IN THE MATTER OF ESTATE OF KIBUE NJAU

BACKGROUND

1. By Application dated 22^nd August 2023, presented under Article 159 of the Constitution of Kenya, Section 3, 3A, & 3B of the Appellate Jurisdiction Act, Rule 73 of the Probate and Administration Rules, the Applicant herein, ANNAH WANJIKU sought leave to appeal against Judgment delivered herein on 21^st September 2017, out of time.
2. The Respondents are named as the ‘Estate of Hannah Wanjiru Njau and Estate of Paul Kibue Njau’. Hannah Wanjiru Njau and Paul Kibue Njau were appointed as Administrators of the Estate of the deceased herein alongside Hannah Wanjiku Gitau by the Court in its judgment of 21^st September 2017 pursuant to consent recorded on 30^th June 2016.
3. At the time of filing the Application, the 1^st and 2^nd Administrator were dead. Vide Notice of Preliminary Objection dated 12^th September 2023, Counsel on record for the administrators now deceased raised 3 issues-
   1. THAT the Petitioner/ Respondents herein are deceased hence their grant became revocable under Section 76 of the Law of Succession Act as interpreted by the Court of Appeal in Florence Okutu Nandwa & Another Vs. John Atemba Kojwa, Kisumu Civil Appeal (1998) eKLR.
   2. That this application violates the procedures set out in the law of Succession Act and the Probate and Administration Rules
   3. That the Applicant has no Locus Standi to bring this application and the application is therefore incurably defective and ought to be dismissed with costs
4. In addition to the judgment delivered on 21^st day of September 2017, on 13^th March 2019, the Court directed that the Deputy Registrar execute documents to facilitate the distribution of the Estate.
5. On 14^th December 2023, I directed that the Petitioner’s herein to file an application for revocation of the grant as following the death of the 2 administrators, the grant was inoperable and therefore in accordance with Section 76 should be revoked. The Petitioners were also to nominate an administrator in place of the deceased administrators.
6. Pursuant to those directions, the Applicant herein filed Petition dated 3^rd April 2024 seeking grant of representation of Assets unadministered in respect of the Estate of Kibue Njau.
7. Annah Wanjiku Gitau has objected to the making of the grant on the basis that under Section 66, she ranks in priority to the Petitioner who is a grandson to the deceased. She further contends that by virtue of Section 81 she is the only surviving personal representative of the Estate and therefore she is the only person legally entitled to faithfully administer according to law all the estate of the estate of the deceased.
8. Both parties filed submissions. The Petitioner contends that as all the administrators have died Section 81 of the Law of Succession Act does not apply. Reference is made to the decision in Mwangi Mugure alias Elieza Ngware ( Deceased) and In the Matter of the estate of Mary Wairimu Ngware ( Deceased) Nairobi HCCC Succession Cause No. 2018 of 2001. Reliance is also placed on the decision in Estate of Hannah Njuki ( deceased) Nairobi High Court Succession Cause No. 463 of 1997
9. It is further submitted that ultimately the Court has the discretion on whom to appoint as administrator and the ranking under Section 66 is a guide. The Petitioner cites the decisions in Estate of Margaret Muringi Muhoho (Deceased) [2014] KEHC (KLR)  and Re Estate George Karanja ( Deceased) [2016] eKLR.
10. He contends that members of the 1^st and 2^nd House of the deceased are in support of his Application.
11. In her submissions the Objector identifies two issues for determination
    1. Whether the Petition is properly anchored in law?
    2. Whether the Court should grant any letters of administration to the Petitioner
12. It is submitted that the Application should fail as the Petition is not anchored on any provision known at law. Reliance is placed on the decisions in Yusuf Gitau Abdallah v Building Centre ( K) Ltd & 4 others [ 2014] eKLR and In the matter of the National Gender and Equality Commission [2014] eKLR
13. On the 2^nd Issue it is submitted that the Objector is a surviving administrator capable of administering the estate and reference made to the decision in Re Estate of Seth Namiba Ashuma (Deceased) [2020] eKLR and In Re Estate of Magangi Obuki ( Deceased) [2020] eKLR
14. The Objector is apprehensive that if the Petitioner obtains the grant he will proceed to execute orders arising from the impugned judgement of 21^st September 2017 and the subsequent orders issued on 13^th March 2019.

ANALYSIS AND DETERMINATION

1. As narrated above the current Petition was necessitated by the Application of the Objector dated 22^nd August 2023 in which she seeks leave to file appeal out of time against the judgment of the Court delivered on 21^st September 2017.
2. The Respondents in the application are the ‘estate’ of the deceased administrators, Hannah Wanjiru Njau and Paul Kibue Njau. That Application ran into head winds as for obvious reasons the application is incompetent as the ‘respondents’ are deceased and therefore not representatives of the estate.
3. In an attempt to cure this, the Court directed that an application be filed to revoke the grant that is now inoperable and nominate another administrator. The Objector submits that she is the surviving administrator and she should therefore be allowed to proceed with the administration of the estate.
4. It is not in dispute that 2 of the Administrators are deceased. The surviving administrator intends to challenge a judgment delivered by the Court, by necessary implication she does not intend to administer the estate as directed by the Court. She seeks to have her cake and eat it.
5. Until the decision of the Court as rendered in its judgment on 21^st September 2017 is overturned, it remains valid. The Objector has a pending application dated 22^nd August 2023.
6. I agree with the decisions in Estate of Margaret Muringi Muhoro ( Deceased) [2014] KEHC (KLR)  and Re Estate George Karanja ( Deceased) [2016] eKLR
7. The Petition as presented by the Petitioner Applicants filed Summons for Confirmation of Grant dated 21^st June 2024. In response thereto, the Protestor herein filed affidavit of protest dated 30^th October 2023. The Protestor set out his proposed mode of distribution at paragraph 8 of the Affidavit.
8. The Protestor contends that he is a son of the deceased, as his paternity was determined in Meru CMCC No. E298 of 2022. He proposes that the estate be distributed as follows;
9. Mercy Bosibori Wamachi- NGONG/NGONG/15481 (Absolutely).
10. Mercy Bosibori Wamachi, Anderson Babu Wamachi, Nicholas Wamachi Junior- North Eastern C1713 DANDORA (To share jointly).
11. Mercy Bosibori Wamachi, Josphat Ndung’u, Anderson Babu Wamachi, Nicholas Wamachi Junior- ABSA BANK AC NO. 0822015980 (to share equally)
12. Mercy Bosibori Wamachi, Josphat Ndung’u, Anderson Babu Wamachi, Nicholas Wamachi Junior-DTB ACC NO. 0340306437005(to share equally).
13. Mercy Bosibori Wamachi- Honda CRV KBW 103R (solely).
14. Josphat Ndung’u- Nissan KCB 711N (solely).
15. LAIKIPIA NANYUKI MARURA BLOCK 111/10705- Josphat Ndung’u (solely).
16. Josphat Ndung’u- LAIKIPIA NANYUKI MARURA BLOCK 111/10706(solely).
17. Josphat Ndung’u- LAIKIPIA NANYUKI MARURA BLOCK 111/0707(solely).
18. Mercy Bosibori Wamachi - LAIKIPIA NANYUKI MARURA BLOCK 111/0708(solely).
19. Anderson Babu Wamachi - LAIKIPIA NANYUKI MARURA BLOCK 111/0709(solely).
20. Nicholas Wamachi Junior- LAIKIPIA NANYUKI MARURA BLOCK 111/0710(solely).
21. Josphat Ndung’u- LOC.11 MARAGI 8185(solely).
22. The protest was disposed of by way of written submissions. The Administrators filed written submissions dated 30^th October 2024 along with Amended Summons for Confirmation dated 30^th October 2024 while the Protestor’s submissions are dated 7^th October 2024.

ADMINISTRATOR’S SUBMISSIONS.

1. Counsel for the Administrators submitted that Mercy Bosibori Wamachi is the only surviving widow of the deceased and is entitled to the deceased’s estate pursuant  to Section 35 of the Law of Succession Act which vests the deceased’s  properties on the wife to prevent her from being rendered destitute. She relied on the decision of Tau Kakungi v Margrethe Thorning Katungi & Another [2014] eKLR. That she acquired properties with the deceased and depends on them for her day to day expenses.
2. She accused the protestor of intermeddling with the deceased’s estate in contravention with Section 45 of the Law of Succession Act. She averred that the protestor broke into her house and took away all the title deeds in her possession. He also took away a motor vehicle registration number KCB 711N. She urged the court to dismiss the protest and allow her summons of confirmation of grant. 

PROTESTOR’S SUBMISSIONS.

1. Counsel submitted that the Objector is the deceased’s son and is recognised as a dependant under Section 29 (a) of the Law of Succession Act. That Articles 27 (1) (4) and 53 (1) (e) of the Constitution prohibits any form of discrimination against children whose parents are not married.

ANALYSIS AND DETERMINATION

1. I have looked at the Protest and the submissions by both parties. The issues that falls for determination is whether the Protestor is a beneficiary to the estate of the deceased and the mode of distribution of the estate.
2. In the first instance I will strike out the amended Summons dated 30^th October 2024 as the same was filed by the Administrator without leave of the Court and after pleadings herein had closed. In that Summons the Administrator purports to introduce additional dependants without stating how those dependants bring themselves under Section 29 of the Law of Succession Act
3. On the 1^st Issue, as to whether or not the Protestor is a beneficiary to the Estate of the deceased?  It is not disputed that the deceased died on 1^st October 2022 and he was survived by his wife and children; Nicholas Wamachi Junior, Anderson Babu Wamachi as per the chief’s letter dated 24^th October 2022.  The issue of the paternity of the Protestor is also not contested as the same was established by a DNA Test conducted by order of the Court in Meru CMCC No. E298 of 2022. 
4. Section 29 of the Law of Succession Act defines Dependant to include-

For the purposes of this Part, “dependant” means— (a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death ( Emphasis Supplied)

1. The Administrator in her submissions appears to suggest that the Protestor is excluded from benefitting from his father’s estate since he was ‘illegitimate’. Suffice it to not that the law, post the promulgation of the 2010 Constitution, does not perceive of ‘illegitimate children’. By virtue of Article 27 and 53 of the Constitution of Kenya the term has been dismantled with the law now referring to them with the non-stigmatizing term of children born to parents who are not married to each and prohibiting discrimination on the basis of the marital status of the parents.
2. It follows therefore that the Protestor is a dependant and therefore a beneficiary of the Estate of the Deceased within the provisions of Section 29 of the Law of Succession Act.
3. The lawful beneficiaries of the Estate of the deceased are
   1. Mercy Bosibori Wamachi
   2. Anderson Babu Wamachi
   3. Nicholas Wamachi Junior and
   4. Josphat Ndung’u
4. The 2^nd  issue is the mode of the distribution of the Estate of the deceased. The law governing distribution of property in an intestate estate where the deceased has left one spouse surviving and children or child is Section 35 of the Law of Succession Act which provides:-

(1)Subject to the provisions of Section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to:-

a. The personal and household effects of the deceased absolutely; and

b. A life interest in the whole residue of the net intestate estate;

1. In the proposed distribution by the administrator she does not provide for the Protestor. The law recognises that a surviving widow is entitled to a life interest. At the same time in the appropriate circumstances the Court may grant an absolute proprietary interest to the surviving spouse. 
2. In Re Estate of M’Ikiugu M’Mwirichia [2015] eKLR, the Court of Appeal reiterated that Courts are obligated to distribute property in accordance with the Law of Succession Act. The Court proceeded to direct that the assets of the deceased be registered in favour of his widow to hold in trust for herself and the deceased children in equal shares.
3. The circumstances of the current matter show that the Protestor’s relationship with the Administrator is not cordial. He is also not her biological son. It is best that the protestor get his share of the estate, solely. Guided by Section 35 I therefore direct that the Estate of the deceased be distributed as follows amongst the beneficiaries-
4. NGONG/NGONG/15481 To be registered in the name of the Administrator to hold in Trust for Anderson Babu Wamachi and Nicholas Wamachi Junior in equal shares.
5. North Eastern C1713 DANDORA To be registered in the name of the Administrator to hold in Trust for Anderson Babu Wamachi and Nicholas Wamachi Junior in equal shares.
6. ABSA BANK AC NO. 0822015980
7. DTB ACC NO. 0340306437005 to be shared equally between; Mercy Bosibori Wamachi, Josphat Ndung’u, Anderson Babu Wamachi, Nicholas Wamachi Junior
8. Honda CRV KBW 103R to Mercy Bosibori Wamachi- Solely
9. Nissan KCB 711N to Josphat Ndung’u- solely.
10. LAIKIPIA NANYUKI MARURA BLOCK 111/0705 to Josphat Ndung’u solely.
11. LAIKIPIA NANYUKI MARURA BLOCK 111/0706 to Josphat Ndung’u- solely.
12. LAIKIPIA NANYUKI MARURA BLOCK 111/0707 to Josphat Ndung’u- solely.
13. LAIKIPIA NANYUKI MARURA BLOCK 111/0708  To be registered in the name of the Administrator to hold in Trust for Anderson Babu Wamachi and Nicholas Wamachi Junior in equal shares
14. LAIKIPIA NANYUKI MARURA BLOCK 111/0709 To be registered in the name of the Administrator to hold in Trust for Anderson Babu Wamachi and Nicholas Wamachi Junior in equal shares
15. LAIKIPIA NANYUKI MARURA BLOCK 111/0710. To be registered in the name of the Administrator to hold in Trust for Anderson Babu Wamachi and Nicholas Wamachi Junior in equal shares
16. LOC.11 MARAGI 8185 distribution deferred pending confirmation of what the parcel of land is designated us, especially if it is the share of the deceased from his ancestral home.
17. The matter will be mentioned on 5^th February 2025 to confirm the designation of parcel LOC.11 MARAGI 8185.
18. This being a family matter each party will bear their own costs

DATED, SIGNED AND DELIVERED ON THE VIRTUAL PLATFORM, AT NAIROBI THIS 29^th   DAY OF NOVEMBER, 2024.