[2022] KEHC 13707 (KLR)

In re Estate of Eric Kiptanui Naibei (Deceased) (Succession Cause 1235 of 2017) [2022] KEHC 13707 (KLR) (Family) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13707 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 1235 of 2017

M Thande, J

October 7, 2022

IN THE MATTER OF THE ESTATE OF ESTATE OF ERIC KIPTANUI NAIBEI (DECEASED)

Between

Gideon Mallan Kimkung Naibei

Applicant

and

Esther Jeanet Ngenyi

Respondent

Ruling

1. The matter herein relates to the estate of Eric Kiptanui Naibei who died on 30. 8.16. The record shows that the deceased was survived by his widow Esther Jeanet Ngenyi (the respondent) and 3 adult children, Gideon Mallan Kimkung Naibei (the applicant), Gilda Maua Mbeke Naibei and Glenn Imann Naibei. A grant of letters of administration in respect of the estate of the deceased was on 14. 2.18 issued to the respondent. The grant was confirmed on 18. 6.18. In the distribution, the respondent was to hold LR No 209/12892, Eldoret Municipality/Block 4/113 and Eldoret Municipality/Block 3/53 in trust for herself and her 3 children. The deceased’s shares in Majestic Security System Ltd, Mt Elgon Distributors Ltd, Scammer Agencies Ltd as well as bank accounts in Transnational Bank and Standard Chartered Bank were transferred to the respondent.

2. By a summons dated 26. 1.22, the applicant, seeks in the main, revocation of the grant and that the applicant and other beneficiaries be at liberty to apply for a grant of letters of administration. The grounds are that the confirmation was obtained fraudulently by the making of false statements and concealment from the court of facts and information material to the case. Further that the grant has become useless and inoperative as the trust created therein has determined on account of the remarriage of the respondent.

3. The applicant claimed that he was not involved in the confirmation proceedings. He stated that his consent to the confirmation of grant was forged and that the respondent misled the court that he had consented to the distribution of the estate. Further that the respondent misled the court that he was aware of the date of confirmation but that he had travelled whereas it was not true. He accused the respondent of cutting him off from the family. Additionally, the applicant stated that the respondent listed properties held by companies in which the deceased was a shareholder. These properties are LR No 209/12892, held by Rorete Estate Limited, Eldoret Municipality/Block 4/113 held by Scammer Agencies Limited and Eldoret Municipality/Block 3/53 held by Mount Elgon Distributors Limited, and do not form part of the estate of the deceased. The Respondent then proceeded to allocate the shares in the said companies, to herself absolutely thereby making her the absolute owner of the entire estate of the deceased to the exclusion of all other beneficiaries. Moreover, the applicant stated that the respondent misled the court by deliberately excluding the deceased’s properties known as Nakuru Municipality/Block 16/191, Eldoret Municipality/Block 9/1245 and Eldoret Municipality/Block 9/1786.

4. In response vide her replying affidavit sworn on 10. 6.22, the respondent denied the allegations made by the applicant. In particular, the respondent denied that she intended to disinherit the applicant or the other beneficiaries who are all her biological children. She denied cutting off the applicant and stated that she has provided for his needs including taking him to rehabilitation due to substance abuse. As administrator she seeks to protect the estate from being wasted and further stated that the applicant has no capacity to manage himself or the estate. As regards the excluded properties, the respondent stated that the same came to her attention after filing the petition. She lodged caveats against them with a view to protecting them on behalf of the beneficiaries. Further, that LR No 21069 is subject to ongoing litigation.

5. The respondent conceded to having remarried but stated that she will discharge her duties as administrator for the benefit of the beneficiaries without discrimination. She further stated that she undertakes to distribute the estate to all the beneficiaries at the opportune time. She urged the court to dismiss the application.

6. In his supplementary affidavit sworn on 25. 6.22, the applicant reiterated his earlier averments. He denied the respondent’s allegations regarding his mental state. He then stated that the respondent cannot be trusted to administer and distribute the estate on account of her remarriage.

7. I have considered the application, the rival affidavits and submissions as well as the cited authorities. The issues that fall for determination are:i)Whether confirmation of the grant was obtained fraudulently.ii)Whether the grant became useless and inoperative on account of the respondent’s remarriage.iii)Whether the applicant or other beneficiaries should be appointed administrators of the estate.

8. The jurisdiction of this court to revoke a grant of representation is set out in section 76 of the Law of Succession Act as follows:76. 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—(a)that the proceedings to obtain the grant were defective in substance;(b)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.(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either –(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or(ii)to proceed diligently with the administration of the estate; or(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(e)that the grant has become useless and inoperative through subsequent circumstances.

9. A party seeking revocation of grant must demonstrate the existence of any or all the grounds stipulated in section 76 of the Act.

Whether Confirmation Of The Grant Was Obtained Fraudulently 10. It is the applicants case that the confirmation of the grant was obtained Fraudulently without notice to him and without his participation. The applicant further submitted that the petitioner made a false statement to the court that the applicant was unavailable for confirmation as he had travelled to Mt Elgon. It was further submitted that the confirmation was obtained fraudulently by the filing by the respondent of a forged consent of the applicant. Additionally, The applicant contended that the confirmation was obtained fraudulently by excluding some properties of the estate.

11. For the respondent, it was submitted that the properties of the estate are matrimonial properties which shall be distributed to the beneficiaries without discrimination. It was further submitted that the elders and family know of the applicant’s substance abuse which renders him unsuitable as administrator. She relied on the case of In re Estate of Jared Gitau Gichuhi (Deceased) [2020] eKLR in which she claimed that the administrator therein was removed for incapacity. After carefully looking at the said authority, I note that the grant was revoked on account of the demise of the administratrix and not on the ground of incapacity as contended by the respondent. Accordingly, that authority is not helpful to the respondent’s case.

12. In opposing the application, the respondent argued that the applicant has no capacity to be administrator of the estate on account of his alleged substance abuse. I find this rather curious given that the respondent claimed that the applicant signed the consent to confirmation. If the applicant’s substance abuse has affected his mental state so as to render him incapable of being administrator it would follow that he had no capacity to sign the consent to confirmation.

13. Rule 40(8) of the Probate and Administration Rules provides:Where no affidavit of protest has been filed the summons and affidavit shall without delay be placed by the registrar before the court by which the grant was issued which may, on receipt of the consent in writing in form 37 of all dependants or other persons who may be beneficially entitled, allow the application without the attendance of any person; but where an affidavit of protest has been filed or any of the persons beneficially entitled has not consented in writing the court shall order that the matter be set down as soon as may be for directions in chambers on notice in form 74 to the applicant, the protester and to such other persons as the court thinks fit.

14. The consent of all dependants or other persons who may be beneficially entitled to the estate of a deceased persons is required to be obtained before a grant is confirmed. In the present case, the applicant contended that his consent was not obtained as required under the said rule. Indeed, when one looks at the consent to the application for the grant and to the confirmation of grant, it is easily discernible that the signatures attributed to the applicant are distinctly different. Further, the applicant did not attend the confirmation proceedings having not been informed of the same.

15. After considering all these factors taken together, I am persuaded that the applicant was not involved in the confirmation proceedings and that his consent to the confirmation was not obtained. Accordingly, I do find and hold that the confirmation of grant was obtained fraudulently and the same cannot stand.

16. On the ground that some properties were excluded, the applicant relied on the case of Re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR where the court stated:“But of relevance in these proceedings is that such material facts were never disclosed to this court during confirmation of the grant so as to enable the court make an informed decision on distribution of the estate. 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."

17. The disclosure of all assets of the estate of a deceased person is critical and I agree with the learned judge that non-disclosure of material facts undermines justice. The respondent in this case failed to disclose that the estate of the deceased also comprised of the properties known as Nakuru Municipality/Block 16/191, Eldoret Municipality/Block 9/1245 and Eldoret Municipality/Block 9/1786. Her response was that she became aware of the same after filing the application from the grant. The respondent did not however state why she did not include the properties in her application for confirmation of grant. This notwithstanding, my view is that the remedy for such exclusion is not to revoke the grant but to include the omitted assets in the distribution of the estate.

18. I now turn to the disclosed assets of the estate. A careful look of the titles of the properties of the estate as listed by the respondent reveals that the 3 immoveable properties do not belong to the estate but to companies in which the deceased was a shareholder. There is no title in respect of LR No 209/12892. However, there is a title for LR No 21069, in the name of Majestic Security Systems Limited. Title No Eldoret Municipality/Block 4/113 is owned by Scammer Agencies Limited while Title No Eldoret Municipality/Block 3/53 is owned by Mount Elgon Distributors Limited. These companies are separate legal entities apart from its members. This principle is espoused in the famous case of Salomon v Salomon & Co Ltd[1897] AC 22. Under the Act, this court may only deal with assets that belong to the deceased. On this account alone, the confirmation is liable to be cancelled.

19. As regards the distribution of the assets as indicated in the certificate of confirmation, I note that the respondent was to hold the properties in trust for the children of the deceased while the shares that the deceased held in the companies that own the properties went to her absolutely. In effect the entire estate devolved to the respondent absolutely and the applicant and the other children of the deceased have effectively been disinherited.

20. In circumstances where an intestate has left one surviving spouse and child or children as in the present case, section 35 of the Act provides in part as follows:(1)Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to-(a)the personal and household effects of the deceased absolutely; and(b)a life interest in the whole residue of the net intestate estate:Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person.

21. A widow is entitled to a life and not absolute interest in the estate of the deceased. The intention of this provision is to safeguard the children of a deceased person, who are the ultimate beneficiaries of the properties that are the subject of the life interest. A life interest operates as a trust for the benefit of the children of the deceased, even if the widow as trustee also benefits from the properties during her lifetime. The proviso to section 35(1) however states that a life interest shall determine upon the holder’s remarriage.

22. The respondent has admitted that she has since remarried. This being the case, her interest in the estate of the deceased determined upon her remarriage. Accordingly, the confirmation of grant under which the estate devolved to her, is no longer tenable.

Whether The Grant Became Useless And Inoperative On Account Of The Respondent’s Remarriage 23. Section 76(e) of the Act provides that a grant may be revoked if the same has become useless and inoperative through subsequent circumstances. It is the applicant’s case that the grant became useless and inoperative on account of the respondent’s remarriage. He contended that once a widow remarries, her lifetime interest in the property terminates automatically and her control, administration or any other benefit derived from the deceased properties terminates automatically. The respondent contended that she has preserved the estate without intermeddling and has committed to distribute the same to all beneficiaries equally.

24. To support his submissions, the applicant relied the case of Tau Katungi v Margrethe Thorning Katungi & another [2014] eKLR where the court stated:“Life interest confers a limited right to the surviving spouse over the intestate estate. He or she does not enjoy absolute ownership over the property. They cannot deal with as if it was their own. By virtue of section 37 of the Act, a surviving spouse cannot during life interest dispose of any property subject to that life interest without the consent of all the adult children, co-trustees and the court. This is meant to safeguard the interest of the children who are the ultimate beneficiaries of the property the subject of life interest. It is in this respect that the life interest operates as a trust over the property the subject thereof, a trust held by the surviving spouse for the benefit of the surviving children...I have already stated that the life interest is terminable upon the death of the holder or through the remarriage of the widow."

25. It is noted that the court in that case considered the life interest provided for under section 35 of the Act and the proviso thereto. The court did not speak to the issue of a grant becoming useless and inoperable on account of the remarriage of a widow and indeed it was not necessary because the widow in that case had not remarried. In this regard therefore, the authority is not helpful.

26. My own view is that the fact of remarriage of a widow alone, does not render the grant issued to her useless and inoperative. Accordingly, the ground must fail.

27. Having said that however, the circumstances herein and the open hostility between the applicant and the respondent, make it undesirable for the respondent to continue being the administrator of the estate of the deceased herein.

Whether The Applicant Or Other Beneficiaries Should Be Appointed Administrators Of The Estate 28. The applicant seeks that he and other beneficiaries be appointed administrators of the estate. The respondent opposed this and contended that the applicant is unfit and does not have the mental capacity on account of his substance abuse. The documents exhibited by the respondent to support this claim include a receipt dated 11. 9.15 of the amount of Kshs 60,000/= paid to Psychological Healthcare Services Thika Counselling Home for the applicant’s rehabilitation and another dated 19. 11. 15 for Kshs 55,000/=. There is also a treatment plan for the respondent by the same facility dated 14. 9.15 and a discharge summary. While it is evident that the respondent was depended on alcohol and was treated in 2015, there is no evidence that he is still dependent on the same or that his mental capacity is impaired due to his substance abuse. Indeed, for this court to accept the claim by the respondent, a court order declaring the applicant a person suffering from mental disorder, under section 26 of the Mental Health Act, ought to have been placed before the court. Without such proof, the contention by the respondent in this regard is hereby rejected.

29. The record shows that the deceased was survived by the applicant and 2 other children. They are all adults. Under section 66 of the Act, they all entitled in equality to a grant of representation in respect of the estate of the deceased.

What Orders Should Be Granted 30. This court has jurisdiction under section 47 of the Act to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient. Rule 73 of the Rules provides that the jurisdiction of this court and inherent power of the court to make such orders as may be necessary for the ends of justice shall not be limited or otherwise affected.

31. The record shows that the assets of the estate are the following:Shares in Majestic Security System Limited;Shares in Mt Elgon Distributors Limited;Shares in Scammer Agencies Limited;Title No Nakuru Municipality/Block 16/191;Title No Eldoret Municipality/Block 9/1245;Title No Eldoret Municipality/Block 9/1786;Money in Transnational Bank Limited;Money in Standard Chartered Limited.

32. The circumstances herein are that following the remarriage of the respondent, the deceased is survived by his 3 children. Section 38 provides that in such a situation, the estate shall be divided between the 3 children in equal shares:Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.

33. In the end, and in view of the foregoing, I find that the application dated 26. 1.22 is merited and in exercise of the jurisdiction and inherent power of this court I make the following orders which are necessary for the ends of justice:i.The grant of letters of administration issued to Esther Jeanet Ngenyi on 14. 2.18 is hereby revoked.ii.The certificate of confirmation of grant dated 18. 6.19 is hereby cancelled.iii.A fresh grant is hereby issued to Gideon Mallan Kimkung Naibei, Gilda Maua Mbeke Naibei and Glenn Imann Naibei.iv.The said grant is hereby confirmed.v.The estate of the deceased shall devolve to Gideon Mallan Kimkung Naibei, Gilda Maua Mbeke Naibei and Glenn Imann Naibei in equal shares.vi.This being a family matter, there shall be no order as to costs.

DATED, SIGNED AND DELIVERED IN NAIROBI THIS 7TH DAY OF OCTOBER 2022. ..............................................M THANDEJUDGEIn the presence of: -……………………………………………………………for the applicant.……………………………………………………………for the respondent.……………………………………………………..…….. Court Assistant.