[2021] KEHC 4662 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

SUCCESSION CAUSE NO. 40 OF 2018

IN THE MATTER OF THE ESTATE OF EDWARD TALAM LIMO (DECEASED)

IN THE MATTER OF AN APPLICATION FOR REVOCATION OF GRANT

BETWEEN

RUTH JERUTO LIMO...........................................1ST APPLICANT

BENJAMIN KIBUNGEI LIMO..............................2ND APPLICANT

MARY TALLAM....................................................3RD APPLICANT

JOY JEROTICH LIMO.......................................4TH APPLICANT

-AND-

JOSEPH KIPKEMBOI LIMO..................................RESPONDENT

-AND-

JOHN MACHARIA MULABI.........................INTERESTED PARTY

RULING

[1] Before the Court for determination is the Summons dated 3 November 2020. It was filed by the 4 applicants herein, namely, Ruth Jeruto Limo, Benjamin Kibungei Limo, Mary Tallamand Joy Jerotich Limopursuant toSections 47, 66 and 76 (e)of theLaw of Succession ActandRules 49 and 73of theProbate and Administration Rules.They seek orders that:

[a] Spent

[b] The Court be pleased to revoke the Grant earlier issued to the sole Administrator, Joseph Kipkemboi Limo, now deceased.

[c] The Court be pleased to issue a fresh grant in respect of the estate of Edward Talam Limo to Ruth Jeruto Limo, Ben Kibungei Limo, Mary Tallam and Joy Jerotich Limo.

[d] Costs be in the cause.

[2] The application was premised on the grounds that the petitioner, Joseph Kipkemboi Limo, the sole administrator, has since died; and that as at the date of his death on 20 September 2020, the applicants had already filed an application for revocation of grant which was pending; and that, with the death of the sole administrator, the said grant has become useless and inoperative. It was further averred by the applicants that the estate is vast and includes a school and hospital, which need close administration for purposes of compliance with government regulations; and therefore that it is imperative that administrators be appointed as a matter of urgency.

[3] The application was supported by the joint affidavit of the applicants, sworn on 3 November 2020 and the documents annexed thereto. They reiterated their stance that the grant issued herein to Joseph Kipkemboi Limo has become useless and inoperative by reason of his death. They further averred that as children of the deceased, they rank in priority over other beneficiaries; and that they have made this application for the sole purpose of safeguarding the estate. Hence, at paragraph 12 of the Supporting Affidavit, the applicants averred that the petitioner had allowed a third party, one Walter Oduli, to construct a house on one of the estate properties, being L.R. NO. SERGOIT/ELGEYO BORDER BLOCK I (BELIOMO)/380 without the Court’s authorization. They averred therefore that this is one of the urgent matters that the administrators need to follow up and report to the Court on.

[4] An additional reason was the management of E&T Concord Boys High School, which urgently needs to have a Board of Management to effectively oversee its operations. The applicants further raised concern that the school is in imminent danger of being closed down for failure to comply with Ministry of Education guidelines in addition to its operations being ground for fund-flow challenges. They annexed to their Supporting Affidavit copies of cheques, written by the Principal to finance the operations of the school but which had not been counter-signed for lack of authority, to demonstrate their concern; and added that there is also a hospital involved, namely, Limo House Hospital, that is co-owned by the deceased and one Vladimir Chtchoukin, and which, similarly, requires urgent attention by the administrators.

[5] To put the application in perspective, it is vital to point out that, by 4 November 2020 when the instant application was filed, there were on record a plethora of applications and affidavits filed by the beneficiaries of the deceased. The first of these was the Summons for Revocation of Grant dated 4 December 2018; which was filed by the 4 applicants jointly with Ruth Chebet Korir. They prayed for orders, inter alia, that the Grant of Letters of Administration Intestate made to Joseph Kipkemboi Limo on 12 November 2018 be revoked; and that a new grant be issued to them. In the said application, the applicants also described themselves as 1st to 5th objectors.

[6] Thereafter, on 18 January 2019, an application was filed herein, by way of Notice of Motion, by John Macharia Mulabi, seeking joinder as an interested party. He averred that, as the manager/principal of E & T Concord Boys High School, he had an identifiable stake in the cause and needed to be heard on behalf of the school. The said application, being unopposed, was allowed on 21 January 2019.

[7] The court record further shows that Jeffrey Kipkemboi Musa and Christine Chelagat, came on board for the first time as the 6th and 7th objectors vide their Replying Affidavit to the application dated 11 March 2019. Jeffrey Kipkemboi Musa averred therein that he is the son to the late Hellen Jepkosgei Limo, a beneficiary to the estate of the deceased who died on 23 September 1993; and that Christine Chelagat is his sister. He further stated that they are consequently dependants of the deceased for purposes of Section 29 of the Law of Succession Act, their mother having died when they were of tender years and left them under the care of the deceased. A Notice of Change of Advocates filed herein on 8 April 2021 shows that they have since appointed M/s Limo R.K. & Company Advocates to act for them herein in place of M/s Kamau Lagat & Company Advocates.

[8] Then there isRiziki Michelle Kawira, another of the grandchildren of the deceased, who followed suit and came on board on 4 June 2019 as the 8th objector vide a notice filed on her behalf by Ms. Koech, Advocate. I note too that Raymond Kipkembei Limo,also a grandson to the deceased, was enjoined vide the Summons dated 19 August 2020 and has variously been referred to herein as the 9th objector. A Notice of Change of Advocates dated 8 February 2021 indicates that he has since appointed Too Koskey & Company Advocates to act for him and Ruth Chebet Korir. It is noteworthy too that the firm of Kenei & Associates has also entered appearance for Faith Chemutai Limo, simply described as a beneficiary herein.

[9] It is likewise pertinent to note that the application for revocation of grant dated 4 December 2018 was subsequently withdrawn on 24 November 2020; by which time the said application had been substantively argued and was only awaiting the cross-examination of the process server. That withdrawal paved the way for the hearing and determination of the application dated 3 November 2020. As the petitioner had already died by the time the said application was filed, a response was put in by his widow, Ruth Chepkosgei Limo. Her Replying Affidavit was filed herein on 14 December 2020, after she obtained a Grant of Letters of Administration Ad Litem. She averred that the petitioner was the first born son of the deceased and was issued with Grant in that capacity on 12 November 2018. She added that the proceedings to obtain the grant were lawful and in accord with the applicable laws and rules of procedure; and that, since no objection, answer or cross-petition was ever filed by the applicants, it was proper for the Court to issue the grant to the petitioner.

[10] Regarding allegations that the petitioner unlawfully allocated estate property to Walter Oduli, Ruth Chepkosgei Limo averred that she is aware that Walter Oduli was allocated property No. LR SERGOIT/ELGEYO BORDER BLOCK I (BELIOMO)/380by the deceased, Edward Talam Limo before his death; and that this was done in the presence of the petitioner and the 2nd applicant. According to her, Walter Oduli has been in occupation of the property since 2017 to date; and that it would only be fair and just for the said Walter Oduli to be enjoined to these proceedings to ventilate his interest.

[11] At paragraph 20 of his Replying Affidavit, Ruth Chepkosgei Limo disclosed that she has already been appointed as a joint signatory to E&T Concord Boys High School together with the 2nd applicant and the interested party; and therefore that there is no gap in the management of the school. With regard to Limo Hospital, she pointed out that Vladmir Chtchoukin died in November 2020; and that the said hospital was fully owned by the deceased as from the year 2008 when Vladmir Chtchoukin absconded and went to practice medicine in Nairobi County, where he had been until his death.

[12]Ruth Chepkosgei Limo asserted that, as the administrator of the estate of the deceased petitioner, Joseph Kipkemoi Limo, she is at par with the applicants and is equally entitled to be appointed an administrator of the estate of the deceased. She therefore proposed the following persons, including herself, for appointment as administrators:

[a] Benjamin Kibungei Limo

[b] Ruth Jeruto Limo

[c] Ruth Chepkosgei Limo,and

[d] Jeffrey Kipkemboi Limo

[13] Jeffrey Kipkemboi Musa and Christine Chelagat filed an affidavit in response, sworn by them on 25 November 2020. They averred that three of the applicants are ever out of the country and as such cannot rightly say that they will effectively discharge their duties if appointed as administrators. They also took issue with the fact that the 4 administrators omitted the name of the 3rd objector, Ruth Chebet Korir, from their application dated 3 November 2020. They further posited that the instant application is sub judice, on the ground that the earlier application for revocation dated 4 December 2018, was still pending determination.

[14] The 6th and 7th objectors filed another affidavit sworn on23 February 2021 in which they supported the averments and proposal by Ruth Chepkosgei Limo that Benjamin Kibungei Limo, Ruth Jeruto Limo, Ruth Chepkosgei Limo,andJeffrey Kipkemboi Limo,be appointed as administrators. They suggested that whereas Benjamin Kibungei Limo and Ruth Jeruto Limo will be taking care of the interests of the 1st to 5th objectors, Jeffrey Kipchumba Musa will be looking after the interests of the 6th to 8th objectors.

[15] Mary Tallam and Joy Jerotich Limo, the 3rd and 4th applicants, relied on their joint affidavit, sworn on 4 March 2021. They confirmed their support for the application and reiterated their stance that, as children of the deceased, the 4 applicants rank higher in terms of priority and ought to be given preference by the Court as they are the most eligible and best suited to be appointed as administrators. They opposed the suggestion by Ruth Chepkosgei Limo and Jeffrey Kipkemboi Musa that they be included as administrators. They averred that, as a daughter-in-law, Ruth Chepkosgei Limo has no right to administer the estate of her father-in-law when the deceased’s own children are alive and capable of assuming that responsibility.

[16] They also averred that Jeffrey is temperamental and may not be up to the task due to personal vendetta and unexplained anger he had hitherto displayed towards the applicants. To this end they exhibited copies of offensive electronic messages attributed to Jeffrey and added that the matter was reported to the police and booked for investigations vide OB No. 108/15/1/2021. They were at pains to explain that there is no rift between the surviving children of the deceased and his grandchildren whose parents either predeceased the deceased or have since died after him; and stated that they have all along taken care of the interests of their orphaned nieces and nephews and will continue to do so.

[17] The last affidavit in respect of the subject application was filed on 24 May 2020 by Faith Chemutai. She described herself as the 2nd beneficiary herein; and averred that she is one of the granddaughters of the deceased, through Joseph Kipkemoi Limo, the deceased administrator. She is therefore the step daughter of Ruth Chepkosgei Limo. She conceded that the Court can only appoint up to a maximum of four administrators in the order of priority. She accordingly supported the proposal by the applicants, namely, Mary Tallam, Ruth Jeruto Limo, Joy Jerotich Limo,and Benjamin Kibungei Limo, to have them appointed as administrators.

[18] At paragraphs 9-11 of her affidavit, the 2nd beneficiary opposed the proposal by her stepmother to be included among the administrators positing that it has no basis in law; and that it is founded on a mischievous and malicious attempt by her stepmother to frustrate the administration of the estate of the deceased, Edward Talam Limo, to the detriment of the bona fide beneficiaries. She further averred that Ruth Chepkosgei Limo being a daughter in law of the deceased cannot rank higher in priority than the deceased’s own offspring. She added that Ruth Chepkosgei Limo has frustrated the administration of and intermeddled with the estate of her late father, Joseph Kipkemboi Limo; and therefore that there is a real risk that she will likewise employ the same tactics in connection with the estate of the deceased.

[19] As for Jeffrey Kipkemboi Musa, the 2nd beneficiary took the view that, as a grandson, he ranks lower in priority over the deceased’s estate; and therefore should not even be considered for appointment. She added that Jeffrey Kipkemboi Musa is not only a person of questionable character, but is also extremely irresponsible; and therefore does not engender the sort of trust needed to be appointed administrator.

[20] On the basis of the averments in the aforementioned affidavits, the Court was called upon to make a determination, pursuant to Section 66 of the Law of Succession Act, as to who the administrators should be. Thus, the issues arising from the averments of the parties in their respective affidavits are:

[a] Whether, as a matter of fact, the application dated 3 November 2020 is sub judice; and if not

[b] Who should be appointed as the administrators of the estate of the deceased, Edward Talam Limo.

[21] Undoubtedly, the sub judice point was raised in the affidavit of Jeffrey Kipkemboi Musa and Christine Chelagat with Section 6 of the Civil Procedure Act in view. That provision states that:

“No court shall proceed with the trial of any suit or proceedings in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”

[22] As has been pointed out at paragraph 7 herein, the initial application dated 4 December 2018 has since been withdrawn. In fact, the Notice of Withdrawal was filed one day before the aforementioned affidavit was filed. Accordingly, the averment that the application dated 3 November 2021 is sub judice lacks factual foundation. Moreover, it is significant that, while the former application was premised on fraud and concealment of material facts, the instant application is hinged on the ground that, following the death of the administrator, the grant has become useless and inoperative for purposes of Section 76 (e) of the Law of Succession Act.

[23] There is another reason why the sub judice argument lacks traction, and it is this. Section 6 of the Civil Procedure Actis not one of the provisions imported for purposes of Rule 63 of the Probate and Administration Rules. Rule 63 (1) of the Probate and Administration Rulesprovides that:

“Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and Orders 11, 16, 19, 26, 40, 45 and 50 (Cap. 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules.”

[24] It is plain therefore that Parliament did not intend that proceedings under the Law of Succession Act be attended with procedural technicalities, particularly the detailed procedural rules provided for in the Civil Procedure Actand the Rules thereunder. Hence, in Josephine Wambui vs. Margaret Wanjiru Kamau & Another [2013] eKLR the Court of Appeal held that:

“We hasten to add that the Law of Succession Act is a self-sufficient Act of Parliament with its own substantive law and Rules of procedure. In the few instances where the need to supplement the same has been identified some specific rules have been directly imported to the Act through Rule 63 (1).”

[25] Consequently, I reiterate the expressions of Hon. Mativo, J. in Josiah Mwangi Mutero & Another vs. Rachael Wagithi Mutero [2016] eKLR, that:

“The High Court has in numerous pronouncements severally stated that the other provisions of the Civil Procedure Act[25] and Civil Procedure Rules, that is those not mentioned in rule 63 … are of no application at all in proceedings under the Law of Succession Act.[26] For example, Khamoni Jin the matter of the estate of Joseph Mwinga Mwagana-deceased[27]said in an application brought under Order XL1Rule 4of the Civil Procedure Rules and Section 3A of the Civil Procedure Act,[28] that the said provisions did not apply as probate proceedings are governed by their own rules of procedure and added that the Civil Procedure Act[29] and Rules only apply where allowed by rule 63 of the Probate and Administration Rules…” (emphasis added)

[26] It is, consequently my finding that the instant application is competently before the Court and is deserving of a merit consideration. That said, the next issue to consider is whether it suffices to substitute the deceased administrator with his legal representative, Ruth Chepkosgei Limo.In her replying affidavit, Ruth Chepkosgei Limo asserted that the proceedings to obtain the grant were lawful and in accord with the applicable laws and rules of procedure; and that, since no objection, answer or cross-petition was ever filed by the applicants, it was proper for the Court to issue the grant to the petitioner. She added that having obtained a Grant of Letters of Administration Ad Litem to the estate of the petitioner,who is the first born son of the deceased, she has the capacity to replace the deceased administrator. For this reason, she pointed out at paragraph 20 of her Replying Affidavit, that she has already been appointed as a joint signatory to E & T Concord Boys High School together with the 2nd applicant and the interested party.

[27] It is trite however that a grant is an instrument issued in personam and is therefore not transferrable. In Re Estate of George Ragui Karanja (Deceased) [2016] eKLR, Hon. Musyoka, J. held that:

“The Law of Succession Act does not expressly provide for substitution of personal representatives who die in office, particularly in cases where the estate is left without one. The closest provision is section 81 of the Act, which provides for vesting of the powers and duties of personal representatives in the survivor or survivors of a dead personal representative… It would appear to me that once all the holders of a grant die, section 81 of the Act would be of no application. Indeed, the said grant becomes useless and inoperative, and liable to revocation under section 76 (e) of the Law of Succession Act, to pave way for appointment of new administrators. The appointment of fresh administrators to take the place of the previous ones following their death is subject to the provisions of sections 51 through to section 66 of the Act.”

[28] And in the case of Florence Okutu Nandwa & Another vs. John Atemba Kojwa, Kisumu Civil Appeal No. 306 of 1998,the Court of Appeal was more explicit. It held that:

“A grant of representation is made in personam. It is specific to the person appointed. It is not transferable to another person. It cannot therefore be transferred from one person to another. The issue of substitution of an administrator with another person should not arise.”

[29] Thus, the question of Ruth Chepkosgei Limo being appointed in place of her deceased husband as the administrator of the estate of Edward Talam Limo does not arise. That being the case, it is plain that the Grant of Letters of Administration Intestate issued herein on 12 November 2018 to Joseph Kipkemoi Limo,who is now deceased, cannot stand. Indeed, Section 76 (e) of the Law of Succession Act, is explicit that:

“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—

…

(e) That the grant has become useless and inoperative through subsequent circumstances.”

[30] Applying the aforementioned provision, Hon. Khamoni, J. held thus in Re Estate of Mwangi Mugwe aliasElieza Ngware (deceased)[2003] eKLR:

“The Law of Succession Act has no provisions talking about substitution of a deceased single administrator…In the circumstances therefore, it is my considered view that the proper provisions of the law to apply is section 76 (e) of the Law of Succession Act and Rule 44 of the Probate and Administration Rules whereby the Applicant would apply for revocation or annulment of a grant on the ground “that the grant has become useless and inoperative through subsequent circumstances.” The Applicant would proceed to put a prayer in the same application that a new grant be made to him and could as well add a further prayer, if need be, for confirmation of the new grant. The application, should, of course, be supported by consent from adult beneficiaries in the estate of the first deceased person, the second deceased person being the deceased administrator.”

[31] It is manifest therefore that, where, as in this case, a single administrator dies before completing his work as an administrator, the solution is in revocation of the Grant and the appointment of new administrators.

[32] As to who should be appointed administrators herein, the parties appear to be wary of a single administer being entrusted with the responsibility. They thus appear to be in agreement that compliance be had with Section 56 (1) (b) of the Law of Succession Act; which allows for the appointment of up to 4 joint administrators. Accordingly, pursuant to the directions given herein on 8 February 2021 the parties were required to file their respective lists of administrators. There are two proposals on the table, the first being the proposal by the applicants, to have the four of them, namely Ruth Jeruto Limo, Benjamin Kibungei Limo, Mary Tallamand Joy Jerotich appointed as administrators; while the petitioner’s widow and the 6th and 7th objectors, on their part, favoured the appointment of Benjamin Kibungei Limo, Ruth Jeruto Limo, Ruth Jepkosgei LimoandJeffrey Kipkemboi Limo.

[33] Thus, the beneficiaries were unanimous about the suitability of Ruth Jeruto Limoand Benjamin Kibungei Limo. The dispute appears to be confined to question whether Mary Tallam and Joy Jerotich Limo, who are daughters of the deceased, are eligible for appointment; or whether Jeffrey Kipkemboi Musa and Ruth Chepkosgei Limo, a grandson and daughter in law of the deceased, respectively, ought to be taken on board to care for the interests of the grandchildren and the daughters in law.

[34] Needless to say that the matter of appointment of administrators is one in which the final discretion lies with the Court.Section 66 of the Law of Succession Act is explicit on this and on the order of priority. It provides that:

“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference-

(a) surviving spouse or spouses, with or without association of other beneficiaries;

(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;

(c) the Public Trustee; and

(d) creditors”

[35] In Section V of the Act, Section 38 provides that where the intestate is survived by children but no spouse, then the net intestate shall be equally divided among the surviving children; thus making it clear that the children of the deceased have priority and that they rank in pari passu with each other. It is for this reason that Rule 7 (7) of the Probate and Administration Rules, 1980,provides that:

“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;

(c) been issued with a citation calling upon him either to renounce or to apply for a grant.”

[36] In the same vein,Rule 26(2)of theProbate and Administration Rulesprovides that:

“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.”

[37] Given the foregoing provisions, it is plain that, for purposes of administration in cases where the deceased is survived by his children but no widow, the right persons for appointment are the surviving children; and that grandchildren or daughters in law can only be considered for appointment as administrators where there is renunciation or consent of the surviving children; or for some other good cause to be explained by way of an affidavit. I hasten to add that administration must be distinguished from inheritance; and that this is far from saying that the orphaned grandchildren, such as the 6th, 7th 8th and 9th objectors, or widowed daughters in law, such as Ruth Chepkosgei LimoandRuth Chebet Korir, are not entitled to directly inherit a share of the estate in place of their deceased parents/spouse. In this regard I would reiterate the expressions of the Court in Re Estate of Veronica Njoki Wakagoto (Deceased) [2013] eKLR, that:

“Under Part V, grandchildren have no right to inherit their grandparents who die intestate after 1st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.”

[38] In the result, the orders that commend themselves to the Court, and which I hereby make, are as hereunder:

[a] That the Grant of Letters of Administration Intestate issued herein on 12 November 2018 to Joseph Kipkemboi Limo be and is hereby revoked;

[b] ThatRuth Jeruto Limo, Benjamin Kibungei Limo, Mary Tallam and Joy Jerotich Limobe and are hereby appointed administrators in respect of the estate of Edward Talam Limo; and that a Grant of Letters of Administration Intestate be forthwith issued to them, to be confirmed after 6 months from the date hereof.

[c] That the costs of the application be in the cause.

Orders accordingly.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 19TH DAY OF JULY 2021

OLGA SEWE

JUDGE