[2023] KEHC 27008 (KLR)

In re Estate of Festo Elondanga Ashikhube (Deceased) (Succession Cause 308 of 2002) [2023] KEHC 27008 (KLR) (1 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27008 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 308 of 2002

PJO Otieno, J

December 1, 2023

IN THE MATTER OF THE ESTATE OF FESTO ELONDANGA ASHIKHUBE (DECEASED)

Between

Joshua Maina Ashikhube

Petitioner

and

Kennedy Odera Ashikhube

Objector

Ruling

1. Before this court is the applicant’s summons for revocation of a grant dated 23rd June, 2014 brought pursuant to rule 44(1) of the Probate and Administration Rules and seeking the substantive order the the amended grant issued to Joshua Maina Ashikhube on 7th October, 2010 be revoked and a fresh grant be issued in the joint names of Joshua Maina Ashikhube and Kennedy Odera Ashikhube.

2. It further seeks interlocutory reliefs that Joshua Maina Ashikhube and his agents be restrained from disposing/selling Plot No 2&8 Shimanyiro market, Kakamega County, and from encroaching on land parcel No Butsotso/Shibeye/1419 pending hearing and determination of this cause and that said administrator be compelled to give account of rent collected from the above two plots No 2&8 Shimanyiro market.

3. The application is supported by the affidavit of Kennedy Odera Ashikhube, the objector, sworn on 23rd June, 2014 in which he avers that he is a grandson of the deceased and that the deceased had six sons and two daughters but only two of the children are alive namely Joshua Maina Ashikhube and Rosalidah Ashikhube. Before the deceased died, he had shared his land to all the children but he did not share out the two plots.He claims that before and after the death of the deceased, the sons to the deceased shared rent collected from the plots equally and that they have recently learnt that Joshua Maina Ashikhube intends to sell one plot.

4. The summons was additionally supported by witness statements made by Josephat Amekha Amena and Charkles matieti Viumbi whose position like that of the objector was that the deceased had shared all his land to the children but did not share the two plots.

5. The application was never opposed by any replying affidavit by the administrator in but at the hearing, the court was told that he would rely on the Affidavit filed in support of summons for confirmation and that in reply to Affidavit in reply to the protest.

6. The matter was directed to be heard by way of viva voce evidence and pursuant to such directions, the objector’s evidence was tendered before Njagi J on 15. 10. 2019 while evidence of his two witnesses were recorded by Fara j between December 2020 and June 2021. The evidence of the administrator as the only witness on his side was recorded before me on the 23. 11. 2022.

7. From the record, parties merely reiterated their witness statements and the affidavits filed. The summary is that the objector maintain that only the two plots were not distributed and that all the sons of the deceased would collect and share rent equally from the two plots. However no document of title or rent collection were exhibited by the three witnesses who testified for the objectors side.

8. For the petitioner, the position taken was that he got the least out of the land and that the deceased expressed the whish that he takes plot No 2 while the girls take plot No 8. Both sides gave evidence on the application for revocation without touching on how the estate needs to be distributed

9. Parties were then directed to file and exchange written submissions and the following is a summation of such submissions.

10. It is the objector’s submissions that the petitioner is out to oppress the children of his late brothers and sisters since he did not tender evidence to the effect that the deceased had transferred land to his other children save for the petitioner prior to his demise and failure to include them in this cause demonstrates bad faith and they thus pray that the grant be revoked with costs to the applicant. As crafted, the submissions proceeds as though the court is expected to determine both applications for revocation as well as that for confirmation of the grant and dwells on distribution while saying very little on revocation.

11. For the administrator, it is submitted, on whether the grant should be revoked, that the applicant has not tendered any material evidence to demonstrate that the petitioner had concealed material facts from the court or committed fraudulent to warrant a revocation of the grant. He contends that the applicant has merely made allegations that the petitioner concealed facts from the court without discharging the burden of proof.

12. On the allegation of the petitioner disposing plot No 2&8 Shimanyiro market Kakamega Council, the petitioner denies the allegations, submits that the applicant has not produced any evidence to the allegation, and further denies to have encroached on land parcel No Butsotso/Shibeye/1419.

13. The petitioner further asserts that the applicant has not tendered evidence to show that he collects rent from plot No 2 & 8 Shimanyiro market.

14. On whether the objector can inherit from the estate of the deceased as a grandson, the petitioner submits that section 38 of the Law of Succession Act provides that where a deceased had left a surviving child or children but no spouse, the net intestate estate devolves on the surviving child or children. He claims that grandchildren have no right to inherit their grandparent’s estate who die intestate after 1st July, 1981 and places reliance In the Matter of the estate of Veronica Njoki Wakagoto (Deceased) [2013] eKLR where the court held as follows;“Under Part V, grandchildren have not 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.”

15. It is further argued that the applicant can only claim as a dependant under section 29 of the Law of Succession Act but he has failed to tender evidence that he was maintained by the deceased prior to his death. He claims at the time the deceased died, he had already distributed property to the objector’s father and to his other children save for one who was a minor.

Issue, Analysis and determination 16. While the objector has made a detour on the summons for confirmation of grant, the court is clear that that application even though pending on the record was not argued and is unripe for consideration in this ruling. I have perused the application, the response thereto, the evidence offered by the four witnesses as well as the submissions by the parties and the issue that arises for my determination is whether the application for revocation is merited.

17. An applicant seeking to have a grant revoked has no option but to fit within the confines of section 76 of the Law of Succession Act. In that obligation he has to demonstrate to court, a wrongdoing by the administrator under the four parameter set by the statute. The four parameter are that; the proceedings to obtain the grant were defective in substance; 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; 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; the person to whom the grant was made has failed, after due notice and without reasonable cause to have the grant confirmed, proceed diligently with the administration of the estate; or to produce to the court, any such inventory or account of administration as is required by the law; or that the grant has become useless and inoperative through subsequent circumstances.”

18. The was interpreted by the by the court Jamleck Maina NjorogevMary Wanjiru Mwangi (2015) eKLR with the court observing that:-“For a grant to be revoked either on the Application of an interested party or on the court’s own motion there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of false statement, or by concealment of something material to the case, or that the grant was obtained by means of untrue allegations of facts essential in point of law.”

19. It is trite law that he who alleges must prove the allegations. Here the applicant has not specified what wrong the administrator committed nor has he tendered any evidence to demonstrate the salient ground he relies upon for revocation of the grant.

20. To the contrary, the records reveal that the administrator was never the petitioner but was appointed by the court pursuant successful objection proceedings. It certainly cannot be the case that he concealed any material matter or made an untrue allegation of fact in the petition. The court finds that there is no demonstration of any wrongdoing by the administrator to warrant revocation of the grant. In any event, the objector ranks in an inferior position to that of the administrator and should not be elevated above the administrator without a very strong reason.

21. Whether or not the petitioner intends to dispose Plots No 2 & 8, Shimanyiro market, was never pursued with any amount of vigor nor seriousness. The accusations were merely thrown at the court without any attempt to provide an iota of evidence. The objector was content to say he got information without giving the source of that information. He sought to rely upon inadmissible hearsay contrary to the law. That cannot be permissible and certainly not a basis to give a discretionary order.

22. On the last issue asking for accounts, the court appreciates that to be an inescapable duty of every administrator. However, the court also notes that the estate is yet to be distributed. Prior to distribution, it would be disruptive to call for an interim accounts. The court finds that the request for accounts is inopportune just now. In whole, the entire application lacks merits and it is dismissed.

23. Having dismissed same leaves the court with the duty to move the estate towards closure. The court notes that there is pending an application for distribution to which a protest was made but note that there is scarcity of materials to help with ascertaining the net estate for sharing between the deserved beneficiaries, who are equally not precisely disclosed. It is thus directed that both sides file additional papers respecting the application for distribution and provide the details of the property of the estate with attendant evidence of ownership, all persons entitled in intestacy, including evidence of any gifts allegedly given by deceased inter-vivos and proposals on who gets what portion of the estate. Of critical interest is whether the property disclosed in the petition, No Butsotso/Shibeye/1419 remains registered in the name of the deceased and if not, when was it alienated and in what manner. Such papers be filed and served within 30 days from the date of this decision.

24. Accordingly, for the reasons set out above, this court finds no merit in the applicant’s application dated 23rd June 2014 and the same is thus dismissed with no order as to costs.

DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 1ST DAY DAY OF DECEMBER 2023PATRICK J O OTIENOJUDGE