[2022] KEHC 9775 (KLR)

Chesoo v Cherop (Probate & Administration 51 of 2018) [2022] KEHC 9775 (KLR) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9775 (KLR)

Republic of Kenya

In the High Court at Eldoret

Probate & Administration 51 of 2018

RN Nyakundi, J

July 21, 2022

Between

John Cherop Chesoo

Petitioner

and

Thomas Kimaiyo Cherop

Objector

(Being an Objection to the making of grant under Sections 47 and 68 of the Law of Succession Act, Cap 160 Laws of Kenya and Rules 17(1) and 73 of the Probate and Administration Rules)

Ruling

1. On October 15, 2018, the Objector herein lodged a Notice of Objection against the making of grant of representation to the estate of Saniako Kiprop who died on May 7, 1988 as sought in the Petition of John Cherop Chesoo, the Petitioner herein.

2. In making a case for his entitlement to the grant of representation the Objector faulted the proposed mode of distribution as contravening the provisions of the Law of Succession Act, that it is unfair and prejudicial, discriminates against the objector, the property known as Irong/Sergoit/458 is not available for distribution as the same is for the objector. Further, he denies executing the consent to the mode of distribution, assails the issuance of grant as tainted with fraud and forgery and that the deceased had already distributed his property during her lifetime.

3. The same is supported by an Affidavit sworn by the Objector on even date. The same largely reiterates the grounds on the face of the Objection. He avers that at the time of her death, the Deceased held two properties being parcels of land comprising Irong/Sergoit/615 and Irong/Sergoit/458. He has produced copies of green cards of the two parcels of land. That the parcels of land comprising Karuna/Sosiani/Block 1 (Arbabuch) 6, Tembelio/Elgeyo Boarder Block 5 (Ex- Tooley) 66, belonged to his father. That during the lifetime of their parents, the parcels comprising Irong/Sergoit/458, Irong/Sergoit/615, Karuna/Sosiani/Block 1 (Arbabuch) 6, and Tembelio/Elgeyo Boader Block 5 (Ex- Tooley) 66 were distributed to Thomas Kimaiyo, John Cherop Chesoo, Joseph Cherop, and Martin Cherop. It is his case that if the confirmation proceedings are not halted, he and his family stand to suffer gravely.

4. On February 14, 2019, the petitioner filed a replying affidavit wherein he deponed that the objector is his elder brother and that the decision to petition for letters of administration was agreed upon by the family, that following the death of their father, the parcel comprising Karuna Sosiani Block 1 (Arbabuch) /6 devolved vide P&A Cause No. 258/2015 to John Chesoo and Joseph Cherop. That Martin Kiptum had acquired his own piece of land being Cheptiret/Cheplaskei/Block 2 and was not claiming interest in the estate subject of this objection, that the properties Irong/Sergoit/615 and Irong/Sergoit/458 were only registered in the name of their late mother upon the demise of their father. He also produced copies of green cards in that regard. He avers that the parcel comprising Tembelio/Elgeyo Boarder Block 5 (Ex- Tooley) 66 belonged to his late aunt and was never the property of their parents, that in fact the Objector has intermeddled in the estate of the deceased and even had the property Irong/Sergoit registered in the name of Thomas Cherop without succession proceedings. He averred that the Chief’s letter and minutes produced by the Objector had been twisted to support the Objector’s case. He urged that the Objector is being selfish and the objection was in bad faith.

5. The objector filed written submissions dated December 3, 2021. It is his submission that the Petitioner had been adopted informally by their aunt and was therefore not a child of the deceased for purposes of succession, that he could only claim from the estate of their late aunt, and that the proposed mode of distribution was unfair, and unjust. He describes it as a greedy scheme to benefit the Petitioner to the exclusion of the other beneficiaries. A plethora of statutory provisions and case laws were cited in support of this position.

6. Similarly, the Petitioner filed written submissions dated May 11, 2022. It is submitted that the door for filing of the objection had already been shut and the objection is therefore without merit, that the same made mere allegations of fraud and forgery without tendering any evidence contrary to settled evidentiary principles, that the Application ought to have been brought with leave of court, that the objector was not gifted the parcel he claims had been gifted to him, that the jurisdiction of the court is limited to ascertaining the assets available to the estate, that his long stay with his aunt cannot be a basis for disinheriting him. He further submits that as the objector has not sought a revocation of grant, the court cannot grant. He urges that the proposed mode of distribution be adopted and the proceedings be allowed to proceed.

Issues To Be DeterminedWhether the Objector’s Objection has merit?

FindingsWhether the Objector’s Objection has merit

7. I have considered the Objection, the grounds on the face of it, the affidavit in support, the replying affidavit of the petitioner as well as the Parties’ written submissions. As I adverted to earlier in this ruling, even though parties have submitted on multiple issues, I find that central to all this is the question of whether the Objection before me is viable.

8. Section 67 of the Law of Succession Act requires that before a grant is issued, a notice of the application for such grant inviting objections thereto shall be published. The notice shall be for a period of not less than thirty days from the date of publication. The publication is usually done in the Kenya Gazette. Section 68 then provides the procedure to be followed where an objection has been lodged. It states:

9. Objections to application(1)Notice of any objection to an application for a grant of representation shall be lodged with the court, in such form as may be prescribed, within the period specified by such notice as aforesaid, or such longer period as the court may allow.(2)Where notice of objection has been lodged under subsection (1), the court shall give notice to the objector to file an answer to the application and a cross-application within a specified period.”Rule 17 (1) (2) of the Probate and Administration Rules is very clear as to how objections, answers and applications ought to be initiated before court. It provides: -(1)Any person who has not applied for a grant to the estate of a deceased and wishes to object to the making of a grant which has been already applied for by another person may do so by lodging within the period specified in the notice of the application published under rule 7 (4), or such longer period as the court may allow, either in the registry in which the pending application has been made or in the principal registry, an objection in Form 76 or 77 in triplicate stating his full name and address for service, his relationship (if any) to the deceased and the grounds of his objection.(2)A request by an intending objector for an extension under section 68 (1) of the Act of the period specified in the notice under rule 7 (4) shall be made to the registry at which the application for a grant was made or by which the notice was issued, as the case may be, by summons supported by an affidavit, if necessary, and upon notice to the applicant for the grant.”It is not in contention, in fact the Objector admits in the opening paragraph of his submissions, that the Petitioner petitioned for letters of administration and his objection is “against confirmation of grant…”

10. It is also not in contention that the Petition for letters of administration was filed in 2015 while the Objection was filed in 2018 without leave of Court. No explanation has been proffered for this inordinate delay. I find that the objection was filed after 30 days’ period had expired and without leave of the court. I further find that the provisions of article 159 of the 2010 Constitution cannot be called into to aid, the objection proceedings. In the circumstances of this case since the objector still has an opportunity to challenge the grant by way of seeking its revocation. A party who encounters delay for one reason or another cannot approach the court as of right outside the expressed provisions and the timelines set in the statute to undertake a particular action to redress a remedy. The avenue opened to such a party is to seek leave of the court for extension of time. The anchorage of the 30 days period upon gazettement of a petition in a succession cause is provided for in the law of Succession Act. It is no doubt that the law expects an applicant in the position of the objector to first invoke the jurisdiction.

11. The law and the principles on extension of time are as enshrined in the case of PaulWanjohi Mathenge v Duncan Gichane Mathenge (2013) eKLR the Court of Appeal held as follows “The discretion under Rule 4 is unfettered, but it has to be exercised judicially, not on whim, sympathy or caprice. I take note that in exercising my discretion I ought to be guided by consideration of the factors stated in previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent and interested parties if the application is granted, and whether the matter raises issues of public importance. In Henry Mukora Mwangi v Charles Gichina Mwangi Civil Application No Nai 26 of 2004, this court held:-It has been stated time and again that in an application under rule 4 of the Rules the learned single Judge is called upon to exercise his discretion which discretion is unfettered. It may be appropriate to re-emphasize this principle by referring to the decision in Mwangi v Kenya Airways Ltd[2003] KLR 486 in which this court stated:-“Over the years, the court has, of course set out guidelines on what a single Judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance in Leo Sila Mutiso v Rose Hellen Wangari Mwangi Civil Application No Nai 255 of 1997 (unreported), the Court expressed itself thus:-It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.”

12. In all the circumstances, this application was not made promptly and no good explanation has been offered by the objector for the failure to comply with the timeline set to lodge an objection against the making of the grant of letters of administration. The court can only extend time if all the criteria set out in the above case law is satisfied.In the case of In the Re Estate of Agnes Ogolas Akoth (Deceased) [2016] eKLR the court was faced with a situation where an objection was filed after the grant had been made. In dismissing the objection, the learned Judge held that:"14 In the instant case the objection was filed when grant had already been made. The delay in filing of the objection of 4 years is inordinate and unexplainable. The objector is objecting to the making of the grant after it has already been made and I find that the objection has already been overtaken by events. The court cannot stop what has already passed. The Law of Succession is crafted in such a manner that the obtaining of the grant is not an end to aggrieved party’s rights. One can challenge the grant by seeking its revocation or annulment or even file a protest to the mode of distribution.”

13. I agree with the learned Judge that once a grant has been issued, an objection under section 68 of the Law of Succession Act is no longer viable. Any person desirous of upsetting a grant that is already issued should therefore look upon the other remedies availed by the Law of Succession Act. An objection is no longer available where the grant is already issued. Similar views were expressed by my Brother Korir W. J, in In Re Estate of Esther Francis Thoya (Deceased) [2018] eKLR.

14. Some of these objections filed at the very initial period in the making of the grant navigates our court’s system as long as five to seven years to resolve, making a complete mockery of the heirs rights to access provisions to the intestate estate. The sensitivity about timelines provided for in the law of Succession Act was intended to convey the deceased estate to the surviving spouse, children and other dependents in real time. Fundamental to this argument is on statute construction and interpretation. The court must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law and to its object and policy. The language cannons of construction on timelines in the Law of Succession is not neutral to anchor the adjudication process in which justice delivery is delayed and denied. In our jurisdiction litigants to a succession cause have purposed to object to the making of the grant of letters of administration by relying heavily to the interpretation given under section 76 of the Act on revocation/annulment of grants. Thus, the courts have adverted to the definitions of the sentence, phrases and words to the effect “That a grant of representation whether or not confirmed may at any time be revoked or annulled if the court decide either on application by a party, or interested party or its own motion.”

15. These at any time words may under section 76 if broadly construed implies that the legislature was ignorant of the meaning of the language it employed as to time in contrast with other section on time making them superfluous. In the comparative jurisprudence in Hibbs v Winn, 542 U S 88 101 (2004) the court shed some light on this question where it was stated “That a statute should be construed so that effect is given to all, its provisions so that no part will be inoperative or superfluous, void or insignificant.”

16. In my view the ordinary sense of the captioned words and or phrases when adhered to literally in isolation with the relevant provisions as to time has occasioned an absurdity or repugnance and inconsistency with the rest of the statute. This is where parties always seek solace to litigate on succession matters ad infinitum. It is time for probate courts to construe and interpret the provisions to suppress the mischief created and advanced the critical process of inheritance dispute settlement. I am fully convinced and in no way can one say that the legislature in enacting the preamble of section 76 of the Act it intended to deviate from the other provisions in the same statute where the central theme is on the aspect of time to effectuate processes and procedures. The breach of strictness of time resettlement of succession dispute as required by article 159 2(b) of the constitution and the various structured provisions in the Act have severely compromised the expeditious delivery of justice to the beneficiaries. It is assumed that litigation under the Succession Act is not time bound for Section 76 opening statement expressly says so. Let me say from the outset the principle of timeliness in the administration of justice and in resolution of disputes is critical in perfecting fundamental justice.

17. Here is a case where parties themselves are an impediment to the fair administration of justice by filing of avalanche of interlocutory applications to the making of the grant or certificate of confirmation on the distribution of the deceased estate. In the instant matter it is incomprehensible that our legislature intended parties to a succession cause to litigate their claims on inheritance for a lifetime. Unfortunately, it seems to me to the creature of the litigants to continue vexing courts even where the subject matter is frivolous under the powers donated by section 76 (1) that a grant may be revoked or annulled at any time. This interpretation applying the literal rule gives an absurdity and I am persuaded that the legislature never intended the mechanisms of expediting trials in a succession cause to be protracted from one generation to another under the guise of seeking justice for the heirs under section 29 of the Act. Therefore, Judges and Magistrates have a duty to bring into focus the golden rule of interpretation in section 76 as to time to file for revocation or annulment. This is to substitute a reasonable meaning by construing and interpreting the Succession Act as whole when considering the principles in the fair administration of justice. Reliance is placed to the courts jurisdiction and powers under section 1(a), 1(b), 3(a) of the Civil Procedure Act and Rule 73(1) of the Probate and Administration Rules. It is about time justice being done to the heirs of the estate survived by the deceased be seen to be done through such processes and procedures in a fair, expeditious and proportionate model. It must be better for legal representatives seeking leave of the court to undertake the solemn duty of administration on behalf of the deceased to get things right in the first place, rather than having the court to put them right through an expensive and stressful objection and protest adjudication in the making of the grant of letters of administration.

18. In adopting these view it is appropriate for the petitioners to lean towards a right first time approach of ensuring the voice of the beneficiaries/heirs is heard in a broader sense to achieve compatibility in the distribution of the estate rather than planting seeds of discord. A recurring concern across our legal system is the problem of unaddressed remedies under the Succession Act due to the culture of complacency by the petitioners, heirs and other interested parties in the estate of the deceased. The impact of lengthy protest/objections to the making of grant or confirmation of it for the beneficiaries remains devastating and is one of the worst things to happen more particularly if the estate of the deceased had created wealth capable of being shared for their benefit. There is no sense of justice at all to them. They haven’t had access to financial resources for their maintenance and enjoyment of the right to life under article 26 of the constitution. With the death of the family provider it is always the end of the road if the succession adjudication is not commenced and concluded within a reasonable time. The longer the probate/intestate justice process is dragged out by objections some with no foundations in fact and law the longer real victims have to suffer and are constantly reminded of the death of the deceased.

19. I am minded of the fact that the Law of Succession Act is a self- contained Act of Parliament which has clearly set out provisions on how matters of succession causes can be dealt with. A litigant cannot ignore the express provisions of the law. Even when a party is seeking substantive justice, such justice must be attended to through some definite process.

Disposition 20. In view of the circumstances I have outlined above, I find it moot to consider the other grounds on which the Objection is anchored.

21. It is this court’s finding that the Objector’s Objection is for dismissal. In view of the relationship of both parties, I will not grant any orders as to costs.

Orders/declarationGiven the foregoing antecedents, the orders that commend themselves to me are;a.The Objector’s Objection be and is hereby dismissed.b.That each party shall bear its own costs.Orders accordingly.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 21ST DAY OF JULY, 2022. ............................R. NYAKUNDIJUDGE