[2022] KEHC 1507 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT KENYA

AT MERU

(CORAM: CHERERE-J)

SUCCESSION CAUSE NO. 15 OF 2019

IN THE MATTER OF THE ESTATE OF GEORGE KOOME KUBAI(DECEASED)

BETWEEN

CAROLINE GATWIRI MBALE …...……INTERESTED PARTY/ APPLICANT

AND

LUCY KANANA KOOME.………….…1ST ADMINISTRATOR/RESPONDENT

STEPHEN KUBAI M’AMERU.….……2ND ADMINISTRATOR/RESPONDENT

RULING

Introduction

1. Deceased’s died sometimes on 08th January, 2019. The Administrators who are widow and father to the deceased respectively applied for letters of administration in which they stated that the deceased was survived by the following:

1) Lucy Kanana Koome (Widow)

2) Stephen Kubai M’Ameru (Father)

3) Viona Mwendwa (Daughter)

4) Brian Mutembei (Son)

5) Brenda Kinya (Daughter)

6) Bravon Mutuma (Son)

7) Britney Mukami (Daughter)

8) Elsy Gakii (Daughter)

9) Miriam Kaimuri Daughter)

2. Letters of administration were issued to the administrators on 31st October, 2019.

Summons

3. By summons for revocation dated 26th August, 2020. , Applicant seeks the following orders; -

1) The grant of letters of administration issued on 31st October, 2019 be revoked

2) Costs be provided for

Protestor/Applicant’s case

4. The Applicant’s case is contained in her two affidavits sworn on 25th August, 2020 and 21st May, 2021 and is founded on the grounds that she was married to the deceased with whom they were blessed with two children. Applicant faults the Respondents for obtaining the grant fraudulently and for concealing from the court that she and her two children are beneficiaries of the deceased’s estate.

5. Annexed to the affidavit sworn on 25th August, 2020 are certificates of birth of two children whose parents are shown to be the deceased Applicant herein. To the supplementary affidavit sworn on 21st May, 2021 is deceased’s eulogy in which Applicant and her two children are named as wife and children of the deceased and chief’s letter in which Applicant is stated to be deceased’s wife.

Respondents’ Case

6. Respondents’ case is contained in a replying affidavit sworn by the 1st Respondent on 30th October, 2020 in which she principally denies that the Applicant was married to the deceased and also questions the authenticity of the Applicant’s children’s birth certificates.

Analysis and determination

7. I have considered the application in the light of the affidavits and oral evidence and also on the submissions filed on behalf of both parties and I have deduced the issues for determination as follows:

i.Whether the Certificates of birth of Applicant’s children were lawfully issued

ii.Whether Applicant and her children are dependents of the deceased

iii. Whether a case has been made for revocation of the grant of letters of administration.

Whether the Certificates of birth of Applicant’s children were lawfully issued

8. The law relating to registration of births is to be found under Section 12 of the Registration of Births and Deaths Act which provides provides: -

“No person shall be entered in the register as the father of any child except either at the joint request of the father and motheror upon the production to the registrar of such evidence as he may require that the father and mother were married according to law or, in accordance with some recognized custom.”

9. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 3 Others (2014) eKLR the Supreme Court held inter alia:

“The person who makes such allegation must lead evidence to prove the fact. She or he bears the initial legal burden of proof which she or he must discharge. The legal burden in this regard is not just a notion behind which any party can hide. It is a vital requirement of the law. On the other hand, the evidential burden is a shifting one, and is a requisite response to an already discharged initial burden. The evidential burden is the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue”.

10. From affidavit evidence on record, there is no dispute that the certificates of birth in question were issued a month after the death of the deceased. However, no evidence has been led by the Respondents that the said certificates were acquired by any other means other than as provided for in the law above. (See BKN & another v TNW [2019] eKLR).

11. From the foregoing analysis, this court makes a finding that the Certificates of birth of Applicant’s two children which indicate that deceased is their father were lawfully issued.

Whether Applicant and her children are dependents of the deceased

12. The Applicant and her two children were acknowledged as deceased’s wife and children in the deceased’s eulogy and in the absence of evidence to the contrary, the court finds that the Applicant and her two children are respectively wife and children of the deceased with an interest in deceased’s estate.

13. There being no evidence to the contrary, I find that the evidence on record points towards that inference only and nothing else. (See In re Estate of Julius Kiragu Kiara (Deceased) [2-18] eKLR).

Whether a case has been made for revocation of the grant of letters of administration.

14. Section76of the Act provides as follows:

“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 has ordered or allowed; 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.”

15. In Musa Nyaribari Gekone & 2 Others v Peter Miyienda & another [2015] eKLR, the court of Appeal held that:

“The expression “any interested party” as used in the foregoing provision, in its plain and ordinary meaning, is in my view wide enough to accommodate any person with a right or expectancy in the estate.”

16. The expression “any interested party” as used in the foregoing provision, in its plain and ordinary meaning, is in my view wide enough to accommodate any person with a right or expectancy in the estate such as the applicants herein.

17. The same Court in Jamleck Maina Njoroge v Mary Wanjiru Mwangi [2015] eKLRstated THAT;

The circumstances that can lead to the revocation of grant have been set out inSection 76 Law of Succession. 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.

18. Having found that the Applicant and her two children are deceased’s dependents, I am convinced that they are beneficially entitled to the estate of deceased. Having been omitted from the list of deceased’s dependents and this cause having been filed without the knowledge of the Applicant, I find that Applicant has demonstrated that she has locus standi to present the application for revocation and that this application that is intended to protect the interests of the Applicant and her two children is well founded.

19. In the result, I have come to the conclusion that the Applicant has proved her claim to the required standard. This court finds that the letters of administration issued to the administrators on 31st October, 2019 wereobtained fraudulently by making of a false statement and by means of untrue allegations of facts and by concealment of the fact that the Applicant and her children had a stake in deceased’s estate.

20. The orders which commends to me and which I hereby issue are THAT:

1)The Letters of Administration issued on 31st October, 2019 are hereby revoked

2) Letters of Administration shall issue jointly to LUCY KANANA KOOME and CAROLINE GATWIRI MBALE

3) The joint administrators are directed to apply for confirmation of the grant after identifying the deceased’s assets and dependents and shares of each of the dependents within 60 days from today’s date

4) In the event that the joint administrators do not agree on the mode of distribution, they are at liberty to file respective proposed modes of distribution

5) Mention on 27thApril, 2022 to confirm compliance with orders 1 to 4 above and for further orders.

Delivered at Meru this 10thDAY OF March 2022

WAMAE. T. W. CHERERE

JUDGE

Appearances

Court Assistant -Morris Kinoti

For Applicant - Mr. Gitonga for Basilio Gitonga, Murithi & Co. Advocates

For Respondents - Kiogora Mugambi & Co. Advocates