David Gachura Mukunu v Jackline Mbithe [2016] KEHC 5562 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CIVIL SUIT NO 2 OF 2014

DAVID GACHURA MUKUNU                                                                                 

(Suing as the administrator of the estate of PETER WACHIRA GACHURA- Deceased)...................................................................PLAINTIFF

Versus

JUDGMENT

[1]        The Plaintiff seeks for the following orders in his Amended Plaint dated 18^thMarch, 2014:-

(a)    A declaration that the purported family agreement of 14.01.2014 is unlawful an initio, unenforceable, null and void for all intents and purpose;

(b) A permanent injunction restraining the defendant, her family members, representatives, employees, servants, agents and anybody else acting or claiming for, through or on her behalf or at her direction, instructions or behest, from accessing, receiving and/or appropriating any benefits such as, but not limited to KENYA POLICE SACCO shares, NSSF benefits, gratuity, pension and or other benefit(s) or property(ies), (sic) whether movable or immovable, comprising the intestate estate of the late PETER WACHIRA GACHURA, who died on 11.01.2014;

(c)        Costs of the case plus interest thereon at court’s rates.

[2]      The Plaintiff filed witness statements, documents and also tendered oral testimony. I shall consider the facts as borne out in the evidence tendered by the Plaintiff. The Defendant filed Defence dated 30^th May 2014, documents and witness statements in support of her defence, but she did not offer any oral testimony. I shall, nonetheless, consider the defence at a later stage. Meanwhile, let me give a brief account of the case.

Brief facts of case

[3]    The Plaintiff claims that he is the biological father of the deceased. He avers that the deceased was never married during his lifetime, and had no children. He laid specific claims; that the deceased neither lived nor cohabited with the Defendant at any time during his lifetime. Therefore, the Defendant is a stranger to the estate of the deceased. He alleged that the Defendant upon a pretext of sympathy and to assist with the escalating mortuary charges deluded him into signing a document before an advocate on or about 14.01.2014. He pleaded that, at the time of signing, he knew not of the contents of the said document. He came to learn of the contents much later after his grief had subsided; and to his shock, the document recognised the Defendant as the widow of the deceased and gave her entitlement of ½ of the estate of the deceased. According to the Plaintiff, the Defendant presented herself to the O.C.P.D., Kajiado on 20.01.2014 and 27.01.2014 and claimed to be the widow of the deceased and requested that the deceased’s SACCO benefits be given to her. The Plaintiff views these acts by the Defendant as greed and yearning for unjust enrichment at the expense of the beneficiaries off the estate of the deceased, hence this suit.

Plaintiff’s evidence

[4]   The Plaintiff testified on 25^th November 2015 and called one other witness, Janet KarimiGachura, his wife. He produced all the documents that he filed in court including his witness statement dated 28^th January 2014. He insisted that the deceased was never married leave alone to the Defendant. He stated that the Defendant duped him into signing the purported agreement dated 14^th January 2014 which declared her to be the widow of the deceased and also gave her ½ share of the estate property. He claimed that he did not know what the contents of the said document as they were not read over to him. His case was that at the time of the signing of the agreement in issue, he was still in shock and grief over his son’s death. He said his main reason for signing was because he had been told that the document would facilitate the release of his deceased son’s body from the mortuary and avoid the escalating mortuary costs. On this basis he signed the document. In his statement, the Plaintiff stated that he learnt of the illegal actions of the Defendant when he went to surrender the limited grant of representation in order to obtain the death certificate of the deceased. At that time, the Defendant in collusion with other police officers at Kajiado was working hard and stealthily to obtain the SACCO shares, death gratuity and pension belonging to the deceased.  He, therefore, asked the court to declare the said document null and void and unenforceable. PW2 also produced her statement filed in court on 28^th January 2014 which corroborated what the Plaintiff stated in court and in his statement. She averred that she is the mother of the deceased. She also asserted that the deceased was ill for a long time and the Defendant did not at any one time visit him in Hospital. PW2 stated that the Defendant was not the widow of the deceased and so she did not even feature anywhere in the eulogy. She supported the Plaintiff’s case.

The Defendant adduced no evidence

[5]        Despite having been served with Notice for the hearing, the Defendant did not attend court on25^th November 2015. Accordingly, neither the witness statements nor the documents she had filed were produced in evidence. In her defence, she denied all the allegations in the plaint and averred that she got married to the deceased in 1997 after which they cohabited together at Kajiado. She pleaded that family members apart from the Plaintiff, his wife and some family members regarded the couple as husband and wife. The Defendant in the Defence pleaded that the agreement in issue was reached after a meeting between the parties- the contents thereof merely reflected the agreement of the parties.  She therefore, concluded in her pleading that the Plaintiff was aware of the document he was signing and he signed it voluntarily. She asked the suit to be dismissed. But, the tragedy is that these averments were not backed by evidence as none was adduced by the Defendant.

Analysis of evidence and decision      

[6]        The single most important issue before me is whether the agreement dated 14^th January 2014 is a valid agreement. The Plaintiff adduced evidence that the said agreement was as a result of deception and delusion by the Defendant that it was to be the enabler of quick release of the body of the deceased to the Plaintiff for burial. That evidence is not controverted by the Defendant. I note that the benefits in issue are shares in Police SACCO, gratuities and pension from the Kenya Police. And in light of these facts, there is one thing that is really perplexing the mind of the court. Would parties enter into an agreement to share out such benefits without reference to the relevant laws governing payments of such benefits? I am aware that benefits such as shares, gratuity as well as pensions in Kenya Police Reserve and the Police SACCO are governed by Co-operative Societies Act, the SACCO Societies Act and the Retirement Benefits Act. These Acts of Parliament sets out how the benefits are paid out and to whom. In case of statutory nomination the benefits are paid out by the relevant authority established in the respective Act to the nominee of the deceased member or to such other person who appears to be the personal representative of the deceased member. For instance, see section 39 of the Co-operatives Societies Act. In case of retirement benefits, the nomination merely signifies the intention of the deceased contributor but thetrustees make the decision to pay and pay out the benefits to the nominee of the deceased contributor or to such other person who is the personal representative of the deceased contributor. In other cases, such as insurance the benefits are paid to the personal representative of the deceased. See the case of BENSON MUTUMA MURIUNGI vs. C.E.O. KENYA POLICE SACCO and ANOTHER [2016] eKLR.               

I am conveying a judicial hint; that, the echo of the sense of the law is that, neither the Plaintiff nor the Defendant was competent to share out the benefits of the deceased or enter into the agreement dated 14^th January, 2014to that effect. It matters not whether the agreement was entered into voluntarily or upon delusion. The said agreement was wholly void and of no legal effect. Accordingly, I declare it to be null and void. In addition, as the Plaintiff is a holder of a limited grant of administration ad litem in respect of the estate of the deceased, a permanent injunction against the Defendant is deserved and I grant it. I should state, however, that letters of administration ad litem are limited to the particular acts which are specified in the grant and the administrator can perform only those acts. Therefore, the Plaintiff, as a holder of letters of administration ad litem to the estate of the deceased can only collect, preserve and protect the property of the deceased. He may also suit on behalf of the estate. But, needless to state that he does not have the power to distribute the estate either to himself or to any other person using the limited grant of letters of administration ad litem.For these reasons Iissue the following specific orders:-

(b)  A declaration that the purported family agreement of 14.01.2014 is unlawful ab initio, unenforceable, null and void for all purposes and intents;

(b)   A permanent injunction restraining the defendant, her family members, representatives, employees, servants, agents and anybody else acting or claiming for, through or on her behalf or at her direction, instructions or behest, from accessing, receiving and/or appropriating any benefits such as, but not limited to KENYA POLICE SACCO shares, NSSF benefits, gratuity, pension and or other benefit(s) or property, whether movable or immovable, comprising the intestate estate of the late PETER WACHIRA GACHURA, who died on 11.01.2014;

(c)     Unless otherwise provided in any written law, the Plaintiff shall collect, preserve and protect benefits due to the estate of the deceased, and account to court in respect thereof;

(d)    For purposes of (c) above, the Petitioner shall apply for full letters of administration of the estate of the deceased within 30 days hereof. Meanwhile, this case shall be mentioned on a date I shall appoint; and

(e)      Costs of the case to be paid by the Defendant.

Dated, signed and delivered in open court at Meru this 28^th day of April 2016

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F. GIKONYO

JUDGE

In the presence of:

Mr. Kariuki advocate for Carlpeters  advocate for plaintiff

Mr. Ndettoh advocate for defendant –absent

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F. GIKONYO

JUDGE