[2023] KEHC 25136 (KLR)

In re Estate of CSO (Deceased) (Succession Cause 243 of 2012) [2023] KEHC 25136 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25136 (KLR)

Republic of Kenya

In the High Court at Busia

Succession Cause 243 of 2012

WM Musyoka, J

November 10, 2023

IN THE MATTER OF THE ESTATE OF CSO (DECEASED)

Ruling

1. The deceased herein died on 20th July 1987, according to the letter, on record, from the Assistant Chief of Township Sub-Location, dated 22nd March 2012, and the certificate of death, serial number 14XXX41, dated 1st November 2022. It is indicated that she owned Bukhayo/Mundika/1XX, jointly with CAK. Details of who survived her are scanty. There is a reference to the late JSK, whose relationship with either of the 2 women is not disclosed, but he is said to have been survived by 2 children, KO and , minors under the care of PWK, who is described as administrator of the estate.

2. Representation to the intestate estate of the deceased was sought by PWK, in his purported capacity as son of the deceased, through a petition filed herein, on 29th June 2012. He listed himself as the sole survivor of the deceased, and Bukhayo/Mundika/1XX, 1XX and 41XX as the assets that the deceased died possessed of. Vincent Owalla Otane, Stanslaus Mulwoto, Morine Atieno Owino, Joyce Avude Angode, Agnes Nyambura Gathuo and George Okoth Jaoko are listed as liabilities. Letters of administration intestate were made to him, on 3rd June 2013, and a grant was duly issued, of even date. I shall refer to him as the administrator. The grant was confirmed on 16th October 2014, on an application dated 9th June 2014. Bukhayo/Mundika/171 was devolved upon the administrator, to hold in trust for KO and OO; Bukhayo/Mundika/41XX wholly upon the administrator; and Bukhayo/Mundika/1XX was shared out between the 7 individuals identified as liabilities. A certificate of confirmation of grant was duly issued, dated 30th November 2015.

3. An application for revocation of the grant, dated 10th November 2022, was filed herein on 14th November 2022, at the instance of Oliver Okello Sande and Hadija Nasirumbi. I shall refer to them as the applicants. They seek revocation of the certificate of confirmation of grant herein, issued on 30th November 2015; revocation of the sharing of Bukhayo/Mundika/1XX, 1XX and 41XX; and costs. The grounds on the face of the application are that the certificate of confirmation of grant was obtained through concealed facts, some beneficiaries were omitted and the court was misled.

4. The affidavit in support is sworn by the 1st applicant. He avers that he was a grandson of the deceased, through her son Sunday James Kuoba. He states that the administrator is a son of Cicilia Auma Kwoba, who is still alive, and asserts that he was not a son of the deceased herein. He complains that the administrator has taken the share of the land belonging to the deceased herein, instead of that belonging to his mother, Cicilia Auma Kwoba. He is accused of not disclosing other survivors of the deceased. The family of the deceased is identified as comprising of 2 children, Hadija Nasirumbi and the late Sunday James Kuoba; 1 grandson, Oliver Okello Sande, and 7 granddaughters, Catherine Khamala, Everline Ajiambo, Jackline Night, KO, Lillian Bahati, Rebecca Chausiku and Risper Adongo. He discloses that Bukhayo/Mundika/1XX, 1XX and 41XX were jointly registered in the names of the deceased and Cicilia Auma Kwoba. He has attached a greencard for Bukhayo/Mundika/1XX, showing it to be in the joint names of Cicilia Auma Kwoba and Atarina Shiundu Kwoba, as at 1987 and 1990, before it was transmitted to the administrator and others in Bukhayo/Mundika/1XX, 1XX and 41XX in 2014, followed by the closure of the register in 2015.

5. The administrator replied, vide an affidavit, that he swore on 11th January 2023. He identifies the 1st applicant as his brother’s son, and the 2nd applicant as his stepsister. He avers that succession was concluded 10 years ago, and title deeds were issued, and the beneficiaries have built permanent houses. He states that Bukhayo/Mundika/1XX, 1XX and 41XX initially belonged to Edimondo Kwoba Ojinji, who had 3 wives, namely Cicilia Auma Kwoba, Atarina Shiundu Kwoba alias Catherine Shiundu Ojinji and Getrude Nameyo Kwoba. The 3 families lived within Bukhayo/Mundika/1XX. The deceased herein was the 1st wife, and the mother of the 2nd applicant and the father of the 1st applicant; the mother of the administrator was the 2nd wife, and her children were the administrator, the late John Kwoba, Francis Kwoba, Topister Auma Akello Kwoba, Everlyne Tabu Kwoba, Janemary Kwoba, Mary Nabwire Kwoba and Catherine Kwoba; and Nameyo Getrude Kwoba was the 3rd wife, and the mother of Fredrick Wandera Kwoba. Edimondo Kwoba Ojinji died in the 1980s, and was buried on Bukhayo/Mundika/1XX, and so were his 1st and 3rd wives. He asserts that the land in question was registered in his name in trust for the whole family, pending distribution to those entitled. He avers that the 1st and 2nd wives did succession, and the property was registered in their names in trust for the whole family. That happened in 1982. He states that he had asked the 2nd applicant to seek representation to the estate of the deceased herein, but she refused, and let him go ahead, as the eldest son of Edimondo Kwoba Ojinji. Upon getting the grant, he caused the land to be registered in his name as administrator, as the survivors of the deceased were all minors. He avers that the deceased herein had no land of her own, and that she owned the same jointly with Cicilia Auma Kwoba, who was still alive, but very old and sickly. He avers that the registration in 1987, did not show the share that the deceased was entitled to in the land as an individual, and that she was so registered as a representative. He asserts that the late Edimondo Kwoba Ojinji had 3 wives. All of whom had children, and the property could not have been shared out between 2 wives to the exclusion of the 3rd wife. He claims that he has no intention of grabbing the land, and that the same was still intact as a block, and was not subdivided, except for Bukhayo/Mundika/1XX, which had been sold, and had been transferred to the buyers, who have developed the same. He states that Bukhayo/Mundika/171 is intact, and it is the biggest. He states that Bukhayo/Mundika/41XX is a small plot. He states that a family meeting was necessary for all the survivors to agree on distribution. He accuses the applicants of selling portions of Bukhayo/Mundika/1XX. He conceded that he had not listed all the beneficiaries in his petition, as he intended to call all family members after the succession, after all have attained the age of majority. He states that the buyers bought from an undisclosed widow of the deceased. He has attached greencards for Bukhayo/Mundika/1XX, 1XX and 41XX, which demonstrate that all 3 were registered in the joint names of the deceased.

6. Directions were given on 28th February 2023, for disposal of the application, by viva voce evidence.

7. The oral hearings began on 18th April 2023. The 1st applicant was the first on the stand. He stated that the applicants were not involved when representation was sought by the administrator to the estate. He complains that the administrator transferred the entire property to his name, and left out the children of the deceased. He said that the deceased died when he was small. He said that although his grandfather, Edmond Kwoba Ojinji had 3 wives, his land went to 2 of them only, the deceased and Cicilia. He said that the 3rd wife was not involved in the administration of the estate of his grandfather. He identified Fredrick as his uncle from his grandfather’s 3rd wife. He identified KO as his brother. He said that he lived on Bukhayo/Mundika/1XX, where his father and the deceased were buried. He said that Cicilia moved out to Matayos, where the administrator had bought some land, after selling part of the estate land. H said that he was using Bukhayo/Mundika/171. He said that he did not know any of the buyers. He said that Fredrick resides in Uganda, and had not sold his portion, but when he came back he found that his portion had been sold. He wondered why the administrator was holding the land in trust for the family when everyone was an adult. He said that the administrator had taken everything. He stated that Cicilia was still alive. She was the administratrix of the estate of his grandfather, and the property should be under her name. He said that the land was registered under the name of the administrator, who was holding the same in trust.

8. Fredrick Wandera Kwoba followed. He was a stepson of the deceased, being the son of her co-wife, Nawire Nameyo. He explained that his late father had owned Bukhayo/Mundika/1XX, 1XX and 41XX, and after his death, his estate was administered by the deceased and Cicilia Auma. He explained that his mother was by then dead, so she did not join in the administration. The deceased then died, leaving Cicilia Auma as the sole administratrix. He accused the administrator of going to court and lying that he was a son of the deceased, yet his own mother, Cicilia Auma, who was still alive. He was made administrator of the estate of the deceased herein, and began to sell the assets. He stated that the children of the deceased were not listed in the certificate of confirmation of grant. He stated that his name was also not in the certificate of confirmation of grant. He said that Bukhayo/Mundika/171 was confirmed to Patrick for Kennedy and Oliver, and Bukhayo/Mundika/41XX was similarly confirmed. He stated that he had sold a plot to Stanislaus Mulwoto, after it was shown to him by Cicilia, and he needed the money for school fees, and added that he did not know that what he sold was all he was entitled to. He denied selling any land to Joseph Cornel Iwuara. He stated that he was not in court when the grant was confirmed.

9. Opiyo Kennedy Sande testified next. He stated that the deceased was his grandmother. He explained that the property initially belonged to his grandfather, who had 3 wives. He said that he got a share of Bukhayo/Mundika/1XX, 1XX and 41XX. He said that he was unaware that his brother Oliver had sold a portion of Bukhayo/Mundika/1XX. He said that he had not approached the administrator to get his share, explaining that there had been some confusion, for the applicant had paid Kshs. 30,000. 00 but the property was not transferred to him, and that that discouraged him. He said that there were buyers on Bukhayo/Mundika/1XX, but he could not tell whether they had title deeds. He complained that the administrator initiated the cause without involving his aunt, the 2nd applicant. He stated that she was ill and was not able to come to court. he said that the 2nd applicant had not indicated that she had no interest in the estate. He said that he was aware that Kennedy had sold a portion of Bukhayo/Mundika/1XX, not the whole of it. He asserted that he was biological grandson of the deceased, while the administrator was a stepson of the deceased, which meant that he, the grandson, had a superior right to that of the stepson. He said that the administrator ought to transfer the property that he held in trust to him and the 1st applicant.

10. Beatrice Sande followed. She said that the deceased was her grandmother. And the 2nd applicant was her aunt. She stated that the land occupied by the 1st applicant initially belonged to her grandfather, and that the 1st applicant was utilizing it. She stated that her father, James Sande, was a stepbrother of the administrator, and Kennedy and the 1st applicant were her brothers. She described Fredrick as her uncle, and said that she was unaware that he had sold his land. She said the land belonged to her grandfather, who had 3 wives. She cited oppression. She said that the land had not been shared out. She said that her brothers had not been given the share due to her father. She stated that Bukhayo/Mundika/1XX, 1XX and 41XX had been registered in the joint names of the deceased and Cicilia, and previously belonged to her grandfather. Elizabeth Achieng testified next. She was a granddaughter of the deceased. She said that they had initiated succession to the estate of their late father, James Sande, and they were asserting the share due to the said James Sande. She said that her brothers, the 1st applicant and Kennedy, had been given their shares, but complained that the same was a small portion. She added that survey works had not been done on their shares. She said Cicilia was alive, and was the registered proprietor.

11. The case for the administrator opened on 27th September 2023. He was the first to testify. He stated that his mother, Cicilia, had since passed away, on 17th August 2023, and was buried on 29th August 2023. He stated that the deceased was his stepmother, who had 4 children, namely Nafula, Hadija Nasirumbi, James Sande and Mary Kwoba. He testified that she died in 1986. He stated that she had no property of her own. When shown a greencard for Bukhayo/Mundika/41XX, he confirmed that the deceased had been registered as owning ½ of that property. He said that the greencards for Bukhayo/Mundika/171 and 175 showed the deceased as registered jointly with Cicilia as co-proprietors. He denied that he petitioned for representation to the estate of the deceased as a son. When shown the petition, he conceded that he had said that the deceased had 3 children, being himself, KO and Oliver Okeyo. He qualified that he meant that the deceased was his stepmother. He stated that 3 children f et deceased had died, and 1 was alive. He said that he did not disclose the biological children of the deceased, and denied that he concealed them. He said that the names of the grandchildren were disclosed. During cross-examination, he said that he had disclosed the children of the deceased in his petition.

12. Alfred Odhiambo testified next. He stated that the deceased had 3 children. 2 had died, and 1 was alive. He said that he was not aware that the surviving child of the deceased had not been involved in the proceedings. Francis Njoroge Kamau was the next witness. He said that he bought land on 17th August 2019, from Oliver. The sale transaction involved Oliver and the administrator. He got a title deed. He bought jointly with Dishon Mutimu Njoroge, after which the parcel was partitioned. He said that he did a search, and the same showed the administrator as owner. He said that he knew nothing about the deceased. Dishon Mutimu Njoroge followed. He testified along similar lines.

13. At the end of the oral hearing, both sides filed written submissions, which I have read through, and noted the arguments made. The applicant has cited sections 51(2) and 76 of the Law of Succession Act, Cap 160, Laws of Kenya, and rule 26 of the Probate and Administration Rules. The submissions by the administrator are summaries of the evidence, and no statutory provisions and case law are cited.

14. This matter, in my view, is very messy. Although it relates to the estate of Catherine Shiundu Ojinji, the parties addressed me extensively on the estate of her late husband, Edimondo Kuoba Ojinji, which signifies that there is a bigger problem. I will address this bigger problem, before I consider the revocation application on its merits.

15. The 3 assets placed on record as making up the estate of the deceased, that is to say Bukhayo/Mundika/1XX, 1XX and 41XX, were, according to the greencards and certificates of official search on record, at the time representation was sought, registered in the names of the deceased herein and Cicilia Auma Ojinji. The certificates of official searches and the greencards do not indicate the shares of each of the 2, except for Bukhayo/Mundika/41XX. I was told, in the filings and the oral narratives, that the 2, the deceased and Cicilia Auma, were administratrices of the estate of Edimondo Kuoba Ojinji, and were registered, as joint proprietors of Bukhayo/Mundika/1XX, 1XX and 41XX, in that capacity, and, therefore, they held the said assets in trust for other family members. No court documents were presented to support the allegation that the 3 assets were under succession, and were confirmed and transmitted to the names of the deceased and Cicilia. However, the greencard for Bukhayo/Mundika/171, shows that the registration of the 2 on 5th June 1990, was by way of transmission. The greencards for Bukhayo/Mundika/1XX and 4109, are, however, silent on that, but the transfers were done the same day, 5th June 1990, and I would presume that they were done on transmission.

16. Transmission happens at 2 stages. The first stage relates to transfer in favour of the administrators as proprietors as such, upon lodging a grant of representation. The second stage is upon the grant being confirmed, and a certificate of confirmation of grant is lodged at the land registry, and transfer is done in favour of the individuals listed in the certificate of confirmation of grant. The greencard for Bukhayo/Mundika/171, shows transmission at one stage, on 5th June 1990, to the 2 administratrices. That for Bukhayo/Mundika/1XX reflects transmissions at 2 stages, the first was on 30th September 1987, and the second on 5th June 1990. For Bukhayo/Mundika/41XX, transmission is reflected at only 1 stage, on 5th June 1990, where the property was devolved to both at ½ share each. What do I make of this? I presume, in the absence of court papers, that the administratrices lodged the first transmission on 30th September 1987, upon getting letters of administration, and by then the document related only to Bukhayo/Mundika/1XX. The confirmation involved all 3 assets, Bukhayo/Mundika/1XX, 1XX and 41XX, and they lodged the certificate of confirmation of grant at the lands registry, and on 5th June 1990, transfer by transmissions done in all 3 registers. In my estimation, based on these greencard entries, administration of the estate of Edimondo Kuoba Ojinji, was completed on 5th June 1990, upon these transfers by transmission reflected therein, and the said estate had moved completely and effectively to his 2 widows. I am, however, not making any definitive conclusion, for I have no jurisdiction, over matters of this nature, and the parties hereto ought to make an effort to trace the records relating to the succession proceedings in the estate of Edimondo Kuoba Ojinji, for a clearer picture.

17. The current law on transmissions is that stated in the Land Registration Act, No. 3 of 2012, and the Land Act, No. 6 of 2012. The provisions in both statutes are similar. Those in the Land registration Act are in Part VI, sections 60 to 62, which state as follows:“60. Transmission on death of joint proprietorIf any of the joint tenants of any land, lease or charge dies, the Registrar shall, upon proof of the death, delete the name of the deceased tenant from the register by registering the death certificate.61. Transmission on death of a sole proprietor or proprietor in common(1)If a sole proprietor or a proprietor in common dies, the proprietor’s personal representative shall, on application to the Registrar in the prescribed form and on the production to the Registrar of the grant, be entitled to be registered by transmission as proprietor in the place of the deceased with the addition after the representative’s name of the words "as executor of the will of ......................... [deceased]" or "as administrator of the estate of ........................................ [deceased]", as the case may be.(2)Upon confirmation of a grant, and on production of the grant the Registrar may, without requiring the personal representative to be registered, register by transmission —(a)any transfer by the personal representative; and(b)any surrender of a lease or discharge of a charge by the personal representative.(3)In this section, "grant" means the grant of probate of the will, the grant of letters of administration of the estate or the grant of summary administration of the estate in favour of or issued by the Public Trustee, as the case may be, of the deceased proprietor.62. Effect of transmission on death(1)Subject to any restriction on a person’s power of disposing of any land, lease or charge contained in an appointment, the personal representative or the person beneficially entitled on the death of the deceased proprietor, as the case may be, shall hold the land, lease or charge subject to any liabilities, rights or interests that are unregistered but enforceable and subject to which the deceased proprietor held the land, lease or charge, but for the purpose of any dealing the person shall be deemed to have been registered as proprietor of the land lease or charge with all the rights conferred by this Act on a proprietor who has acquired land, a lease or a charge, as the case may be, for valuable consideration.(2)The registration of a person as provided in section 61, shall relate back to and take effect from the date of the death of the proprietor.”

18. The provisions under the Land Act, are in Part V, sections 49 to 51, and state as follows:49. Transmission on death of joint proprietorIf one of two or more joint proprietors of any land, lease or charge dies, the Registrar shall, on proof of the death, delete the name of the deceased from the register by registration of the death certificate.50. Transmission on death of a sole proprietor or proprietor in common(1)If a sole proprietor or a proprietor in common dies, the proprietor’s personal representative shall, on application to the Registrar in the prescribed form and on production to the Registrar of the grant, be entitled to be registered by transmission as proprietor in the place of the deceased with the addition after the representative’s name of the words “as executor of the will of (.............. ) [deceased]” or “as administrator of the estate of (................ ) [deceased]”, as the case may be.(2)Upon production of a grant, the Registrar may, without requiring the personal representative to be registered, register by transmission—(a)any transfer by the personal representative; and(b)any surrender of a lease or discharge of a charge by the personal representative.(3)In this section, “grant” means the grant of probate of the will, the grant of letters of administration of the estate or the grant of summary administration of the estate in favour of or issued by the Public Trustee, as the case may be, of the deceased proprietor.51. Effect of transmission on death(1)Subject to any restriction on a person’s power of disposing of any land, lease or charge contained in an appointment, the personal representative or the person beneficially entitled on the death of the deceased proprietor, as the case may be, shall hold the land, lease or charge subject to any liabilities, rights or interests that are unregistered but are nevertheless enforceable and subject to which the deceased proprietor held the same, but for the purpose of any dealing the person shall be deemed to have been registered as proprietor thereof with all the rights conferred by this Act on a proprietor who has acquired land, a lease or a charge, as the case may be, for valuable consideration.(2)The registration of any person as aforesaid shall relate back to and take effect from the date of the death of the proprietor.”

19. Both statutes came into force on 2nd May 2012. The law applicable before then, and which was repealed by the coming into force of these 2 statutes, was the Registered Land Act, Cap 300, Laws of Kenya. I raise this as the late Edimondo Kuoba Ojinji died before the new law became effective, and his estate was administered and transmitted under the old legal regime. The provisions on transmission, in the repealed law were in Part VII, sections 108 to 122, they largely mirror the current law, and provided as follows:“118. If one of two or more joint proprietors of any land, lease or charge dies, the Registrar, on proof to his satisfaction of the death, shall delete the name of the deceased from the register.118. If one of two or more joint proprietors of any land, lease or charge dies, the Registrar, on proof to his satisfaction of the death, shall delete the name of the deceased from the register.119. (1)If a sole proprietor or a proprietor in common dies, his personal representative, on application to the Registrar in the prescribed form and on production to him of the grant, shall be entitled to be registered by transmission as proprietor in the place of the deceased with the addition after his name of the words “as executor of the will of .......................... deceased” or “as administrator of the estate of ............................... deceased”, as the case may be.(2)Upon production of a grant, the Registrar may, without requiring the personal representative to be registered, register by transmission -(a)any transfer by the personal representative;(b)any surrender of a lease or discharge of a charge by the personal representative.(3)In this section, “grant” means the grant of probate of the will, the grant of letters of administration of the estate or the grant of summary administration of the estate in favour of or issued by the Public Trustee, as the case may be, of the deceased proprietor.120. (Repealed by 14 of 1972, 9th Sch.).121. (Repealed by 14 of 1972, 9th Sch.).122. (1)Subject to any restriction on his power of disposing of the land, lease or charge contained in his appointment, the personal representative or the person beneficially entitled on the death of the deceased proprietor, as the case may be, shall hold the land, lease or charge subject to any liabilities, rights or interests which are unregistered but are nevertheless enforceable and subject to which the deceased proprietor held the same, but for the purpose of any dealing he shall be deemed to have been registered as proprietor thereof with all the rights conferred by this Act on a proprietor who has acquired land, a lease or a charge, as the case may be, for valuable consideration.(2)The registration of any person as aforesaid shall relate back to and take effect from the date of the death of the proprietor.”

20. Of course, some questions would still linger. The deceased herein is said to have died on 20th July 1987, and the transmissions recorded in the greencards were happening thereafter, on 30th September 1987 and 5th June 1990. It would suggest that the grant of representation to the estate of her late husband was lodged for registration with the land registrar after her demise, and confirmation was also done after her death, and the certificate of confirmation of death lodged with the land registrar thereafter. Why was transmission done after she had died? Was section 81 of the Law of Succession Act complied with? Was an effort made to have her substituted with her children? These questions can only be legitimately addressed with the availing of the succession proceedings relating to the estate of the late Edimondo Kuoba Ojinji.

21. If there was completion of administration, by the distribution demonstrated in the greencards, then it would mean that there were consequences that followed the demise of the deceased herein. There are 2 incidences to co-ownership, that is joint tenancy and tenancy in common. The nature of the tenancy is often stated in the title document, and where it is not so stated, then presumptions are to be made. Under the current law, joint tenancies are confined to co-ownership as between spouses, and all other cases are automatically converted into tenancies in common. Section 91(2) of the Land Registration Act makes the presumption that where the register or title document does not specify the shares of either of the co-owners, the property is held in tenancy in common.

22. The greencard for Bukhayo/Mundika/41XX is the only one showing the respective shares of the deceased and Cicilia, that both owned the same at ½ shares. The greencards for the other 2, Bukhayo/Mundika/171 and 175, are silent on that, and section 91(2) of the Land Registration Act should apply, so that the presumption arises that the 2 are held in tenancy in common in equal shares. That would then mean that upon the demise of the deceased herein, she was entitled to ½ share in all 3, Bukhayo/Mundika/1XX, 1XX and 41XX; and succession to her estate, should have been to the ½ share she held in those assets. I may point out that succession to her estate was conducted after the Land Registration Act had commenced, and its provisions applied. That law commenced on 2nd May 2012, and this cause was initiated on 29th June 2012.

23. So, what happened at confirmation? In the summons for confirmation of grant, dated 9th June 2014, the administrator did not propose distribution of ½ share that the estate of the deceased, Catherine Shiundu Ojinji, was entitled to in Bukhayo/Mundika/1XX, 1XX and 41XX, but of the whole of the 3 parcels. He proposed that the whole of Bukhayo/Mundika/171 be devolved wholly to himself, and to hold in trust for Kennedy and Olivia. He proposed that Bukhayo/Mundika/1XX be devolved upon himself, Vincent Owale, Stanslaus Mulwoto, Morine Atieno, Joyce Avude, Agnes Nyambura and George Okoth. He proposed that Bukhayo/Mundika/41XX, be devolved wholly upon himself. A certificate of confirmation of grant was issued, dated 30th November 2015. Ideally, the ½ share due to the deceased herein, Catherine Shiundu Ojinji, should have devolved wholly upon her children. The other ½ should have belonged to Cicilia, who was then alive. The administrator herein was not entitled to the ½ of the deceased, as he was not her child or descendant, and should have waited to get his share from the ½ share belonging to his mother, Cicilia.

24. There is a second certificate of confirmation of grant, drawn from the same orders of 16th October 2014, and dated 21st October 2014. It is exhibited in the affidavit of Fredrick Wandera Kwoba, sworn on 17th January 2023, and was filed herein on 18th January 2023. The distribution in this certificate of confirmation of grant is different from that in the certificate of confirmation of grant, dated 30th November 2015, for it devolves Bukhayo/Mundika/171 and 4109, wholly to the administrator for himself and to hold in trust for 2 minors; whereas that of 30th November 2015, devolves Bukhayo/Mundika/171 wholly to the administrator for himself and to hold in trust for 2 minors, and Bukhayo/Mundika/41XX is devolved wholly to the administrator. I have not seen, in the court file, the original of the certificate of confirmation of grant, of 21st October 2014, duly signed by the Judge who confirmed the grant, Tuiyott J, and who is purported to have had signed that certificate on 21st October 2014. What I have seen on the court record is the original certificate of confirmation of grant, dated 30th November 2015, duly signed by Tuiyott J, and it is signed on the reverse side by the administrator, on 23rd December 2015, as acknowledgement that he collected a copy of it from the court registry. I shall, accordingly, take it that the certificate of confirmation of 30th November 2015 is the authentic one. I wonder how Fredrick Wandera Kwoba came by copy of the purported certificate of confirmation of grant dated 21st October 2014.

25. Was the certificate of confirmation of grant, dated 30th November 2015, implemented, by way of transmission of Bukhayo/Mundika/1XX, 1XX and 41XX? Let me examine the greencards lodged herein for the 3 titles, to confirm whether or not there was transmission as per the said certificate of confirmation of grant.

26. I will start with the greencard for Bukhayo/Mundika/171. This property was registered in the name of Edmond Kwoba in 1972. In 1990 it was transferred, by transmissions, to the names of the deceased and Cicilia Auma Ojinji. On 4th August 2004, the title was closed, upon its subdivision into Bukhayo/Mundika/7856 and 7857. No details are given as to who were registered as proprietors of Bukhayo/Mundika/7856 and 7857. The subdivision and registration of 2004 happened long after the deceased had died in 1987, and long before representation was made to her estate in this cause on 3rd June 2013. The key point is that Bukhayo/Mundika/171 did not exist in 2012, when representation was sought herein, and 2015 when the grant was confirmed. This property was, therefore, not available for distribution as proposed by the administrator, and the persons who were allocated the same at confirmation, got nothing in reality, as it did not exist. This was the only property that was earmarked for the children of the deceased by the administrator, according to the certificate of confirmation of grant dated 30th November 2015. Since it did not exist, as at 2015, it meant that they got nothing from the estate of their grandmother. I find it curious, that at the oral hearing, the administrator did not update the court on what happened in 2004, and did not disclose who benefitted from the subdivision of Bukhayo/Mundika/171, into Bukhayo/Mundika/7856 and 7857. He did not explain to the court why he proposed to the court, at confirmation, distribution of a property that did not exist. According to the greencard on record, no transmission happened, with regard to Bukhayo/Mundika/171, as per the certificate of confirmation of grant, of 30th November 2015, as the property did not exist as at 16th October 2014, when the grant was confirmed. It was dishonest and dishonourable for the administrator to invite the court to distribute a non-existent asset. I wonder what the administrator had done, before he proposed Bukhayo/Mundika/171 for distribution, in terms of ascertaining whether it existed and was available for distribution.

27. Regarding Bukhayo/Mundika/1XX, according to its greencard, the same was registered in the name of Edimondo Kwoba Ojinji in 1971. In 1987 and 1990, it was transferred, by transmission, to the names of the deceased and Cicilia. On 10th November 2012, it was transferred to the name of the administrator herein, Patrick Wandera Kuoba, as personal representative of Cicilia Auma Kwoba, as per succession. On 10th January 2014, it was transferred to PWK, Vincent, Morine, Stanislaus, Joyce Arude, Agnes Nyambura and Okoth Jaoko. The title was closed on 4th May 2015, upon its partition into Bukhayo/Mundika/11837 to 11844. Was there transmission of Bukhayo/Mundika/1XX, in accordance with the certificate of confirmation of grant, dated 30th November 2015? I do not think so. According to the greencard, the transfer to PWK, Vincent, Morine, Stanislaus, Joyce Arude, Agnes Nyambura and Okoth Jaoko happened on 10th January 2014, and that was before the grant was confirmed on 16th October 2014. The register for Bukhayo/Mundika/1XX closed on 4th May 2015, before the certificate of confirmation of grant was issued on 30th November 2015. The land registrar, according to the provisions that I cited above, on transmissions, the court acts on receipt of the certificate of confirmation of grant. As at the time transfer was done herein, the grant had not been confirmed, and there was no certificate of confirmation of grant in existence. The question that begs an answer is, what authority did the land registrar have, on 10th January 2014, when he effected the transfer, and on 4th May 2015 when he closed the file?

28. One other thing about Bukhayo/Mundika/1XX, the greencard reflects that on 10th November 2012 it was transferred to the name of the administrator herein, Patrick Wandera Kuoba, as personal representative of Cicilia Auma Kwoba, as per succession. The cause herein relates to the estate of Catherine Shiundu Ojinji, and not Cicilia Auma Kwoba. Indeed, Cicilia Auma Kwoba was alive in 2012, and according to the oral testimony of the administrator, in court, on 27th September 2023, Cicilia Auma Kwoba died on 17th August 2023. So, which succession was this in 2012 in connection with her, where the administrator herein would have been appointed her personal representative? Secondly, if that entry is referring to this cause, and if it were said that there was an error, this cause was initiated on 29th June 2012. There is no evidence that it was ever gazetted, but letters of administration intestate were, nevertheless, made to the administrator on 3rd June 2013, and a grant was issued to him, bearing that date. So, as at 10th November 2012, the administrator was not an administrator herein, and was not a personal representative of the deceased herein, neither could he have been a personal representative of Cicilia Auma Kwoba. That entry must have been procured fraudulently.

29. Let me now turn to Bukhayo/Mundika/41XX. The greencard starts with 1990 entries, when the deceased and Cicilia Auma Kwoba were registered as holding ½ share each of that property. On 10th November 2014, the administrator was registered as proprietor of the ½ share for the deceased herein, as her personal representative on account of the instant cause. Cicilia Auma Ojinji retained her ½ share. On 24th June 2014, the administrator was registered as proprietor of the entire property, for himself, and holding in trust for Kennedy and Olivia. A title deed was issued in those terms on 29th January 2016. Was there transmission of Bukhayo/Mundika/41XX, as per the certificate of confirmation of grant, dated 30th November 2015? No. No transfer, by way of transmission, was done on Bukhayo/Mundika/41XX, in the course of 2015 or thereafter. The only activity on that title, with a semblance of transfer by way of transmission was on 24th June 2014 and 10th November 2014, long before the certificate of confirmation of grant was issued on 30th November 2015, and one wonders what the land registrar used to effect those transmissions. The activities of 2014 suggest fraud.

30. The certificate of confirmation of grant that the administrator relies on is dated 30th November 2015, and the grant had been confirmed on 16th October 2014. The transfers in question happened before the grant was confirmed, and it would appear that the land registrar did not use the certificate of confirmation of grant of 30th November 2015 to effect those transfers. That would mean that the grant was confirmed only for the sole purpose of sanitizing the illegal activities that the administrator had already carried out without the certificate of confirmation of grant.

31. The other intriguing thing is that Bukhayo/Mundika/1XX, 1XX and 41XX, as at the time the grant was being confirmed, on 16th October 2014, belonged to 2 owners, one dead and the other alive. They held the property in ½ shares each. The succession cause herein was commenced, ostensibly, to distribute the ½ share of the dead proprietor, but not the ½ share of the living proprietor. However, at confirmation, on 16th October 2014, the court distributed the shares of both the dead proprietor and the living proprietor. It amounted to a succession into the estate of a dead person and that of a person who was alive. The effect of it was to extinguish the shares of the living proprietor, and by that I mean Cicilia Auma Kwoba alias Sicilia Auma Ojinji. That was the effect of the certificate of confirmation of grant, dated 30th November 2015, for Bukhayo/Mundika/1XX, 1XX and 41XX were fully and exclusively devolved to the administrator, the 2 minors and the alleged buyers. When Cicilia Auma Kwoba alias Sicilia Auma Ojinji died on 17th August 2023, she had no estate, as her property was extinguished or vanished or disappeared by the confirmation orders of 16th October 2014, in the matter of the estate of her co-wife, who had predeceased her. Succession or probate matters are about distribution of the property of a dead person. Where property of a living person gets caught up in succession proceedings, for some reason, and it is in fact distributed, by orders made by the court at confirmation, then something would be fundamentally wrong with the process. That is what happened her, the ½ share of Cicilia Auma Kwoba alias Sicilia Auma Ojinji, who was alive when the confirmation hearing was happening, was distributed in the orders of 16th October 2014, and the administrator subsequently used those orders to dispose of that share, by selling the subject land to third parties.

32. I believe that I have said enough to bring out the bigger problem, the bigger mess in this estate. I will now advert to the issues around whether the application meets the threshold for revocation of the grant herein.

33. The summons for determination is for revocation of grant. The discretion to revoke grants is given under section 76 of the Law of Succession Act. There are 3 general grounds: challenges with the manner the grant was obtained, problems with administration of the estate, and the grant having become useless and inoperative. The grounds herein appear to revolve around the first general ground. The complaint is that the grant was obtained secretly and in a process that excluded some persons who were also entitled to a share in the estate. That is covered under section 76(b)(c) of the Act, which makes non-disclosure, misrepresentation and fraud a ground for revoking the grant. Failing to disclose persons who are also entitled to a share in the estate, amounts to concealment of the existence of those persons to the court. It also amounts to fraud, where their names are suppressed, so that the sole applicant gets to be the person inheriting] everything. It amounts to misrepresentation, for it creates the wrong picture or impression in the mind of the court, for distribution is based on how individuals were related to the deceased, and where some are not disclosed, an impression is created that they do not exist, and distribution is done excluding them.

34. Section 76(a) is also relevant. It makes substantive defects in the process of obtaining representation a ground for revocation. Whereas section 76(b)(c) is about statements made by the administrator in his petition, section 76(a) is about the formalities and the processes, such as obtaining consents, renunciations and filing affidavits, so that where some of these processes are omitted, then the process would be defective. Some of these procedural requirements serve the purpose of accountability, transparency and inclusiveness, which are bywords in the Constitution of Kenya, 2010. What ought to go into an application or petition for representation is set out in section 51(2) of the Law of Succession Act and Rule 7(1) of the Probate and Administration Rules. Omission of the material specified in these provisions would amount to a defect in the process. Rules 7(7) and 26 of the Probate and Administration Rules are also relevant. They talk about consents and renunciations of survivors being obtained, and affidavits being filed where such cannot be obtained. They also provide for issuance of citations in appropriate cases. These devices are designed to ensure that all entitled have notice of the proceedings, and have consented to the matter proceeding in the manner adopted by the petitioner. Failure to obtain the consents or renunciations, or to file the affidavits, or to issue the citations, would amount to defects in the process, for which the grant could be revoked.

35. Let me start with section 51(2)(g) of the Law of Succession Act and Rule 7(1)(e) of the Probate and Administration Rules, and follow with Rules 7 and 26. The parties herein have proceeded on the basis that the deceased died intestate, and, therefore, the relevant provisions are those relating to administration in intestacy. Under section 51(2)(g), it is provided that “An application shall include information as to – in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased…” Under Rule 7(1)(e) of the Probate and Administration Rules, it is provided “… the application shall be by petition … supported by an affidavit … containing … the following particulars – in cases of total or partial intestacy – the names, addresses, marital state and description of all surviving spouses and children of the deceased, or where the deceased left no spouse or child, the like particulars of such persons who would succeed in accordance with section 39(1) of the Act …”

36. The question then is, did the administrator herein comply with these 2 provisions, and provide the particulars anticipated in them? He only disclosed himself, as sole survivor, describing himself as a son. Was he the sole survivor? Should he have disclosed other survivors? Both sides are in agreement, that a daughter of the deceased was alive, and that she was not disclosed. I am talking about Bibiana Kwoba alias Hadija Nasirumbi. She had prior right to administer the estate over the administrator and the grandsons, going by section 66 of the Law of Succession Act. The failure to disclose her, violated section 51(2)(g) of the Law of Succession Act and Rule 7(1)(e) of the Probate and Administration Rules. The other child of the deceased was dead, Sunday James Kwoba. He had a total of 9 children, 2 sons and 7 daughters. None of them were disclosed, contrary to section 51(2)(g) of the Act. At confirmation the 2 sons were disclosed, and allocated shares, but the 7 daughters were not disclosed, nor involved. The administrator was not a son of the deceased, so he lied to court, to obtain an unfair advantage over the real heirs.

37. Following from the above, it would mean that the administrator herein should have disclosed the daughter of the deceased in his petition, and all the children of the late son of the deceased. Those to be disclosed should have been Bibiana Kwoba alias Hadija Nasirumbi, Elizabeth Achieng, Everlyne Ajiambo, Jackline Night, KO, Risper Adongo, Catherine Hamala, Lilian Bahati and Rebecca Chausiku. The deceased is said to have had 2 other daughters, who are said to have died. If the 2 were survived by children of their own, then such children, being grandchildren of the decased, should have also been disclosed. Their non-disclosure amounted to a substantive defect in the process, for the law expects total disclosure of the information contemplated in section 51(2)(g) and Rule 7(1)(e). The application by the administrator was, therefore, defective in that respect. It was also fraudulent as it amounted to concealment of matter from the court and a misrepresentation of the true facts. The administrator misled the court to believe that he was the only person entitled to a share in that estate, when the truth was that he was not even a survivor of the deceased, for he was a son of a co-wife of the deceased, yet the deceased had her own children and grandchildren, who were alive and well.

38. Let me now bring in Rule 7(7) and 26 of the Probate and Administration Rules. Rule 7(7) applies where the petitioner does not have preference or prior right or entitlement to administration over the other survivors. That applies here, since the administrator herein had no right to apply for representation over the rest. Bibiana Kwoba alias Hadija Nasirumbi, as daughter of the deceased, had a prior right over everyone, including her nieces and nephews, and her consent or renunciation should have been obtained by the administrator, or he should have caused citations to issue to her. The nephews and nieces too had prior right over the administrator. He has not demonstrated that none of them were of majority age as at 29th June 2012, when he filed his petition. He should have sought the consents or renunciations of those who were above 18.

39. Rule 7(7) of the Probate and Administration Rules provides:Where a person who is not a person in the order of preference set out in section 66 of the Act seeks a grant of administration intestate he shall before the making of the grant furnish to the court such information as the court may require to enable it to exercise its discretion under that section and shall also satisfy the court that every person having a prior preference to a grant by virtue of that section has—(a)renounced his right generally to apply for a grant; or(b)consented in writing to the making of the grant to the applicant; or(c)been issued with a citation calling upon him either to renounce such right or to apply for a grant.”

40. Where there is an incidence of equal right or entitlement to apply for representation, and inferior right, Rule 26 would apply, which says:“26. Grants of letters of administration(1)Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.(2)An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.(3)....”

41. This provision expects a petitioner, with an inferior right with another survivor, who is not applying, to notify that other survivor of the application. The process of notification is that detailed in Rule 26(2), by way of filing a written consent or renunciation of the right to apply, in Forms 38 or 39, basically allowing the petitioner to go ahead. In default of such renunciation or written consent, the petitioner should file an affidavit, essentially to explain why he did not file the consent or renunciation, either because the other survivor is out of the jurisdiction or has refused to cooperate. The administrator had no superior or equal right to administration of the instant estate over the applicants, and he should have filed the documents contemplated herein, he did not file any of these documents. He did not comply with Rule 26 of the Probate and Administration Rules, and his application was defective in substance.

42. Fredrick Wandera Kwoba featured in these proceedings. He is a stepson of the deceased, as he is a son of Edimondo Kwoba Ojinji, by his third wife, Getrude Nameyo Kwoba. Getrude Nameyo Kwoba died before administration of the estate of Edimondo Kwoba Ojinji was carried out. It would appear, from the greencards for Bukhayo/Mundika/1XX, 1XX and 41XX, that when the estate of Edimondo Kwoba Ojinji was distributed, her house, as the 3rd house of the said Edimondo Kwoba Ojinji, was not allocated any shares, for the entire estate was devolved equally between the first 2 wives, the deceased herein and Cicilia Auma Kwoba. Fredrick Wandera Kwoba, therefore, has no claim to the estate herein, as he is not a survivor from the 1st house. As his house, the 3rd house, was left out of the distribution that was carried out in the matter of the estate of his father, Edimondo Kwoba Ojinji, he can only get relief from the succession cause where the estate of the said Edimondo Kwoba Ojinji was distributed.

43. The issue of sale of Bukhayo/Mundika/1XX, 1XX and 41XX to third parties featured. Indeed, in the distribution that was approved in the confirmation proceedings of 16th October 2014, as captured in the certificates of confirmation of grant, dated 21st October 2014 and 30th November 2015, Bukhayo/Mundika/41XX, was shared out between the administrator and 6 individuals, said to be buyers. 2 more buyers were presented at the oral hearing, by the administrator. None of them testified to having bought land from the deceased herein. The administrator claimed that he held all the assets, including Bukhayo/Mundika/41XX, in trust for the other beneficiaries, some of whom he said were minors, and one would wonder whether the alleged sales were done with their consent, or with leave of the court. Whatever the case, before distribution of an estate is fully and properly done, the rights of any purchasers of assets of such an estate would remain on quicksand, as the rights they purportedly acquire over such assets, cannot override the rights of the individuals entitled in succession to such property. Until succession is fully completed, the titles of the alleged buyers remain shaky, and exposed.

44. Overall, I am persuaded that a case has been made out, for revocation of the grant herein, and for the making of consequential orders. Of course, most of what the parties need to do would not be in these succession proceedings, but in separate proceedings, before other courts, with jurisdiction in land matters. Some of the issues may require addressing through the cause in the matter of the estate of Edimondo Kwoba Ojinji. The final orders shall be as follows:a.That the grant made herein, on 3rd June 2013, and issued on even date, to Patrick Wandera Kuoba, is hereby revoked;b.That, as a consequence of (a), above, the orders made herein on 16th October 2014, confirming the grant of 3rd June 2013, are hereby vacated, the certificate of confirmation of grant, dated 30th November 2015, is hereby cancelled;c.That, as a consequence of (b), above, any and all transactions carried out on the basis or strength of the said certificate of confirmation of grant, dated 30th November 2015, are hereby cancelled, and the Land Registrar, responsible for Busia County, is hereby directed to cancel any transactions relating to Bukhayo/Mundika/1XX, 1XX and 41XX, including its transmission in accordance with the said certificate of confirmation of grant cancelled above, and to revert the property to the name of the deceased herein, Catherine Shiundu Ojinji, and Sicilia Auma Ojinji;d.That I hereby appoint Bibiana Kwoba alias Hadija Nasirumbi, KO and Elizabeth Achieng administrators of the estate of the deceased herein, and I direct that a grant of letters of administration intestate be issued to them;e.That the new administrators, that is to say Bibiana Kwoba alias Hadija Nasirumbi, KO and Elizabeth Achieng, shall, jointly or severally, apply for confirmation of their grant in the next 45 days, and the matter shall be mentioned thereafter for compliance and directions;f.That, in that contemplated summons for confirmation of grant, the administrators shall include all the survivors of the deceased, including any females, being her daughter and granddaughters; andg.That any party, aggrieved by these orders, has leave of 30 days, to appeal against the same, at the Court of Appeal.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA ON THIS 10TH DAY OF NOVEMBER 2023. WM MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMr. Ouma, instructed by BM Ouma & Company, Advocates for the applicants.Mr. Luchivya, instructed by Marisio Luchivya & Company, Advocates for the administrator.