[2023] KEHC 24722 (KLR)

Asimba (Suing on Behalf of the Estate of Esau Asimba Agina) v Asimba (Family Appeal E004 of 2022) [2023] KEHC 24722 (KLR) (2 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24722 (KLR)

Republic of Kenya

In the High Court at Siaya

Family Appeal E004 of 2022

DO Ogembo, J

November 2, 2023

Between

David Otieno Asimba (Suing on Behalf of the Estate of Esau Asimba Agina)

Appellant

and

Joshua Nondwa Asimba

Respondent

(Being an appeal from the Ruling of Hon. M.O. Wambani, Chief Magistrate in Siaya Law Courts Succession Cause No. 78 of 2011 delivered on 18{{^th}} August 2022)

Judgment

1. The Applicant, the objector, being dissatisfied with the entire ruling of the Hon. M.O. Wambani, Chief Magistrate, Siaya Law Courts delivered on 18-8-2022 in Siaya CM’s court, Succession Cause No. 78 of 2011, has appealed to this court.

2. The appellant has listed the following grounds of appeal in the Memorandum of Appeal filed herein on 11-11-2022:1. That the learned Chief Magistrate erred in law and fact by finding that the appellant failed to provide any proof of the grounds under which a grant can be revoked.2. That the learned Chief Magistrate erred in law and fact by not finding that other beneficiaries were not present during the confirmation of the grant and the whole process of succession.3. That the learned Chief Magistrate erred in law and fact by holding that the appellant had not established the fact that the Respondent fraudulently obtained the grant of letters of administration dated 12-8-2011 and the Certificate of confirmation of grant dated 21-6-2012 and stopped at fraud without looking at other grounds of revoking grant.4. That the learned Chief Magistrate failed and misdirected herself and erred in law to understand that a party seeking to have a grant revoked must prove either, or all the grounds listed in Section 76 of the law of Succession Act.5. That the learned Chief Magistrate erred in law and fact by failing to consider that the names of the applicant together with other beneficiaries did not feature anywhere on the Certificate of confirmation other than the introductory letter by Assistant Chief dated 11-8-2011. 6.That the learned Chief Magistrate erred in law when she failed to understand that under Rule 26(a) and (2) of the Probate and Administration Rules provides; (reproduced).7. That the learned Chief Magistrate erred in law and fact by failing to consider that all beneficiaries did not give consent during confirmation of grant when under Rule 40(8) of Probate and Administration Rules, it is a requirement for summons for confirmation of grant to be filed together with Form 37 in which parties give consent to confirmation of the grant.8. That the learned Chief Magistrate erred by relying on the Respondents hearsay evidence to arrive at the impugned Judgment that the late Esau Asimba Agina, in compliance with Luo customary laws and traditions granted the Respondent, his last born son from his first wife all the suit land known as East Gem/Anyiko/108 being his homestead and the adjacent pieces of land.9. That the learned Chief Magistrate failed to consider that the distribution of the estate of the deceased was not equitably shared among all the beneficiaries.10. That the learned Chief Magistrate failed to consider that the interests of all the beneficiaries (survivors of the deceased) were not addressed or reflected in the Certificate of confirmation whereas they were all adults.11. That it was argued that in the Chief’s letter that deceased had 23 dependants but the Respondent had failed to disclose this to the court.

3. The appellant prays that this appeal be allowed by reversing and setting aside the Judgment entered on 18-8-2023 and that same be substituted with a ruling allowing the application dated 28-6-2021. Appellant also prays for costs of this appeal.

4. The Respondent opposes this appeal. This appeal was canvassed by way of written submissions.

5. From the appellant’s side, it was submitted that Section 76 of the Law of Succession Actgives grounds for revocation of a grant (Jamleck Maina Njoroge Vs Mary Wanjiru Mwangi [2015]eKLR. That the Respondent concealed material facts from court i.e. that the intestate estate comprised of homestead and the adjacent pieces of land which the deceased had beaconed and demarcated to the 3 wives, that the Petitioner took out the title deed of East Gem/Anyiko/108 as a whole when the 2nd wife (Mama Phoebe) was still alive, that he misled the court to believe that he got the smallest share while the parcel of land occupies, number 107, was allocated to him by the deceased, and lastly, that whereas the Respondent was apportioned 0. 6 acre for a homestead, parcel number 1357 was to be shared with his brother, something he has not done todate.

6. It was further submitted that deceased had intended that his 3 houses (wives) do share the property in the estate while the Respondent filed for succession without the knowledge of the other 2 houses. And that even the Siaya Land Disputes Tribunal in case number 27/2011 had ruled on the same. Counsel relied on Bungoma Succ. No. 89/2002, that courts should not uproot or remove widows from the spots where they had settled prior to the death of the deceased.

7. Also, that the other 2 houses were omitted in the grant dated 21-6-2022; whereas the Chief’s letter had listed all the 3 houses beneficiaries. And that the Affidavit in confirmation of the grant was therefore not signed by every other person entitled in the same degree or on priority over the Respondent.

8. It was further submitted that the consent to taking out grant of letters of administration was only signed by the sibling of the Respondent, John Agina, and not by others of equal in priority with the Respondent, contrary to Rule 26(a) and (b) of Probate and Administration Rules. Reliance was given of the case of Antony Karukenya Njeru Vs Thomas M. Njeru [2014]eKLR.

9. It was further submitted that the appellant never gave consent to the confirmation of the grant contrary to Rule 40(8), and none was filed in court. That the filing of the consent is a mandatory requirement (Estate of Ibrahim Ligabo Miheso[2020]eKLR, and so the proceedings leading to the confirmation were defective.

10. That the deceased Esau Asimba Agina, died intestate. The Respondent went on to obtain grant letters of administration and was issued with title deed to the whole of East Gem/Anyiko/108 at the detriment of other siblings and beneficiaries.

11. The appellant further submitted that daughters of the deceased, though entitle to inherit by virtue of Section 29(a), were left out altogether and contrary to the holding in Re Estate of Solomon Ngatia Kariuki[2008]eKLR, 8, and also Article 27 of the Constitution on non-discrimination. It was submitted that there would be no discrimination on the daughters also inheriting from the estates of their fathers (Peter Karumbi Keingati & 4 Others Vs Dr. Ann Nyokabi Nguthi & 3 Others [2014]eKLR, and Thomas Tito Nyachawo Vs Judith Akinyi Ndege[2016]eKLR.

12. That any custom which discriminates on the basis of gender goes against Article 27 of the Constitution and is invalid.

13. The court was urged to allow the appeal, reverse and set aside the Judgment of the Chief Magistrate and consequently allow the application dated 26-8-2021 with costs.

14. The Respondents on the other hand, submitted that the late Esau Asimba Agina had 3 wives and prior to his death, he granted each of his sons and the SDA Church various parcels of land. It was denied that the deceased had allocated East Gem/Anyiko/130 (now parcel numbers 1357 and 1358) to be shared between the Respondent, Willis Asimba and Wilson Asimba. And that the deceased even sub-divided East Gem/Anyiko/108 into 3 portions with beacons and pegs.

15. While referring to Section 76 of the Act, it was submitted that the Petitioner has on the part of the administrator, nor any misrepresentation. That the Petitioner filed for grant of letters of administration supported by the letter of the Chief listing all beneficiaries and their parcels as allocated by the deceased. That as the last born of the 1st wife, the administrator/respondent was allocated the least share with the customary belief he would inherit the homestead. A write up was referred to of “Luo customary law and Marriage Laws Customs”, by Gordon Wilson was relied on.

16. It was submitted that this court, not being an ELC Court lacks the jurisdiction to revoke a title as urged (Estate of the Late Paul Muhanda Agonya, Kakamega Succ. Cause No. 150/2010)*. The court was also referred to the case of Owners of Motor vessel “Lilian S” vs Caltex Oil Kenya Ltd [1989]eKLR on the issue of jurisdiction.

17. And that the statutory notice was given and there was no objection when the Notice lapsed on 14-10-2011. That the objection was filed out of inordinate delay of 10 years. The court was urged that the application for revocation of the grant dated 6/8/2021, confirmation of grant and cancellation of title deed lacks merit and must fail. This particularly because the property would still be allocated to the Respondent, the last born son of the late first wife.

18. This court is seized of this matter as first appellate court. The jurisdiction of the first appellate court is well settled. That a first appellate court is to re-evaluate the evidence before the lower court, and to come to its own conclusion (Okeno Vs Republic (1992) EA 32).

19. I have considered the submissions made by the 2 sides. I have also considered the application before the trial court dated 26-8-2021 and the impugned judgment of the Chief Magistrate issued on 18/8/2022.

20. In this matter, there is no dispute as to the fact that the late Esau Asimba Agina, (the deceased) had 3 wives, Hellena Aduda, Phoebe Achieng and Felgona Auma, and that each of the wives had children with the deceased. He was the registered owner of the East Gem/Anyiko/108, the subject land before the court. It is also agreed by both sides that before his death, the deceased sub-divided his land to all his sons. This dispute therefore is limited to parcel No. 108 where the Homestead of the deceased stood and which was not allocated to any of the sons. And there lie the dispute.

21. According to the Respondent Joshua Asimba, the last born son of the 1st wife, his late father gave him the smallest parcel knowing that as the last born son of the 1st wife, he would end up inheriting the homestead under Luo customary law. The objector, the 2nd wife of the deceased, and who is the appellant herein, however maintains that since the deceased provided for all his sons, the parcel No. 108, where the family homestead stood and where she still stays, and which was not allocated to any son, should be sub-divided equally between the 3 wives of the deceased. The objector, now appellant has gone further to question the manner in which the Respondent solely obtained the grant of letters of administration of the whole estate of the deceased and gone ahead to distribute the same to the exclusion of the other beneficiaries, especially the 2nd and 3rd wives’ families.

22. The issues that come up for determination, in my view, are therefore the following:i.Whether the Respondent legally obtained the grant of letters of administration or whether the Respondent lawfully obtained the grant.ii.Whether the Respondent lawfully had the said grant of letters of administration confirm.iii.Whether the said grant is valid.iv.The issue of land parcel number East Gem/Anyiko/108.

23. On the first issue, it is clear from the pleadings that the Respondent petitioned for grant as the sole administrator. And of all the beneficiaries of the estate only John Agina consented to the grant being issued to the Respondent. John Agina is brother of Joshua Agina, of the 1st house. No other beneficiaries and especially from the 2nd and 3rd houses were notified and or consented to the Respondent being appointed as the sole beneficiary of the deceased’s estate.Rule 26(1) of the Probate and Administration Rules states:“Letters of administration shall not be granted to any applicant without a notice to every other person entitled in the same degree as or in priority to the applicant.”

24. And at Rule 26(2), all such persons of equal or priority degree as that of the applicant must fill forms 38 or 39 to confirm their consent. No such consents were signed and filed by the other beneficiaries of equal degree with the Respondent in this matter.

25. Regarding the confirmation of the same, I have considered the Affidavit in support of summons for confirmation of the grant of letters of administration sworn by the Respondent on 17/5/2012 and filed in the court on 17/5/2012; whereas the same lists some of the beneficiaries to the deceased’s estate, the mode of distribution of the said estate is not disclosed. The estate is indicated to be East Gem/Anyiko/108. There is absolutely no indication as to how this property was to be sub-divided or to whom it would be distributed. It is therefore of convincing to this court how the said property would end up being distributed and registered in the name of the Respondent. At least this document as filed could not and does not confer such rights of distribution to the Respondent.

26. In obtaining this grant and hearing the same confirmed in the manner in which the Respondent did, there was clearly non-disclosure of the material fact that the estate had many other beneficiaries, but that the same would only be distributed to the Respondent and to the exclusion of all other beneficiaries.

27. Section 26 of the Law of Succession Act, Cap 160 gives grounds upon which a grant may be annulled or revoked such grounds are listed as: -i.Making false statement,ii.Concealment of material factsiii.Nature allegations or misrepresentation.

28. As I have already observed above, this was a clear case of concealment of material facts, rendering the grant issue to and confirmed in favour of the Respondent be a nullity. I so find.

29. This cause relates to land parcel number East Gem/Anyiko/108. It is on record that the deceased had prior to his death provided for all his sons including the Respondent. From the manner in which he distributed his land to his sons, it is clear that sons of the 1st wife got the lions share. The first family got 6. 74 ha. The 2nd family got 2. 38 ha while the 3rd family got 2. 5 ha. The deceased however did not distribute the parcel of land where his homestead stood, subject of this cause. Deceased was a polygamous man with 3 wives. He must have made a conscious decision not to distribute this particular land. Had he intended the same to be inherited by the Respondent under Luo Customary law as claimed by the Respondent, this court is of the opinion that the deceased would not have given the Defendant any other piece of land. Otherwise the Respondent would get a double portion since he had been given his land like any other of the sons. And the argument of the Respondent that the small size he got justifies his claim based on customary law is not convincing either. From the divisions made by the deceased to his sons, sizes of the land allocated to the sons were in no way equal. Some ranged from 2. 96Ha (Wilson Dianga), all the way to 0. 24Ha of the Respondent.

30. The only logical conclusion that I can deduce from all this is that the deceased, aware that he had 3 wives had intended to have the parcel of land on which his homestead stands to be inherited and shared out by his 3 wives who have equal share over the same. And proof of this is that Respondent, through the youngest some from the 1st wife went ahead and constructed his home outside his father’s homestead.

31. It is for these reasons that I find merit in the appeal herein. I allow the same, set aside the judgment of the lower court entered on 18/8/2022. I accordingly order as follows:-i.That the letters of administration (representation) dated 12/8/2011 and certification of confirmation of grant dated 21/6/2012 issued to the Respondent, Joshua Nondwa Asimba be and is hereby revoked herewith.ii.That land parcel number East Gem/Anyiko/108 do revert back to the estate of the deceased Essau Asimba Agina and be distributed in equal shares to the deceased’s 3 houses of Hellen Aduda, Phoebe Achieng Asimba and Phelgona Atieno Asimba (all deceased) and their respective sons.iii.That the 3 respective houses to nominate 1 son to jointly apply for a fresh grant of letters of administration in respect of the deceased’s land parcel number East Gem/Anyiko/108. iv.That in default of the parties agreeing on (iii) above, within 30 days from today, any son(s) or beneficiary of the deceased, be at liberty to apply for grant of letters of administration, notice being given to the other name beneficiaries, over the land parcel East Gem/Anyiko/108. v.That costs of this appeal be borne by each party i.e. each party to bear own costs of this appeal.It is so ordered.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 2ND DAY OF NOVEMBER, 2023. D.O. OGEMBOJUDGE11. 2023Court:Judgment read out in Open court in presence of Mr. Jaoko for Respondent and Mr. Okumu for appellant.D.O. OGEMBOJUDGE2. 11. 2023Mr. Jaoko:We intend to appeal. We seek leave and stay for 30 days.Mr. Okumu:It is a right.Court:Leave granted to the Respondent to appeal.Stay of execution ordered herein of 30 days.D.O. OGEMBOJUDGE2. 11. 2023