[2023] KEHC 24990 (KLR)

In re Estate of Arubeya Mukami (Deceased) (Succession Appeal 55 of 2021) [2023] KEHC 24990 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24990 (KLR)

Republic of Kenya

In the High Court at Migori

Succession Appeal 55 of 2021

RPV Wendoh, J

November 9, 2023

IN THE MATTER OF THE ESTATE OF ARUBEYA MUKAMI (DECEASED)

Between

BWS

Applicant

and

Elias Chacha Mukami

Respondent

Judgment

1. This cause relates to the estate of Arubeya Mukami (Deceased) who died intestate on 23/7/1977. BWS (the appellant) preferred this appeal against the ruling and order of Hon. Wachira in CMCC Migori Succession Cause No. 33 of 1995 dated and delivered on 28/5/2019.

2. The proceedings which precipitated in this appeal are summons for revocation of grant dated 14/8/2018. The appellant alleged that the grant of letters of administration issued to Elisha Chacha Mukami (the respondent) on 26/9/2001 and confirmed on 12/10/2001 were obtained by concealment from the court of the whole list of beneficiaries; that the administrator has failed after several notices to distribute the estate of the beneficiaries; that the respondent did not disclose in his petition that he was not the only beneficiary and the respondent has failed to produce an inventory of how he has distributed the estate.

3. In his ruling, the trial Magistrate observed that it is only the respondent who was listed as a beneficiary in the estate of the deceased; that Gati Mukami and Mwita Mukami were left out but they did not complain how the succession was done. It was held that the appellant was not a child of the deceased. The appellant was 2 years old at the time when the succession proceedings were being done in the year 1977 and if anything, it was his mother Robi Mukami who ought to have raised an objection. The learned Magistrate further held that it is 18 years since the grant was confirmed and due to the lapse of time, it would be unnecessary to disturb the distribution of the estate. The trial court agreed with the respondent that the appellant is not a dependant of the deceased since he is not the blood grandchild of the deceased and he did not depend on the deceased at the time of his death and the appellant together with his siblings were not in existence. On that basis, the trial court found that the summons for revocation were unmerited and dismissed the same with each party bearing their own costs.

4. Being dissatisfied with the said ruling, the appellant preferred this appeal by a memorandum of appeal dated 13/7/2021 on the following grounds:-a.That the trial Magistrate erred in law and in fact by applying the wrong principles of law in dismissing the summons for revocation;b.That the trial Magistrate erred in law and in fact by dismissing the summons for revocation yet admits that not all beneficiaries to the estate of the deceased were included in the grant;c.That the learned Magistrate erred in law and in fact when he held that the appellant who is a grandchild of the deceased was not a dependent of the deceased;d.The learned Magistrate erred in law and in fact by also dismissing the summons for revocation on the basis that too much time had passed since confirmation of grant and the current application for revocation.

5. Directions were taken that the appeal be canvassed by way of written submissions. Both parties complied.

6. The appellant filed his written submissions on 7/2/2023 and addressed grounds 1 and 4 of the appeal jointly. It was submitted that the trial court erred in bringing up the issue of delays or laches; that according to the provisions of Section 76 of the Succession Act, it does not matter the age of the grant or the age of the applicant, the court has powers to deal and revoke the grant and therefore the holding on lapse of time was wrong.

7. On ground 2 of the memorandum of appeal, it was submitted that there was evidence by both the appellant and the respondent that there were several beneficiaries who were the descendants of the deceased; that the appellant confirms that he is the grandson of the deceased by way of woman to woman marriage and therefore a beneficiary of the estate of his grandfather Arubea Mukami. The appellant reiterated that the age of the appellant is irrelevant; that there is no need to prove dependency but what matters is that one is a beneficiary. It was submitted that the learned Magistrate erred in upholding the grant even after finding out that not all the beneficiaries were included.

8. The appellant referred to the provisions of Section 71 (2) of the Law of Succession Act which provides on cases of intestacy; that the court has to be satisfied on the identities of all the beneficiaries. The appellant submitted that in the grant, it was shown that the respondent took the whole of the deceased’s estate and no other beneficiary nor their shares was indicated.

9. On ground number 3, the appellant submitted that the trial court erred in finding that the appellant could not sustain an application for revocation since he was not a dependant of the deceased; that Section 76 of the Law of Succession Act does not require one to be an dependant but any interested party; that Section 71 (2) of the Law of Succession Act provides for persons who are beneficially entitled to the estate but not beneficiaries. The appellant further submitted that the court erred in finding that he lacked locus standi since at the time when the succession proceedings were being conducted, he was 2 years old. The appellant grew and found that the respondent wanted to remain the sole beneficiary of the estate of the deceased and he sought to revoke the grant which he cannot be blamed for doing so. The appellant urged this court to allow the appeal and revoke the grant.

10. The respondent opposed the appeal and filed submissions dated 5/10/2023. On whether the appellant as a grandchild of the deceased is entitled to the estate, it was submitted that since the deceased died in 1977 before the commencement of the Succession Act, the estate was to be distributed according to Kuria Customary Law. The respondent supported his argument by relying on the findings in Re: Nduati Mbuthia (Deceased) (2015) eKLR where the court held that the substantive law of succession for persons who died before 1/7/1981 is written laws and customs that applied at the date of the death of person in question.

11. The respondent submitted that in the instant case, according to the Kuria customs, women were not allowed to inherit land but this was repugnant according to the dictates of the constitution under Article 47 of the constitution which outlaws discrimination. However, in Rono vs Rono the Court of Appeal held that all children are equal before the law; that in the instant case, the estate of the deceased is to be devolved in accordance with the Law of Succession Act; that the appellant does not still qualify as a beneficiary or as a dependant under Section 29 of the Law of Succession Act; that the appellant needs to prove that he was being maintained by the deceased prior to his death.

12. It was submitted that the appellant testified that he was the grandson of the deceased through one of his wives Robi Mukami who did not have a son; that Robi Mukami married his mother Sabina Robi as per the Kuria traditions. On cross examination, the appellant admitted that he did not have blood relations with the deceased; that he had never met the deceased.

13. On the other hand, the respondent testified that the deceased was his father who had three wives namely Robi Mukami, Magutu Mukami and Magore Mukami; that since Robi Mukami did not have sons, he adopted the appellant together with his siblings and the house of Robi Mukami would inherit the land through her adopted sons; that consequently, the appellant and his brother Daniel Mwita depended on him but not the deceased; that the respondent is the one who paid the dowry for the three adopted children.

14. From the foregoing, the respondent submitted that the appellant needed to prove dependency which he has failed to do; that section 29 (a) of the Law of Succession Act provides for the meaning of dependants to mean wife, wives and the children of the deceased whether or not maintained by the deceased prior to his death; that in this instant case, the appellant together with his brother were never sired by the deceased and neither did he take them as his own; that the appellant was adopted in the year 1997 and the deceased died in the year 1977 and therefore the appellant was never maintained by the deceased; that the appellant lacks locus standi by dint of the provisions of Section 29 of the Law of Succession Act to make a claim in the estate of the deceased.

15. On whether the trial court erred in dismissing the summons yet there was admission that not all the beneficiaries of the estate of the deceased were included in the grant, it was submitted that section 76 of the Law of Succession Act provides for instances when a court can annul or revoke a grant; that in Jamleck Maina Njoroge vs Mary Wanjiru Mwangi (2015) eKLR the court listed the circumstances which can lead to a revocation of grant; that it is the duty of the appellant to prove that any of the grounds in Section 76 have been committed before the court can revoke a grant; that the powers to uphold or revoke a grant is discretionary as was held in the case ofAlbert Imbuga Kisigwa vs Recho Kavai Kisigwa Succession Cause No. 158 of 2000.

16. The respondent contended that he applied for the letters of administration with the consent and knowledge of his siblings namely Gati Mukami and Mwita Mukami; that upon receipt of the grant, he subdivided Bugumbe Mabera/122 (suit land) and apportioned it to his brother Mwita Mukami as well as to the appellant and his brother Daniel Mwita; that he also built them houses on the said portions of land; that the appellant sold off his portion of land and as a result he cannot now claim from the estate.

17. On whether the trial court erred in dismissing the summons for revocation on the basis of the effluxion of time, it was submitted that the grant was confirmed in the year 2001 and the respondent distributed the estate without any objections or complaints from his siblings; that the appellant seeks to revoke the grant 18 years whereas in collaboration with his brother, they sold their apportioned share; that the appellant has not approached this court with clean hands and he wants to bite more than he can chew; that the appeal should fail because of laches. The respondent urged this court to find that the instant appeal is an abuse of the court process and it should be dismissed with costs.

18. I have considered the appeal, the rival submissions by both parties and the entire summons for revocation proceedings before the trial court. The issue for determination is whether the trial court considered the correct legal principles in dismissing the appellant’s summons for revocation of grant application.

19. On 26/9/2001 when this succession cause came up for issuance of grant of letter of administration intestate, the court noted that there was no objection lodged since the petition of grant was filed on 24/3/1995 and all formalities were complied with. In the proceedings of 9/10/2001 the court confirmed the grant and issued a certificate of grant.

20. The revocation proceedings proceeded by way of viva voce evidence. The appellant testified as PW1. He stated that the deceased was his grandfather and he had 3 wives; that his mother Sabina Robi was married in the home of Robi Mukami since Robi Mukami did not have sons; that according to Kuria Customs, his mother was to inherit the property of Robi Mukami; that the estate was not divided into 3 houses and the respondent listed himself as the sole beneficiary.

21. On cross examination, the appellant testified that he was born in the year 1993; that he did not see deceased and he could not recall when Robi Mukami died; that the respondent built houses for him and his brother Daniel Mwita; that the respondent gave them land but not according to the law. The appellant stated that he did not sell his land as alleged but his name was only used in the sale agreement; that he only knows the respondent as his father. On re-examination, the appellant stated that the land he was given does not come from the suit land. On re-examination by the court, the appellant stated that he was given land No. 1425 which came from land no. 122.

22. John Nyondo Chacha testified as PW2. He is a clan father. He stated that the suit land was to be divided into 3 parcels but the certificate of grant does not indicate as such; that the respondent gave the appellant a small parcel of land where he has built a house. On re-examination, he testified that the house of Mogutu Mukami was not given land.

23. The respondent testified as DW1. It was his testimony that he did the succession proceedings with the knowledge of his siblings Gati Mukami and Lukas Mukami; that the grant was confirmed and no one raised an objection; that the appellant depended on him and he built him together with his brother a house; that he also gave them a portion of land from the suit property; that they sold the land which they had been given.

24. On cross examination, the respondent testified that he adopted the appellant and his two siblings to come and help Robi Mukami; that Robi did not have a son and since ladies were not allowed to inherit land, he adopted them; that he paid dowry for the three children but not their mother; that when the succession was filed, he agreed with his siblings; that he gave the applicant land. On re-examination, he testified that when he had filed the succession, he had not adopted the applicant; that he gave Lukas Mwita land but he sold it.

25. This being the first appeal, the court has a duty to re-evaluate and analyse all the evidence tendered in the lower court and arrive at its own conclusion but bearing in mind that it neither saw nor heard the witnesses testify. It has to establish whether the decision of the lower court was well founded. See the decision in Selle & Another vs Associated Motorboat Co. Ltd (1968) EA 123.

26. From the testimonies on record, the deceased had three wives namely: - Robi Mukami, Mogori Mukami and Mogutu Mukami. Since one of the wives, Robi Mukami did not have a son, she conducted a woman to woman marriage and married the mother to the appellant one Sabina Robi. It is common ground that the appellant together with his two siblings, one Daniel Mwita and a sister who has not been named by either of the parties were adopted by the respondent to be part of the house of Robi Mukami. By virtue of the adoption, the appellant became a grandson of the deceased. It came out clearly during the proceedings and it was admitted by the appellant, that the respondent did allocate to him land together with his brother and built them a house. It is also not disputed that the whole estate of the deceased devolved to the respondent herein as is evident from the certificate of confirmation of a grant dated 12/10/2001.

27. The appellant denied selling his parcel of land. The respondent produced “DEX3” stating that it was a sale agreement showing that the appellant sold his land. This court has considered the sale agreement. It does not form part of the record of appeal but nonetheless, the court has perused the original file and found the same. The sale agreement is dated 12/8/2016. It is between the appellant and one Regina Gati. The interest being sold is Bugumbe West/123 for a consideration of Kshs. 380,000/=. The suit land in question which forms the estate of the deceased is Bugumbe/Mabera/122. At the face of the agreement, it cannot be conclusively stated that the appellant sold his portion because none of the parties led evidence to show that Bugumbe West/123 is a mutation from Bugumbe/Mabera/122.

28. Be that as it may, the appellant admitted that the respondent did build for him and his brother a house. The appellant has not explained what became of the land where the house is situated. He is only dissatisfied that the suit parcel of land was not distributed according to the law.

29. In succession proceedings, dependency is an important aspect prior to distribution of property. Section 29 of the Law of Succession defines a dependant for purposes of provision as follows: -For the purposes of this Part, "dependant" means-(a)the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;(b)such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and(c)where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.”

30. The place of grandchildren in being considered dependants is after the nuclear family of the deceased has been considered and adequate provision has been made to them. In Beatrice Ciamutua Rugamba (supra) it was held:-From the foregoing, a dependent under section 29 (b) and (c) must prove that he/she was being maintained by the deceased immediately prior to his demise. It is not the mere relationship that matters, but proof of dependency."

31. Section 29 (b) of the Law of Succession Act, makes it mandatory for persons who fall under the category of deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters to have been maintained by the deceased prior to his death in order to be considered as dependants. In this regard, it is not an automatic right for grandchildren to be beneficiaries of estates of their deceased grandparents. They have to prove dependency.

32. The appellant was born 16 years after the deceased died. He was then adopted into the family of the deceased in 1997 at the age of 3 years or thereabouts. If at all the appellant is claiming as a dependant in the estate of the deceased, it means he is trying to suggest he was being maintained by the deceased even prior to his birth. While it is true that the court has to be satisfied on the identity of all beneficiaries prior to confirmation of the grant, the appellant having not been born at the time when the deceased died, how was the court supposed to have identified him and his beneficial interest in the estate of the deceased, since he brought these proceedings on his own behalf but not on behalf of other persons claiming to be beneficiaries in the estate of the deceased.

33. I find that the appellant has not led evidence to show that prior to the death of the deceased, together with his siblings, they were being maintained by the deceased for provision to be made to them.

34. In as much as the appellant has attempted to argue that issue here is not necessarily a person being a beneficiary but a person being beneficially entitled to the estate of a deceased person, even a person who claims to be beneficially entitled to the estate of the deceased either by relations, a creditor or in any other way, must prove how they are beneficially entitled to the estate of the deceased. In my view, the person from whom the appellant and his siblings may make any claims, is the respondent since he had admitted that he took up the responsibility of bringing them up. In fulfilling his responsibility, the respondent did build for the appellant and his siblings a house.

35. According to section 76 of the Law of Succession Act, the circumstances which a grant can be annulled and/or revoked i.e. where the process of obtaining the grant was defective in substance, the grant was obtained fraudulently or through concealment of material facts, the grant was obtained by untrue allegation of fact essential in a point of law to justify the grant notwithstanding that the same was made ignorantly and that the person to whom the grant was made has failed to apply for confirmation within a year, to proceed diligently with the administration of the estate, he has failed to produce in court accounts and inventory as and when needed; and lastly where the grant has become useless and inoperative.

36. From the facts on record, I find that the appellant did not lead evidence to demonstrate that there was concealment of facts prior to the grant being confirmed on 9/10/2001. Besides, the court confirming the grant noted that ever since the grant of letters of administration was issued on 24/3/1995 up to the year 2001 which is 6 years later, no objection had been filed. If there was an objection from the other two houses, they would have filed it then.

37. It is not an automatic right that since one was a grandchild, they should be apportioned an estate of their grandparents. I reiterate that there has to be proof of dependency. This court finds that this appeal challenging the decision of the trial court on its findings on the summons for revocation of the grant dated 14/8/2018t is devoid of merit. The appeal is hereby dismissed with costs to the respondent.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 9TH DAY OF NOVEMBER 2023R. WENDOHJUDGEJudgement delivered in the presence of;Ms. Akoya holding brief for Kerario Marwa for the Appellant.No appearance for the Respondent.Emma & Phelix Court Assistant.