[2019] KEHC 7953 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

SUCCESSION CAUSE NO 243 OF 2007

IN THE MATTER OF THE ESTATE OF ELIKANA LINDUNDU (DECEASED)

JUDGMENT

1. The deceased herein died on 6th April 2005. A letter on record from the Chief of East Kabras Location, dated 26th February 2007, indicates that he was survived by two widows, Rosa Mmboka Elikana and Everline Nyamina Elikana, and six (6) sons, Filimon, Jafred, Benson, Joseph, Geoffrey and Patrick. It is also indicated that he had died possessed of a property known as South Kabras/Chesero/926.

2. Representation to the estate was sought by Rosa Mmboka Elikana, in her capacity as widow of the deceased, vide a petition lodged herein on 26th March 2007. She listed herself, and the other seven individuals listed in the chief’s letter referred to in paragraph 1 hereof as the persons who survived the deceased. She also listed South Kabras/Chesero/926 as the asset of the estate. Letters of administration intestate were made to her on 11th September 2007, and a grant issued to her dated 30th November 2007.

3. She lodged a summons herein on 21st September 2011, dated 19th September 2011, seeking confirmation of here grant. She proposed distribution of the property between herself and her co-wife and four of the children, that is to say Filimon, Jafred, Joseph and Patrick. The application was heard on 2nd July 2014, in the presence of herself, her co-wife, Patrick and Jafred. Benson was represented by his wife Anna. The grant was confirmed. A certificate of confirmation of grant dated 10th July 2014 was issued. It distributed South Kabras/Chesero/926 as follows: Rosa Mmboka Elikana – 4. 0 hectares, Everline Nyamina Elikana – 2. 8 hectares, Filimon Elikana – 4. 8 hectares, Jafred Elikana– 4. 8 hectares, Joseph Elikana– 8. 6 hectares and Patrick Elikana – 4. 2 hectares.

4. The application that I am tasked with determining is a summons dated 15th March 2018, for revocation of the grant made on 11th September 2007. It is brought at the instance of Philimon Ayieko. He seeks that he be enjoined to the grant as a co-administrator, inclusion of assets that he says were left out, inclusion of beneficiaries that he says were not entered into the list of survivors of the the deceased and amendment of the certificate of confirmation of grant of 10th July 2014 to include the omitted assets and the survivors. The assets allegedly left out are Kolongolo/Kolongolo/Block 2/Biketi/41, 121 and 233. He has attached certificates of official search which show that the said assets are registered in the name of the deceased. the persons said to have been omitted from the list of survivors are John Alwanda, Safina Elikana, Emmanuel Lindundu, Jacob Nyahera, Florence Nyahera, Joseph Nyangwako, Anne Aluda, Andesia Elikana, Zipporah Elikana and Adiamuka Elikana. He has not indicated how these individuals were related to the deceased.

5. There is an affidavit of service sworn by Anne Birgen, on 26th September 2018, indicating that the application was served on the administrator.

6. I heard the application orally on 13th December 2018. Only the applicant testified. The administrator was not in court. The applicant stated that the administrator was his mother. He accused of her of not informing or consulting him when she sought representation. He also said that she had omitted some survivors of the deceased. he said two of his stepmothers, Florence and Safina were not listed, and so were their twelve children. he also stated that three parcels of land belonging to the deceased and situated at Kitale had been left out of the schedule of assets and were therefor not distributed. He said that one of the stepmothers lived at Kitale and the other on South Kabras/Chesero/926, yet the one on South Kabras/Chesero/926 was not allocated any share of the land. He testified that he did not know two of the individuals allocated shares in South Kabras/Chesero/926, that is to say Everline Nyamina and Patrick Elikana.

7. As the administrator did not reply to the application, and did not testify at the oral hearing, the case by the applicant was not controverted.

8. Revocation of grants is provided for under section 76 of the Law of Succession Act, Cap. 160, Laws of Kenya. The provision envisages three general grounds upon which a court may revoke a grant. The first is where the grant was obtained through a process that was defective, or where matter was concealed or misrepresented. The second one would be where, after the grant was properly obtained, the administrator failed to apply for confirmation of grant within the time allowed by the law, or where the administrator failed to diligently administer the estate, or where he fails to render accounts as when required by the law. The last is where the grant has become useless and inoperative.

9. It would appear from the material before me that the applicant anchored her application on the first general ground. The grant was obtained on basis of a defective process. The failure to disclose family members is a serious omission, for ultimately when the estate is distributed there would be a distortion and some family members are likely to be disinherited or disadvantaged. I have seen the search certificates and I agree with the applicant that assets in the name of the deceased were indeed not brought at the distribution table.

10. I am persuaded that a case has been made out for revocation of the grant herein. I do not believe that the administrator can be trusted to administer the estate fully and fairly if she can conceal existence of two widows of the deceased and their twelve children.

11. I note from the material placed before me by the applicant that the deceased had married more than once. He was a polygamist with three wives, according to him. There is a possibility of a fourth wife, if his mother, the administrator, is to be believed, that Everline Nyamina was also a wife of the deceased. In administration of estates democracy must be practised, in that where the deceased was a polygamist then all the houses of the deceased should be represented.

12. I shall dispose of the application dated 20th April 2017 in the following terms -

(a) That I hereby revoke the grant made to Rosa Mmboka Elikana on 11th September 2007;

(b) That as a consequence of (a) above, I do hereby set aside the orders made on 2nd July 2014 confirming the said grant, and I do hereby cancel the certificate of confirmation of grant dated 10th July 2014;

(c) That any and all transactions made on the basis of the grant of 11th September 2007 and the certificate of confirmation of grant dated 10th July 2014 are hereby nullified;

(d) That for the purpose of appointing fresh administrator, I hereby direct the applicant to obtaining a fresh letter from the Chief detailing all the members of the family of the deceased according to the number of wives that he had;

(e) That the matter shall be mentioned to confirm whether (d) above has been complied with and for the purpose of further directions;

(f) That the date for mention in terms of (e) above shall be given in open court at the delivery of this ruling;

(g) That each party shall bear their own costs; and

(h) That any party aggrieved by the orders that I have made herein above shall be at liberty to move the Court of Appeal appropriately within twenty-eight (28) days.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 29TH DAY OF APRIL 2019

W. MUSYOKA

JUDGE