INTRODUCTION
1. By Summons dated 6 th July 2017, the applicants herein, Jacob Ngunyi Wambugu and Stephen Njeru, seek revocation of the Grant issued to Ileen Maitha Wambugu and Faith Njambi Wambugu on 27 th February 2006 and confirmed on 26 th March 2007 on the following grounds-
a. The Applicants were not involved in the process of obtaining the same, given that they were away in South Africa pursuing their studies, and that the Applicants never consented to the application for grant, the confirmation, nor the mode of distribution and that they were not involved in the proceedings.
b. There was unfair and unequal distribution of the estate, with a huge portion going to the 1st Respondent absolutely, with the remaining portion being held in trust by the Administrators, despite the Applicants and their younger sister being adults at the time the matter came up for confirmation.
c. The Respondents may continue to deal adversely with the estate.
2. The application is supported by the joint affidavit of Jacob Ngunyi Wambugu and Stephen Njeru Wambugu, sworn on 6 th July 2017. They are sons to the deceased. The 1 st Administrator is their mother, the 2 nd Administrator is their sister. The deceased died intestate and is survived by the following beneficiaries-
a. Ileen Maitha Wambugu- wife
b. Faith Njambi Wambugu- daughter
c. Jacob Ngunyi Wambugu- son
d. Joy Muthoni Wambugu- daughter
e. Stephen Njeru Wambugu- son
3. They aver that they were not involved in the succession proceedings, as at the material time they were both residents in South Africa. The 2 nd Applicant was a minor at the time of the proceedings leading to the issuance of the grant and its confirmation. The documents that were lodged in support of the Petition for grant and for confirmation are both forgeries. The 1 st Applicant denies signing the documents; viz, consent to making of Grant of Administration intestate to a person of equal or lesser priority; consent to confirmation of Grant of Letters of Administration; consent to mode of distribution of the Estate. It is averred that the Administrators forged all these documents.
4. They also seek to have the grant revoked as the 1 st respondent has allocated a disproportionate share to herself, and trusts were created when, in fact, the beneficiaries are adults. The 1 st Respondent made false representations with regard to the bulk of the estate by alleging that the properties had been sold off, and yet she had transferred some to herself in 2008.
5. They challenge the authenticity and validity of the Power of Attorney as the same is not executed by him, and neither is it registered as required. On account of the conduct of the administrators, they have reasonable apprehension that they will continue to dispose of the property unless they are injuncted.
6. It is submitted that the administrators are not fit to administer the estate on account of these failures. Ultimately, they seek that the grant be revoked; they aver that unless the grant is revoked, the beneficiaries (the applicants and their sister Joy Muthoni Wambugu will suffer irreparable harm and damage.
7. The Beneficiary, Joy Muthoni Wambugu, has sworn a replying affidavit in which she states that she is in alignment with the applicants and seeks that the grant be revoked.
8. The 2nd respondent, Faith Njambi Wambugu, has sworn a replying affidavit on 18th September 2017. She deposes that the application is misconceived, incompetent, and an abuse of court process. She states that the issues raised in the summons are similar to those raised in the application of 6 th June 2016, presented by Joy Muthoni Wambugu. She counters and states that the applicants were well aware of the proceedings leading to the issuance of the grant and its confirmation. As evidence, she has attached communications she states are between the 1st applicant and the advocates on record. That the consents required at both stages were forwarded to him, and he executed and returned the same.
9. She states that the majority of the properties were already sold by the deceased, and the administrators transferred them to the purchasers after the grant was confirmed. The land was transferred to the 1st administrator solely to facilitate its transmission to the purchasers, Railway Housing Cooperative Society. She has attached letters dated 21st June 1999 (from Railway Housing Co-Operative Society to Horizon Adventures Limited); letter dated 3rd June 2005 (from Horizon Adventurers Ltd to Rahoso-Kenya Railways); and a letter dated 3rd October 2005 (from M/S Muthoga Gaturu & Co to Chairman Railways Housing Cooperative Society Limited) as evidence of these transactions.
10. She asserts that the applicants and Joy have received their respective shares of the assets. She claims that the property in Donholm is owned by the first administrator and is therefore not part of the estate. Additionally, she states that only two properties remain unadministered (Deceased share of KJD/KITENGELA/5422 and KJD/KITENGELA/9580), which are subject to the Summons for Rectification of Grant dated 10th December 2012, currently pending.
11. The respondents have sworn a further affidavit dated 4th July 2018. They reiterate that the grant should be revoked and state it was not possible for him to have been in Nairobi to execute a document when he was away in South Africa. They point out apparent contradictions regarding properties transferred to the Railways Sacco. They also note there is no evidence to support the claim that the properties had been sold at the time of the deceased’s death. Their search certificates show that the administrator continued to sell the properties even after the deceased’s death, up to 2017.
12. The included search certificates are-
a. KAJIADO/ KAPUTEI-NORTH 6068 ; search on 6 th December 2017, registered owner Patrick Kinyanjui Muriuki- registered on 23 rd September 2016.
b. KAJIADO/ KAPUTEI-NORTH 5993; search on 6 th December 2017 registered in the name of Mirera Cornelius Gisaino on 18 th January 2017
c. KAJIADO/ KAPUTEI-NORTH 5942; search on 6 th December 2017, registered in name of Alice Kwamboka Bosiro on 20 th July 2016 and later to Zakary Byron Aoko Asiago on 21 st July 2017.
d. KAJIADO/ KAPUTEI-NORTH 6059 search on 6 th December 2017; registered in the name of Samuel W Ngunyi on 6 th April 2000
e. KAJIADO/ KAPUTEI-NORTH 11930 search on 6 th December 2017 registered in the name of Samwel Wambugu Ngunyi on 24 th October 2001
f. KAJIADO/ KAPUTEI-NORTH 6060 search on 6 th December 2017
Registered in the name of Samuel Wambugu Ngunyi on 17 th December 1998.
g. proposed subdivision of KAJIADO KAPUTEI NORTH 3005 as indicated in letter dated 11 th February 2004 from Sambo Properties, addressed to Land registrar Kajiado District, 2004, in which the deceased was to get properties LR 15122;15127;15128;15129;15130; 15142; 15218; 15219;15220;15138 and 15187 and Memorandum of Understanding as evidence of purchase of LR No. Kajiado/ Kaputei North / 3005 by Sambo Properties Limited.
13. He avers that the administrators did not include the interest of the deceased in the following companies.
a. Sambo Properties- 300 shares as per CR12 103243 dated 24 May 2018
b. Horizon Adventures Limited- 500 shares as per CR12 CPR/2010/1895 dated 4 th June 2018
c. H.A.L Turbo proprietor
14. The applicants have, in addition, sworn a further affidavit on 6th December 2019, and reiterated that the administrators failed to disclose all the assets of the estate. Additional searches include-
a. KAJIADO/ KAPUTEI-NORTH 5995 search on 6th December 2017
Registered in the name of Grace Mudola Magunga on 17th September 2009.
b. KAJIADO/ KAPUTEI-NORTH 6007 search on 6th December 2017
Registered in the name of Washington Omondi Oganga on 30 th November 2011.
c. KAJIADO/ KAPUTEI-NORTH 6066 search on 6th December 2017
Registered in the name of Lucy Kemunto Onyonka on 30 th November 2011
d. KAJIADO/ KAPUTEI-NORTH 6071 search on 6th December 2017
Registered in the name of Aggrey Sitati Maraka on 27 th October 2011
e. KAJIADO/ KAPUTEI-NORTH 5952 search on 6th December 2017
Registered in the name of Samuel Wambugu Ngunyi on 17th December 1998.
f. Further, that the deceased did not disclose the policy taken out by the deceased as evidenced in the communication attached: AAR Membership No. C161031
15. It is further claimed that the administrators failed to disclose that the deceased had acquired an interest in Kahawa Sukari Limited as per the Land Sale Agreement dated 3rd May 2021.
16. The First Respondent/Administrator has sworn an affidavit dated 11th March 2019. She states that the applicants were properly informed about the proceedings concerning the issuance of the grant and its confirmation. She reconfirms the 2 nd Administrator’s claims that some of the properties had already been sold by the deceased and that she had them transferred into her name to facilitate their transfer to the buyers.
17. She states that some of the estate funds were used to support the applicants while they were in school and dependent on her. She has provided the bank accounts from which she claims they accessed the money. She transferred Kajiado/Kaputei North 8905 to Jacob Ngunyi; he sold it. She transferred Kajiado/Kaputei North 14768 to Joy Muthoni Wambugu; she sold it. She transferred Kajiado/Kaputei North 8907 to Stephen Wambugu; he has sold it.
18. She has had to settle debts left by the deceased and has accrued legal fees due to cases filed against the estate and an inquest into the deceased's death.
19. She states there are only two assets that are awaiting administration.
20. The matter proceeded by viva voce evidence.
21. PW1- Jacob Ngunyi Wambugu - he is a son to the deceased. His affidavits on record were admitted as evidence in Chief.
22. As applicants, they seek to be appointed as administrators so that they can conduct a forensic audit of the estate. They claim that the Respondents have been unable to audit the accounts and that they wish to secure the properties in their father’s name, as the Respondents are selling properties.
23. The 1 st Applicant attested that the process of obtaining the grant was defective and that the summons for confirmation of the grant is dated 27.11.2006, while the consent to the confirmation is dated 2007.
24. Further, there is fraud, as the attached letter of 1999, the Railways Sacco wrote to the deceased confirming receipt of letters and payment.
25. That, three months after the death of the deceased, the first Respondent wrote to the Sacco stating she had the documents in safekeeping and was awaiting payment, the narrative being that the properties had already been purchased by the Sacco.
26. This is fraudulent because, seven years prior to the father's death, the Sacco had confirmed that the deal was closed, which contradicts the 1st Respondent’s averments.
27. That the Applicants conducted a search in August 2017, which showed that the properties were still in the deceased’s name.
28. Additionally, the Respondents did not disclose that the deceased held a 50% share in Horizon Adventures Ltd, was a 30% shareholder in Simba Properties, and owned Hall Turbo Systems. They also failed to disclose the bank accounts he maintained with the 1st Respondent and the accounts of companies where he served as a director. Furthermore, he stated that, to date, the Respondents have not provided the books of account.
29. The 1st Respondent resides in the US, and the estate is situated in Kenya. Therefore, the Applicants seek appointment as administrators, as they have disclosed accounts that have never been provided, necessitating contempt proceedings.
30. On cross-examination, the 1st Applicant stated that he is 46 years old and that at the time of his father’s death, he was 27 years old, while his brother, the 2nd Applicant, was 16 years old. He added that at the time of the demise, he was in South Africa, having relocated in 1999, whereas the 2nd Applicant was attending St. Mary’s High School.
31. The documents filed with the summons are not the ones he signed. The administrators informed him of their intention to initiate the succession process (referencing the 2nd Respondent’s affidavit of 18.09.2017 and email dated 08.07.2005). The 1st Applicant confirms he received this email as well as the email of 14.07.2005.
32. That at the time of signing the documents, he was not aware that the documents were meant to support the petition, and these documents suggest he was in Nairobi at that time, which he claims is not true.
33. He refers to the supporting affidavit of 06.07.2017, his subsequent affidavit of 04.07.2018, and his subsequent affidavit of 05.12.2019, and states that he has not attached the consents he signed, which are different from the consents presented in Court.
34. He also states that he attended his father’s funeral and then returned to South Africa, but then moved back home permanently in February 2010. He denies being deported from South Africa and claims that he returned home voluntarily.
35. Additionally, the email dated 26.10.2006 clarifies the purpose of the confirmation, but it did not reveal the nature of the succession proceedings to him.
36. He submitted his application in 2017, which is when he gained access to documents he had never seen before. The 2nd Respondent was unable to answer questions related to the estate, specifically, that he sought clarification on plots he learned his father owned in Kitengela.
37. On the power of attorney, which he confirmed he executed together with the 2 nd Applicant on 04.03.2009 while they were both in South Africa.
38. He confirmed he was aware of communication with Eric Luarele and the email of 30.01.2007, in which he explained that he and his brother live in different states.
39. He confirmed he understood that the applicants wished to transfer their father's properties to those who had bought them before his death.
40. In their affidavit dated 05.12.2019 (paras 11-12), it was shown that properties were transferred to Railways Sacco, including plots initially owned by the 1st and 2nd Applicants. The administrators initially provided a list of 48 properties, of which 3 were allocated to the 1st Respondent, and the Applicants sought clarification on these. In para 14, it is stated that the properties were sold after confirmation. The 1st Applicant has circumstantial evidence suggesting they were sold following the deceased’s death. Regarding para 27, the 1st Applicant states that the person who provided that information has since passed away. In para 25, the 1st Applicant claims he does not have proof of the payment. Para 23 includes an interim financial statement of Simba Properties; the 1st Applicant testifies that the document is neither signed nor stamped for authentication and that they found it in their father’s office. It also refers to para 16, which states that a parcel of land was subdivided and the plots sold.
41. That the 1st Applicant lives in the family home in Kitengela, which is situated on Kajiado/Kaputei North 8906 and is registered in the name of the 2nd Respondent, the 1st and 2nd Applicants, along with his brother. Before her departure to the US, the mother also resided there. Referring to para 10, the 1st Applicant denies threatening the mother with death.
42. He further testifies that he is not aware of his mother filing an application for rectification of grant seeking to include properties that had been omitted. However, he states that the Applicants have not been provided with the details of the properties (they do not know the LR numbers) nor have they been instructed to carry out searches. In the affidavits, the Applicants did not include the details of the parcels for which they were unable to conduct searches.
43. On re-examination, the 1st Applicant confirmed that he has never been appointed as an administrator of the estate, but he understands the duties of an administrator, which include presenting all properties to the Court.
44. The consents attached to the summons are not the same as the ones he signed in South Africa, as the summons states he signed them in Nairobi. He claims this is false, and also states that none of the documents is notarised.
45. That Simba Properties (a real estate company) and Horizon Adventures (the main trading company) belonged to the deceased and that both owned extensive parcels of land, yet they have not been included in the summons as assets.
46. Further, that the Applicants have not had access to or details of the accounts of the deceased and that his father’s managers have informed him that there are properties not included in the petition.
47. That the Applicant is unaware of any application to have his brother’s fees paid, and in any case, the estate exceeds the value of the fees. Furthermore, this would not affect their inheritance.
48. That the Applicants were each given single plots- 1 st Applicant received a 1-acre plot; 2 nd Applicant ¾ acres.
49. That the Applicant is aware that the Respondents consent to rectifying the consent to include additional properties, and that the summons was disallowed.
50. RWI ILEEEN MAITHA WAMBUGU She is the 1 st Respondent, the wife of the deceased and mother to Jacob, Faith, Stephen and Joy. She currently resides in Washington State, U.S.
51. Her affidavit, sworn on 11th March 2019, was admitted as her evidence in chief. Both the applicants and the beneficiary, Joy, were aware of the succession proceedings, that Jacob was in South Africa, that Joy indicated she was busy at Kenyatta University, and that Stephen was a minor. They all agreed that Faith should take charge and jointly apply for letters of administration with her. She kept all of them informed of the succession proceedings contrary to their protestations.
52. The deceased used to buy and resell properties and dealt with Cooperative Societies, such as the Railway Cooperative Society, which purchased the properties. At the time of his death, some of his properties had not been transferred to the individual owners. After she obtained letters of administration, she signed transfers of the parcels to the buyers, and the Cooperative held the titles until the shareholders completed payment.
53. That regarding the letters dated 21.06.1999 and 03.06.2005, the 1st Respondent states that she was given these letters by the Cooperative Society and that it informed her that the deceased had been paid in full. She did not conduct any transactions after the deceased's death.
54. Furthermore, during his lifetime, the deceased sold the land and fulfilled his part of the sale agreement, leaving the rest with the Cooperative Society to complete their part. She did not participate in her husband’s businesses, which were usually run solely by Horizon Adventures. She was a shareholder in Horizon Adventures.
55. Referring to paragraph 6 of the affidavit, the 1 st Respondent avers that the properties are the homestead and that the other 2 are undeveloped. That she distributed 1 parcel to the 1 st and 2 nd Applicants and retained the homestead until the 1st Applicant threatened her and demanded that she register it to the 1st and 2nd Applicants and the 2nd Respondent, which she did.
56. She used to communicate well with the 1st Applicant while he was in South Africa, but he accused her of killing his father and demanded his share of the inheritance.
57. Referring to paragraph 9 of the affidavit, the 1st Applicant was deported from South Africa for forging a passport, was imprisoned in Durban (Richard Bay), and she bailed him out by transferring money to the 2nd Applicant’s account. The 1st Applicant fled South Africa through Zimbabwe, and both he and the 2nd Applicant live in her houses in Donholm. The Donholm home was her property and not in the deceased’s name.
58. The 1st Respondent asserts that she was a partner in H.A.L Turbo Systems with the deceased; that the deceased was a shareholder of Simba Properties alongside three other individuals. She states that the directors of Simba refused to include her in the deceased’s estate and that she was hesitant to oppose this, as her husband had died under unclear circumstances. Furthermore, she claims that H.A.L did not possess any assets.
59. That she travelled to the US in July 2015 and that the beneficiary Joy filed a case against her when she was in Kenya, challenging the distribution of the estate and seeking that she and the 2 nd Respondent be committed to civil jail.
60. She applied to rectify the grant but that application has not been heard
61. On cross-examination , she confirmed that she understands that the estate belongs to all beneficiaries and that it is within the right of the Applicants to require accountability on how the estate is administered.
62. She stated that she and her Co Administrator had filed the accounts as directed.
63. That she is aware that the Applicants have conducted searches on the company registry and that the companies that belong to the estate are Horizon Adventures (which at the time of the deceased held no properties) and Simba Properties (to which the deceased was a shareholder) both of which are land buying and selling companies.
64. She concedes that the Respondents did not include the two companies in the grant and that she is aware she ought to have. She explains she did not include Simba because she had been threatened not to by the managing director. Additionally, she states she only included properties she was able to manage. She also admits that she did not mention the threat in her affidavit.
65. That at the time of the deceased’s death, the company Horizon Ltd held no properties in its name and that the properties were in the name of Samson Wambugu.
66. She avers that she never received any payments for land, and that all payments for land were made to the deceased but that she does not know the account the money was paid to.
67. She further conceded that she did not include the bank accounts as they had no funds.
68. Referring to the letter dated 14.09.2005 addressed to Horizon Limited requesting the 1 st Respondent to give a bank account, the 1 st Respondent states that she had no knowledge of bank accounts and that it was the deceased who totally managed the company.
69. Regarding the policy with AAR, she states that she did not include this in the succession properties.
70. The 1 st Respondent contends that she was appointed Administrator by the other beneficiaries and that she objects to the Applicants being appointed as administrators.
71. That the properties, each measuring 1/8 th , allocated to the 1 st Respondent had been sold and that none of the properties devolved to the Applicants, rather they devolved to her.
72. That at the time of death of the deceased, the properties had been sold and that there was no sale agreement- that all transfers happened after the death of the deceased, as all the properties had already been sold.
73. The 1 st Respondent testifies that she transferred 4 properties to the 4 children/beneficiaries and that each received 1 and ¼ acres.
74. She pleads that the 1 st Applicant was not on scholarship, as she was paying his fees and that she did not provide statements, she has a bank account that will show this.
75. She further claims that at the time of the deceased's death, the Applicants were minors and that the 1 st Applicant was in South Africa when he signed the consent. That the 1 st Applicant was in Kenya at the time of confirmation of grant- that he was in South Africa at the time of distribution of the estate.
76. She states that her affidavit was notarised by an advocate in the US.
77. Regarding the documents about Simba Properties filed by the 1 st Applicant, the 1 st Respondent states that the documents are not authentic and that they do not come from the company as they have not been signed by the directors. These documents were filed after her reply. She concedes that she has not raised the issue of the documents' authenticity prior to this.
78. She avers that she is not aware of the payment of kshs.17million to the deceased and that she did not take any action to follow up.
79. The 1 st Respondent states that it is the Railways Cooperative Society that bought the property and that there is a sale agreement being held by the Cooperative and that she was not provided with the same.
80. On further Cross-examination, she stated that the co-administrator filed accounts in court, but that she is not certain about which accounts were filed in Court.
81. She avers that she is a signatory of one of the accounts of Horizon Limited but that she was not involved in the running of the company.
82. That she is only aware of the purchasers of the property, who are not before the Court, and that they have the sale agreements.
83. The 1 st Respondent avers that she gave the 2 nd Respondent 1 acre; the 1 st and 2 nd Applicants 1 and ½ acres each and retained 1 acre. That this 4-acre plot of land was the only property available for distribution.
84. That Joy, is not noted as a beneficiary as the remaining share was the matrimonial home that belonged to the 1 st Respondent and she therefore had a right to allocate it to anyone as they had gotten their respective shares. Further, that is not true that there was a property she was holding in trust for Joy neither is it true that she sold the alleged property without Joy’s consent.
85. That at the time of the deceased’s death, the 1 st Respondent was educating Joy, who was in Kenyatta University undertaking a diploma and later a degree.
86. She further contends that she sold a family property for kshs. 17million and shared the proceeds with the family- with each child receiving kshs. 3million from the sale. Further reiterating that all properties registered in the deceased’s name, had been sold.
87. The 1 st Respondent states that there is no estate of the deceased as this has all been transmitted and that she leaves it to the Courts to determine whether or not other administrators should be appointed.
88. Regarding property Kajiado/Kaputei/North/6059, the 1 st Respondent avers that it was deposited at the land registry (and that Joy accompanied her to the registry and verified what was happening) and that she did not sell the property. That she later heard that the registrar had been found with the title in his car. That one, Mr Kariuki, sold the property to offset medical bills, and she signed the transfer. That she did not inform the beneficiaries of this, as the property was under the Railways Cooperative Society.
89. On re-examination, she reasserted that she had consulted the entire family before applying for letters of administration with her firstborn daughter Faith, and that the other beneficiaries had excused themselves, except for the second applicant, who was a minor at the time.
90. She refers to the affidavit sworn on 18.09.2017 by the 2 nd Respondent and the attachment marked FNN 1 which shows that the 1 st Applicant participated. That she was in communication with the 1 st Applicant, as he was in South Africa, and that documents were sent to him via DHL, and that he consented to her being an administrator.
91. That the confirmation has a list of 62 properties (land parcels in Kajiado/Kaputei/ North) and that all of the properties were in the deceased’s name except for one under the family.
92. The 1 st Respondent testifies that the chairman of the Railway Cooperative Society indicated that they had already paid for the properties and that the deceased had acknowledged receipt of the money. It is the 48 properties in the letter dated 21.06.1999; not all the properties in the certificate had been sold.
93. That the properties had been sold 6 years earlier and that the letter is addressed to Horizon because Horizon and the deceased are one and the same person. As stated, she was not involved in the sale or the running of the company and the deceased kept all documents, as she was a silent director.
94. The 1 st Respondent reiterates that she distributed what was available for distribution i.e. item 51 to the 1 st Applicant; item 53 to the 2 nd Applicant, a parcel to herself and a parcel to Joy (itemised in para 11)
95. That as mentioned, she had been threatened by the managing director of Simba properties and feared to go against him as the deceased had been murdered- an inquest was done in Machakos, and she had participated in the proceedings.
96. The 1 st Respondent avers that after filing the initial summons, she sought to rectify the grant to include properties that wereexcluded. That after filing this application (dated 12.12.2012) the Applicants challenged her in Court but did not give her any additional properties they felt should be included. And that had they done so, she would rectify the grant again to include them.
97. Regarding parcel Kajiado/Kaputei/North/6059, that this was in the deceased’s name and that she, Joy and the 2 nd Respondent were aware of the investigations. Further, that the Applicants were not aware.
98. That application dated 05.12.2019 reveals that the property was in the in the name of Samuel Ngunyi thus they are part of the estate to be distributed.
99. RW2 Faith Wambugu , daughter to the deceased and the 2 nd Administrator. Her affidavit, sworn on 18.09.2017, was admitted as her evidence in chief. The Grant was obtained on 27.03.2006, which was confirmed on 26.03.2007.
100. Prior to this application for revocation, the beneficiary, Joy, filed an application charging the Respondents with contempt and seekin
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1. By Summons dated 6 th July 2017, the applicants herein, Jacob Ngunyi Wambugu and Stephen Njeru, seek revocation of the Grant issued to Ileen Maitha Wambugu and Faith Njambi Wambugu on 27 th February 2006 and confirmed on 26 th March 2007 on the following grounds-
a. The Applicants were not involved in the process of obtaining the same, given that they were away in South Africa pursuing their studies, and that the Applicants never consented to the application for grant, the confirmation, nor the mode of distribution and that they were not involved in the proceedings.
b. There was unfair and unequal distribution of the estate, with a huge portion going to the 1st Respondent absolutely, with the remaining portion being held in trust by the Administrators, despite the Applicants and their younger sister being adults at the time the matter came up for confirmation.
c. The Respondents may continue to deal adversely with the estate.
2. The application is supported by the joint affidavit of Jacob Ngunyi Wambugu and Stephen Njeru Wambugu, sworn on 6 th July 2017. They are sons to the deceased. The 1 st Administrator is their mother, the 2 nd Administrator is their sister. The deceased died intestate and is survived by the following beneficiaries-
a. Ileen Maitha Wambugu- wife
b. Faith Njambi Wambugu- daughter
c. Jacob Ngunyi Wambugu- son
d. Joy Muthoni Wambugu- daughter
e. Stephen Njeru Wambugu- son
3. They aver that they were not involved in the succession proceedings, as at the material time they were both residents in South Africa. The 2 nd Applicant was a minor at the time of the proceedings leading to the issuance of the grant and its confirmation. The documents that were lodged in support of the Petition for grant and for confirmation are both forgeries. The 1 st Applicant denies signing the documents; viz, consent to making of Grant of Administration intestate to a person of equal or lesser priority; consent to confirmation of Grant of Letters of Administration; consent to mode of distribution of the Estate. It is averred that the Administrators forged all these documents.
4. They also seek to have the grant revoked as the 1 st respondent has allocated a disproportionate share to herself, and trusts were created when, in fact, the beneficiaries are adults. The 1 st Respondent made false representations with regard to the bulk of the estate by alleging that the properties had been sold off, and yet she had transferred some to herself in 2008.
5. They challenge the authenticity and validity of the Power of Attorney as the same is not executed by him, and neither is it registered as required. On account of the conduct of the administrators, they have reasonable apprehension that they will continue to dispose of the property unless they are injuncted.
6. It is submitted that the administrators are not fit to administer the estate on account of these failures. Ultimately, they seek that the grant be revoked; they aver that unless the grant is revoked, the beneficiaries (the applicants and their sister Joy Muthoni Wambugu will suffer irreparable harm and damage.
7. The Beneficiary, Joy Muthoni Wambugu, has sworn a replying affidavit in which she states that she is in alignment with the applicants and seeks that the grant be revoked.
8. The 2nd respondent, Faith Njambi Wambugu, has sworn a replying affidavit on 18th September 2017. She deposes that the application is misconceived, incompetent, and an abuse of court process. She states that the issues raised in the summons are similar to those raised in the application of 6 th June 2016, presented by Joy Muthoni Wambugu. She counters and states that the applicants were well aware of the proceedings leading to the issuance of the grant and its confirmation. As evidence, she has attached communications she states are between the 1st applicant and the advocates on record. That the consents required at both stages were forwarded to him, and he executed and returned the same.
9. She states that the majority of the properties were already sold by the deceased, and the administrators transferred them to the purchasers after the grant was confirmed. The land was transferred to the 1st administrator solely to facilitate its transmission to the purchasers, Railway Housing Cooperative Society. She has attached letters dated 21st June 1999 (from Railway Housing Co-Operative Society to Horizon Adventures Limited); letter dated 3rd June 2005 (from Horizon Adventurers Ltd to Rahoso-Kenya Railways); and a letter dated 3rd October 2005 (from M/S Muthoga Gaturu & Co to Chairman Railways Housing Cooperative Society Limited) as evidence of these transactions.
10. She asserts that the applicants and Joy have received their respective shares of the assets. She claims that the property in Donholm is owned by the first administrator and is therefore not part of the estate. Additionally, she states that only two properties remain unadministered (Deceased share of KJD/KITENGELA/5422 and KJD/KITENGELA/9580), which are subject to the Summons for Rectification of Grant dated 10th December 2012, currently pending.
11. The respondents have sworn a further affidavit dated 4th July 2018. They reiterate that the grant should be revoked and state it was not possible for him to have been in Nairobi to execute a document when he was away in South Africa. They point out apparent contradictions regarding properties transferred to the Railways Sacco. They also note there is no evidence to support the claim that the properties had been sold at the time of the deceased’s death. Their search certificates show that the administrator continued to sell the properties even after the deceased’s death, up to 2017.
12. The included search certificates are-
a. KAJIADO/ KAPUTEI-NORTH 6068 ; search on 6 th December 2017, registered owner Patrick Kinyanjui Muriuki- registered on 23 rd September 2016.
b. KAJIADO/ KAPUTEI-NORTH 5993; search on 6 th December 2017 registered in the name of Mirera Cornelius Gisaino on 18 th January 2017
c. KAJIADO/ KAPUTEI-NORTH 5942; search on 6 th December 2017, registered in name of Alice Kwamboka Bosiro on 20 th July 2016 and later to Zakary Byron Aoko Asiago on 21 st July 2017.
d. KAJIADO/ KAPUTEI-NORTH 6059 search on 6 th December 2017; registered in the name of Samuel W Ngunyi on 6 th April 2000
e. KAJIADO/ KAPUTEI-NORTH 11930 search on 6 th December 2017 registered in the name of Samwel Wambugu Ngunyi on 24 th October 2001
f. KAJIADO/ KAPUTEI-NORTH 6060 search on 6 th December 2017
Registered in the name of Samuel Wambugu Ngunyi on 17 th December 1998.
g. proposed subdivision of KAJIADO KAPUTEI NORTH 3005 as indicated in letter dated 11 th February 2004 from Sambo Properties, addressed to Land registrar Kajiado District, 2004, in which the deceased was to get properties LR 15122;15127;15128;15129;15130; 15142; 15218; 15219;15220;15138 and 15187 and Memorandum of Understanding as evidence of purchase of LR No. Kajiado/ Kaputei North / 3005 by Sambo Properties Limited.
13. He avers that the administrators did not include the interest of the deceased in the following companies.
a. Sambo Properties- 300 shares as per CR12 103243 dated 24 May 2018
b. Horizon Adventures Limited- 500 shares as per CR12 CPR/2010/1895 dated 4 th June 2018
c. H.A.L Turbo proprietor
14. The applicants have, in addition, sworn a further affidavit on 6th December 2019, and reiterated that the administrators failed to disclose all the assets of the estate. Additional searches include-
a. KAJIADO/ KAPUTEI-NORTH 5995 search on 6th December 2017
Registered in the name of Grace Mudola Magunga on 17th September 2009.
b. KAJIADO/ KAPUTEI-NORTH 6007 search on 6th December 2017
Registered in the name of Washington Omondi Oganga on 30 th November 2011.
c. KAJIADO/ KAPUTEI-NORTH 6066 search on 6th December 2017
Registered in the name of Lucy Kemunto Onyonka on 30 th November 2011
d. KAJIADO/ KAPUTEI-NORTH 6071 search on 6th December 2017
Registered in the name of Aggrey Sitati Maraka on 27 th October 2011
e. KAJIADO/ KAPUTEI-NORTH 5952 search on 6th December 2017
Registered in the name of Samuel Wambugu Ngunyi on 17th December 1998.
f. Further, that the deceased did not disclose the policy taken out by the deceased as evidenced in the communication attached: AAR Membership No. C161031
15. It is further claimed that the administrators failed to disclose that the deceased had acquired an interest in Kahawa Sukari Limited as per the Land Sale Agreement dated 3rd May 2021.
16. The First Respondent/Administrator has sworn an affidavit dated 11th March 2019. She states that the applicants were properly informed about the proceedings concerning the issuance of the grant and its confirmation. She reconfirms the 2 nd Administrator’s claims that some of the properties had already been sold by the deceased and that she had them transferred into her name to facilitate their transfer to the buyers.
17. She states that some of the estate funds were used to support the applicants while they were in school and dependent on her. She has provided the bank accounts from which she claims they accessed the money. She transferred Kajiado/Kaputei North 8905 to Jacob Ngunyi; he sold it. She transferred Kajiado/Kaputei North 14768 to Joy Muthoni Wambugu; she sold it. She transferred Kajiado/Kaputei North 8907 to Stephen Wambugu; he has sold it.
18. She has had to settle debts left by the deceased and has accrued legal fees due to cases filed against the estate and an inquest into the deceased's death.
19. She states there are only two assets that are awaiting administration.
20. The matter proceeded by viva voce evidence.
21. PW1- Jacob Ngunyi Wambugu - he is a son to the deceased. His affidavits on record were admitted as evidence in Chief.
22. As applicants, they seek to be appointed as administrators so that they can conduct a forensic audit of the estate. They claim that the Respondents have been unable to audit the accounts and that they wish to secure the properties in their father’s name, as the Respondents are selling properties.
23. The 1 st Applicant attested that the process of obtaining the grant was defective and that the summons for confirmation of the grant is dated 27.11.2006, while the consent to the confirmation is dated 2007.
24. Further, there is fraud, as the attached letter of 1999, the Railways Sacco wrote to the deceased confirming receipt of letters and payment.
25. That, three months after the death of the deceased, the first Respondent wrote to the Sacco stating she had the documents in safekeeping and was awaiting payment, the narrative being that the properties had already been purchased by the Sacco.
26. This is fraudulent because, seven years prior to the father's death, the Sacco had confirmed that the deal was closed, which contradicts the 1st Respondent’s averments.
27. That the Applicants conducted a search in August 2017, which showed that the properties were still in the deceased’s name.
28. Additionally, the Respondents did not disclose that the deceased held a 50% share in Horizon Adventures Ltd, was a 30% shareholder in Simba Properties, and owned Hall Turbo Systems. They also failed to disclose the bank accounts he maintained with the 1st Respondent and the accounts of companies where he served as a director. Furthermore, he stated that, to date, the Respondents have not provided the books of account.
29. The 1st Respondent resides in the US, and the estate is situated in Kenya. Therefore, the Applicants seek appointment as administrators, as they have disclosed accounts that have never been provided, necessitating contempt proceedings.
30. On cross-examination, the 1st Applicant stated that he is 46 years old and that at the time of his father’s death, he was 27 years old, while his brother, the 2nd Applicant, was 16 years old. He added that at the time of the demise, he was in South Africa, having relocated in 1999, whereas the 2nd Applicant was attending St. Mary’s High School.
31. The documents filed with the summons are not the ones he signed. The administrators informed him of their intention to initiate the succession process (referencing the 2nd Respondent’s affidavit of 18.09.2017 and email dated 08.07.2005). The 1st Applicant confirms he received this email as well as the email of 14.07.2005.
32. That at the time of signing the documents, he was not aware that the documents were meant to support the petition, and these documents suggest he was in Nairobi at that time, which he claims is not true.
33. He refers to the supporting affidavit of 06.07.2017, his subsequent affidavit of 04.07.2018, and his subsequent affidavit of 05.12.2019, and states that he has not attached the consents he signed, which are different from the consents presented in Court.
34. He also states that he attended his father’s funeral and then returned to South Africa, but then moved back home permanently in February 2010. He denies being deported from South Africa and claims that he returned home voluntarily.
35. Additionally, the email dated 26.10.2006 clarifies the purpose of the confirmation, but it did not reveal the nature of the succession proceedings to him.
36. He submitted his application in 2017, which is when he gained access to documents he had never seen before. The 2nd Respondent was unable to answer questions related to the estate, specifically, that he sought clarification on plots he learned his father owned in Kitengela.
37. On the power of attorney, which he confirmed he executed together with the 2 nd Applicant on 04.03.2009 while they were both in South Africa.
38. He confirmed he was aware of communication with Eric Luarele and the email of 30.01.2007, in which he explained that he and his brother live in different states.
39. He confirmed he understood that the applicants wished to transfer their father's properties to those who had bought them before his death.
40. In their affidavit dated 05.12.2019 (paras 11-12), it was shown that properties were transferred to Railways Sacco, including plots initially owned by the 1st and 2nd Applicants. The administrators initially provided a list of 48 properties, of which 3 were allocated to the 1st Respondent, and the Applicants sought clarification on these. In para 14, it is stated that the properties were sold after confirmation. The 1st Applicant has circumstantial evidence suggesting they were sold following the deceased’s death. Regarding para 27, the 1st Applicant states that the person who provided that information has since passed away. In para 25, the 1st Applicant claims he does not have proof of the payment. Para 23 includes an interim financial statement of Simba Properties; the 1st Applicant testifies that the document is neither signed nor stamped for authentication and that they found it in their father’s office. It also refers to para 16, which states that a parcel of land was subdivided and the plots sold.
41. That the 1st Applicant lives in the family home in Kitengela, which is situated on Kajiado/Kaputei North 8906 and is registered in the name of the 2nd Respondent, the 1st and 2nd Applicants, along with his brother. Before her departure to the US, the mother also resided there. Referring to para 10, the 1st Applicant denies threatening the mother with death.
42. He further testifies that he is not aware of his mother filing an application for rectification of grant seeking to include properties that had been omitted. However, he states that the Applicants have not been provided with the details of the properties (they do not know the LR numbers) nor have they been instructed to carry out searches. In the affidavits, the Applicants did not include the details of the parcels for which they were unable to conduct searches.
43. On re-examination, the 1st Applicant confirmed that he has never been appointed as an administrator of the estate, but he understands the duties of an administrator, which include presenting all properties to the Court.
44. The consents attached to the summons are not the same as the ones he signed in South Africa, as the summons states he signed them in Nairobi. He claims this is false, and also states that none of the documents is notarised.
45. That Simba Properties (a real estate company) and Horizon Adventures (the main trading company) belonged to the deceased and that both owned extensive parcels of land, yet they have not been included in the summons as assets.
46. Further, that the Applicants have not had access to or details of the accounts of the deceased and that his father’s managers have informed him that there are properties not included in the petition.
47. That the Applicant is unaware of any application to have his brother’s fees paid, and in any case, the estate exceeds the value of the fees. Furthermore, this would not affect their inheritance.
48. That the Applicants were each given single plots- 1 st Applicant received a 1-acre plot; 2 nd Applicant ¾ acres.
49. That the Applicant is aware that the Respondents consent to rectifying the consent to include additional properties, and that the summons was disallowed.
50. RWI ILEEEN MAITHA WAMBUGU She is the 1 st Respondent, the wife of the deceased and mother to Jacob, Faith, Stephen and Joy. She currently resides in Washington State, U.S.
51. Her affidavit, sworn on 11th March 2019, was admitted as her evidence in chief. Both the applicants and the beneficiary, Joy, were aware of the succession proceedings, that Jacob was in South Africa, that Joy indicated she was busy at Kenyatta University, and that Stephen was a minor. They all agreed that Faith should take charge and jointly apply for letters of administration with her. She kept all of them informed of the succession proceedings contrary to their protestations.
52. The deceased used to buy and resell properties and dealt with Cooperative Societies, such as the Railway Cooperative Society, which purchased the properties. At the time of his death, some of his properties had not been transferred to the individual owners. After she obtained letters of administration, she signed transfers of the parcels to the buyers, and the Cooperative held the titles until the shareholders completed payment.
53. That regarding the letters dated 21.06.1999 and 03.06.2005, the 1st Respondent states that she was given these letters by the Cooperative Society and that it informed her that the deceased had been paid in full. She did not conduct any transactions after the deceased's death.
54. Furthermore, during his lifetime, the deceased sold the land and fulfilled his part of the sale agreement, leaving the rest with the Cooperative Society to complete their part. She did not participate in her husband’s businesses, which were usually run solely by Horizon Adventures. She was a shareholder in Horizon Adventures.
55. Referring to paragraph 6 of the affidavit, the 1 st Respondent avers that the properties are the homestead and that the other 2 are undeveloped. That she distributed 1 parcel to the 1 st and 2 nd Applicants and retained the homestead until the 1st Applicant threatened her and demanded that she register it to the 1st and 2nd Applicants and the 2nd Respondent, which she did.
56. She used to communicate well with the 1st Applicant while he was in South Africa, but he accused her of killing his father and demanded his share of the inheritance.
57. Referring to paragraph 9 of the affidavit, the 1st Applicant was deported from South Africa for forging a passport, was imprisoned in Durban (Richard Bay), and she bailed him out by transferring money to the 2nd Applicant’s account. The 1st Applicant fled South Africa through Zimbabwe, and both he and the 2nd Applicant live in her houses in Donholm. The Donholm home was her property and not in the deceased’s name.
58. The 1st Respondent asserts that she was a partner in H.A.L Turbo Systems with the deceased; that the deceased was a shareholder of Simba Properties alongside three other individuals. She states that the directors of Simba refused to include her in the deceased’s estate and that she was hesitant to oppose this, as her husband had died under unclear circumstances. Furthermore, she claims that H.A.L did not possess any assets.
59. That she travelled to the US in July 2015 and that the beneficiary Joy filed a case against her when she was in Kenya, challenging the distribution of the estate and seeking that she and the 2 nd Respondent be committed to civil jail.
60. She applied to rectify the grant but that application has not been heard
61. On cross-examination , she confirmed that she understands that the estate belongs to all beneficiaries and that it is within the right of the Applicants to require accountability on how the estate is administered.
62. She stated that she and her Co Administrator had filed the accounts as directed.
63. That she is aware that the Applicants have conducted searches on the company registry and that the companies that belong to the estate are Horizon Adventures (which at the time of the deceased held no properties) and Simba Properties (to which the deceased was a shareholder) both of which are land buying and selling companies.
64. She concedes that the Respondents did not include the two companies in the grant and that she is aware she ought to have. She explains she did not include Simba because she had been threatened not to by the managing director. Additionally, she states she only included properties she was able to manage. She also admits that she did not mention the threat in her affidavit.
65. That at the time of the deceased’s death, the company Horizon Ltd held no properties in its name and that the properties were in the name of Samson Wambugu.
66. She avers that she never received any payments for land, and that all payments for land were made to the deceased but that she does not know the account the money was paid to.
67. She further conceded that she did not include the bank accounts as they had no funds.
68. Referring to the letter dated 14.09.2005 addressed to Horizon Limited requesting the 1 st Respondent to give a bank account, the 1 st Respondent states that she had no knowledge of bank accounts and that it was the deceased who totally managed the company.
69. Regarding the policy with AAR, she states that she did not include this in the succession properties.
70. The 1 st Respondent contends that she was appointed Administrator by the other beneficiaries and that she objects to the Applicants being appointed as administrators.
71. That the properties, each measuring 1/8 th , allocated to the 1 st Respondent had been sold and that none of the properties devolved to the Applicants, rather they devolved to her.
72. That at the time of death of the deceased, the properties had been sold and that there was no sale agreement- that all transfers happened after the death of the deceased, as all the properties had already been sold.
73. The 1 st Respondent testifies that she transferred 4 properties to the 4 children/beneficiaries and that each received 1 and ¼ acres.
74. She pleads that the 1 st Applicant was not on scholarship, as she was paying his fees and that she did not provide statements, she has a bank account that will show this.
75. She further claims that at the time of the deceased's death, the Applicants were minors and that the 1 st Applicant was in South Africa when he signed the consent. That the 1 st Applicant was in Kenya at the time of confirmation of grant- that he was in South Africa at the time of distribution of the estate.
76. She states that her affidavit was notarised by an advocate in the US.
77. Regarding the documents about Simba Properties filed by the 1 st Applicant, the 1 st Respondent states that the documents are not authentic and that they do not come from the company as they have not been signed by the directors. These documents were filed after her reply. She concedes that she has not raised the issue of the documents' authenticity prior to this.
78. She avers that she is not aware of the payment of kshs.17million to the deceased and that she did not take any action to follow up.
79. The 1 st Respondent states that it is the Railways Cooperative Society that bought the property and that there is a sale agreement being held by the Cooperative and that she was not provided with the same.
80. On further Cross-examination, she stated that the co-administrator filed accounts in court, but that she is not certain about which accounts were filed in Court.
81. She avers that she is a signatory of one of the accounts of Horizon Limited but that she was not involved in the running of the company.
82. That she is only aware of the purchasers of the property, who are not before the Court, and that they have the sale agreements.
83. The 1 st Respondent avers that she gave the 2 nd Respondent 1 acre; the 1 st and 2 nd Applicants 1 and ½ acres each and retained 1 acre. That this 4-acre plot of land was the only property available for distribution.
84. That Joy, is not noted as a beneficiary as the remaining share was the matrimonial home that belonged to the 1 st Respondent and she therefore had a right to allocate it to anyone as they had gotten their respective shares. Further, that is not true that there was a property she was holding in trust for Joy neither is it true that she sold the alleged property without Joy’s consent.
85. That at the time of the deceased’s death, the 1 st Respondent was educating Joy, who was in Kenyatta University undertaking a diploma and later a degree.
86. She further contends that she sold a family property for kshs. 17million and shared the proceeds with the family- with each child receiving kshs. 3million from the sale. Further reiterating that all properties registered in the deceased’s name, had been sold.
87. The 1 st Respondent states that there is no estate of the deceased as this has all been transmitted and that she leaves it to the Courts to determine whether or not other administrators should be appointed.
88. Regarding property Kajiado/Kaputei/North/6059, the 1 st Respondent avers that it was deposited at the land registry (and that Joy accompanied her to the registry and verified what was happening) and that she did not sell the property. That she later heard that the registrar had been found with the title in his car. That one, Mr Kariuki, sold the property to offset medical bills, and she signed the transfer. That she did not inform the beneficiaries of this, as the property was under the Railways Cooperative Society.
89. On re-examination, she reasserted that she had consulted the entire family before applying for letters of administration with her firstborn daughter Faith, and that the other beneficiaries had excused themselves, except for the second applicant, who was a minor at the time.
90. She refers to the affidavit sworn on 18.09.2017 by the 2 nd Respondent and the attachment marked FNN 1 which shows that the 1 st Applicant participated. That she was in communication with the 1 st Applicant, as he was in South Africa, and that documents were sent to him via DHL, and that he consented to her being an administrator.
91. That the confirmation has a list of 62 properties (land parcels in Kajiado/Kaputei/ North) and that all of the properties were in the deceased’s name except for one under the family.
92. The 1 st Respondent testifies that the chairman of the Railway Cooperative Society indicated that they had already paid for the properties and that the deceased had acknowledged receipt of the money. It is the 48 properties in the letter dated 21.06.1999; not all the properties in the certificate had been sold.
93. That the properties had been sold 6 years earlier and that the letter is addressed to Horizon because Horizon and the deceased are one and the same person. As stated, she was not involved in the sale or the running of the company and the deceased kept all documents, as she was a silent director.
94. The 1 st Respondent reiterates that she distributed what was available for distribution i.e. item 51 to the 1 st Applicant; item 53 to the 2 nd Applicant, a parcel to herself and a parcel to Joy (itemised in para 11)
95. That as mentioned, she had been threatened by the managing director of Simba properties and feared to go against him as the deceased had been murdered- an inquest was done in Machakos, and she had participated in the proceedings.
96. The 1 st Respondent avers that after filing the initial summons, she sought to rectify the grant to include properties that wereexcluded. That after filing this application (dated 12.12.2012) the Applicants challenged her in Court but did not give her any additional properties they felt should be included. And that had they done so, she would rectify the grant again to include them.
97. Regarding parcel Kajiado/Kaputei/North/6059, that this was in the deceased’s name and that she, Joy and the 2 nd Respondent were aware of the investigations. Further, that the Applicants were not aware.
98. That application dated 05.12.2019 reveals that the property was in the in the name of Samuel Ngunyi thus they are part of the estate to be distributed.
99. RW2 Faith Wambugu , daughter to the deceased and the 2 nd Administrator. Her affidavit, sworn on 18.09.2017, was admitted as her evidence in chief. The Grant was obtained on 27.03.2006, which was confirmed on 26.03.2007.
100. Prior to this application for revocation, the beneficiary, Joy, filed an application charging the Respondents with contempt and seekin
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