[2022] KEHC 10676 (KLR)

Fwaya v Fwaya (Succession Cause 1891 of 2006) [2022] KEHC 10676 (KLR) (Family) (8 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10676 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 1891 of 2006

MA Odero, J

July 8, 2022

Between

Victoria Akumu Fwaya

Applicant

and

James Oduor Fwaya

Respondent

Judgment

1. Before this Court is the summons for revocation of grant dated February 22, 2021 by which the Applicant Victoria Akumu Fwaya sought for orders that:-“a. This honourable court be pleased to revoke and/or annul the grant of letters of administration made to James Oduor Fwaya and Margaret Aloo Fwaya on November 17, 2006. b. This honourable court be pleased to issue a fresh grant of letters of Administration Intestate in the names of Victoria Akumu Fwaya and Eric Omondi Fwaya.c. Costs of this Application be in the cause.”

2. The summons was premised upon section 76 of the Law of Succession Act, cap 160 Laws of Kenya, Rule 44 of the Probate and Administration Rules and all other enabling provisions of the law and was supported by the affidavit as well as the further affidavit sworn dated January 17, 2022 both sworn by the applicant

3. The respondent James Oduor Fwaya opposed the application through his replying affidavit dated November 29, 2021.

4. The summons was canvassed by way of oral evidence. The applicant gave evidence in court. However, the respondent despite having proper notice of the hearing date did not appear to testify in the matter nor did he call any witnesses.

Background 5. This succession cause relates to the estate of Francis Fwaya Obare (hereinafter ‘the Deceased’) who died intestate on August 11, 1997 at the Port Victoria Sub-hospital in Busia County. A copy of the Death Certificate Serial Number xxxx is in the court file.

6. The Deceased was survived by the following persons:(i)Margaret Aloo Fwaya – daughter (now Deceased)(ii)James Oduor Fwaya – son(iii)Victoria Akumu Fwaya – Daughter(iv)Eric Omondi Fwaya – Son(v)Robert Otieno Fwaya - son

7. The Deceased left the following properties:-(i)27 acres parcel of land in Busia County.(ii)House No M196 situate in Umoja Phase Nairobi County.(iii)Half share of LR No 37/266/27 being House No. 46 located along Kabiyet Road in South ‘C’.

8. Following the demise of the deceased grant of letters of administration intestate was made to James Oduor Fwaya who is a son of the deceased and Margaret Aloo Fwaya who was a daughter to the deceased. The co-administrator Margaret Aloo Fwaya passed away on November 17, 2007, leaving the respondent as the sole administrator of the estate.

9. The applicant Victoria Akumu Fwaya is a biological daughter of the deceased. In her evidence, the applicant stated that the respondent James Oduor Fwaya who is her brother was appointed as co-administrator of the estate of the deceased together with their sister Margaret Aloo Fwaya who is now deceased.

10. The applicant states that following the demise of his co-administrator the respondent has immensely mismanaged the estate of the deceased to his own benefit and to the detriment of the other beneficiaries. That despite request being made, the respondent has adamantly refused to render true accounts of the estate and has equally failed to file an inventory as prescribed by law. Further, that the respondent has to date failed to apply for the summons for confirmation of the grant, which was issued way back in November 2006.

11. The applicant avers that the other beneficiaries desire to have the estate distributed. She prays that the grant issued to the respondent be revoked and a fresh grant issue to herself and her stepbrother Erick Omondi Fwaya.

12. The respondent in his replying affidavit denies the allegations made against him by the applicant and denies that he has mismanaged the estate. He accuses the applicant of deceiving the court by failing to mention a property being house No. W24 in Kaloleni Estate from which she is collecting a rental income of Shs 20,000. The respondent avers that although the Kaloleni property belongs to the Estate the applicant has continued to reap monetary benefits from the said property alone without sharing the rental income with the other beneficiaries.

13. The respondent further accuses the applicant of hindering the administration of the estate by placing a caution on the bank accounts where the rental income from the House in South C was being channeled. He states that the 27 acre piece of land in Busia is yet to be distributed because some of the dependants and their Kin have informally occupied the land and are farming thereon.

14. The respondent further avers that the Kshs 8000 rental income from the House in Umoja is being shared between himself and his brothers Eric Omondi and Robert Otieno. He says he has no objection to the applicant being made a co-administrator. The respondent states that this summons is motivated by malice and family feuds. However, the respondent did not appear in court to give evidence on the hearing date.

Analysis and Determination 15. I have carefully considered the summons for revocation of grant, the affidavit filed in reply thereto as well as the written submissions filed by both parties. The applicant has sought to have the Grant which was issued to the administrators on November 17, 2006 revoked on the grounds that the surviving Administrator has failed to diligently proceed with the administration of the estate.

16. Section 76 of the Law of Succession Act cap 160 Laws of Kenya provides for the circumstances under which a Grant may be revoked as follows: -“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.

17. In the case of Jesse Karaya Gatimu v Mary Wanjiku Githinji [2014] eKLR the Court stated as follows:-“The grounds upon which a grant may be revoked or annulled are thus statutory and it is incumbent upon any party making an application for revocation or annulment of grant to demonstrate the existence of any some or all of these grounds, whatever the case may be.”

18. The applicant complained that in contravention of Section 76 d (i) of the Act the respondent had failed to apply for the confirmation of the grant within one (1) year of its issuance. It is common ground that the grant of letters of administration intestate were issued in this matter on November 17, 2006 which is sixteen (16) years ago. Clearly the administrator has failed to apply to have the grant confirmed within one (1) year as required by law. This is a statutory requirement and as such, the timeline must be adhered for the sake of the estate and in order to protect the interests of all the beneficiaries thereto.

19. Authorities on this aspect abound. Inre EstateofEpharus Nyambura Nduati(Deceased) [2021] eKLR the court statedinter alia that: -“.....The second general ground [for revocation of a Grant] is where the grant was obtained procedurally but the administrator thereafter got into problems with the exercise of the administration such as when he fails to apply for confirmation of grant within the time allowed or if he fails to proceed diligently with administration or fails to render account’s as and when required......”

20. Likewise in Matheka & another v Matheka [2005] KLR the Court of Appeal stated as follows: -“i. A grant may be revoked either by application by an interested party or by the court on its own motion.ii. Even when revocation is by the court upon its own motion, there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by the making of a false statement or by concealment of something material to the case or that the grant was obtained by means of untrue allegation of facts essential in point of law or that the person named in the grant has failed to apply for confirmation or to proceed diligently with the administration of the estate.” (own emphasis)

21. On the basis of the provision of section 76 d(i) the administrators herein ought to have applied to have the grant confirmed by November 2007. They failed to do so.

22. The co-administrator Margaret Aloo Fwaya passed away on November 17, 2009. Under the Law, the respondent was entitled to continue as sole administrator of the estate, yet still he made no move to apply to have the grant confirmed. It is now sixteen (16) years since the grant was issued. Still no application has been made to confirm the grant. This omission amounts to a serious dereliction of duty on the part of the administrator. The respondent has not advanced any convincing reason and/or explanation for his failure to have the grant confirmed.

23. It is important to note that having the grant confirmed is one of the essential requirements in administering the estate of a deceased person. Failure to move to confirm the grant is detrimental to the estate as it leaves the estate open to mismanagement and plunder. Likewise, the beneficiaries will be prejudiced as the assets cannot be distributed without a confirmed grant thus the beneficiaries are denied their inheritance from the estate.

24. The applicant appeared content with the status quo where he and his brothers were collecting the utilizing the rental income from the Umoja Property. He had no interest in ensuring that the other beneficiaries received their share of the estate. The Respondent clearly did not have the interests of the estate and/or the other beneficiaries at heart. Having been issued with the Grant the Respondent sat back and took no further steps to advance the administration of the estate. In this regard, the Respondent failed in his duty as Administrator.

25. The second complaint raised by the Applicant is that the Respondent failed/neglected to render an accurate account of his dealings with the estate in contravention of section 76 d (iii) of the Law of Succession Act.

26. Section 83 (e) and (g) of the Law of Succession Act which sets out the duties of Personal Representatives provides as follows: -“Personal Representatives shall have the following duties –(a)........................(b).........................(c).........................(d)...........................(e)within six months from the date of the grant, to produce to the court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;(f)..............................(g)within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the court a full and accurate account of the completed administration.”

27. Once again this is a statutory requirement, which the Respondent was obliged to honour.

28. The applicant has annexed to her supporting affidavit a copy of a letter dated January 20, 2021 written to the administrator by the applicants advocates seeking full and accurate account of the estate. (Annexture ‘VAF-3’). The respondent did not reply to this letter. He did not render any accounts to the court or to the beneficiaries of the estate. Again, this is an example of dereliction of duty on the part of the respondent as administrator of the estate.

29. The applicant has accused the respondent of mismanaging the estate. Failure to comply with the statutory obligations imposed upon an administrator of an estate amounts to mismanagement. The respondent has for the past sixteen (16) years enjoyed (together with his two (2) brothers) the rental income derived from the house in Umoja without any share being given to the other beneficiaries. Likewise, the respondent has failed to distribute the land in Busia but has instead left it to the dependants and their families to use as they wish.

30. The respondent has accused the applicant of failing to disclose to court the fact that she alone is receiving and utilizing the rental income from House No. W, 24 Kaloleni Estate, which according to the Respondent is one of the assets of the estate.

31. The applicant denies that this property belongs to the estate of the Deceased. She asserts that the House in Kaloleni belongs to the Nairobi City County and that she is a mere tenant therein and pays rent to the County just like other tenants. The applicant has annexed to her further affidavit dated January 17, 2022 a copy of rent arrears invoice dated 30th November 2021 (Annexture VAF ‘1’) issued by the Nairobi City County in respect of House No. W24 Kaloleni Estate. She has also annexed a demand notice dated July 12, 2021 issued by the Kenya Revenue Authority for rental arrears of Kshs 28,300. 00 due in respect of House No. W24 Kaloleni Estate (Annexture ‘VAF-2’). These two letters provide prima facie evidence that the House in Kaloleni Estate belongs to the Nairobi City County and not to the estate of the Deceased as claimed by the Respondent.

32. In the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] eKLR Mwita J stated that:“Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not a discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.” (own emphasis)

33. All in all I am satisfied that it has been demonstrated that the respondent has failed dismally in his duties as Administrator of the estate of the deceased. Sufficient ground has been laid for revocation of the grant. Accordingly, I have no hesitation in revoking the grant issued to the administrators on November 17, 2006.

34. Section 47 of the Law of Succession Act provides that:-“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.”

35. Similarly rule 73 of the Probate and Administration Rules provides that:-“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

36. Having revoked the grant issued in this matter it is necessary to appoint new administrators of the estate. The respondent indicated that he had no objection to the applicant being appointed an administrator of the estate. I hereby appoint the Applicant Victoria Akumu Fwaya and her stepbrother Eric Omondi Fwaya as administrators of the Estate.

37. Finally, the court makes the following orders: -(i)The grant of letters of administration intestate issued on November 17, 2006 be and are hereby revoked.(ii)The respondent James Oduor Fwaya to file within sixty (60) days a true account of all his dealings with the estate since November 17, 2006, the date the grant was issued together with an inventory of all the assets comprising the estate as well as any pending liabilities.(iii)A fresh grant of letters of administration intestate shall be issued to Victoria Akumu Fwaya and Eric Omondi Fwaya as joint Administrators of the estate of Francis Fwaya Obare (Deceased).(iv)Within ninety (90) days of this Judgement the administrators to file a summons for confirmation of grant.(v)This being a family matter the court makes no orders on costs.

DATED IN NAIROBI THIS 8TH DAY OF JULY, 2022. …………………………………MAUREEN A. ODEROJUDGE