The background facts of this matter are that the deceased died on 17 th July, 2006. That after his burial a will dated 15 th June, 2005 written by the deceased was read out and the petitioner herein noted to have been named as the Executioner of the will.
That subsequently, on 28 th September, 2006 the petitioner filed a High Court Succession Cause No. 581 of 2016 at Nakuru seeking for probate of letters of administration.
However, on 31 st October, 2006, Mary Wangui Kairu (herein “the 1 st objector”) filed an objection to the petition, an answer to petition of grant, and a cross-application for grant of probate for letter of administration with the will annexed on the ground that, she is the widow of the deceased, that the petition for probate of letters of administration with will annexed was filed without her information and consent and further the purported will is fraudulent and irregular.
The objection was heard by way of viva voce evidence wherein; the 1 st objector and 2 nd objector and James Munge testified on behalf of the 1 st objector, while the petitioner and Stephen Kinyanjui Kibunja, testified in support of the petition.
By a judgment delivered on 11 th November, 2010 Hon. Justice W. Ouko J (as he then was) held that, the will was valid and that the 1 st objector, is a widow of the deceased and thus entitled to a share of his estate.
The court further held that no provision had been made for the 1 st objector, she was directed to make an appropriate application under section 26 of the Law of Succession Act and Rule 45 of the Probate and Administration Rules for provision.
Consequently, a grant of probate of written will was issued to the petitioner on 11 th November, 2010.
On 19 th May, 2014, the 2 nd objector filed an application of the even date seeking for order inter alia that; the petitioner be compelled to transfer to her and her daughter the assets bequeathed to them under the will, and account for and release rent collected from the properties bequeathed to them.
In the meantime, the petitioner filed a summons dated 16 th July, 2014 for confirmation of grant seeking that the grant of probate issued on 11 th November, 2012 be confirmed.
On the 5 th August, 2014, the 1 st objector filed an application of the even date seeking that, the petitioner be restrained from intermeddling with the entire estate of the deceased by collecting, utilizing the proceeds of the estate including; plot No(s). 1144/70 and 436 Naivasha Town, and render an account of all rent collected from the deceased estate; further that the court issues an order for her monthly maintenance allowance of; Kshs. 43,167, provide for her share from deceased’s estate and that all documents of ownership of the deceased’s properties be declared and delivered into the custody of the court.
On 18 th September, 2014 the court directed the applications dated 19 th May 2014 and 5 th August 2014 be heard simultaneously while the application for confirmation of grant dated 16 th July, 2014 to await the outcome of the two applications.
On 24 th June, 2015 the court also ordered the petitioner to avail statements of accounts of the management of the estate within forty-five (45) days. The parties were also directed to go for mediation. By 5 th November, 2015 petitioner had not filed the accounts and was granted a further thirty (30) day, the accounts were filed by 28 th January 2016.
Subsequently the matter was stood over to 19 th July, 2016 and ordered to be disposed of by way of written submissions heard. On 18 th January 2017, the matter was transferred from Nakuru High Court to Naivasha High Court.
On 18 th May, 2017, the parties informed the court that they wanted the matter to proceed by way of viva voce evidence, but the court directed the parties to file affidavits and the deponents be cross-examined on the same. Subsequently the matter was heard.
The petitioner supported by his affidavits dated; 16 th July 2014, 25 th November, 2014, 16 th October 2017 and 25 th November, 2017. He deposed that the application for confirmation of grant was made in faith and that he disclosed all the assets of the estate as per the particulars of the will.
That, owing to financial obligations due by the estate and in order to alleviate financial hardship experienced by some of the dependants, he sold the property in Mirema Suswa Framers Ltd compromising of properties known as; Naivasha Mwichiringiri Block 4/3, 4/4 and 4/5 to Unity Vision Self Help Group as evidenced by the relevant sale agreements annexed to the affidavit dated 16 th July 2014.
The petitioner further averred that, the 1 st objector cannot be enjoined in the distribution of the estate as she was left out of the will by the deceased. Further, the ruling of the court dated; 11 th November 2010 did not specify what benefit did not specify the property to be given to her.
That additionally, the 1 st objector has been away for fifteen (15) years and did not contribute in any way to the estate neither has produced any record to prove her contribution. Further, when the will was read out on 23 rd September 2006, the family members agreed to set aside the parcel known as Naivasha/Maraigushu Block 18/830 as Kiai’s graveyard and thereby affecting the distribution.
Furthermore, on or about 5 th January 2006 the deceased transferred parcel known as; Naivasha/Maraigushu Block 18/647 to Peter Kairu Kiai his grandson interfering with the testament therein. The petitioner denied being aware of the existence of parcel known as plot No. 108 Commercial Site and Service Extension and efforts to locate the same have been futile.
He argued that the deceased’s estate has been well preserved and all the income generated therefrom has been used solely to conserve and develop the estate without any personal benefit.
That the particulars of the mode of distribution set out in paragraph 9 of the affidavit in support of summons for confirmation of grant of probate are in line with the particular provisions of the Will and save that the purchasers’ interests have been noted against the deceased’s estate.
The petitioner’s case was also supported by the evidence of; James Njoroge Kairu (PW2) a son of the deceased and a brother to the petitioner, who relied on his affidavit dated 16 th March 2018 and averred that he is not objecting to or denying the petitioner’s mandate as the executor of the deceased’s estate.
That the petitioner collected rent from LR No. 1144/70 section 7 Naivasha Town and that James Njoroge Kairu assisted in the distribution and administration of the monies collected. Further, the record and figures showing how the money was distributed in the monthly budget is available for verification and confirmation.
The petitioner’s case was further supported by Rose Waithira Kairu (PW3) who relied on her affidavit sworn on 16 th March 2018, wherein she deposed that she the deceased’s daughter and was bequeathed property Naivasha/Mwichiringiri Block 4/5 situated at Mirera Suswa, which she willingly sold to Samuel Matheri Gatuhi due to her financial needs and therefore proposes that the property be transferred to the purchaser upon confirmation of grant.
That the petitioner is also the legal administrator of their late mother Zipporah Muthoni Kairu and her interest in plot number 1144/70 section 7 Naivasha Town and Commercial Plot (Industrial) Number 292.
The 1 st objector opposed the application for confirmation of grant and relied on her affidavits sworn on 5 th August 2014, 1 st November 2015, 19 th June 2017, and 5 th December 2017. She avers that, she was married to the deceased and were blessed with two (2) issues namely; James Njogu Kairu and Alice Nyambura.
That, since the death of the deceased, she has been living in total poverty and not benefited from the estate of the deceased despite having contributed her youthful energies to the growth and development of the deceased’s estate.
Further that the court in the ruling of delivered on 11 th November 2010 declared her a beneficiary of the deceased and is therefore entitled to 1/3 of the entire proceeds of the estate. That the distribution of the estate between the deceased’s wives should take into account the individual needs, contributions to realization, and the past benefits enjoyed by the beneficiaries prior to distribution. Further, the benefits should be backdated at distribution so that she is put in the same status as the ones who have been collecting rents.
The 1 st objector argues that it would be prudent for the court to ascertain all the assets of the deceased’s estate and determine the net value of the fixed and current assets before proceeding to distribute the same.
She further deposes that, the estate of the deceased is comprised of the properties listed in the will and other properties left out of the will. That, the petitioner is holding the title documents of the assets of the estate and ought to disclose the where about of the properties
According to the first objector the estate of the deceased is comprised of the following properties: Plot No. 128 Kabati – Naivasha
Plot No. 108 Commercial Site and Service – Naivasha
Plot No. B2 (16) Moi South Lake Road – Naivasha
Plot No. 261 Industrial Area – Naivasha
Plot No. B2 Moi South Lake Road – Naivasha
Plot No. 16 Moi South Lake Road – Naivasha
Plot No. 59 Landing Beach – Naivasha
Plot No. 324 Ereri, Longonot
Space No. 1 Container Naivasha Gate
Plot No. 265 New Karate
Plot No., 292 Industrial Area – Naivasha
Plot No. 1144/283 Naivasha
Plot No. 115 Site & Service – Naivasha
Plot No. 16 Lakeview Low Density – Naivasha
Plot No. 4 Lakeview High Density – Naivasha
Plot No. 436 Kabati – Naivasha
Plot No. 16 Lakeview High Density – Naivasha
Plot No. 1144/70 section 7 – Naivasha Town
That, the said properties comprise of; shops, residential houses and other commercial houses whose rents amount to Kshs. 200,000 per month. That the petitioner has been collecting the rent for his own benefit and as per his affidavit sworn on 2 nd October 2007 he declared the earnings of the estate as Kshs. 129,500.
Further, the documents produced by the petitioner in his affidavit sworn on 25 th November 2017, to justify the alleged expenditure are uncertified by an accountant, pure fabrication, afterthought and imagination and therefore should be expunged.
Furthermore, the expenditure of some items is not realistic, is not supported by invoices, job agreements or acknowledgment of receipts while others are speculative, wasteful and unjustified.
That, the acts of the petitioner to incur expenditure is illegal as it was done without the leave of court and therefore the petitioner should be held liable to refund the alleged monies, and/or expenditures and the sales of land be deemed null and void.
Further that, the petitioner has poor education background and/or management abilities and does not keep a record of the revenue collected neither does he have a tangible bank account for rents collected and has out rightly mismanaged the estate to her exclusion and some beneficiaries including the 2 nd objector. That in the circumstances there is need to appoint a neutral estate agent to manage the deceased’s estate and bank in a joint account.
The 1 st petitioner argued that the petitioner should renders account the total amount he has collected, utilized and/or kept and the court issue an order to preserve the assets of the estate from wastage and properties be reinstated as the sale transaction could be effected before full succession process’
The 2 nd objector Florence Wanjiru Wachiuri opposed the summons for confirmation of grant vide affidavits sworn; on 1 st October 2014 and 7 th June 2017 in which she averments that, she is the third wife of the deceased and were blessed with a daughter MaryAnne Nyambura Kairu.
That the deceased made provisions for both of them in clause 3(xiv) and 3(vx) of the will respectively. However, the petitioner in his application for confirmation of grant has omitted some of the properties bequeathed to the her in the will being; Naivasha/Maragishu Block 18/647 and 18/830 commonly known as Naivasha Unity,
Further, the petitioner has omitted to include the 1/3 of the money held in the deceased’s bank held at the at the Naivasha branch account of Barclays Bank Kenya Ltd, that was bequeathed her daughter MaryAnne Nyambura Kairu. That, the money was to be placed in a fixed deposit account and held in trust for her daughter by the petitioner and 2 nd objector but that has never been done.
The 2 nd objector averred that, the other properties bequeathed to her in the will consist of rental shops namely; Birds Souvenir Shop/Handcraft Workshop, and Manyatta Curio/Handcraft Workshop, from which the petitioner has been collecting rent since August 2006 but has never accounted for the same or released her for her upkeep despite demand for the same.
That, the failure to release the rent has been detrimental as she is not gainfully employed and has been forced to eke out her living as a hawker and that she is in dire need of shelter and money for personal upkeep.
Furthermore, the failure to fix her daughter’s sum in joint fixed deposit account has rendered her unable to meet her the day to day and school related expenses and it was only upon the insistence of her advocate that the petitioner started paying her daughter’s school fees.
The 2 nd objector denied the averments in the petitioner’s affidavit sworn on 2 nd October 2007 that, the petitioner gives her part of the Kshs, 129,500 per month collected as rent for her maintenance.
Further, she alleged that, the averments by the petitioner in his affidavit filed on 25 th November 2014, to wit that the property known as Naivasha/Maraigushu Block 18/647 bequeathed to her in the will is not available for distribution for reason that the property was given to the petitioner’s son as a gift inter vivo and termed it as an afterthought. That the alleged bequeath to the petitioner’s son was only pointed out eight (8) years after the will was read and after the petitioner was pressured to accounts for the assets.
The 2 nd objector joined issue with the 1 st objector that there are other properties that have not been accounted for in the will of the deceased but form part of the estate. The 2 nd objector urged the court to order the petitioner to furnish an updated schedule all the assets of the deceased.
The 3 rd objector, described herself as 7 th daughter of the deceased’s and the late Zipporah Muthoni Kairu and petitioner’s sister. She objected to the confirmation of grant vide an affidavit sworn on 10 th August 2016 and averred that, her late mother Zipporah had been bequeathed two properties being; Plot No. 1144/70 Section 7 Naivasha and Industrial commercial plot No. 292, and two-thirds (2/3) of the money held in the bank account at Barclays Bank Ltd Naivasha Branch.
That, the dispositions were never bequeathed to their late mother Zipporah as she passed away before confirmation. Further, the petitioner erroneously listed the properties bequeathed to their late mother Zipporah as being available for distribution and indicated that they are to be bequeathed to the petitioner as the administrator of their late mother.
The 3 rd objector avers that, the estate of their late mother has not been administered nor has the petitioner been appointed as the administrator and therefore he is an imposter.
The 3 rd objector averred that, the petitioner has wasted and intermeddled with the properties of the deceased by selling properties before the confirmation of grant. That, he sold off sold off the aforesaid Industrial commercial plot No. 292 before the death of their mother and without following due process. That there were no pressing financial needs to warrant the sale of properties. That in any case only the petitioner benefitted from the proceeds of sale.
Further, he sold off Plot No. 4 Lake View High Density that was bequeathed to one Faith Muthoni and which was to be held in trust for her until she attained the age of majority. That the said beneficiary having attained the age of majority the trust ought to be dissolved as per the will.
Furthermore, the petitioner intends to bequeath Naivasha Mwichiringi Block 4/3, 4/4 and 4/5, defined in the will as Mirema Suswa Farm Limited, to Unity Vision Self Help Group, Kenya Assembly of God Local Church and Samuel Matheri Gatuhi who are strangers to the estate and has included them as beneficiaries in his supporting affidavit sworn on 16 th July 2014.
The 3 rd objector joined issue with other objectors requiring that the petitioner account for rent received from the estate and argued it is in the interest of justice that before confirmation of grant is done, the petitioner be compelled to furnish a full inventory and accounts of how he has administered the estate and utilized and/or applied the said monies since the issue of the grant on 11 th November 2011.
Further, that the court to declare the purported sales as inoperative, illegal and ineffective and the estate of the deceased be distributed in accordance with the will. That, if the grant is confirmed as proposed, it will amount to disinheriting the intended beneficiaries’ contrary to the wishes of the deceased.
The 4 th objector described herself as the daughter of the deceased and the late Zipporah Muthoni Kairu, the deceased’s 1 st wife. She objected to confirmation of grant through her affidavit in protest sworn on 27 th June 2017 and reiterated the averments an affidavit sworn on 4 th August 2016 by the 3 rd objector’s
That the petitioner has failed to faithfully and religiously execute the will of the deceased to the benefit of the beneficiaries. Further he wasted the estate of the deceased by selling a substantive portion of the properties to strangers to the will, who have taken possession and constructed on them. Furthermore he has utilized the proceeds from the purported sales for his own use to the detriment of the estate of the deceased.
The 4 th objector termed the purported sales are inoperative, illegal and incapable of conferring any legal or equitable interest to any person other than the beneficiaries contemplated in the will. She argued that, in the circumstances the court should declare the purported sales as unlawful and void ab initio, and the petitioner be required to yield vacant possession to the designated beneficiaries
The 4 th objector argued that, the petitioner has been collecting rent from all the deceased’s properties and utilizing it to the exclusion of other beneficiaries and it is only fair that he be compelled to restitutio in integrum to the beneficiaries of the estate of the deceased.
Philip Mathew Odida (CW1) the Land Registrar Naivasha Land Office was called as a common witness for all the parties and produced the certified copy of the green card for Naivasha/Maraigushu Block 18/647. He averred that, the plot is measuring 0.417 hectares (approximately 1 acre) and is currently registered in the name of Unaitas Sacco Society Limited.
That, as at 16 th November 2004, the property was registered in the name of the deceased Peter Kairu Kiai and the title deed issued on the same date. That, on 5 th January 2006, there was a change of ownership and the title deed was issued to Peter Kairu Kiai, a minor at the time. He produced the title as exhibit (2).
However, the witness admitted that there was no document issued such as; a birth certificate or an affidavit to differentiate between the minor and the deceased. He further stated that it is not usual for a title deed to be registered in the name of a minor. That such a title would be held in trust for the minor.
Further that there was no transfer form or consent form or receipts for the transaction of 5 th January 2006 and he could not confirm if they ever existed or had been misfiled. Furthermore, that, entry 3 on the green card was altered and dated, 13 th January 2006.
In cross-examination by Mr. Karanja learned counsel for the 2 nd objector, the witness stated that, Peter Kariu Kiai holds a national identification card No. 27134345, indicating that he was born on 5 th July 1987 which suggests he was nineteen (19) years old and an adult as at 5 th January 2006.
In further cross-examination by Mr. Ndegwa learned counsel for the 3 rd and 4 th objector, Mr. Odida testified that, entry No. 3 on the green card that was not clear clear and/or overwritten legally casting doubts.
In cross-examination by Mr. Mburu learned counsel for the petitioner, Mr. Odida stated that when a minor attains eighteen (18) years old, the term minor is removed. Furthermore, it is possible that some documents were misplaced.
The matter was disposed of vide written submissions. The petitioner in submissions dated; 17 th July 2023 argued that, despite the court declaring the 1 st objector Mary Wangui Kairu a widow of the deceased as per the ruling of Hon. Justice W. Ouko J (as he then was) dated 11 th November 2010, she has failed to file an application for provision under section 26 of the Law of Succession Act. That if the 1 st objector was to file such application, the court would bound to take into consideration the provisions of section 28 (a), (e) and (g) of the Act
That section 28(a) raises the issue of where the objector should obtain property considering that there is no free property and which will cause more conflict as any provision for her would have to come from the bequests of the other beneficiaries. He relied on the case of Nairobi HC Succession Cause No. 2322 of 1995 In the matter of the estate of Humphrey Edward Githuru Kamuyu as cited in the book A Casebook on the Law of Succession by W. M. Musyoka at page 27, 136 and 137 of where Visram J (as he then was) stated that only the free estate of a deceased was available for purposes of section 26 of the Act.
That the 1 st objector had the duty to prove her claim that there are other properties that are not included in the summons for confirmation of grant.
Further, under section 28 (e) of the Act the court is behoved to consider the conduct of the dependant in relation to the deceased. That, the objector in cross examination stated that, she was not living on any of the deceased’s properties and indication that she was estranged and not part of the deceased’s family. That being divorced from the deceased, in the circumstances, she should not claim part of the deceased’s estate.
Furthermore, under section 28(g) of the Act the court should consider the reasons the testator did not make provision for the dependent. That the deceased in his will referred to the 1 st objector as a divorced wife but provided for her children James Njogu Kairu and Alice Nyambura Kairu. That, the court should not re-write the will against the wishes of the deceased testator.
The petitioner submitted that, the 2 nd objector Florence Wanjiru Wachuiri has failed to substantiate the claim that part of the money bequeathed to her daughter was un-accounted for. That, vide his further affidavit dated 21 st October 2019, he produced the bank statements from Barclays Bank account number 0278165159 for the period between July 2010 to May 2016 and that the 2 nd objector has not been able to show any misuse of funds.
Further, petitioner disputed allegations of fraud in relation to L.R No. Naivasha/Maraigushu Block 18/647 and argued that despite the deceased bequeathing the property as per the will, he transferred it to his grandson, Peter Kiai Kairu, before his death as confirmed by Philip Mathews Odida the Land Registrar. That, in the circumstances the property was considered and deemed under principle of ademption, meaning it has no effect thus the beneficiary will no longer receive it.
The petitioner further argued that, the 2 nd objector admitted in her affidavit dated 31 st May 2017, that he paid school fees for her daughter which proves that he fulfilled his responsibilities as an executor. That at no time did the 2 nd objector approach the court on the issue of school fees and up keep of the minor, implying that she did not have any problems and therefore the issue cannot be raised at this juncture. That in any case, the 2 nd objector’s daughter is now an adult and can come to court on her own.
A regards the 3 rd objector and the 4 th objector the petitioner submitted that the 3 rd and 4 th objectors were bequeathed one (1) acre in Murere Suswa Farmers limited each known as Naivasha/Mwichiringiri Block 4/5 and Naivasha/Mwichiringiri Block 4/3 respectively. However, the 3 rd and 4 th objector actively participated in the sale of the properties to Unity Vision Self-help Group Kenya Assembly of God Safariland Local Church and Samwel Matheri Gatuhi and signed the sale agreements as witnesses. That, he only facilitated the sale and did not benefit from it.
That, the 3 rd and 4 th objectors have not come to court with clean hands as their objections are a bid to stop the sale process and benefit twice after receiving the proceeds of the sale. Further, the mention of other properties is aimed at muddying the waters since their focus should be on the properties bequeathed to them.
The petitioner submitted that as an executor under section 79 of the Act, he acts as the personal representative of the deceased and all the property vests in him and therefore can involve himself with mattes concerning the estate and cannot be accused of intermeddling.
That although he would have preferred that the grant be confirmed before the sale of any properties but he acquiesced the insistence of some of the beneficiaries and proceeded with the transactions. That, all the beneficiaries who sold their properties including the 3 rd and 4 th objectors, were involved in the transaction through signing and witnessing of the sale agreements and knew the implications of the said transactions.
That, five (5) other beneficiaries have not filed objections a clear indication that the 3 rd and 4 th objectors are attempting to frustrate the confirmation.
The petitioner has mismanaged the property and benefited from the rent of Plot No. 1144/70 and utilized without a court order the proceeds of sale of property to; Vision Unity Self Help Group, Kenya Assembly of God Church, Unity Vision Self Help Group, Martha Wangari, Samuel Matheri Gachuhi and Eliud Kimeria.
The 1 st objector relied on the case of; Eldoret High Court succession cause no. 30 of 2017 in the matter of the estate of Kimutai Tiony (Deceased) where the court ordered the Land Registrar to rectify the register of the suit property to revert to the name of the original owner pending proper succession.
That pursuant to the aforesaid, the court take 50% of the petitioner’s share and allocate it to the widows. Further, the court should factor in the rent the petitioner has been collecting since the demise of the deceased and remit the same in equal shares to the widows, which can be compensated with the properties at clause 3(ii) a, b and c.
That in additionally, the amount of Kshs. 354,351 held in the deceased bank account be shared equally between the three widows less the 1/3 share bequeathed to Maryanne Nyambura Kairu.
Lastly, the 1 st objector submitted that widows have a life interest from the rent and rental house and that the petitioner had no right to take a life interest and leave the 2 nd widow destitute. That, in the case of In Tau Kalungi & another Musyoka J stated that under section 35 (i) of the Act, children of the deceased have no right to take life interest in his property.
The 2 nd objector Florence Wanjiru Wachiuri in her submissions dated 19 th June 2023 argued that, the petitioner has failed to act swiftly and realize the objects of the will but has acted as the sole beneficiary.
That, the petitioner allegation that L.R. Number Naivasha/Maraigushu Block 18/647 was given to deceased’s his grandson, is an afterthought as it was not brought up at the time of reading the will. That he could not prove how it was given to a minor at the purported time of transfer. That, the title to the said property produced in court had several mutilations and suspect erasure.
Further, the Land Registrar, Naivasha stated that he did not know why there were erasures and overwriting on the title document, and was suspicious of the authenticity of the entire transaction as documents in support of the transfer including; receipts of the transaction and stamp duty, transfer, land control board consent, valuation form, identification documents, PIN certificates, photographs, and the original title, were mysteriously unavailable.
The 2 nd objector submitted that, the fraudulent transfer of L.R. Number Naivasha/Maraigushu Block 18/647 was irregular and illegal in contravention of section 82 of the Law of Succession Act that prohibits the sale of a deceased estate before confirmation of grant and/or probate, appropriation that would adversely affect a specific legacy. The 2 nd objector urged the court to annul all transactions arising for the irregular and illegal transfer and
The 2 nd objector further submitted that, section 82 (d) (i) of the Law of Succession Act prohibits the appropriation that adversely affects a specific legacy while (ii) prohibits such appropriation without the consent of the person with beneficial or absolute entitlement. That, the petitioner adversely and without her consent appropriated property bequeathed to her for his own benefit, a fact he admitted in cross-examination. That the petitioner admitted to paying school fees for the 2 nd objector’s daughter on only three occasions despite knowledge that her father died when she was six (6) years old.
That, as there are properties that have not been accounted for, the summons for confirmation of grant is an abuse of the court process and ought
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That subsequently, on 28 th September, 2006 the petitioner filed a High Court Succession Cause No. 581 of 2016 at Nakuru seeking for probate of letters of administration.
However, on 31 st October, 2006, Mary Wangui Kairu (herein “the 1 st objector”) filed an objection to the petition, an answer to petition of grant, and a cross-application for grant of probate for letter of administration with the will annexed on the ground that, she is the widow of the deceased, that the petition for probate of letters of administration with will annexed was filed without her information and consent and further the purported will is fraudulent and irregular.
The objection was heard by way of viva voce evidence wherein; the 1 st objector and 2 nd objector and James Munge testified on behalf of the 1 st objector, while the petitioner and Stephen Kinyanjui Kibunja, testified in support of the petition.
By a judgment delivered on 11 th November, 2010 Hon. Justice W. Ouko J (as he then was) held that, the will was valid and that the 1 st objector, is a widow of the deceased and thus entitled to a share of his estate.
The court further held that no provision had been made for the 1 st objector, she was directed to make an appropriate application under section 26 of the Law of Succession Act and Rule 45 of the Probate and Administration Rules for provision.
Consequently, a grant of probate of written will was issued to the petitioner on 11 th November, 2010.
On 19 th May, 2014, the 2 nd objector filed an application of the even date seeking for order inter alia that; the petitioner be compelled to transfer to her and her daughter the assets bequeathed to them under the will, and account for and release rent collected from the properties bequeathed to them.
In the meantime, the petitioner filed a summons dated 16 th July, 2014 for confirmation of grant seeking that the grant of probate issued on 11 th November, 2012 be confirmed.
On the 5 th August, 2014, the 1 st objector filed an application of the even date seeking that, the petitioner be restrained from intermeddling with the entire estate of the deceased by collecting, utilizing the proceeds of the estate including; plot No(s). 1144/70 and 436 Naivasha Town, and render an account of all rent collected from the deceased estate; further that the court issues an order for her monthly maintenance allowance of; Kshs. 43,167, provide for her share from deceased’s estate and that all documents of ownership of the deceased’s properties be declared and delivered into the custody of the court.
On 18 th September, 2014 the court directed the applications dated 19 th May 2014 and 5 th August 2014 be heard simultaneously while the application for confirmation of grant dated 16 th July, 2014 to await the outcome of the two applications.
On 24 th June, 2015 the court also ordered the petitioner to avail statements of accounts of the management of the estate within forty-five (45) days. The parties were also directed to go for mediation. By 5 th November, 2015 petitioner had not filed the accounts and was granted a further thirty (30) day, the accounts were filed by 28 th January 2016.
Subsequently the matter was stood over to 19 th July, 2016 and ordered to be disposed of by way of written submissions heard. On 18 th January 2017, the matter was transferred from Nakuru High Court to Naivasha High Court.
On 18 th May, 2017, the parties informed the court that they wanted the matter to proceed by way of viva voce evidence, but the court directed the parties to file affidavits and the deponents be cross-examined on the same. Subsequently the matter was heard.
The petitioner supported by his affidavits dated; 16 th July 2014, 25 th November, 2014, 16 th October 2017 and 25 th November, 2017. He deposed that the application for confirmation of grant was made in faith and that he disclosed all the assets of the estate as per the particulars of the will.
That, owing to financial obligations due by the estate and in order to alleviate financial hardship experienced by some of the dependants, he sold the property in Mirema Suswa Framers Ltd compromising of properties known as; Naivasha Mwichiringiri Block 4/3, 4/4 and 4/5 to Unity Vision Self Help Group as evidenced by the relevant sale agreements annexed to the affidavit dated 16 th July 2014.
The petitioner further averred that, the 1 st objector cannot be enjoined in the distribution of the estate as she was left out of the will by the deceased. Further, the ruling of the court dated; 11 th November 2010 did not specify what benefit did not specify the property to be given to her.
That additionally, the 1 st objector has been away for fifteen (15) years and did not contribute in any way to the estate neither has produced any record to prove her contribution. Further, when the will was read out on 23 rd September 2006, the family members agreed to set aside the parcel known as Naivasha/Maraigushu Block 18/830 as Kiai’s graveyard and thereby affecting the distribution.
Furthermore, on or about 5 th January 2006 the deceased transferred parcel known as; Naivasha/Maraigushu Block 18/647 to Peter Kairu Kiai his grandson interfering with the testament therein. The petitioner denied being aware of the existence of parcel known as plot No. 108 Commercial Site and Service Extension and efforts to locate the same have been futile.
He argued that the deceased’s estate has been well preserved and all the income generated therefrom has been used solely to conserve and develop the estate without any personal benefit.
That the particulars of the mode of distribution set out in paragraph 9 of the affidavit in support of summons for confirmation of grant of probate are in line with the particular provisions of the Will and save that the purchasers’ interests have been noted against the deceased’s estate.
The petitioner’s case was also supported by the evidence of; James Njoroge Kairu (PW2) a son of the deceased and a brother to the petitioner, who relied on his affidavit dated 16 th March 2018 and averred that he is not objecting to or denying the petitioner’s mandate as the executor of the deceased’s estate.
That the petitioner collected rent from LR No. 1144/70 section 7 Naivasha Town and that James Njoroge Kairu assisted in the distribution and administration of the monies collected. Further, the record and figures showing how the money was distributed in the monthly budget is available for verification and confirmation.
The petitioner’s case was further supported by Rose Waithira Kairu (PW3) who relied on her affidavit sworn on 16 th March 2018, wherein she deposed that she the deceased’s daughter and was bequeathed property Naivasha/Mwichiringiri Block 4/5 situated at Mirera Suswa, which she willingly sold to Samuel Matheri Gatuhi due to her financial needs and therefore proposes that the property be transferred to the purchaser upon confirmation of grant.
That the petitioner is also the legal administrator of their late mother Zipporah Muthoni Kairu and her interest in plot number 1144/70 section 7 Naivasha Town and Commercial Plot (Industrial) Number 292.
The 1 st objector opposed the application for confirmation of grant and relied on her affidavits sworn on 5 th August 2014, 1 st November 2015, 19 th June 2017, and 5 th December 2017. She avers that, she was married to the deceased and were blessed with two (2) issues namely; James Njogu Kairu and Alice Nyambura.
That, since the death of the deceased, she has been living in total poverty and not benefited from the estate of the deceased despite having contributed her youthful energies to the growth and development of the deceased’s estate.
Further that the court in the ruling of delivered on 11 th November 2010 declared her a beneficiary of the deceased and is therefore entitled to 1/3 of the entire proceeds of the estate. That the distribution of the estate between the deceased’s wives should take into account the individual needs, contributions to realization, and the past benefits enjoyed by the beneficiaries prior to distribution. Further, the benefits should be backdated at distribution so that she is put in the same status as the ones who have been collecting rents.
The 1 st objector argues that it would be prudent for the court to ascertain all the assets of the deceased’s estate and determine the net value of the fixed and current assets before proceeding to distribute the same.
She further deposes that, the estate of the deceased is comprised of the properties listed in the will and other properties left out of the will. That, the petitioner is holding the title documents of the assets of the estate and ought to disclose the where about of the properties
According to the first objector the estate of the deceased is comprised of the following properties: Plot No. 128 Kabati – Naivasha
Plot No. 108 Commercial Site and Service – Naivasha
Plot No. B2 (16) Moi South Lake Road – Naivasha
Plot No. 261 Industrial Area – Naivasha
Plot No. B2 Moi South Lake Road – Naivasha
Plot No. 16 Moi South Lake Road – Naivasha
Plot No. 59 Landing Beach – Naivasha
Plot No. 324 Ereri, Longonot
Space No. 1 Container Naivasha Gate
Plot No. 265 New Karate
Plot No., 292 Industrial Area – Naivasha
Plot No. 1144/283 Naivasha
Plot No. 115 Site & Service – Naivasha
Plot No. 16 Lakeview Low Density – Naivasha
Plot No. 4 Lakeview High Density – Naivasha
Plot No. 436 Kabati – Naivasha
Plot No. 16 Lakeview High Density – Naivasha
Plot No. 1144/70 section 7 – Naivasha Town
That, the said properties comprise of; shops, residential houses and other commercial houses whose rents amount to Kshs. 200,000 per month. That the petitioner has been collecting the rent for his own benefit and as per his affidavit sworn on 2 nd October 2007 he declared the earnings of the estate as Kshs. 129,500.
Further, the documents produced by the petitioner in his affidavit sworn on 25 th November 2017, to justify the alleged expenditure are uncertified by an accountant, pure fabrication, afterthought and imagination and therefore should be expunged.
Furthermore, the expenditure of some items is not realistic, is not supported by invoices, job agreements or acknowledgment of receipts while others are speculative, wasteful and unjustified.
That, the acts of the petitioner to incur expenditure is illegal as it was done without the leave of court and therefore the petitioner should be held liable to refund the alleged monies, and/or expenditures and the sales of land be deemed null and void.
Further that, the petitioner has poor education background and/or management abilities and does not keep a record of the revenue collected neither does he have a tangible bank account for rents collected and has out rightly mismanaged the estate to her exclusion and some beneficiaries including the 2 nd objector. That in the circumstances there is need to appoint a neutral estate agent to manage the deceased’s estate and bank in a joint account.
The 1 st petitioner argued that the petitioner should renders account the total amount he has collected, utilized and/or kept and the court issue an order to preserve the assets of the estate from wastage and properties be reinstated as the sale transaction could be effected before full succession process’
The 2 nd objector Florence Wanjiru Wachiuri opposed the summons for confirmation of grant vide affidavits sworn; on 1 st October 2014 and 7 th June 2017 in which she averments that, she is the third wife of the deceased and were blessed with a daughter MaryAnne Nyambura Kairu.
That the deceased made provisions for both of them in clause 3(xiv) and 3(vx) of the will respectively. However, the petitioner in his application for confirmation of grant has omitted some of the properties bequeathed to the her in the will being; Naivasha/Maragishu Block 18/647 and 18/830 commonly known as Naivasha Unity,
Further, the petitioner has omitted to include the 1/3 of the money held in the deceased’s bank held at the at the Naivasha branch account of Barclays Bank Kenya Ltd, that was bequeathed her daughter MaryAnne Nyambura Kairu. That, the money was to be placed in a fixed deposit account and held in trust for her daughter by the petitioner and 2 nd objector but that has never been done.
The 2 nd objector averred that, the other properties bequeathed to her in the will consist of rental shops namely; Birds Souvenir Shop/Handcraft Workshop, and Manyatta Curio/Handcraft Workshop, from which the petitioner has been collecting rent since August 2006 but has never accounted for the same or released her for her upkeep despite demand for the same.
That, the failure to release the rent has been detrimental as she is not gainfully employed and has been forced to eke out her living as a hawker and that she is in dire need of shelter and money for personal upkeep.
Furthermore, the failure to fix her daughter’s sum in joint fixed deposit account has rendered her unable to meet her the day to day and school related expenses and it was only upon the insistence of her advocate that the petitioner started paying her daughter’s school fees.
The 2 nd objector denied the averments in the petitioner’s affidavit sworn on 2 nd October 2007 that, the petitioner gives her part of the Kshs, 129,500 per month collected as rent for her maintenance.
Further, she alleged that, the averments by the petitioner in his affidavit filed on 25 th November 2014, to wit that the property known as Naivasha/Maraigushu Block 18/647 bequeathed to her in the will is not available for distribution for reason that the property was given to the petitioner’s son as a gift inter vivo and termed it as an afterthought. That the alleged bequeath to the petitioner’s son was only pointed out eight (8) years after the will was read and after the petitioner was pressured to accounts for the assets.
The 2 nd objector joined issue with the 1 st objector that there are other properties that have not been accounted for in the will of the deceased but form part of the estate. The 2 nd objector urged the court to order the petitioner to furnish an updated schedule all the assets of the deceased.
The 3 rd objector, described herself as 7 th daughter of the deceased’s and the late Zipporah Muthoni Kairu and petitioner’s sister. She objected to the confirmation of grant vide an affidavit sworn on 10 th August 2016 and averred that, her late mother Zipporah had been bequeathed two properties being; Plot No. 1144/70 Section 7 Naivasha and Industrial commercial plot No. 292, and two-thirds (2/3) of the money held in the bank account at Barclays Bank Ltd Naivasha Branch.
That, the dispositions were never bequeathed to their late mother Zipporah as she passed away before confirmation. Further, the petitioner erroneously listed the properties bequeathed to their late mother Zipporah as being available for distribution and indicated that they are to be bequeathed to the petitioner as the administrator of their late mother.
The 3 rd objector avers that, the estate of their late mother has not been administered nor has the petitioner been appointed as the administrator and therefore he is an imposter.
The 3 rd objector averred that, the petitioner has wasted and intermeddled with the properties of the deceased by selling properties before the confirmation of grant. That, he sold off sold off the aforesaid Industrial commercial plot No. 292 before the death of their mother and without following due process. That there were no pressing financial needs to warrant the sale of properties. That in any case only the petitioner benefitted from the proceeds of sale.
Further, he sold off Plot No. 4 Lake View High Density that was bequeathed to one Faith Muthoni and which was to be held in trust for her until she attained the age of majority. That the said beneficiary having attained the age of majority the trust ought to be dissolved as per the will.
Furthermore, the petitioner intends to bequeath Naivasha Mwichiringi Block 4/3, 4/4 and 4/5, defined in the will as Mirema Suswa Farm Limited, to Unity Vision Self Help Group, Kenya Assembly of God Local Church and Samuel Matheri Gatuhi who are strangers to the estate and has included them as beneficiaries in his supporting affidavit sworn on 16 th July 2014.
The 3 rd objector joined issue with other objectors requiring that the petitioner account for rent received from the estate and argued it is in the interest of justice that before confirmation of grant is done, the petitioner be compelled to furnish a full inventory and accounts of how he has administered the estate and utilized and/or applied the said monies since the issue of the grant on 11 th November 2011.
Further, that the court to declare the purported sales as inoperative, illegal and ineffective and the estate of the deceased be distributed in accordance with the will. That, if the grant is confirmed as proposed, it will amount to disinheriting the intended beneficiaries’ contrary to the wishes of the deceased.
The 4 th objector described herself as the daughter of the deceased and the late Zipporah Muthoni Kairu, the deceased’s 1 st wife. She objected to confirmation of grant through her affidavit in protest sworn on 27 th June 2017 and reiterated the averments an affidavit sworn on 4 th August 2016 by the 3 rd objector’s
That the petitioner has failed to faithfully and religiously execute the will of the deceased to the benefit of the beneficiaries. Further he wasted the estate of the deceased by selling a substantive portion of the properties to strangers to the will, who have taken possession and constructed on them. Furthermore he has utilized the proceeds from the purported sales for his own use to the detriment of the estate of the deceased.
The 4 th objector termed the purported sales are inoperative, illegal and incapable of conferring any legal or equitable interest to any person other than the beneficiaries contemplated in the will. She argued that, in the circumstances the court should declare the purported sales as unlawful and void ab initio, and the petitioner be required to yield vacant possession to the designated beneficiaries
The 4 th objector argued that, the petitioner has been collecting rent from all the deceased’s properties and utilizing it to the exclusion of other beneficiaries and it is only fair that he be compelled to restitutio in integrum to the beneficiaries of the estate of the deceased.
Philip Mathew Odida (CW1) the Land Registrar Naivasha Land Office was called as a common witness for all the parties and produced the certified copy of the green card for Naivasha/Maraigushu Block 18/647. He averred that, the plot is measuring 0.417 hectares (approximately 1 acre) and is currently registered in the name of Unaitas Sacco Society Limited.
That, as at 16 th November 2004, the property was registered in the name of the deceased Peter Kairu Kiai and the title deed issued on the same date. That, on 5 th January 2006, there was a change of ownership and the title deed was issued to Peter Kairu Kiai, a minor at the time. He produced the title as exhibit (2).
However, the witness admitted that there was no document issued such as; a birth certificate or an affidavit to differentiate between the minor and the deceased. He further stated that it is not usual for a title deed to be registered in the name of a minor. That such a title would be held in trust for the minor.
Further that there was no transfer form or consent form or receipts for the transaction of 5 th January 2006 and he could not confirm if they ever existed or had been misfiled. Furthermore, that, entry 3 on the green card was altered and dated, 13 th January 2006.
In cross-examination by Mr. Karanja learned counsel for the 2 nd objector, the witness stated that, Peter Kariu Kiai holds a national identification card No. 27134345, indicating that he was born on 5 th July 1987 which suggests he was nineteen (19) years old and an adult as at 5 th January 2006.
In further cross-examination by Mr. Ndegwa learned counsel for the 3 rd and 4 th objector, Mr. Odida testified that, entry No. 3 on the green card that was not clear clear and/or overwritten legally casting doubts.
In cross-examination by Mr. Mburu learned counsel for the petitioner, Mr. Odida stated that when a minor attains eighteen (18) years old, the term minor is removed. Furthermore, it is possible that some documents were misplaced.
The matter was disposed of vide written submissions. The petitioner in submissions dated; 17 th July 2023 argued that, despite the court declaring the 1 st objector Mary Wangui Kairu a widow of the deceased as per the ruling of Hon. Justice W. Ouko J (as he then was) dated 11 th November 2010, she has failed to file an application for provision under section 26 of the Law of Succession Act. That if the 1 st objector was to file such application, the court would bound to take into consideration the provisions of section 28 (a), (e) and (g) of the Act
That section 28(a) raises the issue of where the objector should obtain property considering that there is no free property and which will cause more conflict as any provision for her would have to come from the bequests of the other beneficiaries. He relied on the case of Nairobi HC Succession Cause No. 2322 of 1995 In the matter of the estate of Humphrey Edward Githuru Kamuyu as cited in the book A Casebook on the Law of Succession by W. M. Musyoka at page 27, 136 and 137 of where Visram J (as he then was) stated that only the free estate of a deceased was available for purposes of section 26 of the Act.
That the 1 st objector had the duty to prove her claim that there are other properties that are not included in the summons for confirmation of grant.
Further, under section 28 (e) of the Act the court is behoved to consider the conduct of the dependant in relation to the deceased. That, the objector in cross examination stated that, she was not living on any of the deceased’s properties and indication that she was estranged and not part of the deceased’s family. That being divorced from the deceased, in the circumstances, she should not claim part of the deceased’s estate.
Furthermore, under section 28(g) of the Act the court should consider the reasons the testator did not make provision for the dependent. That the deceased in his will referred to the 1 st objector as a divorced wife but provided for her children James Njogu Kairu and Alice Nyambura Kairu. That, the court should not re-write the will against the wishes of the deceased testator.
The petitioner submitted that, the 2 nd objector Florence Wanjiru Wachuiri has failed to substantiate the claim that part of the money bequeathed to her daughter was un-accounted for. That, vide his further affidavit dated 21 st October 2019, he produced the bank statements from Barclays Bank account number 0278165159 for the period between July 2010 to May 2016 and that the 2 nd objector has not been able to show any misuse of funds.
Further, petitioner disputed allegations of fraud in relation to L.R No. Naivasha/Maraigushu Block 18/647 and argued that despite the deceased bequeathing the property as per the will, he transferred it to his grandson, Peter Kiai Kairu, before his death as confirmed by Philip Mathews Odida the Land Registrar. That, in the circumstances the property was considered and deemed under principle of ademption, meaning it has no effect thus the beneficiary will no longer receive it.
The petitioner further argued that, the 2 nd objector admitted in her affidavit dated 31 st May 2017, that he paid school fees for her daughter which proves that he fulfilled his responsibilities as an executor. That at no time did the 2 nd objector approach the court on the issue of school fees and up keep of the minor, implying that she did not have any problems and therefore the issue cannot be raised at this juncture. That in any case, the 2 nd objector’s daughter is now an adult and can come to court on her own.
A regards the 3 rd objector and the 4 th objector the petitioner submitted that the 3 rd and 4 th objectors were bequeathed one (1) acre in Murere Suswa Farmers limited each known as Naivasha/Mwichiringiri Block 4/5 and Naivasha/Mwichiringiri Block 4/3 respectively. However, the 3 rd and 4 th objector actively participated in the sale of the properties to Unity Vision Self-help Group Kenya Assembly of God Safariland Local Church and Samwel Matheri Gatuhi and signed the sale agreements as witnesses. That, he only facilitated the sale and did not benefit from it.
That, the 3 rd and 4 th objectors have not come to court with clean hands as their objections are a bid to stop the sale process and benefit twice after receiving the proceeds of the sale. Further, the mention of other properties is aimed at muddying the waters since their focus should be on the properties bequeathed to them.
The petitioner submitted that as an executor under section 79 of the Act, he acts as the personal representative of the deceased and all the property vests in him and therefore can involve himself with mattes concerning the estate and cannot be accused of intermeddling.
That although he would have preferred that the grant be confirmed before the sale of any properties but he acquiesced the insistence of some of the beneficiaries and proceeded with the transactions. That, all the beneficiaries who sold their properties including the 3 rd and 4 th objectors, were involved in the transaction through signing and witnessing of the sale agreements and knew the implications of the said transactions.
That, five (5) other beneficiaries have not filed objections a clear indication that the 3 rd and 4 th objectors are attempting to frustrate the confirmation.
The petitioner has mismanaged the property and benefited from the rent of Plot No. 1144/70 and utilized without a court order the proceeds of sale of property to; Vision Unity Self Help Group, Kenya Assembly of God Church, Unity Vision Self Help Group, Martha Wangari, Samuel Matheri Gachuhi and Eliud Kimeria.
The 1 st objector relied on the case of; Eldoret High Court succession cause no. 30 of 2017 in the matter of the estate of Kimutai Tiony (Deceased) where the court ordered the Land Registrar to rectify the register of the suit property to revert to the name of the original owner pending proper succession.
That pursuant to the aforesaid, the court take 50% of the petitioner’s share and allocate it to the widows. Further, the court should factor in the rent the petitioner has been collecting since the demise of the deceased and remit the same in equal shares to the widows, which can be compensated with the properties at clause 3(ii) a, b and c.
That in additionally, the amount of Kshs. 354,351 held in the deceased bank account be shared equally between the three widows less the 1/3 share bequeathed to Maryanne Nyambura Kairu.
Lastly, the 1 st objector submitted that widows have a life interest from the rent and rental house and that the petitioner had no right to take a life interest and leave the 2 nd widow destitute. That, in the case of In Tau Kalungi & another Musyoka J stated that under section 35 (i) of the Act, children of the deceased have no right to take life interest in his property.
The 2 nd objector Florence Wanjiru Wachiuri in her submissions dated 19 th June 2023 argued that, the petitioner has failed to act swiftly and realize the objects of the will but has acted as the sole beneficiary.
That, the petitioner allegation that L.R. Number Naivasha/Maraigushu Block 18/647 was given to deceased’s his grandson, is an afterthought as it was not brought up at the time of reading the will. That he could not prove how it was given to a minor at the purported time of transfer. That, the title to the said property produced in court had several mutilations and suspect erasure.
Further, the Land Registrar, Naivasha stated that he did not know why there were erasures and overwriting on the title document, and was suspicious of the authenticity of the entire transaction as documents in support of the transfer including; receipts of the transaction and stamp duty, transfer, land control board consent, valuation form, identification documents, PIN certificates, photographs, and the original title, were mysteriously unavailable.
The 2 nd objector submitted that, the fraudulent transfer of L.R. Number Naivasha/Maraigushu Block 18/647 was irregular and illegal in contravention of section 82 of the Law of Succession Act that prohibits the sale of a deceased estate before confirmation of grant and/or probate, appropriation that would adversely affect a specific legacy. The 2 nd objector urged the court to annul all transactions arising for the irregular and illegal transfer and
The 2 nd objector further submitted that, section 82 (d) (i) of the Law of Succession Act prohibits the appropriation that adversely affects a specific legacy while (ii) prohibits such appropriation without the consent of the person with beneficial or absolute entitlement. That, the petitioner adversely and without her consent appropriated property bequeathed to her for his own benefit, a fact he admitted in cross-examination. That the petitioner admitted to paying school fees for the 2 nd objector’s daughter on only three occasions despite knowledge that her father died when she was six (6) years old.
That, as there are properties that have not been accounted for, the summons for confirmation of grant is an abuse of the court process and ought
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