[2023] KEHC 25658 (KLR)

In re Estate of GOR (Deceased) (Succession Cause 257 of 2017) [2023] KEHC 25658 (KLR) (Family) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25658 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 257 of 2017

MA Odero, J

November 17, 2023

IN THE MATTER OF THE ESTATE OF GOR (DECEASED)

Between

YSR

Petitioner

and

KOO

Objector

Judgment

1. Before this Court for determination is the summons for Revocation and/or Nullification of Grant dated 30th June 2018 by which the Objector KOO seeks the following orders:-“1. Spent.2. That the Honorable Court be pleased to revoke the Grant of Letters of Administration Intestate dated 30th day of May, 2017 and given to the Respondent upon such terms that are just expedient.3. That the Honourable Court could be pleased to order and direct that a new Grant do issue in the joint names of the Applicant and Petitioner.4. Spent5. Spent6. That the Applicant together with JYO, FAO be deemed as legal beneficiaries of the estate of the Deceased.7. That the Respondent to pay costs of the Application. 2. The Summons was premised upon Section 76 of the Law of Succession Act, Cap 160, Laws of Kenya Rule 44 of the Probate and Administration Rules and was supported by the Affidavit of even date sworn by the Objector.

3. The Respondent/Administrator YS opposed the Summons through her Replying Affidavit dated 15th October, 2018. The Objector then filed a response to the Replying Affidavit dated 19th November, 2018.

4. The matter was heard by way of vive voce evidence. The Objector called witnesses in support of his case whilst the Administrator gave evidence on her own behalf.

5. This matter was fully heard by Hon. Lady Justice Ali-Aroni (as she then was). Upon the elevation of the Hon. Judge to the Court of Appeal I took over the matter for purposes of preparing the Judgement.

Background 6. This matter relates to the estate of the late GOR (hereinafter the Deceased) who died intestate on 17th October, 2016. A copy of the Death Certificate Serial No.xxxxxxx is annexed to the Petition for Grant of Letters of Administration dated 20th December, 2016.

7. According to the letter dated 6th December, 2016 authored by the chief of North Kisumu Location the Deceased was survived by one (1) widow YS a Chinese National and the couple had no children.

8. The estate of the Deceased comprised the followingAssetsi.Pension Scheme with National Social Security Fund.ii.Pension Scheme Kenyatta University.iii.Equity Bank Account Number 0710xxxxxxxxx.Liabilitiesi.Loan with Equity Bank Kshs.2,400,000/=

9. Following the demise of the Deceased the widow YS Petitioned for Grant of letters of Administration which Grant was made to her on 30th May, 2017. The Grant has not been confirmed to date.

10. On 30th June, 2018 the Respondent who claims to be a son of the Deceased filed this Summons for revocation of Grant.

The Evidence 11. The Objector KOO told the court that the Deceased herein married his late mother RAO as a second wife under Luo Customary Law. That the couple had two children.(i)JY – born on 15th May, 2006. (ii)FAO – born on 15th March, 2022

12. The Objector told the court that his mother also passed away on 14th November, 2017. A copy of her Death Certificate Serial No.xxxxxxx appears as Annexture ‘K002’ to the Objectors Supporting Affidavit.

13. The Objector goes on to state that the Deceased purchased the Property known as Kisumu/Muhoroni 11075 (hereinafter ‘the Muhoroni Property’) on 14th February, 2008. That the Objector his late mother and the two minors lived on the said Muhoroni Property and that part of the land was also leased to Kibos Sugar Company for planting sugarcane.

14. The Objector complains that the Administrator deliberately failed to include himself, his late mother and his two minor siblings as beneficiaries of the estate of the Deceased. For this reason he prays that the Grant be revoked and that a fresh Grant be issued jointly to himself and YS.

15. PW2 JOR told the court that the Deceased was his step-brother. PW2 confirms that the Deceased was married, Only to one wife YS and that the couple had no children.

16. PW2 categorically denies that one RA, was the wife of the Deceased. He states that the said RA was merely a worker at the Deceased Muhoroni Farm. That he is not aware if the Deceased had an intimate relationship with ‘RA’. He states that he does not know the children of RA.

17. PW2 denies that the Deceased ever married RA under Customary Law or indeed under any other system. The witness asserts that as a brother to the Deceased he would have participated or at least been aware of the Deceased had ever gone to the home of R to pay dowry.

18. PW2 challenged the statement dated 20th November 2019 sworn by the Deceased’s mother DMR in which it was claimed that the Deceased got married to RA under customary law in the year 2012. PW2 He states that the Respondent was an elderly lady in her 90’s and was not stable mentally.

19. PW3 Nderitu Gikaria is a Human Resource Manager at Kenyatta University. He confirms that prior to his demise the Deceased was employed as a Lecturer in the Department of Food and Dietetics at the University.

20. PW3 confirmed that the Administrator was listed in the University records as the Deceased’s wife and that two (2) minors JY and FA were listed as the Deceased’s beneficiaries. He states that the Deceased submitted to the University the Birth Certificate of the two minors in which the Deceased was listed as their father.

21. PW3 told the court that the only funds which the University has released so far is Kshs.150,000/= which was given to the Administrator to assist in burial expenses. That the University will not release the pension and/or dues of the Deceased until this matter is concluded and a final Grant issued.

22. PW4 Gordon Okera is a retired chief of North Kisumu Location He told the court that he worked as a local Administrator for twenty (20) years from 1998-2018. That he knew the Deceased very well as they hailed from the same location.

23. PW4 confirms that he is the one who authored the letter dated 6th December 2016 confirming that the Deceased was survived by one (1) widow and no children.

24. However, PW4 told the court that later the Objector came to his office with his siblings, and the mother of Deceased and insisted that PW4 revoke his earlier. PW4 then wrote a second letter dated 1st February 2017 confirming that the Deceased was survived by two (2) widows and three (3) children. According to PW4 his investigation revealed that the Deceased had paid dowry to the parents of RA fulfilling Luo Customary requirements for a marriage.

25. The Administrator/Respondent YS testified on her own behalf. She asserted that she was the only widow of the Deceased having gotten married to the Deceased under Statutory Law on 26th May, 1988 in Nairobi.

26. The Administrator categorically denies that RA was a wife to the Deceased she states that the said ‘RA’ was employed as the caretaker of a property which the Deceased had purchased in Muhoroni. That the Deceased used to pay RA a monthly salary of Kshs.8,000/=.

27. According to the Administrator none of the children of the said ‘RA’ was fathered by the Deceased. She demanded that a DNA test be conducted to determine their paternity. The Administrator also denies that the Deceased was supporting the two (2) minor children

28. Finally, the Administrator told the court that she was not aware that pursuant to a court order the body of RA was interred in the Muhoroni Property.

29. Upon conclusion of oral evidence parties were invited to file their written submissions. The Objector filed the written submissions dated 9th June, 2023 whilst the Administrator relied upon her written submissions dated 10th January, 2022.

Analysis and Determination 30. I have carefully considered this summons for revocation of Grant. The evidence of the witness called in this matter as well as the written submissions filed by the parties.

31. The issues which arise for determination are:-(i)Whether the late RA was a wife to the Deceased.(ii)Whether the Objector and his minor siblings are bona fide beneficiaries of the Estate of the Deceased.(iii)Whether the Property known as [particulars Witheld] forms part of the Estate of the Deceased.iv.Whether the Grant issued to the Administrator ought to be revoked.

i. Whether RA (Deceased) was a wife to the Deceased. 32. It is common ground that the Deceased herein passed away on 17th October, 2016. Grant of letters of Administration Intestate were on 30th May, 2017 issued to the widow YS. The Objector lamented that the Administrator misled the court by failing to include as beneficiaries himself and his minor siblings who the Objector claims were both fathered by the Deceased.

33. It is trite law that “he who alleges must prove.” In law the burden of proof lies upon the party who asserts the existence of a fact or set of facts. Section 107 of the Evidence Act Cap 80, Law of Kenya Provides as follows:“Burden of Proof“107(1)Whoever desires any court to given judgment as to any legal or liability dependent on the existence of facts which he asserts must prove that those facts exist.2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

34. The Objector claims that his mother the late ‘RA’ was married to the Deceased as a 2nd wife. He claims that the two got married under Luo Customary Laws. On her part the Administrator asserts that she was the only legal wife of the Deceased. She denies that the Deceased ever married RA who she stated was merely a caretaker on their farm.

35. The chief who testified as PW4 told the court that he initially wrote a letter indicating that the Administrator was the only wife of the Deceased. However, upon insistence from the Objector the chief later changed his mind and wrote another letter indicating that the Deceased was survived by two (2) widows.

36. PW4 claims that he investigated and found that the Deceased had paid dowry to the family of the Deceased. The Objector also alleges that the Deceased married his late mother by paying dowry in accordance with the Luo Traditions.

37. There remains a very loud silence regarding when or where this dowry ceremony took place. Which home was visited for the dowry negotiations and payment. Nobody seems to know. Further, no witness is able to tell the court date, month or even the year when this dowry payment took place.

38. The identities of the persons who accompanied the Deceased to pay this dowry have not been revealed. Traditionally dowry negotiations and/or payments are not done secretly or clandestinely. These are community events at which relatives and friends from both sides will be present. Yet the witnesses were unable to name even one person who attended this alleged dowry payment.

39. Both the wife of the Deceased and his brother PW4 deny that any such traditional marriage ever took place. Whilst it may be possible that the Deceased may have kept his wife in the dark regarding his second marriage, I do not believe that a person as close as a brother would have been unaware if the Deceased truly went to pay dowry for a second wife as alleged. Indeed, PW2 under cross examination states “I was very close to my brother. He never introduced R to me as a wife. If dowry was paid I would have known”

40. All the court hears are vague statements that dowry was paid. This will not suffice to prove a Luo Customary Marriage. The Chief PW4 merely wrote letters according to what he was told. He was not a reliable witness at all as he seems to have had no personal knowledge regarding the personal life of the Deceased.

41. Finally, on this point I note that the Deceased contracted a Statutory Marriage with the Administrator. A copy of their Marriage Certificate Serial Number xxxxx appears as Annexture ‘YSR – 1’ to the Replying Affidavit dated 15th October, 2015. There is no evidence that this Statutory Marriage was ever legally dissolved.

42. A Statutory Marriage is monogamous. One cannot lawfully marry another person under any system during the subsistence of a Statutory Marriage. Therefore, the Deceased did not have the legal capacity to marry another woman while still married to the Administrator.

43. In MWG v EWK[2010] eKLR Bosire JA as then was sitting in the Court of Appeal at Eldoret observed thus:-“…The existence or otherwise of a marriage is a question of fact. Likewise, whether a marriage can be presumed is a question of fact. It is not dependent on any system or law except where by reason of a written law it is excluded. For instance, a marriage cannot be presumed in favour of any party in a relationship in which one of them is married under a statute. However, in circumstances where parties doe not lack capacity to marry, a marriage may be presumed if the facts and circumstances show the parties by a long cohabitation or other circumstances evinced an intention of living together as husband and wife.” [own emphasis]

44. On the whole I find there is no evidence to show that the Deceased ever visited the home of RA to pay dowry for her. Accordingly, I find and hold that the said RA was not a wife to the Deceased.

ii. Whether the Objector and his minor siblings are children/Dependants of the Deceased. 45. The Objector claims that he and his two (2) minor siblings were the biological children of the Deceased. The Administrator vehemently denies this claim. She demands that a DNA test be conducted to establish paternity.

46. Although I have seen in the file documents indicating that DNA tests were to be conducted. I could not find in the file any report indicating that a DNA test was ever conducted or the results thereof.

47. The Objector himself he admits that he has no Birth Certificate indicating that the Deceased was his father. Under cross examination PW3 is shown a Birth Certificate Serial No. xxxxxx which indicates that the father of Kennedy Omondi (the Objector) is one Samuel Okello Odeny and not the Deceased herein. Indeed PW2 the brother to Deceased told the court that he had had never met the Objector before and saw him for the first time in court.

48. The Objector is an adult. There is no evidence to show that he was a dependant under the terms of Section 29 of the Law of Succession Act. I find that the Objector is not a biological son of the Deceased. That he was not a dependant of the Deceased and is therefore, not a beneficiary to the estate.

49. Regarding the two (2) minors YJ and FA for reasons stated above this court will not give any credence to the letter dated 1st February 2017 authored by the Chief which indicated that they were the children of the Deceased. I have already found that said chief ( PW4) was merely a mouth piece for whomever he was talking to at the time. He wrote two contradictory letters and did not appear to have independent knowledge regarding any issue.

50. Exhibited in court are the Birth Certificates of the minors bearing Serial Numbers xxxxxxx and xxxxxxx (Annextures K001) to the Objectors Supporting Affidavit. In both Birth Certificates the Deceased GOR is indicated as the father of the children.

51. PW3 who was the HR Manager at Kenyatta University told the court that the Deceased submitted the two Birth Certificates to the Institution.

52. It is pertinent to note that the said Birth Certificates were issued on 18th October, 2016 yet the Deceased died on 17th October, 2016. Therefore, the Birth Certificates were obtained one (1) day after the death of the Deceased. The court has no way of knowing whether or not the Deceased consented to the entry of his name as father to the two children.

53. Further, the fact that their Birth Certificates were issued after the demise of the Deceased calls into questions the evidence of PW3 that it was the Deceased who ‘gave’ him those Birth Certificates. There is no way the Deceased having died on 17th October, 2016 could have arisen in order to hand to PW3 the two, Birth Certificates which were found in the Deceased’s file.

54. Why rush to register the Births of the two (2) children immediately after the demise of the Deceased? The Birth Certificate exhibited in court are photocopies. The original copies were not availed. I note that a letter dated 1st February, 2019 (Annexture ‘JS – 4’) written by the Registrar seeking to confirm the veracity of the two Birth Certificates received no response.

55. The Objector seeks to persuade the court that the inclusion of the name of the Deceased in the two minors Birth Certificates is proof that the Deceased was the father of the two.

56. Section 12 of the Births and Deaths Registration Act Cap 149, Laws of Kenya provides that:-“No person shall be entered in the Register as the father of any child except at the joint request of the father and mother of 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 customs”

57. The Deceased was not married to ‘RA’. There is no document or indeed any proof that the Deceased consented to the use of his name in the Birth Certificates of the two (2) children. The Birth Certificates in question were issued after the death of Deceased and were mysteriously placed in the file of Deceased at Kenyatta University. More questions than answers arise.

58. In the matter ofKamau Muigai(Deceased) (2018) eKLR Hon. Justice Musyoka facing a similar situation held as follows:-“Regarding the second Applicant there is a Birth Certificate on record that places the name of the late son of the Deceased on record as her father. The family claims that she was not related to them as she was not introduced as such. The Certificate was obtained before the alleged father died. I am however, alive to the fact that a certificate of Birth is not adequate proof of paternity….” [own emphasis]

59. Similarly In TheMatter Of The Estate Of Peter Muray Chege Alias Muraya Chege (2019) eKLR Hon. Justice A. K. Ndungu held that:-“In this time and age of considerable scientific discovery, development and achievement, where a dispute arises as to the paternity of an individual, there is no better way to settle that issue with finality than through a dependable DNA test”.

60. However, the birth certificates on record show that they were issued on the 18th October, 2016 a day after George Omolo had died and having conceded that the deceased was not the biological father applicant and the two (2) siblings the certificate of birth are without any probative value.

61. In this case though orders were given for the conduct of a DNA test there is no report or results filed in court.

62. Although the Objector insisted that the two (2) minors were the biological children of the Deceased he beat a hasty retreat when the Administrator filed an application seeking to have DNA testing done. The Objector then filed a Replying Affidavit dated 1st November 2019 in which he changed his earlier statement and averred in Paragraph 4 as follows:-“4. That as I had indicated earlier my late father married my mother when we were already born” [own emphasis]5. That I further confirm that inspite of that he did take us in as his own children and he is the one whom we know as our father.”

63. Clearly the Objector is not an honest witness. When faced with a DNA test he recants his earlier assertion that the Deceased was the biological father of the two (2) minors and instead states that the mother of the minors came with them into the alleged marriage.

64. It is alleged that the Deceased accepted the two children as his own and provided for them.

65. The term dependant is defined under the Law of Succession Act to mean –Section 29a.………………….;b.Such of the deceased’s parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, as were being maintained by the deceased immediately prior to his death; andc.……………...

66. Therefore, in order to prove dependency under Section 29 the applicant was under duty to adduce evidence to show that the deceased had indeed taken in the two (2) minors and was providing for them as his children.

67. In Beatrice Ciamutua Rugamba v Fredrick Nkari Mutegi & 5 others [2016] eKLR the High Court held that:-“… a dependant under Section 29 (b) and (c) must prove that he or she was being maintained by the deceased immediately prior to his demise. It is not the mere relationship that matters, but proof of dependency that counts.”

68. The applicant also relied upon photographs which depicted the Deceased posing with RA and the two minors. The said photographs do not in any way proove dependency. Specifically, the photographs do not show that the deceased had taken the applicant together with his sibling as his own family.

69. It was the petitioner’s evidence that Mr. George Omolo the deceased herein had been on medication for a very long time for cancer. This medical condition had seriously impacted on the petitioner’s and deceased financial position and thus it is inconceivable that the deceased would have taken up any other responsibility over the applicant and his siblings. In any event salary due to the late Rk Mere and any other related expenses were solely paid by the Petitioner.

70. In the present case the Objector has not in any way proved that he and his two (2) siblings were dependants of the deceased GO. All that is produced as evidence of dependency is a letter of demand from Green Roses Education Centre for school fees. This letter was written after the death of Deceased. Curiously no letter written to the Deceased during his life time demanding payment of school fees for the two (2) minors has been exhibited.

71. Firstly, no proof has been tendered to show that the two minors were actually enrolled in the said school.

72. Secondly this demand for school fees was curiously written on 18th October, 2016 a day after the demise of the Deceased. No demand made during the lifetime of the Deceased has been exhibited. If the minors were truly enrolled in that school then the school administration must have been aware of the demise of the Deceased. Why would a school issue a demand for school fees to a dead person?

73. A demand letter is not proof of dependancy. The Objector ought to have availed evidence that the Deceased had been paying the childrens school fees e.g. bank deposit slips or receipts issued to the Deceased.

74. Neither does evidence of payments sent by Mpesa to RA amount account to proof of dependancy. The Administrator told the court that ‘RA’ was their caretaker and they regularly sent her money to pay for utilities on the farm as well as to pay her salary.

75. It is not unheard for an employer to assist in paying fees for his employee’s children.

76. In the case of Peter Kiragu & 2 others v Catherine Wangui Kimani Nakuru SUCC. No.104 of 2014 Hon. Justice Matheka observed that“…….it is not tenable that by merely fostering a child, the child acquires rights to inherit. This would create problems and create a challenge for people who just want to assist children in need”.

77. Finally, I am not satisfied that sufficient evidence has been adduced to prove that the two (2) minors were dependants of the Deceased as defined on Section 29, Law of Success Act.

iii Should the Grant be revoked. 78. The grounds upon which a Grant may be revoked are set out in Section 76 of the Law of Succession Act which provides as follows:-“76. Revocation or annulment of grantA 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; orii.to proceed diligently with the administration of the estate; oriii.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; ore.that the grant has become useless and inoperative through subsequent circumstances.”

79. The Objectors allege that the Administrator obtained the Grant through deceit and non-disclosure of material facts i.e by failing to include RA and her children. On this aspect the court has already found that RA was not a wife to the Deceased and the two (2) minors were not proved to be dependants of the Deceased.

80. I turn to the question of whether parcel of land known as Kisumu/Muhoroni 11075 belonged to the Deceased and therefore, formed part of his estate.

81. The Administrator explained that she did not include the Muhoroni Property as an asset belonging to the estate because there is a pending legal dispute over the ownership of the said land. All that has been exhibited in respect of this parcel of land is a Sale Agreement dated 9th June, 2008 entered into between the Administrator and one Felix Odhiambo Abuor (Annexture ‘YSR – 1’) A sale Agreement is not proof of ownership of land. No Title Documents in respect of the Muhoroni land was produced as evidence that the land belonged either to the Deceased or to any other person.

82. In any event the question of ownership of that parcel of land is not one which this Probate Court may determine. The duty of a Probate Court is to supervise the distribution of the estate to the genuine heirs.

83. Under Article 162 (b) of the Constitution of Kenya 2010 question of ownership use and occupation of land can only be heard and determined by the Environment and Land Court (ELC). Therefore, if the Objector is of the view that the Muhoroni land ought to be included as part of the estate then he is at liberty to sue the Administrator in the Environment and Land Court (ELC).

84. Based on the foregoing I find that the Grant was properly issued to the Administrator. No sufficient grounds have been established to have the Grant revoked and I decline to do so.

85. Finally, I find no merit in this objection. The same is dismissed in its entirety. Each party to pay their own costs.

DATED IN NAIROBI THIS 17TH DAY OF NOVEMBER, 2023. …………………………MAUREEN A. ODEROJUDGE