[2022] KEHC 16207 (KLR)

In re Estate of BPO (Deceased) (Succession Cause 8 of 2021) [2022] KEHC 16207 (KLR) (7 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16207 (KLR)

Republic of Kenya

In the High Court at Busia

Succession Cause 8 of 2021

JR Karanja, J

December 7, 2022

Between

ACO

1st Petitioner

JO

2nd Petitioner

and

FEO

Objector

Ruling

1. The petition for letters of administration intestate dated July 6, 2021 was presented by applicant ACA(1st petitioner) and JO (2nd petitioner) in their capacities as widow and daughter of the deceased, BPO, who passed away on the April 29, 2019 at the age of seventy-seven (77) leaving behind several dependants and/or beneficiaries and several movable and immovable property which included parcels of land in the counties of Busia and Nairobi and several bank accounts in Kenya and Uganda “inter alia” the estimated value of the assets was placed at ksh 40 million. It would therefore be safe to infer that the deceased by the existing standards of living was a wealthy man.

2. The petition or application was formally gazette on September 8, 2021 vide Gazette No Notice xxxx. A party dissatisfied with the application was given a period of thirty (30) days to show cause why the grant ought not be issued to the applicant or to simply object to the issuance of the grant to the applicant.Accordingly on the November 3, 2021, FEO (objector) filed the present objection to making a grant in favour of the petitioners on the basis “inter alia” that she was the legally recognized widow of the deceased and therefore ranked first in priority as the person entitled to apply for the grant and that the first petitioner is not and has never been a wife of the deceased and can only be described as a “J come late” in the deceased’s life or a “mpango wa kando”/concubine of the deceased and cannot therefore have superior inheritance rights over her (objector). That the second petitioner is her (objector’s) daughter and cannot rank above her in succeeding the estate of the deceased.

3. The objection was later followed by a cross-petition for grant of letters of administration to the objector dated November 17, 2021 and filed herein on November 26, 2021. Hearing of the objection was by way of written submissions. These were filed herein by Maloba & Co Advocates, on behalf of the objector and by Gabriel Fwaya Advocates, on behalf of the petitioners.This court considered the objection on the basis of the supporting and opposing grounds and in the light of the rival submissions and was of the opinion that the issues arising for determination are two fold viz:-(1)whether the objection is proper and competent before court.(2)whether the objector has shown sufficient cause to disqualify the petitioners as the rightful applicants in priority to the objector and/or others in applying for grant for letters of administration intestate in respect of the estate of the deceased. Or whether the objector has provided sufficient and credible grounds to prove that the petitioners are not deserving as the rightful administrator and/or beneficiaries of the deceased’s estate.

4. With regard to the first issue, the pre-requisite procedures in applying for grant of letters of administration intestate are set out in part four (iv) of the Probate & Administration Rules. As per the relevant gazette notice no xxxx, any party wishing to raise an objection to the making of a grant must do so within thirty (30) days of the publication of the notice.

5. Herein, the notice was effectively published on October 8, 2021, but the present objection was lodged in court on November 3, 2021, thereby implying that it was time-barred or that it was lodged past the prescribed period of time.

6. In the circumstances, the instant objection is improper and incompetent before the court and ought to be struck out without much ado. However, given the nature of this cause and the attendant effects this court deems it fit to disregard the procedural technicalities in favour of substance of the case.

7. In that regard, the second issue for determination turned on whether the first petitioner is a wife to the deceased for purposes of applying for grant of letters of administration in respect of the deceased’s estate in priority to the objector or in that matter to any other beneficiary of the estate. In real sense, this dispute is directed more at the first petitioner rather than the second petitioner who is a daughter of the objector and the deceased thereby affirming her interest in the estate of her late father as a beneficiary and perhaps with the consent of all other beneficiaries an administrator or one of the administrators of the estate. Her enjoinment in this matter was according to the objector prompted by a belief that, she conspired with the first petitioner to petition for grant respecting the deceased’s estate.

8. Be that as it may, the petitioners’ affidavit dated July 6, 2021 in support of their petition did not contain any document or evidential matter to show that the first petitioner was indeed one of the deceased’s two wives i.e a second wife. There is nothing to show the existence of a marriage between her and the deceased so as to clothe her with the legal authority to apply for necessary grant of letters of administration intestate. However, in her affidavit dated May 18, 2022, an affidavit of marriage dated July 19, 2015 deponed by herself and the deceased (Annextures marked “A CO – 1”)indicates that a marriage relationship existed between them and was contracted under the luhya customary law. The validity of the affidavit was not disputed herein by the objector in any substantial manner.

9. Indeed, the birth certificates (Annextures “ACO 2 & 3”) respecting the deceased’s daughters, LA and TPO, demonstrated that the marriage relationship existing between the deceased and the first petitioner was blessed with the two daughters aforementioned. It is worthy noting that in the objector’s affidavit in support of her cross-petition dated November 17, 2021, the two daughters are included as beneficiaries of the estate in their capacities as minor daughters of the deceased.Further, Annexture marked “ACO 9” being the deceased’s funeral programme clearly indicates that the first petitioner was treated and held by the deceased’s broad family as his second wife. Her witness in this objection i.e. Micheal Mubweka Wanjala, the second petitioner, JO, SAO, WOO and GO, indicated in their respective affidavits that indeed the first petitioner was married to the deceased as a second wife and that dowry was paid to validate the customary marriage.

10. It is evidently and factually clear that there existed a marriage relationship between the deceased and the first petitioner even though it was contracted after the initial and first marriage between the deceased and the objector which was conducted under statutory law at the time i.e the African Customary Marriage & Divorce Act. The marriage certificate annexed to the objector’s affidavit in the cross-petition dated November 17, 2021 (i.e. Annexture marked “FEO 2” indicates as much.In fact there is herein no substantial dispute from the objector that such a marriage existed. Her contention was that the marriage was no marriage at all as it was invalid having been contracted at a time when the deceased was already statutorily married to the objector and the marriage was still subsisting.

11The objector thus clearly implied that the purported marriage between the deceased and the first petitioner was unlawful from the beginning and a product of a criminal offence of bigamy. However, there was nothing availed by the objector to show that the deceased was charged with bigamy in a criminal court. She also did not dispute that an African marriage particularly under customary law is potentially polygamous.It may therefore be safely stated that the deceased was a polygamous man and that he died intestate. Therefore, any of his dependants, beneficiaries or survivors including the two petitioners and the objector were at liberty to apply for grant of letters of administration intestate respecting his estate regard being given to the provisions of part V of the Law of Succession Act and section 66 of the Law of Succession Act.

12. In the upshot, the present objection is devoid of merit and is hereby dismissed with orders that both the objector, FEO and the first petitioner, ACA, be and are hereby appointed the joint administrators of the estate of the deceased. The grant of letters of administration intestate be accordingly issued forthwith with each of them being at liberty to take out the necessary summons of confirmation of grant within the next six (6) months from this date hereof subject to them and the rest of the beneficiaries agreeing on the mode of distribution of the estate.Each party shall bear their own costs of the objection.Ordered accordingly.

J R KARANJAHJUDGE[DATED & DELIVERED THIS 7TH DAY OF DECEMBER, 2022. ]