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JudgmentIn the Estate of KIMULI MWANIA NZELU20 min read

In the Estate of KIMULI MWANIA NZELU

High Court at Makueni High Court · · Matheka, Teresia Mumbua


RULING

  1. The matter before me is the Summons for Revocation and Annulment of Grant filed on 3/11/2022 dated 16/11/2022 under section 76 of the Law of Succession Act and Rule 44 of the P&A Rules on the grounds:
  2. That the proceedings to obtain the grant were defective in substance.
  3. That the grant was obtained fraudulently by making of a false statement or by the concealment from the court of some material to the case.
  4. 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.

  1. That costs be awarded to the applicant.
  2. The summons is supported by the affidavit sworn on 16/11/2022 by Paul Muisyo Kimuli.
  3. The main grounds as set out in the affidavit are inter alia;
  4. That Kimuli Mwania died on 28th October 2009 and a grant of letters of administration was made by this Honourable court.
  5. That the grant was confirmed on 12/10/2017 under the provisions of section 76 of the Law of Succession Act.
  6. That he is a son to the deceased whom the estate relates and perfectly entitled beneficiary to the estate.
  7. That the objector confirmed letters of administration without the applicant’s consent nor knowledge and information.
  8. That the objector misled the court as she is not a beneficiary to the estate and is not entitled to inherit from the estate of the deceased.
  9. That the deceased was the original shareholder in Konza Ranching and Farming Co-operative Society under

Member No. 1443. A  copy of the membership card was annexed.

  1. That the land belonging to the deceased was never subject to any litigation whatsoever and rightfully belong to the estate of the deceased.
  2. There is a replying affidavit by Ruth Wambua Mwania (Ruth) filed on 10/11/2022 sworn on 9/11/2022 responding to summons dated 14/11/2022 in response to the summons before me.  She goes to give the history of the matter after deponing that:

“I have read and fully understood the summons for revocation of grant dated 14th November 2022 together with the supporting affidavit and annexures and my advocates on record advise me which advice I verily believe to be true that the same is:

  1. Bad in law and incompetent
  2. An abuse of the court process
  3. Res judicata
  4. Unmeritorious
  5. Ill advised
  6. A delaying tactic
  7. Also annexed to her affidavit is the ruling of Hon. Mutende LJ delivered on 22/10/2014.
  8. The applicant filed a supplementary affidavit denying that the objector is a creditor to the estate, or a beneficiary and demanding that the parties be heard.
  9. Parties proceeded by way of written submissions.
  10. For the applicant – he relied on Hon. Mutende L.J’s ruling in its entirety. He submitted on the issue whether the objector is a beneficiary/creditor of the estate of the deceased and cited the findings of the court in that ruling. He also relied on Jamleck Maina Njoroge v- Mary Wanjiru Mwangi [2015] e KLR where the court stated;

“The circumstances that can lead to the revocation of grant have been set out in section 76 of the law of succession for a grant to be revoked either on the application of an interested party or on the courts own motion there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of false statements, or by concealment of something material to the case, or that the grant was obtained by means of untrue allegations of facts in point of law.”

  1. It is argued for the applicant that the objector’s claim that she is a creditor of the estate of the deceased was subject to proof. It is submitted and I quote:

“It is true that debts and liabilities are given priority over distribution of the estate. Debts and liabilities ought to be settled first. Distribution is of the net estate, after the debts and liabilities have been met. The administrators have a duty to identify the creditors of the estate and to pay them off before proposing distribution, or to make provision for them at confirmation of grant. Such claimants and creditors have an obligation to place their claims before the administrators, and should the administrators fail to settle the same or acknowledge them, move the Environment and Land Court to prove their claims, since the High court no longer has jurisdiction to determine questions around ownership of immovable property in view of Articles 162(2) and 165(5) of the Constitution.

  1. Counsel for the applicant went on to submit;

“Who exactly is the creditor of the estate or what ought to be treated as a liability of the estate. The most obvious candidates are individuals or entities that transacted with the deceased during his lifetime. Debts that the deceased left unsettled are a burden that the administrators of his estate ought to take care of. Transactions that he left incomplete, such as for sale of land by him or to him, should be completed by the administrators. The administrators are able to do so through the powers conferred upon them by section 82 of the Law of Succession Act, being mindful of section 79, which vests the assets of the estate in the administrator. Section 83 imposes a duty on administrators to settle such debts before distributing the estate.

  1. For the objector, three issues were set out for determination: -
  2. Whether the grant confirmed on 12/10/2017 in favour of the objector/respondent should be revoked.
  3. Whether the summons for confirmation of grant should be heard afresh.
  4. Who should bear the costs of the application.
  5. It is argued that this  court in its ruling of 22/10/2014 confirmed the objector as a beneficiary of the estate, and that the objector proceeded on the directions of the court, and that the grant was properly confirmed.
  6. In my view a consideration of all the issues put together raises the the issue for determination as to  whether the Summons for Revocation of the grant has any merit.
  7. I must acknowledge at the outset that this matter was handled by other judges before me.
  8. The record of 8/11/2021 before Hon. Dulu J. shows the following:

Before Hon. Dulu J.

Court Assistant – Mwiwa

Ms. Muteti for applicant – present

Mr. Hassan holding brief for Mr. Kamolo for objector – present

Ms. Muteti: Mention for court to give directions. There are two files; this one and 391 of 2011 – Machakos. You will note that in 391 of 2011 Mutende J. made a ruling and the petitioner was ordered to file application for confirmation of grant. Unknown to the petitioner, the present petitioner filed this succession cause in Machakos. There was an order that the petitioner in 391/2011 to file a succession cause. Ruth Wambua also filed Machakos 1175/2012 which now 99/2017 which was transferred  to this court. They want 99/2017 to be separate from 391/2011. It is the same estate. We now want to file for confirmation of grant. We want the court to look at the two files and give directions.

Mr. Hassan: The grant was confirmed in 99/2017.

Court: I have seen the certificate of confirmation.

Ms. Muteti: Then I will apply for annulment of the grant.

Court: Having noted that a succession Cause in the same estate has been confirmed and assets distributed, any person who has a complaint can proceed to challenge the confirmed grant as provided by law.

Hon. Dulu J.

08/11/2021

  1. It is pursuant to those directions that the applicant filed this summons for revocation of grant because he was aggrieved by the proceedings in the Machakos file.
  2. It is not in dispute that the applicant filed Machakos  P&A 391/2011 Re Estate of Kimuli Mwania Nzelu.
  3. The court heard both the summons for confirmation of grant he filed, together with the protest by Ruth Wambua Mwania (Ruth).
  4. Ruth’s claim was that the asset, share No. 1443 Konza Cooperative & Ranching Society which became LR. Machakos Konza North Block 1/1365 was originally acquired by one  Nduku Mwania mother to Kimuli Mwania (Nzelu) ( the deceased whose estate is the subject matter of this cause), Kimongo Mwania, and her husband Wambua Mwania (deceased). That after the death of Nduku Mwania, Kimuli Mwania (Nzelu) fraudulently caused this share to be transferred to his name.
  5. It was Ruth’s case before this court in Machakos P&A 391/2011 that she complained to the clan – which ruled in her favour to the effect that the land be shared equally among the children of Nduku, and that when Kimuli refused to comply she sued him in Makueni Land Dispute Tribunal Kilome Division Case No. 77/2006 which culminated in an award in her favour. It is her claim that Kimuli died before the decree could be executed against him.
  6. She then filed Machakos Citation no. 85/11 whose outcome was that the sons of Kimuli were ordered to file succession cause. It is her claim that when the petitioner filed the cause he did not include her’s on Kimongo’s interest.
  7. On the other hand, the position of the petitioner was that the whole parcel of land share No. 1443 Konza Cooperative & Ranching Society (LR. Machakos Konza North Block 1/1365) always belonged to Kimuli Mwania Nzelu as no evidence was provided by Ruth that indeed Nduku had acquired the said parcel of land. That the membership was transferred to Kimuli when Nduku was still alive.
  8. The learned Judge heard all the evidence and made the following findings:

The issue to be determined is whether the protester is entitled to the assets indicated as forming the estate of the deceased. Evidence was adduced of:-

  1. A membership card issued by Konza Ranching & Farming Co-operative Society Limited dated the 27th February, 1982 in the name of Kimuli Mwania, Membership No. 1443.
  2. Title deed for LR Parcel No. Machakos/Konza North/Block 1/1365 registered on 28th May 1991 and issued on the 1st April 1992 to Kimuli Mwania Nzelu. This is prima facie evidence that the land and the shares indeed belonged to the deceased.
  3. Evidently the Ruling which Ruth attached to her response shows that the share first belonged to Kimuli and when it became a parcel of land , it was still in Kimuli’s name. The Ruling did not make any finding that the asset had ever belonged to Nduku.
  4. With respect to Ruth’s claim that the plot of land/share at Konza was family land and did not belong to Kimuli – the Judge stated:

It is argued that the plot at Konza belonged to the family. To establish that fact, evidence of the committee should have been called; and the proper forum to adjudication on the issue would have been the Co-operative Tribunal.

  1. The conclusion by the Judge was as follows:

Otherwise, the evidence before this court establishes the fact that the assets alluded to belong to the deceased herein. The beneficiaries of the estate would be as provided by Section 38 of the Law of Succession Act which states: -

“Where an intestate has left a surviving child or children but no spouse, the net estate shall, subject to the provisions of section 41 and 42, devolve upon the surviving child, if there be only one or be equally divided among the surviving children”.

The estate of the deceased would therefore devolve upon all beneficiaries who survived him.

  1. Clearly there for the Ruling concluded the matter on what the assets of the estate of Kimuli were and who were beneficially entitled. Ruth and Kimongo are not children of Kimuli. The would not be beneficially entitled to inherit under s. 30 of the LOSA.
  2. With respect to the filing of Succession Cause Machakos  1175/2012 -  It is noted that Ruth, following directions by Dulu J. in the citation No. 85/11 -  which stated:
  3. That Muthoka Kimuli and Muisyo Kimuli are granted sixty (60) days to apply for Letters of Administration.
  4. That in default, Ruth Wambua be appointed as administrator of the Estate of Kimuli Mwania.
  5. Order to be served.
  6. Ruth proceeded and filed Succession Cause no. 1175 of 2012. However, by that time there was already Succession Cause 391 of 2011. In the ruling of 22/10/2014 – Hon. Mutende L.J stated:

“A citation cause instituted by the protestor was filed on 2nd of February, 2011. The instant succession cause was filed on 13/5/2011. The order granted by Dulu J. directing Muthoka Kimuli and Muisyo Kimuli to apply for Letters of Administration within 60 days and in default the same to be done by the protestor is dated 7th November, 2012. This order was overtaken by events since succession cause in respect of the estate of the deceased had already been filed.”

  1. The court’s final order was that:

“In the result, I direct that the grant be confirmed on condition that all beneficiaries of the estate be identified. All liabilities of the estate be taken into consideration. A date shall be taken at the registry on priority basis. This being a succession matter each party shall bear their own costs”.

  1. Now, the petition no. 1175 of 2012, which Ruth filed on 13/11/2012 indicated that she was filing as the citor. She listed the beneficiaries and assets in the  Form P&A 5 as follows:-
  2. Judith Wambua – Daughter
  3. Nthenya Wambua – Daughter
  4. Musembi Wambua – Son
  5. Mumo Wambua – Daughter
  6. Wayua Wambua – Daughter
  7. Musyimi Wambua – Son
  8. Mwongeli Wambua – Daughter
  9. Mwikali Wambua – Daughter
  10. Mbindyo Wambua – Son
  11. Ndinda Kimuli – Daughter
  12. Muisyo Kimuli – Son
  13. Mwelu Kimuli – Daughter

Assets

  1. Shares In Konza Ranching & Farming Co-Operative Society Member No. 1443
  2. Land Parcel No. 1365 Konza
  3. Plot No. 1268 Konza Ranching & Farming Co-Operative Society
  4. Plot No. 0269 Konza Ranching & Farming Co-Operative Society.

Liabilities

1/3 Share of Plot No. 1268, 0269, 1365 together with shares in Konza Ranching & Farming Co-operative Society to be given to Ruth Wambua Mwania.

  1. I have carefully studied both files to find out how it was possible for there to be two grants in existence over the same deceased person , yet the central registry exists to ensure that this does not happen?
  2. I noted that in P&A 391/11 the estate of the deceased was gazetted in Kenya Gazette of 26/8/2011 VOL CXIII No. 85 as that of “Kimuli Mwania Nzelu …. who died at Kasikeu on 28/10/2009”. In Ruth’s petition P&A 1175/2012 the estate was gazetted afresh - on 7/12/12 VOL CXIV – NO. 120 as estate of “Kimuli Mwania … who died at Sultan Hamud on 3/2/2009”.
  3. From the word go one can see that there was some creativity to hide the fact that there was already another matter.
  4. A grant of Letters of Administration intestate was issued to her on 14/2/2013 dated 13/3/2013 by Hon B. Thuranira Jaden LJ.
  5. By order dated 21/2/2017 by Hon D.K Kemei J, the file No. 1175/2012 was transferred to High Court of Kenya at Makueni. It became P&A 99 of 2017.
  6. It is in this P&A 99 of 2017 that on 16/6/2017 Ruth filed Summons for Confirmation of Grant dated 22/5/2017.
  7. You will see that for whatever reason, because non is given, in her summons for confirmation of the grant, Ruth did not make reference or cite the grant issued to her on 22/5/2017 but cited the grant issued to the petitioner in 391/11 made to him on 21/12/2011. The list of beneficiaries had also reduced, without explanation,  from the form P&A5 she had filed earlier to – Paul Muisyo Kimilu, Charles Muthoka Kimilu and Mwelu Kimilu.
  8. At paragraph 5 of the Summons for Confirmation of Grant filed on  16/6/2017 dated 22/5/2017 contrary to the Ruling of Hon Mutende LJ annexed to her response to the summons for revocation of grant, she identified herself and Kimongo to be beneficially entitled to Kimuli’s estate. She stated –

The identification and shares of all person’s beneficially entitled to the said estate have been ascertained and determined as follows:

  1. Share Membership No. 1443 – Konza Ranching & Farming Co-operative Society to be shared as follows-
  2. Ruth Wambua Mwania – 1/3 share
  3. Kimongo Mwania – 1/3 share
  4. Paul Muisyo Kimuli – 1/3 share (to hold in trust for himself and Charles Muthoka Kimuli, mwelu Kimuli and Ndinda Kimuli).
  5. Machakos/Konza North Block 1/1365 as follows-
  6. Ruth Wambua Mwania – 1/3 share
  7. Kimongo Mwania – 1/3 share
  8. Paul Muisyo Kimuli – 1/3 share (to hold in trust for himself and Charles Muthoka Kimuli, Mwelu Kimuli and Ndinda Kimuli)
  9. Agricultural Plot No. 1268 Konza Ranching & Farming Co-operative Society Limited to be shared as follows-
  10. Ruth Wambua Mwania – 1/3 share
  11. Kimongo Mwania – 1/3 share
  12. Paul Muisyo Kimuli 1/3 share (to hold in trust for himself and Charles Muthoka Kimuli, Mwelu Kimuli and Ndinda Kimuli.
  13. Commercial Plot No. 269 Konza Ranching & Farming Co-operative Society Limited to be shared as follows-
  14. Ruth Wambua Mwania – 1/3 share
  15. Kimongo Mwania – 1/3 share
  16. Paul Muisyo Kimuli – 1/3 share (to hold in trust for himself and Charles Muthoka Kimuli, Mwelu Kimuli and Ndinda Kimuli
  17. On 12/10/2017 a certificate of confirmation of grant was issued to her in terms of the summons above.
  18. On 16/4/2018, Ruth filed summons dated 27/3/2018 under section 47 and 73 of the P&A Rules seeking prayers that – the name of Paul Muisyo Kimuli (the petitioner) be removed from the grant as administrator and be substituted with her name on the ground that he was uncooperative in finalizing the cause.
  19. In her supporting affidavit she made reference to and annexed not the grant she had obtained in 2012 in 1175/12 but the grant that had been issued to the applicant on 21/10/11 in 391/11.
  20. On 6/9/2018, Ruth filed Summons for Confirmation of Grant where she deponed that “a grant of letters of administration was made to us … on 21st December 2011”. This Summons for Confirmation of Grant indicated that the deceased was survived by four children – the applicant, Charles Kimuli, Mwelu and Ndinda Kimuli. The estate was to be distributed into three equal shares with the children of the deceased getting a 1/3 share.
  21. In Ruth’s reply to this summons for revocation of grant she annexed summons for confirmation of grant dated 6/8/12 filed by Paul Muisyo Kimuli where he sought confirmation of the grant made to him on 21/12/2011. There he had listed the beneficiaries as himself, Charles Muthoka Kimuli and Mwelu Kimuli and the estate’s assets as Machakos/Konza North/Block 1/1365, share member No. 1443 Konza Ranching & Farming Cooperative Ltd – he sought to hold the whole estate in trust for himself and the other beneficiaries.
  22. To her response Ruth also annexed the Decree in SRMCC Kilungu Civil Misc L8/2008 District Land Tribunal Case No. 77 of 2006: It reads

Upon receipt of Makueni Land Dispute Tribunal – Kilome Division Case no. 77/2006 award dated 16th January 2007, on 23rd July 2008 and upon reading the award in open court and upon adopting the award as judgment of the court a decree/order do issue as follows:

  1. That the plot of Nduku Mwania to be sub-divided among the three sons equally i.e. Wambua, Kimuli and Kimongo.
  2. That Kimuli Mwania to pay Ruth Wambua all costs of this case, failure to which a portion of his land share equivalent to Kshs. 25,000.00 be given to Ruth.
  3. I have carefully and deliberately laid out the history of this matter and the activities that took place in the two files that have been in place with respect to the estate of the deceased.
  4. The picture is painted of a relentless effort by Ruth to establish that she is beneficially entitled to the estate of Kimuli Mwania Nzelu.
  5. Her position is that the ruling in 391/2011 was in her favour and established her as a beneficiary of the estate of Kimuli Mwania Nzelu.
  6. That the order of the court in SRM Civil Misc. L8/2008 was in her favour to the effect that  husband was entitled to a share of the plot of Nduku and herself  to costs of 25000 kenya shillings or a portion of Kimuli Mwania’s share of the plot of Nduku.
  7. Beginning with Kilungu SRM Civil Misc L8/2008 it is very clear from that decree that it only refers to “the plot of Nduku Mwania”. It is this plot of Nduku that is to be divided among her three sons. A perusal of the order reveals that clearly there is no mention of where (the location ) of this plot of Nduku, or the size of the plot or how it is to be identified. If indeed it was at Konza Ranching the decree would have said so – but simply stating the Plot of Nduku does not tell where it is to be found or how big that land is.
  8. The record shows that there was a suit between Ruth and the deceased. The court found in favour of Ruth with respect to the plot of Nduku. There is nothing there to say where it was. In her ruling Hon. Mutende LJ determined that Ruth would have to execute her decree against the representative of the estate in that suit and not in the succession cause. That does not make her beneficially entitled to a third of the estate of the deceased, but gives her a cause of action against the deceased/legal representative of the estate of the deceased to execute for her costs. Despite the ruling of Hon. Mutende LJ almost 10 years, there is nothing to show that Ruth has never made any effort to execute the decree.
  9. With respect to the dispute over the ownership of the Konza plot – the subject of this cause – it was the finding of this court that that was not a dispute for this cause – anyone disputing that it was owned by the deceased ought to have raised the issue at the Cooperative Tribunal. Ruth never pursued that line either.
  10. Hence nothing is before this court now or from the record, before the court when Hon Mutende LJ heard this matter to support Ruth’s claim as against the deceased with respect to the assets of the estate.
  11. The court also held that the beneficiaries of the estate were as provided for under section 38 of the LOSA – the children of the deceased. Ruth is not a child of the deceased.
  12. It was acknowledged that the estate may have had liabilities – but liabilities do not make one a beneficiary of the estate – liability remains a liability to be settled by the estate upon being established. In this case Ruth was awarded cash of Kshs. 25,000/= in the Kilungu court. The default was not a portion of Kimuli’s estate, it was a portion of Kimuli’s share out of the plot of Nduku Mwania . Those are in my view two different assets. The plot of Nduku Mwania has no number, no location, no size, Kimuli’s estate is known as demonstrated by the information in the form P&A5, and in the ruling of Hon Mutende LJ. Other than the decree – there is nothing on record to show that she pursued the said cash from the deceased before he died or from the legal representative in 391/11.
  13. From the foregoing it is evident that the grant that was obtained by Ruth was obtained through concealment of information from the court that was relevant to the matter. Ruth was aware that there was petition No. 391/11 when she filed No. 1175/12. She was aware that the applicant was the administrator in 391/11 – when she sought to be in 1175/12. There is clear manipulation of the information with regard to the deceased so as to game the system – so that it would look like it was a different deceased so – the names were slightly different, place of death, different, date of death, different.
  14. In obtaining the certificate of confirmation of grant she used the grant issued to the applicant not to herself and then sought to remove the applicant from the administration of the estate. All these activities are fraudulent on their face and on their import as clearly demonstrated by the documentary evidence I found on the record as herein above.
  15. More importantly, from that record, Ruth has created an unfounded narrative that what was referred to as the Plot of Nduku in the land Dispute Tribunal matter is the same as asset of the deceased in this cause  without providing any single evidence to that effect.
  16. Ruth has not challenged the finding of this court that all the assets in question belong to Kimuli Mwania Nzelu – only and only his beneficiaries can inherit – that is the ruling of the court – hence the certificate of confirmation of grant she obtained giving herself a 1/3 share of the estate was contrary to the finding of the court and ought not to have been made to her at all. The manner in which it was obtained is not staright forward. It cannot be allowed to stand. It has no bearing as the court has never declared her a beneficiary of, or found her to be beneficially entitled to the estate of Kimuli Mwania Nzelu.
  17. To allow the grant made to her would be to allow abuse of the court process and a travesty of justice. This matter must come to an end before this court one way or the other.
  18. Section 76 of the LOSA states:

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;

(d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either-

(i) to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or

(ii) to proceed diligently with the administration of the estate; or

(iii) to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or (e) that the grant has become useless and inoperative through subsequent circumstances

  1. The grant obtained by Ruth ticks the boxes where  s. 76 a) b) and c) stand and it must be revoked.
  2. Hence the application for summons for revocation of the grant succeeds on the reasons laid out herein above.
  3. The grant made to Ruth Mwania Wambua be and is hereby revoked.
  4. The certificate of confirmation of grant made to Ruth Mwania Wambua be and is hereby set aside.
  5. Any transactions arising from that grant be  and are hereby revoked, and stand as null and void.
  6. The Assets herein all belong to the deceased Kimuli Mwania Nzelu;
  7. Share membership 1443 Konza Ranching & Cooperative Society
  8. Machakos Konza North Block 1/1365.
  9. Agriculture Plot No. 1268 Konza Ranching & Farming Cooperative Society Limited.
  10. Commercial Plot No. 269 Konza Ranching Cooperative Society Limited.
  11. The liability set out by the SRMC Misc. L8/2008 Kilungu in the sum of kshs.25000/= owed to Ruth Mwania as costs awarded in that case was in relation to the plot of Nduku Mwania and the share of the deceased in that plot.  Ruth’s recourse is in the execution of that decree as was directed by this court (Hon Mutende LJ).
  12. The beneficiaries of the estate of the deceased Kimuli Mwania Nzelu are his children – each of who is entitled to an equal share of the estate. A Certificate of Confirmation of Grant to issue accordingly.
  13. The costs of this Summons will be borne by the objector.

Dated signed and delivered virtually on 17/05/2024.

……………………………….

MUMBUA T. MATHEKA

                     JUDGE

    In the Estate of KIMULI MWANIA NZELU In the Estate of KIMULI MWANIA NZELU