[2022] KEHC 485 (KLR)

Gicovi v Njeru (Succession Cause 254 of 2014) [2022] KEHC 485 (KLR) (11 May 2022) (Ruling)

Neutral citation: [2022] KEHC 485 (KLR)

Republic of Kenya

In the High Court at Embu

Succession Cause 254 of 2014

LM Njuguna, J

May 11, 2022

Between

Geofrey Gicovi

Applicant

and

Lydon Njagi Njeru

Respondent

Ruling

1. The matter for determination before this court is the summons for revocation of the grant issued on 09. 03. 2021 to the respondent herein.

2. It was the applicant’s case that the respondent/administrator herein concealed material facts relevant to this case in that the administrator failed to include him as a beneficiary of the estate of the deceased herein notwithstanding the fact that he is a son of the deceased hence a rightful beneficiary; that the respondent/ administrator is on the verge of implementing the grant and evict the applicant from the Land Parcel No. Ngandori/Kirigi/3753 thus rendering him destitute by disinheriting him. The application was supported by an affidavit sworn on 01. 07. 2021 wherein the applicant reiterated his case that the respondent colluded with other beneficiaries in the distribution of the estate and as a result, disinherited him. He thus proceeded to provide his preferred mode of distribution of the estate.

3. The respondent filed an affidavit sworn on 22. 10. 2021 wherein he deponed that the applicant was included as a joint beneficiary of 0. 20 Ha of Land Parcel No. Ngandori/Kirigi/3753 together with others and that is where he resides todate. That, it is not true that he never disclosed that the applicant is a son to the deceased given that the applicant even signed a consent during the process of hearing the Succession Cause and further, no one has evicted him from where he currently lives. He proceeded to state that the applicant, himself together with another brother by the name of Alex Murithi Joseph had previously inherited three acres each from the estate of their father and that what is left with their deceased mother belongs to their sisters and it is what is the subject of the succession proceedings herein and there is no way they could get more land while their sisters had none at all. It was deponed that he distributed the estate per the wishes of their parents for the benefit of everyone. That he disclosed to court all material facts relevant to the case and, there was no concealment of any fact material to the case and further that, the applicant was in court throughout the proceedings and at some point, he filed a protest which he willingly withdrew. He proceeded to state that the applicant even proceeded to sign the consent to confirmation of grant and as such, the application herein lacks merit and it should be dismissal.

4. The court proceeded to hear the application via viva voce evidence after which the parties herein were directed to file written submissions. The respondent filed his submissions while the applicant failed to do so. The respondent submitted that, during the hearing of the succession cause, all relevant information in relation to the cause were disclosed by the administrator to the beneficiaries including the fact that the applicant was a beneficiary and a son to the deceased. It was submitted that the applicant inherited a portion of the estate that holds the home compound jointly with others because both the applicant and the respondent herein being the sons of the deceased had inherited three acres each from their late father (Joseph Njagi Njeru) vide Succession CauseNo. 116 of 1985, a fact which the applicant himself admitted. That the applicant filed this application in total disregard of the fact that he had already received his share but nonetheless still wanted to be apportioned land that was supposed to be shared by his sisters. That he was consulted prior and even after the institution of the Succession Cause herein by the administrator and further that he even executed all the consents in the process of Succession Cause herein and further that he was in court during the confirmation process and raised no protest. It was his case that the application herein is self-defeating and a clear abuse of the court process. In the end, he prayed that it be dismissed with costs to the respondent.

5. I have considered the application herein, the replying affidavit, the evidence on record, and the respondent’s submissions. The applicant’s case is that the administrator failed to include him as a beneficiary in the distribution of the estate of the deceased herein notwithstanding the fact that he is a son of the deceased and hence a rightful beneficiary. In my view, the only issue which this court is invited to decide is whether the grant of letters of administration issued on 08. 03. 2021 to the respondent should be revoked.

6. The grounds upon which the said application is premised are that the grant was obtained by concealment of material facts relevant to the said grant; that the grant was obtained by means of untrue allegations of facts essential in point of law to justify the grant. When the application came up for hearing before this court, the applicant’s testimony was to the effect that he was not satisfied with the mode of distribution because he was to get 0. 30 ha but instead was given ½ ha jointly with other beneficiaries. He proceeded to confirm that he had inherited three acres of his deceased father’s estate vide Succession Cause No. 116 of 1985 at Embu which he sold but still desired to inherit part of the remaining six acres upon which the deceased herein had been sitting on. The respondent on the other hand testified that he involved everyone in the succession process and further that, all the beneficiaries were present in court during the confirmation process.

7. The circumstances under which a grant can be revoked are provided for under Section 76 (a) - (e) of the Law of Succession Act and include;a.Where the proceedings to obtain the grant were defective in substance;b.Where 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.Where 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.Where 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; orii.to proceed diligently with the administration of the estate; oriii.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; ore.Where the grant has become useless and inoperative through subsequent circumstances.

8. The Learned Justice W. Musyoka in Re Estate of Agwang Wasiro (Deceased) [2020] eKLR explained the above provisions and in doing so held thus: -“Under Section 76 of the Act, a grant of representation is liable to revocation on three general grounds. The first ground would be where the process of obtaining it was attended by glaring difficulties, such as where the same was defective, say because the person who obtained representation was not qualified to be appointed as personal representative, or the procedural requirements were not met for some reason or other. It could also be because the petitioner used fraud or misrepresentation or concealed important information in order to obtain the grant. The second general ground is where the grant is obtained procedurally, but the administrator subsequently runs into difficulties during the process of administration of the estate. Such difficulties include his failure or omission to apply for confirmation of his grant within the period allowed in law, or where he fails to exercise diligence in administration of the estate, such as where he omits to collect or get in an asset, or where he fails to render accounts as and when he is required to do so by the law. The third general ground is where the grant has become inoperative or useless on account of subsequent circumstances, such as where the sole administrator died or loses the soundness of his mind or is adjudged bankrupt.”

9. It is trite that whoever asserts a fact is under an obligation to prove it in order to succeed. The standard of proof in civil cases (the degree of certainty with which a fact must be proved to satisfy the court of the fact) is the balance of probabilities. Therefore, the applicant’s burden remains even if the respondent fails to file any defence in response [See Sections 107 and 108 of the Evidence Act, equally Miller v Minister of Pensions [1947] 2 All ER 372, Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another[2014] eKLR].

10. I have perused the documents in the court file and I have come across a Chief’s letter dated 05. 06. 2014 which lists the dependants of the deceased including the applicant herein, a Form 38 wherein the applicant signed and he was present in court during the confirmation of grant. Further, there is evidence that the three sons inherited three acres of land vide Succession Cause No. 116 of 1985 at Embu, which the applicant equally readily confirms ; and wherein, the remaining land where the deceased herein stayed was meant for the sisters to inherit.

11. In the instant case, the applicant did not tender any evidence to prove that he did not sign the consent to confirmation of grant herein and he was not present at the time when the grant was confirmed. To the contrary, the record shows that he was aware of the succession case and he signed the relevant consents.

12. In fact, the applicant himself confirms that he actually inherited three acres just like his other two brothers vide Succession CauseNo.116 of 1985 at Embu. He concurred with the respondent that he had sold his three acres but still desired to acquire more land notwithstanding the fact that the same would prejudice his sisters.

13. Having perused the evidence presented before this court in its entirety, I note that the allegation that the respondent/ administrator herein concealed material facts relevant to this case and that he failed to include the applicant as a beneficiary has not been proved and indeed it is not true.

14. In the end, I find that the application has no merit and I hereby dismiss the same with costs to the respondent.

15. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 11TH DAY OF MAY, 2022. L. NJUGUNAJUDGE………………………………………….for the Applicant…………………………………………for the Respondent