[2023] KEHC 25563 (KLR)

In re Estate of Eliakim Shibia Musa (Deceased) (Succession Cause 236 of 2012) [2023] KEHC 25563 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25563 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 236 of 2012

PJO Otieno, J

November 17, 2023

IN THE MATTER OF THE ESTATE OF ELIAKIM SHIBIA MUSA (DECEASED)

Between

Jemimah Sarah Mbakaya

Petitioner

and

Wycliff Musa were

1st Objector

Mohammed Munyanya

2nd Objector

Ruling

Introduction on matters for determination 1. Before the court for determination are two applications dated the 23rd day of July 2015 and 20th January, 2023 respectively. Both seek that the grant issued in the matter be revoked but for different reasons.

2. The first application is a summons for the revocation of the confirmed grant issued to Jemimah Sarah Mbakaya on the 5th day of March, 2013 on the ground that it was obtained fraudulently with the petitioner making false statements to the court that she and the other named beneficiaries to the estate were not true beneficiaries of the estate and that she forged the signatures of the true beneficiaries.

3. The application is supported by six affidavits sworn by Wycliff Were, Beatrice Owano, Franklin Muramba Osako, Henry Ambaitsi, Mango Olutola and Evans Okwaro. The six describe themselves as, brother, uncles, sister in law and nephew.

4. In his affidavit sworn on 24/7/2015, Wycliff Were, avers that he is a brother of the deceased, that he makes the application on his own behalf and on behalf of his co-applicants. He adds that the summons for revocation were prompted when his sister, Mary Agneta Omusula, brought to his attention the fact that her signature had been forged by Jemimah Sarah Mbakaya in the subject proceedings and that the matter had been reported at Butere Police Station under OB 13/05/05/2015. He stated that the deceased had no wife or children and was survived by the siblings as follows; -a.Phanice Maina Okakab.Agneta Mary Omusulac.Benson Olutola Musad.Wycliff Were Musae.Sarah Risper Musa, and there were other siblings who had since died but left behind dependants. Such dependants were listed.

5. He asserts that Jemimah Sarah Mbakaya is a daughter to one of the deceased’s brothers, thus a niece, and that the property of the deceased could only devolve to his nieces and nephews in the event that all the siblings of the deceased had pre-deceased him. He further claims that the allegations in the petition that the deceased had sold a portion of his estate to Arthur Arunga Epiche and Benson Lubanga Alubokho is false since the two bought their land from Henry Ambaitsi. He avers that it was the wishes of the deceased that his property known as Marama/Shinamweyuli/2082 now 2967 be transferred to Mohamed Munyanya who had bought land from the deceased and had been in occupation of the land and cultivating it since the year 2002. He claims that Jemimah Sarah Mbakaya has disposed other subdivided properties to third parties in excess of what is on ground.

6. In their respective affidavits sworn on 24/7/2015, Henry Ambaitsi and Ali Mango Olutola support the averments of Wycliff Were and further state that they were brothers to Musa Olutola, the father to Eliakim Shibia Musa hence uncle to the deceased and objector, Wycliff Were. Both say the petitioner is a nephew to the deceased.

7. Beatrice Owano also swore her affidavit on 24/7/2015, and averred that she is the widow of the late John Osako, brother to the deceased and thus, step mother (sic, aunt) to Jemimah Sarah Mbakaya. She reiterated the averments of Wycliff Were and further stated that she was not consulted on the filing of the petition relating to the estate of the deceased.

Affidavit of Franklin Muramba Osako 8. In his affidavit sworn on 24/7/2015, he described himself as a nephew of the deceased and brother to Jemimah Sarah Mbakaya and further supports the averments of Wyclif Were that the cause was initiated and pursued without consultation with and consent of the other family members.

9. The application was resisted and opposed by the replying affidavits of Phanice Maina Okaka and Mary Agneta Omusula both sworn on 11th September, 2015, who assert that the deceased was their biological brother and that they were the only siblings that shared the same mother and father and that the succession proceedings were initiated with their consent and blessings.

10. There was also an affidavit sworn by one Mary Agneta Omusula, asserting that she was a daughter to the deceased, but ambivalently adds that she shared one mother and father with the deceased just as Phanice Maina Okaka. She maintains that being blood sibling to the deceased only her and her sister are entitled to inherit from the deceased and that the objector is merely a front for one Mohammed Munyanya who habours an interest on the land.

11. For the petitioner, the affidavit sworn by her on 11/9/2015, asserts that the application for revocation was made in bad faith because Henry Ambaitsi Olutola acting on cahoots with Wyclif Were caused the deceased parcel of land known as Marama/Shinamwenyuli/2082 to be subdivided into several portions including Marama/Shinamwenyuli/2591 which he transferred to himself but the title was later cancelled and reversed. She further stated that she filed the petition with the approval of Phanice Maina Okaka and Mary Agneta Omusula.

12. In his affidavit sworn on 21st March, 2016, Mohammed Munyanya avers that he bought parcel of land known as Marama/Shinamweyuli/2082 from the deceased and that the petitioner being aware of this position proceeded to sell the said land to one Michael Keya by further increasing the acreage. He also avers that Mary Agenta Omusula and Phanice Okaka Maina are not trustworthy persons who have kept changing their statements hence cannot be entrusted with the duty to administer the estate.

13. When served with the Replying affidavits, the Objector filed a further affidavit on the 24. 3.2016 and termed the affidavits as full of falsehood and material non-disclosures. He points out that Mary Agneta Okaka had filed a summons for revocation of the grant dated 14th April 2015 and swore an Affidavit that the cause was pursued without her consent only to turn round, withdraw the application and assert that she gave authority to the petitioner. It is added that the same Mary had complained to the police about her thumb print having been forged by the administrator.

14. On the Replying Affidavit by the Petitioner, the Objector admits to stand in equality with the petition and stresses that both of them and the other sister should share the estate equally but the two sisters have been intimidated and coerced to keep changing positions before the court. He then reiterates that the property was sold by the deceased to Mohammed Munyanya who took possession and has been in use since then. He then reiterated the position of Mohammed Munyanya that the Petitioner is a person of low trust who had sold the estate land just as she sold her own father’s land behind and without the participation of the widow and urges that the grant be revoked so that the sibling to the deceased should inherit the estate.

15. The second application was by one Mohammed Munyanya who also seeks revocation of the grant and for cancellation of all titles resulting from the subdivision of the estate property so that the asset reverts to the name of the deceased. The application for revocation is premised on the grounds that the proceedings to obtain the grant were defective in substance and was obtained fraudulently by making of false and untrue statement of facts material matters and upon concealment of material facts.

16. The application is supported by the Affidavit of Mohamed Munyaya Khamis sworn on 20th January, 2022 in which he avers that the deceased had three siblings namely; John Osako (Deceased), Phanis Maina Okaka and Mary Agneta Omusula and that the deceased was the legal owner of Marama/Shinamwinyuli/4 which the Objector purchased a portion of pursuant to an agreement of sale dated 12. 4.2002, and took possession thereof on the understanding that he would get his title upon sub division. He asserts that he was aware that Henry Ambaisi Olutola had also bought a portion of the property and when the property was divided into Marama/Shinamwinyuli/1944 and Marama/Shinamwinyuli/1945, Henry Ambaisi Olutola took over Marama/Shinamwinyuli/1945 while Marama/Shinamwinyuli/1944 was again to be sub divided for him to get his title but the deceased passed on before this could take place. He claims that the petitioner has since caused the sub division of Marama/Shinamwinyuli/1944 to several portions including Marama/Sinamwinyuli/2967, which she sold to Michael Keya who is seeking to evict him in order to occupy his parcel of land.

17. Jemimah Sarah Mbakaya, as the Petitioner whose grant was targeted for revocation, swore a Replying Affidavit on the 15th May, 2023, and stated that she was the administrator of the estate of the deceased and that the grant was confirmed on 5th March, 2013 following which she sold part of the estate to one Michael Keya and that the Applicant had sued Michael Keya claiming the portion of land. She claims that the Applicant is not a beneficiary or a dependant of the estate of the deceased and thus lacks the capacity to seek revocation of the grant. She further claims that the distribution of the estate is complete and revocation of the grant shall have extremely adverse effects on third parties who are not party to these proceedings.

18. The Court directed that the two applications be heard together and by way of written submission and both sides have filed respective submissions.

19. It is the submission by the two Applicants that the Petitioner intentionally left out other beneficiaries of the estate of the deceased thus violating the provisions of section 39(c) and (d) of the Law of Succession Act which requires that all beneficiaries are included and that they are entitled to equal shares. He further asserts that under rule 40(8) of the Probate and Administration Rules, it is a requirement for summons for confirmation of a grant to be filed together with form 37 in which parties give consent to confirm and that failure to observe the mandatory provisions of Rule 26(1) and (2) and Rule 40(8) of the Probate and Administration Rules rendered the proceedings to obtain the grant defective in substance in which regard he places reliance in Succession Cause No. 878 of 2014,Estate of Aomo Oyowe (Deceased) (2017) eKLR.

20. The Applicants also contend that the grant was obtained without taking into consideration the liabilities of the estate of the deceased especially the interest of Mohamed Munyanya who had bought land from the deceased in the year 2002 and took possession.

21. He states that the process leading up to the issuance and confirmation of the grant was marred with illegalities which destine the outcome as nullity and cited the case of Republic vs The Business Premises Rent Tribunal Respondent Lenco Investments Limited Interested party and Samina Investments Limited exparte Applicant Nairobi Misc Application Number 562 of 2007 for the proposition that a nullity confers no benefit and should never be condoned by the court lest the justice system be clogged, efficacy of the administration of justice and rule of law and that nullities be pronounced so, so that nobody benefits from them. The following excerpt from the decision was highlighted:“i.A nullity is a nullity and always remains a nullity.ii.If nullities are condoned by the courts of law, they are capable of clogging the justice system, eroding its effectiveness and respect of the rule of law.iii.Failing to act in the circumstance would be a serious abdication of the seat of justice.iv.The principle to be observed is the principle that no litigant should be allowed to benefit from irregularities or nullities since these would be against the policy of law.v.Nullities are defects and cobwebs in our legal system which if allowed to remain would discredit and litter, derail the administration of justice in accordance with the law.vi.It would be unjust for the court not to intervene in the face of a nullity where the tribunal and the lower court had no jurisdiction from the word go.vii.Where preservation of the status quo is a threat to the rule of law, the conscience of this court, the spirit and its sense of justice cannot allow the preservation of the status quo.viii.It cannot be good law to allow a party benefit from a blatant violation of the law.”

22. In particular, the second Objector identifies five issues for determination to be; a) Whether the confirmed grant issued to the Respondent should be revoked or annulled; b) whether the titles arising from the sub division by the Respondent should be cancelled; c) whether the Applicant has the capacity to make this application for revocation/annulment of the grant; d) whether the summons for revocation of grant constitutes an appeal against the decision of the ELC in appeal case No. 3 of 2021 and d) whether the Respondent should bear the costs of this application.

23. On whether the confirmed grant issued to the Respondent should be revoked or annulled, he submits that Rule 7(7) of the Probate and Administration Rules provides that the Petitioner was obligated to inform the Court of every person entitled to the estate of the deceased and that under Rule 26(1) of the Rules, letters of administration ought not to be granted to any application without notice to every person entitled in the same degree to which regard they place reliance in the case of Estate of Katana Vuko Wale v Hamisi Katana Vuko [2021] eKLR where the Court held: -“These sections signifies that a petitioner for grant of Letters of Administration will be deemed prima facie to have obtained a fraudulently grant, with respect of the state if he or she fails to issue notice to any of the dependents or beneficiaries to the estate of the deceased, including obtaining their necessary consents as mandatory provided in the Succession Act. Equally the grant of Letters turn out to be defective if the evidence shows that it was issued in error, mispresentation of facts, concealment or nondisclosure of material evidence relevant and admissible for the making of the grant of representation.”

24. The Applicant further contends that the grant was obtained fraudulently and through concealment of material facts because of the Petitioner’s failure to bring to the attention of the court that he was a purchaser for value to part of the estate of the deceased and cites the case of In Re Estate of Moses Wachira Kimotho (Deceased) [2009] eKLR where it was observed: -“I am certain that had the applicants been made aware of the application for the confirmation of grant by being served they would have brought to the fore their aforesaid interest in the estate of the deceased and the resultant grant would have taken care of those interests. Further had the respondent been forthright and candid and included the applicants as beneficiaries of a portion of the estate of the deceased as purchasers for value, the court in confirming the grant would have taken into account their interest in the estate of the deceased. As it is therefore the grant was obtained fraudulently by making of a false statement and or concealment from court of something material to the cause. The respondent knew of the applicants’ interest in the estate of the deceased yet she chose to ignore them completely in her petition of letters of administration intestate. She also ignored them completely when she applied for the confirmation of the grant.”

25. On whether the titles arising from the sub division by the Respondent should be cancelled, the Applicant submits that it is trite law that any actions premised on a defective grant of letters administration, which grant is subsequently revoked/annulled are null and void and places reliance on the case ofIbrahim v Hassan & Charles Macharia (Interested party) (2019)eKLR for the proposition of the law that where persons of equal priority do not give their consent or renounce their rights the grant is rendered defective and rendered having been obtained by untrue statement of facts essential in a point of law.

26. On whether the Applicant has the capacity to make this application for revocation/annulment of the grant, the Applicant submits that he is an interested party within the meaning of the section 76 of the law of Succession Act.

27. On whether the summons for revocation of grant constitutes an appeal against the decision of the ELC in appeal case No. 3 of 2021, the Applicant submits that the current issue is whether the grant issued to the Respondent should be revoked based on the grounds set out in law and that the issue in ELC Appeal Case No. 3 of 2021 was whether the respondent’s title to the suit property was null void and whether the Appellant had established adverse possession and to which they contest the court’s decision for failure to interrogate the root of the said title. He claims that the court nonetheless established that he was a purchaser for value thus confirming the existence of a constructive trust in his favour.

28. On the issue of costs, he submits that having established that he is entitled to the reliefs sought, costs should be in his favour.

29. It is her Submissions, the Respondent asserts that the step siblings of the deceased are not beneficiaries of his estate within the meaning of section 39 of the Law of Succession Act. She further contends that she passed titles to the property of the deceased after confirmation of the grant of letters of administration and that the transfers were legally in order under section 93(1) of the Law of Succession Act.

30. She also submits that the issue of contention by the Applicant in the application dated 20th January, 2023 is the ownership of a portion of the deceased’s estate which he contested with one Michael Keya and that the Court with the jurisdiction to determine such questions is the Environment and Land Court and since the question was determined in ELC Appeal Case No. 3 of 2021 and to which the Applicant is dissatisfied, she argues that he should seek recourse from the Court of Appeal.

31. Being an application challenging a confirmed grant, and the face of the two applications, the Replying Affidavits and the Submissions by the parties, the issues that arise for determination by this court must center on whether the threshold set by section 76 of the Act have been met by the Applicants or either of them. Those issues remain, whether in applying and obtaining the grant in this cause, the Petitioner did anything untoward and sanctioned by the law to merit the said grant being revoked.

32. The basis upon which a court of law would grant an order for the revocation are well and unequivocally stipulated in section 76 of the Act and needs no regurgitation.

33. In the first application, it is contended that the grant was obtained fraudulently by the making of a false statement or by the concealment from the Court of something material to the case on the basis that the Petitioner being a niece failed to disclose that the 1st Objector was a brother to the deceased and thus a person standing in priority to her.

34. This case presents a scenario where the deceased left no spouse or children. Pursuant to section 66 of the Law of Succession Act, the responsibility fell on other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V of the Act.

35. Section 39 which falls under Part V of the Act provides where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority-(a)father; or if dead(b)mother; or if dead(c)brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none(d)half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none(e)the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.

36. In the Petition of Jemimah Sarah Mbakaya, she listed herself and two sisters of the deceased namely Phanis Maina Okaka and Mary Agneta Omusula as the only beneficiaries of the deceased. The Applicant contends that this is not the position as the deceased had other siblings. I have perused the file, the applications and Affidavits by the parties and I can conclude that the Applicant was a step brother to the deceased and his interest and other step siblings falls under section 39(d) of the Law of Succession Act. The interests and priority of the 1st Objector clearly supersedes that of the Petitioner as a niece.

37. The brothers and sisters of the deceased as explained by Mohamed Munyanya and which has not been contested is that the deceased has three siblings namely; John Osako (Deceased), Phanis Maina Okaka and Mary Agneta Omusula. Since section 39(c) provides that the children of the deceased’s brothers and sisters shall be entitled to the estate of the deceased, it was imperative that the children of the John Osako be made aware and consulted. There is no indication that the consent of all the children of John Osako, being Boniface Olutula, Jemimah Sarah Mbakaya, Halima Osako, Sarah Osako, Frankline Osako and Caroline Osako was sought and obtained. It has been adamantly and categorically stated in the Affidavits sworn on 24/7/2015 that their consents were not sought and that they were not involved in the succession proceedings by the Petitioner.

38. The law obligated the Petitioner to not only disclose the interest of all siblings and half siblings of the deceased but to also obtain their consent in a prescribed form. That was not done with the effect that it was non-disclosure of all material facts on the beneficiaries of a deceased. In re Estate of Julius Ndubi Javan (Deceased) [2018]eKLR where the Court while deciding on the subject held:-“Needless to state that, in any judicial proceeding, parties must make full disclosures to the court of all material facts to the case including succession cases. This general rule of law emphasizes utmost good faith (uberimae fidei) from parties who take out or are subject of the court proceedings. The said responsibility is part of justice itself. Accordingly, non-disclosure of material facts undermines justice and introduces festering waters into the pure steams of justice; such must, immediately be subjected to serious reverse osmosis to purify the streams of justice, if society is to be accordingly regulated by law. I will give ample justification for taking this position.”

39. In the words of the Court in Anthony Karukenya Njeru (supra), by dint of Rule 26(1), Probate and Administration Rules, failure to obtain the consent of those standing in equal priority, in this case higher priority, render the grant obtained through defective proceedings. It matters not that some of them, Mary Agneta Omusula and Phanice Okaka Maina, could have given a consent, otherwise than in the prescribed form. Even if there had been full compliance with Rule 26, by the two, in exclusion of the 1st Objector, that would still be in vain as the 1st Objector has a higher standing than the Petitioner.

40. The Court thus finds that the failure by the Petitioner to include all the siblings of the deceased as beneficiaries and failure to obtain their consent amounted to concealment of material facts from the Court, invalidates the process and invites the revocation of the grant as of course. Accordingly, the application dated 23. 7.2015 is merited and allowed with the consequence that the grant is annulled.

41. The foregoing decision would render delving into the merits of the 2nd Objector’s application moot but that application raises own reasons for revocation and seeks additional orders that demand that it be considered on own merits.

42. It is premised on the assertion that the Applicant/2nd Objector did purchase the land from the deceased and was thus a liability to the estate. The Applicant faults the Petitioner for having concealed that fact contrary to Rule 7(1)(d) of the Probate and Administration Rules. There is an agreement of sale exhibited, which has not been controverted by the Petitioner. In fact, the Petitioner tacitly acknowledges the claim but contends that it is one due for determination before the Land Court.

43. To this court, a liability incurred by the deceased must be dealt with in the Succession Cause, and not elsewhere so that the Court does not delay its processes by subjecting same to other processes beyond its control. There is a rationale for rule 7(1)(d). It is that it is the duty of the Probate Court to determine what net estate is available for distribution to the ascertained beneficiaries. Determining and settling liabilities in the cause also benefits the estate that it is saved from multiple litigation and serves the dictate that cost of litigation need be kept law to enable access to justice to thrive.

44. The contention by the 2nd Objector that he purchased a portion of Marama/Shinamwenyuli/4, with dimensions shown on the agreement for sale, is sufficient and a clear case to the Court that he is indeed a liability of the estate which ought to have noted and acknowledged in the Petition towards the discharge of the duty for full disclosure. On that duty the Petitioner failed, with the consequence that the 2nd Objector was deprived of his right to share in the estate as a liability to estate for a definite portion of the land. The interests of the 2nd Objector are adjudged due for consideration and provision at the point of distribution.

45. The Applicant and the Respondent brought to the attention of the Court that the Petitioner sold Marama/Shinamwenyuli/2082, which sits on the portion sold to the 2nd Objector, to one Michael Keya. Even though the matter was litigated at the ELC in Appeal Case No. 3 of 2021 in which the Court found that Michael Keya held a proper title, this cause goes to the root of the process yielding the title. It ought not be viewed as a challenge on that decision. To this Court, the Petitioner ought not to be allowed to ride on and benefit from her failure to comply with the dictates of the Law of succession Act which was the vehicle she boarded to acquire the capacity to deal with the estate.

46. To the extent that the 2nd Objector is a liability that ought to have been disclosed and addressed but was concealed from the Court, the Court holds that the Court was misled in issuing the grant by act of concealment and the grant thus ought to be and is hereby revoked for that impropriety.

47. Having been revoked on account of failure to comply with clear and mandatory requirements of the law, it is declared that all transactions initiated and concluded on the strength of the grant, were so initiated and concluded in perversion of the law, were thus a nullity and incapable of vesting any genuine interests on the persons who acquired interests pursuant to it. Accordingly, therefore, all titles created pursuant to the grant are recalled and cancelled, and entire estate reverted to the deceased name so that it may be administered in accordance with the law. The Petitioner being a niece is disqualified from the administration in favour of siblings to the deceased.

48. Having reached the conclusion that the grant is a good candidate for revocation, the Court reminds itself that the duty to conserve and ultimately transmit the estate lies with it. It thus deems the following to be the appropriate orders to make in order that the administration be moved towards conclusion: -a.The grant dated 5/3/2013 issued in favour of Jemimah Sarah Mbakaya is hereby revoked.b.The Court appoints Wycliff Were and Phanis Maina Okaka to be joint administrators of the estate.c.The joint administrators are hereby directed to file fresh summons for confirmation indicating all the beneficiaries of the estate within thirty (30) days from today.d.It is directed the Land Registrar Kakamega, cancels all title resulting from any subdivision of the property known as Marama/Shianamweyuli/4 and that the same reverts back to the name of the deceased for the same to be availed for distribution to the persons entitled in accordance with this judgment.e.Being a family dispute, each party shall bear own costs.

DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 17TH DAY OF NOVEMBER, 2023. PATRICK J. O. OTIENOJUDGEIn the presence of:Ms. Wanyonyi for Nechesa for PetitionerMs. Njue for Ocheing for Applicant