[2017] KEHC 982 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

SUCCESSION CAUSE NO. 127 OF 2011

IN THE MATTER OF THE ESTATE OF LEMAYIAN MUSHERE......DECEASED

BETWEEN

FRANCIS K. MUSHERE

KIRATO OLE MUSHERE.....................................................RESPONDENTS

VERSUS

ANTONINA KIARE EKESA

XAVIER OLENTUNGU..............................................................APPLICANTS

JUDGMENT

1. LEMAYAN MUSHERE (hereinafter “the deceased”) died intestate in the year 1979. Grant of letters of administration intestate in respect to his estate was made to the 1st and 2nd petitioners herein who are his nephew and brother respectively on 20th April 2012. An application for confirmation of the said grant dated 21st May 2012 was subsequently filed but before the said application could be heard by the court, the objectors herein Antonina Kiare Ekesa (now deceased) and her son one Xavier Olentungu filed a Notice of Motion under certificate of urgency in which they sought the revocation and/or annulment of the grant issued to the petitioners herein.

2. The application to revoke the grant was supported by the 2nd objector’s affidavit sworn on 2nd May 2014 in which he averred that the grant of letters issued to the petitioners herein was fraudulently obtained with the sole intention of defeating justice as it omitted the 1st objector’s name as one of the beneficiaries having purchased the land measuring 3 acres at a consideration of Kshs. 16,500/=. The 2nd objector further averred that the objectors had occupied lived on the land since 27th January 1997.

3. The petitioners opposed the application through the 1st Petitioners replying affidavit sworn on 10th November 2014 in which he averred that the objectors had not disclosed any admissible reason to warrant the annulment of the grant of letters of administration issued to the petitioners as he had not furnished any proof of the alleged purchase of land. He further averred that the objectors had not established any legal interest as beneficiaries in the deceased’s estate and reiterated that the objectors claim, if any, could only be ventilated in the Environment and Land Court.

4. On 7th March 2014, this court, differently constituted, confirmed the grant of letter of administration that had been issued to the petitioners, however, the objectors still opted to pursue their objection and on 12th November 2014, directions were taken that the objection proceeds by way of oral evidence.

Oral Evidence Objectors case

5. The hearing commenced on 7th February 2017 when the 2nd Objector (PW1) testified that he was the son of the 1st objector who had since died. He stated that the 1st objector had purchased land belonging to the deceased, being Transmara/Osubuko/79 (hereinafter “suit land”) from the deceased’s brother one Simeon Lekakeni Mashieni at a purchase price of Kshs. 43,500/= which was paid in full. His attempts to produce a photocopy of the alleged sale agreement were thwarted by the petitioners counsel who objected to its production on the basis that the said agreement was a photocopy which was not legible.

6. PW1 faulted the petitioners for failing to include him in the succession case yet he had lived on and occupied the suit land since the time of its purchase in 1997. He claimed that he had at one time placed a caution on the suit land. He confirmed that the suit land belonged to the deceased and that the alleged seller, Simeon Lekakeni was the deceased’s brother. He sought orders to be included in the succession cause as a beneficiary to the deceased’s estate.

7. On cross examination, he stated that his claim to the suit land was on behalf of the 1st objector who had since died even though he had not obtained any grant of representation in respect to the 1st Objector’s estate. He further confirmed that the 1st objector had not sued the alleged seller of the suit land, Simeon Mushere.

8. PW2 JOHN OSUMA OTUNGU testified that PW1 was his younger brother and that he (PW2) witnessed their mother buy land from Lekakeni Mushere even though he did not know the land parcel number.

Petitioners’ case

9. The 1st petitioner testified as DW1 and stated that he obtained grant of letters of administration in respect to the estate of the deceased comprising the suit land which grant was confirmed by the court. He denied any knowledge of the objectors herein or their claim to the suit land and stated that the objectors were not members of the deceased’s family.

10. He stated that the grant of letters of administration were properly issued to the petitioners upon their presentation of the chief’s letter that listed all the beneficiaries to the deceased’s estate and added that the suit land did not belong to Simon Lekakeni who is alleged to have sold it to the 1st objector.

11. On cross examination, he explained that the deceased was not married and did not have any children prior to his death but that he had 3 brothers one of whom was Simon Lekakeni, the alleged seller of the suit land. He added that Simon was his father and that he had his own land but that he was not aware if Simon had sold his land to the 1st objector.

12. At the close of the defence case, parties agreed to file written submissions before judgment.

Analysis and determination

13. I have considered the application dated 2nd May 2014 together with the supporting affidavit. I have similarly considered the petitioners’ replying affidavit, the oral evidence tendered in court and the parties’ respective written submissions. The main issues that present themselves for determination are:

a) Whether the objectors are the beneficiaries of the estate of the deceased.

b) Whether the grant issued on 20th April 2012 and confirmed on 7th March 2014 should be revoked/annulled.

14. On the first issue, for determination, it was not in dispute that the objector herein is not a relative of the deceased herein. The 2nd objector testified that he is the son of the 1st objector who had since died during the pendency of these proceedings.

15. The 2nd objector alleged that the 1st objector had purchased a portion of the suit land from one Simon Lekakeni who is a brother to the deceased herein. The 2nd objector did not produce any sale agreement in court to prove the alleged purchase and it is therefore my finding that he claim that the 1st objector purchased a portion of the suit land from one Simon Lekakeni was not proved to the required standards.

16. It is trite law in Civil cases that he who alleges must prove which law is anchored on Section 107 of the Evidence Act which stipulates:

“107. Burden of proof

(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

17. Secondly, even assuming that it was proved that the 1st objector purchased a portion of the suit land from the said Simon Lekakeni, I still find that the 2nd objector’s claim to the said land cannot be sustained because not only was he not the actual purchaser of the said land, as he stated that the land was purchased by his mother (the 1st objector) who has since died, but he has also not shown that he has obtained grant of letters of administration in respect to the 1st objector’s estate claim so as to give him the locus standi to make a claim on behalf of her estate.

18. Lastly, the 2nd objector’s claim is that it is one Simon Lekakeni who sold land to the 1st objector and not the deceased herein. In effect therefore, the 2nd objector’s claim ought to be directed the said Simon Lekakeni and not the deceased estate because there was no privity of contract between the deceased and the 1st objector so as to justify the objection filed in this succession case. In my humble opinion, the claim that the 1st objector purchased a portion of land from one Simon Lekakeni is a claim that the 2nd objector can only pursue against the said Lekakeni before the Environment and Land Court, only after obtaining the requisite grant of letters of administration in respect to the 1st objector’s estate.

19. Turning to the 2nd issue for determination which is whether the grant issued herein on 7th March 2014 should be revoked/annulled, I note that Section 76 of the Law of Succession Act under which the application was filed stipulates as follows:

“76. Revocation or annulment of grant

A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—

(a) that the proceedings to obtain the grant were defective in substance;

(b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;

(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

(d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either—

(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow;

or

(ii)to proceed diligently with the administration of the estate; or

(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or

(e) that the grant has become useless and inoperative through subsequent circumstances.”

20. In the instant case , the 2nd objector has not demonstrated that the grant issued herein was obtained through defective proceedings, by fraud or the making of false statement or concealment of material facts or that the petitioner has failed to apply or confirmation of grant or to act diligently.

21. In fact, as I have already stated in this judgment, the petitioners had already applied for the confirmation of grant which application was allowed on 7th March 2014.

22. What comes out clearly from the facts of this case is that the 1st objector’s allegation that she purchased land from one Simon Lekakeni who is not the deceased herein whose estate is the subject of this proceedings. In a nutshell, the 1st objector cannot be said to be a beneficiary of the estate of the deceased and in that regard, I find that the instant application is misplaced and therefore the only order that recommends itself to me is the order to dismiss the application with costs to the petitioners.

Dated, signed and delivered in open court this 5th day of December, 2017

HON. W. A OKWANY

JUDGE

In the presence of:

N/A for the Petitioners

N/A for the Objector

Omwoyo: Court Clerk