. It is in light of that, I agree with the decision in

Nahashon Karungu Macharia vs. Rosemary Kahura Njoroge (2016) eKLR

where the Court while holding that a daughter-in-law of a predeceased son is a beneficiary of the estate of the latter deceased parent-in-law stated thus: -

“The Deceased was survived by the said Administrator and another son, Patrick Muthemba Macharia. He was also survived by a daughter-in-law called Rosemary Kahura Njoroge (a widow of another son, now deceased, James Njoroge). There had been yet another son, John Kimani, who died after the Deceased. It is common ground that he died without wife or issue. So, in effect there are only three beneficiaries to the estate of the Deceased – his two surviving sons and the widow of another son, since deceased.”

35. In my view a daughter in law may lay a claim as a beneficiary not in her own right but as a legal representative of a deceased son. In other words, the legal representatives of a deceased’s dependants may properly stake a claim to the estate of a deceased person on behalf of legally recognized dependants. However, that is not the claim by the 1

st

Applicant and the 1

st

Respondent herein in these proceedings. My view is reinforced by the decision in the case of

Re Estate of Munyua Mbeke (Deceased) [2015]

where it was held that:

“The clear wording of Section 29 of the Act does not include daughters-in-law of the deceased. Daughters-in-law are not children of the deceased, and therefore they do not fall within the category of the children of the deceased. They therefore cannot mount an application under Section 26 of the Act as the applicant has done in this case.”

36. The same view was expressed in

Re Estate of Cecilia Wanjiru Kibiche (Deceased) [2016] eKLR

where the Court expressed the view that:

“…a daughter-in-law is not listed in section 29(b) of the Act as being among persons who may move the court under section 26 for reasonable provision and who the court may declare to be a dependant.”

37. As regards the 1

st

Applicant’s children, it is clear that they were grandchildren of the deceased. They therefore fall within section 29(b) of the Act.

Part VI Rule 26(1) of the

Probate and Administration Rules

provides that:

Letters of administration shall not be granted to any applicant without notice of every other person entitled in the same degree as or in priority to the applicant.

39. There is however no evidence that any of the Applicants were notified as required in Part VI Rule 26(1) of the

Probate and Administration Rules

despite the fact that the other Applicants were entitled in their capacities as the grand children of the deceased.

40. It is therefore clear that the proceedings to obtain the grant herein were defective in substance.

41. As regards the revocation of titles, the 2

nd

Respondent contends that he acquired his interest in the deceased’s estate directly from the deceased only that transfer was not effected during the lifetime of the deceased. He has since gotten himself registered as the proprietor of at least one of the properties. In those circumstances, I agree that these are not the appropriate proceedings to canvass and determine the particular issue.

42. In the premises while declining to revoke the titles issued to the 2

nd

Respondent I hereby direct that the grant of Letters of Administration (letter 41) issued on the 27

th

May, 2013 together with the Certificate of confirmation of grant issued on 17

th

January, 2014 and dated 21

st

November, 2014 to

Ida Margaret Ndumba

be and is hereby revoked and/or annulled and a fresh grant of letters of Administration intestate be issued in the joint names of

Magdalene Kamene Nziuko

and

Ida Margaret Ndumba

.

43. This matter is hereby referred to mediation for the purposes of distribution of the deceased’s estate.

44. There will be no order as to the costs of this application and it is so ordered.

READ, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS THIS 28

TH

DAY OF JUNE, 2021

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Kituku for the Applicant

Miss Otieno for the 1

st

Administrator/Respondent

Mr Mukula for the interested party

CA Geoffrey