[2018] KECA 869 (KLR)

IN THE COURT OF APPEAL

AT ELDORET

(CORAM: E.M. GITHINJI, HANNAH OKWENGU, &

J. MOHAMMED, JJA.)

CIVIL APPEAL NO. 31 OF 2016

BETWEEN

BETTY NANJALA WAMALWA..............................1ST APPELLANT

MOSES WAMALWA..............................................2ND APPELLANT

AND

JOHN WERE CHIBAYWA W. SUMBULE.........1ST RESPONDENT

JAMES MAKOKHA WAMALWA SUMBULE..2ND RESPONDENT

(An Appeal from the ruling of the High Court of Kenya at Kitale, (S.M. Githinji, J.) dated 28th October, 2015in H.C. Probate And Administration Cause No. 217 Of 2014)

*******************************************************

JUDGMENT OF THE COURT

[1]The two appellants’ appeal from the Ruling of the High Court (S.M. Githinji, J.) dated 28th October, 2015 dismissing summons for the revocation of the grant of letters of administration in respect of the estate of Hezron Wamalwa Sumbule, who died intestate on 29th August, 2014.

[2] On 5th September, 2014, the two respondents filed Succession Cause No. 217 of 2014at the High Court Kitale for grant of letters of administration intestate to the estate of the deceased. The petition indicates that the two respondents are sons of the deceased and that the deceased was survived by three widows, PriscillahNato Wamalwa (1st widow), who had eight sons and five daughters; Jeridah Mulongo Wamalwa (2nd widow), who had four sons and two daughters and Betty Nanjala Wamalwa (3rd widow) who had three sons and seven daughters. The 1st appellant is the 3rd widow while the 2nd appellant is a son of the 2nd widow. The 1st respondent is a son of the 1st widow while the 2nd respondent, James MakokhaWamalwa, is said to be a son of the 2nd widow. The respondents also indicated in the petition that the estate comprised of two parcels of land: - N/Kabras/Kivaywa/159, comprising of 4. 8 Hectares and Luhya Farm Plot No. 3measuring21 Hectares.

[3]The petition was accompanied by consent of beneficiaries in Form 38. All the beneficiaries from each house are listed. The consent contains a thumb print of each of the three widows including the 1st appellant. There is a signature against the name of each son from each house except Meshack Wamalwa from the 1st house where his name is written by hand. There is no signature of each daughter from each house. Instead, the name of each daughter is written by hand. The letters of administration intestate were granted by J.R. Karanja, J. to the two respondents on 11th December, 2014.

[4]The appellants alleged in the summons for revocation of the grant that the respondents fraudulently filed the cause without the consent of all family members; that the respondents fraudulently forged the signatures of some of the beneficiaries who were not aware that the cause had been filed; that the respondents are not trusted people to administer the estate as they have sold part of the estate without the consent of all the beneficiaries and kept the money; that the respondents left one beneficiary Judith Wamalwa and included a stranger – Rebecca Seiko.

[5]The application for revocation of grant was supported by the affidavit of the 2nd appellant; Jeridah Mulongo (2nd widow); Betty Nanjala Wamalwa, (1st appellant), Nafula Wamalwa and Eliud Juma Sumbule all who denied signing the consent form. The 2nd appellant annexed an agreement of sale of plot No. Kivaywa/159 (13 acres) dated 14th January, 2006 between the 1st respondent and Susy Iswana Nyongesa. The 1st respondent filed a replying affidavit deponing, inter alia, that the respondents filed the succession cause after being supported by more than three quarters of the beneficiaries; the estate was distributed amongst the beneficiaries and every beneficiary was satisfied; that the property he sold was his own property after distribution; that the beneficiary who was left out left the original home and never came back; that Rebecca Seiko bought part of the land which was part of the estate; and that the 1st appellant sold her share of the estate and bought another land at Kwanza where she resides.

[6]The learned Judge made a finding in his ruling that there was no reliable evidence that the thumb print of each of the three widows was forged; that the evidence of the 2nd appellant that his signature was forged was unbelievable; and that Judith Wamalwa has not complained or filed a replying affidavit.

[7]The grounds in the memorandum of appeal faults the findings of the learned Judge for failing to thoroughly analyse the evidence, and also to appreciate that widows rank in priority over beneficiaries in applying for grant in respect of the estate of their deceased’ husband.

Ms. Munialo for the appellants submitted, amongst other things, that there were four houses (apparently including house of Judith Wamalwa); that only two houses were represented in the grant; that the 1st appellant has signed her supporting affidavit; that the signature of Moses Wamalwa in the supporting affidavit is different from the signature in the consent form; that the 1st respondent sold land parcel Kivaywa/159 before making an application for grant; that Luhya Farm has not been distributed; and that the grant has not been confirmed. Mr. Nabasenge for the respondents submitted inter alia that misrepresentation and fraud was proved; that all beneficiaries were listed in the petition for a grant; that the issue of priority of the widows was not raised in the High Court; and that the issues raised can be dealt with at the time of the confirmation of the grant. He however admitted that all the beneficiaries did not agree on who was to make the application for a grant.

[8]We have considered the grounds of appeal and the respective submissions. Karanja, J. in issuing the grant of letters of administration intestate to the respondents must have been aware that the widows of the deceased had priority over the sons and daughters of the deceased in securing a grant as prescribed by Section 66 of the Law of Succession Act. The grant was issued to the respondents on the basis of the consent of the widows and other beneficiaries in Form 34. Two of the widows deponed in the respective affidavits in support of the summons for revocation of the grant that they did not sign or thumb print the consent form. The consent form shows that the 1st appellant gave consent by thumb printing the form. The fact that she has signed the affidavit to support the summons shows that the thumb print on the consent form is probably not hers. It is also apparent that the alleged signature of the 2nd appellant on the consent form is different from his signature in the affidavit to support the summons for revocation of the grant. Most of the daughters of the deceased have not signed the consent form and the identity card number of each of the beneficiaries is not inserted in the consent form.

[9] More importantly, the 1st respondent has not categorically said in his replying affidavit that all the beneficiaries whose names appear in the consent form indeed gave their consent. Instead, the 1st respondent admitted in the replying affidavit that he was only supported by more than three quarters of the beneficiaries. Indeed, the respondents’ counsel submitted that not all beneficiaries agreed as to who was to file the petition for grant. The 1st respondent further admitted that Judith Wamalwa was not included as a beneficiary and her name does not appear in the consent form among those who gave their consent.

From the foregoing, the High Court erred in not finding that the respondents obtained the grant by making a false statement that all the beneficiaries had consented that the grant should be issued to them.

[10]Moreover, the affidavit evidence disclosed that there are potential disputes regarding the distribution of the estate. The affidavit of the 1st respondent shows that his position is that the estate has already been distributed and that he intends to exclude the 1st appellant and Judith Wamalwa from getting a share of the estate. It also confirms that one parcel of land which belonged to the estate has already been sold; the 1st respondent maintaining that the land was allocated to him during distribution. By the time the revocation of the grant was made, the respondents had been the administrators of the estate for slightly more than one year. Yet they had not applied for summons for confirmation of the grant in contravention of the law. In the circumstances, the respondents had not shown that they would faithfully administer the estate and equitably distribute the estate.

[11] For the foregoing reasons, the summons for revocation of the grant had merit and the learned Judge erred in failing to revoke the grant or ensure that in view of the controversies, the three houses were given a say in the administration and distribution of the estate. In our view, the just cause is not to revoke the grant in its entirety but to appoint additional administrators.

[12] Accordingly,

(i) the appeal is allowed.

(ii) the order dismissing with costs the summons for revocation of the grant is set aside and in substitution, the two appellants are hereby appointed as additional administrators to represent the interest of other beneficiaries in the estate.

(iii) the grant dated 11th December, 2014 shall be amended and re-issued to include the names of the two appellants as additional administrators.

(iv) the administrators shall file summons for confirmation of grant within three months from the date hereof.

(v) The costs of the appeal and the costs of the summons for revocation of the grant shall be costs in the summons for confirmation of the grant and at the discretion of the High Court.

Orders accordingly.

Dated and delivered at Eldoret this 1st day of February, 2018.

E. M. GITHINJI

...................................

JUDGE OF APPEAL

HANNAH OKWENGU

...................................

JUDGE OF APPEAL

J. MOHAMMED

...................................

JUDGE OF APPEAL

I certify that this is a true copy of the original

DEPUTY REGISTRAR