3rd & 4 others v Peter Mwangi Karanu & 5 others

TERESIA NYAMBURA ……………………………….. 3RD RESPONDENT RULING 1. This succession cause relates to the estate of Waweru Njuuri alias Waweru Njuri who died on 4th October, 1975. 2. His widow Lydia Wanjiru Waweru (deceased) and his son Peter Ndichu Waweru were issued with a Grant of Letters of Administration intestate. 3. Thereafter, Maria Nduta Waweru (deceased), the eldest daughter of the deceased, applied to revoke the Grant on the grounds that she had not been consulted and her consent had not been obtained. 4. This ruling concerns two applications. 5. The first application, dated 1st August, 2024 is brought by Peter Mwangi Karanu. It seeks to amend the Grant to substitute Maria with her eldest son, Peter Mwangi Karanu. In the supporting affidavit, Peter Mwangi Karanu states that he is acting on behalf of himself and his siblings, Samuel Kimani Waweru and Teresia Nyambura, who are the children of the late Maria (deceased coadministrator and beneficiary). SUCCESSION 2303 OF 2004 2

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6. Peter Mwangi Karanu further seeks that he be permitted to hold the portion in the subject property that is intended for Maria in trust for himself and his stated two siblings. 7. Peter Ndichu Waweru, the surviving administrator, filed a replying affidavit opposing the application dated 1 st august, 2024. He stated that the consent to the appointment of the late Maria as a co-administrator was given by their counsel without their knowledge or instructions. 8. Further, he contests that there is no revocation order in place and argues that the Certificate of Confirmation of Grant dated 30th June, 2004 is the only valid mode of distribution. 9. The second application is dated 27th September, 2024 brought by Peter Ndichu Waweru, Edith Wanjiku Gachoya and David Mwaura Waweru. It seeks review of the ruling delivered on 20th July, 2017. The Applicants argue that the ruling and disposition are contradictory and incapable of execution, and that the ruling would lead to a parallel SUCCESSION 2303 OF 2004 3

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Grant and therefore lead to confusion in the transmission of the estate. 10. Peter Mwangi Karanu, the Applicant in the first application, filed a response to the second application and argued that the Applicants ought to have appealed rather than filing the present application. 11. I have considered the arguments presented by the parties. The issues for determination are as follows; a. Was the Grant issued to Lydia Wanjiru Waweru (deceased) and Peter Ndichu Waweru revoked? b. Did the Court in the ruling of 20 th July, 2017 distribute the estate? c. Is there justification for reviewing the ruling delivered on 20th July, 2017? d. Can Maria Nduta Waweru (deceased administrator) be substituted with her son Peter Mwangi Karanu? e. Can Peter Mwangi Karanu hold the portion of the estate that was vested in Mary Nduta Waweru in trust for himself and his siblings? SUCCESSION 2303 OF 2004 4

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12. On 20th July, 2017 Hon. Justice Muigai delivered a ruling on the summons for revocation of Grant dated 27 th July, 2004 filed by late Maria. The Court determined that the petitioners had indeed failed to involve Maria in the proceedings to obtain the Grant. 13. The Court observed that the parties had entered into a consent on 8th February, 2012, that Maria be appointed a co-administrator of the deceased’s estate, and therefore held that the application for revocation of Grant was compromised by the consent. The Court allowed the application and ordered that Maria be appointed a coadministrator. The Grant was revoked, and therefore, the valid Grant in this estate is the one issued on 20 th July, 2017 to Lydia Wanjiku Waweru, Peter Ndichu Waweru and Maria Nduta Waweru. 14. Regarding distribution of the sole asset – Githunguri/Kimathi/130, the Court observed that the 1st house had relinquished their claim to the suit property and determined that Maria’s proposal on distribution was the most fair and equitable. SUCCESSION 2303 OF 2004 5

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15. The proposal and the subsequent order specify the method of distribution as follows; Peter Ndichu - 0.88 Ha David Mwaura - 0.88 Ha Maria Nduta - 0.88 Ha. 16. In the ruling, therefore, the Court issued a new Grant and also determined the mode of distribution. Is there justification for reviewing the ruling delivered on 20th July, 2017? 17. After reviewing the evidence, the Court in the ruling delivered on 20th July, 2017, determined that the late Maria had presented adequate grounds to warrant the revocation of the Grant. The Court expressly stated in the disposition that the application had been allowed. However, it concluded that the remedy had already been established by the consent designating the late Maria as a co-administrator. 18. The Applicants in the second application contend that the ruling and the disposition are contradictory. Upon examination of the Applicants’ arguments and a review of the Court’s ruling, I find no glaring errors on SUCCESSION 2303 OF 2004 6

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the face of the record that would necessitate a review. In the previous paragraphs, I have outlined the outcome of the ruling. The proceedings of 8th February, 2012 indicate that 19. the consent was presented and adopted in the presence of counsel representing all parties involved. Two applications to set aside the consent - one dated 24th May, 2012, and the other dated 9th November, 2012 - have since been withdrawn. To date, therefore, no evidence has been submitted to demonstrate that the consent was not validly agreed upon. 20. Upon consideration, I find no introduction of new evidence, nor is there any error on the face of the record. Additionally, no substantial justification has been presented to warrant review of the orders issued on 20 th July, 2017. 21. The Court revoked the Grant and issued orders of distribution of the estate. The Applicants are asking this Court to reassess the merits of the decision, arguing that the mode of distribution is unfair, a course of action that falls beyond SUCCESSION 2303 OF 2004 its purview, as this Court lacks the 7

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jurisdiction to sit on appeal from a decision rendered by a court of concurrent jurisdiction. The assessment of merit is strictly within the purview of the appellate Court. 22. Can Maria Nduta Waweru (deceased administrator) be substituted with her son Peter Mwangi Karanu? And can Peter Mwangi Karanu hold the portion of the estate that was vested in Mary Nduta Waweru in trust for himself and his siblings? 23. Peter Mwangi Karanu, while claiming to represent the interests of the beneficiaries of the late Maria’s estate, has not obtained Letters of Administration necessary to confer upon him the legal standing to act on behalf of her estate. Although he and his siblings have a rightful claim to benefit from her share, they cannot seek to substitute her in the absence of such Letters of Administration. The portion also cannot be vested in him in trust without the said letters. This does not imply that the portion allocated to the late Maria is void; rather, it continues to exist for the benefit of her estate. 24. The High Court has jurisdiction under the provisions of Section 47 of the Law of Succession Act and Rule SUCCESSION 2303 OF 2004 8

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73 of the Probate & Administration Rules to issue such orders and decrees as may be expedient and necessary for the ends of justice and to prevent abuse of the Court process. 25. Following the death of Lydia and Maria (co- administrators), Peter Ndichu Waweru is the surviving administrator. Succession Under Act, all Section 81 powers and of the Law of duties of the administrators shall vest in the surviving administrator upon the death of one or more of the administrators. 26. Peter Ndichu Waweru shall remain as the administrator. The Court, in the ruling of 20 th July, 2017, having determined the mode of distribution, a Certificate of Confirmation of Grant shall issue accordingly. 27. The administrator is directed to conclude the estate administration and transmissions within 120 days. 28. Parties are at liberty to apply if the administrator fails to perform the duties as an administrator. All incidental costs of the transmission shall be borne equally by the beneficiaries to whom the ruling vests the property. SUCCESSION 2303 OF 2004 9

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29. From the foregoing, this Court makes the following final orders; i. The application dated 1st August, 2024 is hereby struck out; ii. The application dated 27th September, 2024 is hereby dismissed; iii. No order as to costs on the two applications; iv. Peter Ndichu Waweru shall remain as the administrator of the estate of Waweru Njuuri alias Waweru Njuri; v. The Court, in the ruling of 20th July, 2017, having determined the mode of distribution, a Certificate of Confirmation of Grant shall issue accordingly; vi. Portions of the asset that are vested in deceased beneficiaries shall be indicated for the benefit of their respective estates in the Certificate of Confirmation of Grant; SUCCESSION 2303 OF 2004 10

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vii. The administrator is directed to conclude the estate administration and transmissions within 120 days; viii. Parties are at liberty to apply if the administrator fails to perform the duties as an administrator; ix. All incidental costs of the transmission shall be borne equally by the beneficiaries to whom the ruling vests the property. 30. Orders accordingly. DATED, DELIVERED and SIGNED at NAIROBI on this 31ST day of JULY, 2026. ……………………… SUCCESSION 2303 OF 2004 11

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C. KENDAGOR JUDGE In the presence of: Court Assistant: Beryl Ms. Wamaitha, Advocate for Applicants (Edith, David & Peter) SUCCESSION 2303 OF 2004 12

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