[2022] KEHC 15217 (KLR)

In re Estate of Grace Kagwiria Mungania (Deceased) (Succession Cause 29 of 2019) [2022] KEHC 15217 (KLR) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 15217 (KLR)

Republic of Kenya

In the High Court at Kajiado

Succession Cause 29 of 2019

SN Mutuku, J

July 21, 2022

IN THE MATTER OF ESTATE OF GRACE KAGWIRIA MUNGANIA (DECEASED) FAITH MAKENA MUNGANIA.....................................................APPLICANT VERSUS JASON CORBETT SMITH....................................................RESPONDENTS

Judgment

1. The deceased in this case died intestate on April 18, 2017. A grant of letters of administration was issued to Jason Corbett Smith on September 23, 2019. Faith Makena Mungania, the Applicant, brought this summons under Rule 44 (2) of the Probate and Administration Rules claiming that the grant was obtained fraudulently. In support of the summons for revocation, the applicant has advanced the following grounds:i.That the Grant was obtained fraudulently by a false allegation that the administrator was married to the deceased prior to her death.ii.The grant was obtained fraudulently by concealment from the court that Faith Makena Mungania was the only surving dependent and beneficiary of the estate of the deceased.

2. Through the applicant’s supporting affidavit it is deposed that she is the daughter of the deceased; that the grant was obtained fraudulently through concealment that she was the only dependent and beneficiary of the deceased; that the deceased was merely a business partner of the administrator running several enterprises together; that after the death of her mother the administrator started harassing her by using police officers to evict her from her mother’s house and that she therefore sought revocation and annulment of the grant.

3. On July 16, 2021 the Respondent filed an affidavit in opposition. He stated that prior to the deceased passing they lived together as husband and wife; that the deceased was survived by him and the Applicant herein; that he filed a citation being HC Succ Cause No 1301 of 2018 at the High Court in Nairobi and that the Applicant never responded causing him to file the petition.

4. The Respondent deposed, further, that apart from being married to the deceased, they were business partners with various companies and properties; that he visited the deceased’s parents in 2008 to ask for the deceased’s hand in marriage; that he paid dowry of Kshs 23,000, clothing, food and drinks to the deceased’s parents; that they were therefore married under African customary law; that the Applicant is named as a beneficiary in the petition and that he has no intention of disinheriting her.

5. On July 26, 2021 the deceased’s brother swore an affidavit, stating that prior to the deceased’s passing, she and the Respondent lived together as husband and wife in Kajiado County; that he was present when their parents gave their blessings in support of their marriage.

6. On September 26, 2021 the Applicant filed a supplementary affidavit. It is her averments that the Respondent lived with her mother as a boyfriend upto to 2012 when he moved out; that no dowry was ever paid or any ceremony celebrated; that James Mwongera Mungania is her uncle and currently employed by the Respondent as a caretaker and allegations in his affidavit are false; that the Respondent would rape and sexually molest her and on telling her mother the relationship terminated; that prior to the deceased death she was in a stable relationship with Frank Van Mazijk and that the Respondent has no legitimate claim over the deceased’s estate and should not even be an administrator.

7. On October 7, 2021 Frank Van Mazijk filed an affidavit stating that he met the deceased in 2013 in Uganda, they became friends and fell in love; that they were together till her passing; that they lived together in February, 2014 and again in April, 2014 when he visited her in Netherlands.

Submissions 8. The matter proceeded by way of viva voce evidence on June 9, 2022. There was no representation for the Respondent even after being served with the hearing notice. The Applicant relied on her affidavit. She testified that she is the only child of the deceased. She reiterated that the Respondent was a business partner and that he and the deceased were never married. She testified that she went to her mother’s house in 2018 and she was arrested on instructions of the Respondent who stated that she was trespassing. She stated that she wants to be appointed as the administrator of the estate.

9. The Applicant called Charles Kirimi Mungania as her second witness. He testified that the deceased was her younger sister; that he is in charge of the family affairs; that the deceased was buried at their home and was never married. He stated that the Respondent never sat down with him to discuss issues of dowry. That the deceased had one child the Applicant. He stated that James Mwongera lived in the deceased’s house and that together with the Respondent, they chased the Applicant from the house.

Determination. 10. To my mind, the main issue for determination is whether the grant should be revoked. Revocation of grants is provided for under Section 76 of the Law of Succession Act which provides that: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 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 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; orTo produce to the court, within the time prescribed, any such inventory or account of administration as is required by provisions of paragraph (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particulars; or(e)that the grant has become useless and inoperative through subsequent circumstances.

11. The two grounds advanced by the Applicant to support her prayer for revocation fall under Section 76 (b) that the grant was obtained fraudulently by the making of a false statement or concealment from the court of something material to the case.

12. I have read the entire file in this Cause. Other than the letter from the Chief of Oloirien Location, Ewuaso-Kidong Division in Kajiado County that the Respondent is the husband of the deceased, I have not seen any other evidence supporting that allegation.

13. The evidence contained in the affidavit of the Respondent is that he paid dowry of Kshs 23,000, took clothing, food and drinks to deceased’s parents; that by that ceremony they were married under African Customary Law. He also relied on the contents of the Chief’s Letter to show that there existed a marriage between him and the deceased.

14. The only other evidence is contained in the affidavit of James Mwongera who described him as a brother to the deceased. James stated that he was present when the parents of the deceased gave their blessings to the deceased and the Respondent to marry. This evidence is contrary to what Charles Kirimi, another brother of the deceased told the court. He testified in court that no dowry was ever paid or any ceremony on marriage between the deceased and the Respondent.

15. I am not able to understand the assertion that the Respondent and the deceased were married under African Customary Law. Under section 43 of the Marriage Act, customary marriages are recognized by the law. Section 43 provides as follows:1. A marriage under this Part shall be celebrated in accordance with the customs of the communities of one or both of the parties to the intended marriage.2. Where the payment of dowry is required to prove a marriage under customary law, the payment of a token amount of dowry shall be sufficient to prove a customary marriage.

16. What I find difficult to understand is what the Respondent means when he states that he married the deceased under African Customary Law. There is no such thing as African Customary Law in the context of a customary marriage under the Kenyan Law as far as I understand. Under section 43, the law recognizes “customs of the communities” in other words “customary law of the communities” which to my understanding would mean customary law of any of the different communities in Kenya. In other words, customary law of Ameru community in case of this Cause.

17. To prove a customary marriage, a party ought to call evidence on that issue. What do the Ameru of Kenya consider to be a valid customary marriage under their custom? I have no evidence to show this given that the Respondent does not even mention the Ameru customary law. He did not attend court to testify or call witnesses to support his case.

18. I have considered the case of In the Matter of the Estate of Chesaina Lemiso Kipkuto (deceased) Eldoret P & A 161 of 1996 where the court stated that:“Turning to the applicant’s case I find that there is no marriage certificate no marriage agreement showing the existence of a valid marriage. There is no payment of dowry, construction of a house for her by the deceased which are essentials of marriage under customary law.In the absence of a validly constituted customary marriage a party has no alternative but to rely on long cohabitation and presumption of marriage. Further that a declaration has to be made before a marriage can be presumed to exist.

19. The Respondent did not adduce evidence to prove marriage under customary law or presumption of marriage by long cohabitation. Although the Respondent has deposed that the deceased and he lived together, he did not adduce evidence to show how long did the cohabitation last for this court to presume a marriage by long cohabitation. There is no hesitation in my mind in concluding that there is no evidence to support the claim by the Respondent that he was married to the deceased under any law. Ii find that the grant herein was obtained by false allegation that the administrator was married to the deceased.

20. That the Applicant is the child of the deceased and therefore her dependent is admitted by the Respondent. Having found that there was no valid marriage between the Respondent and the deceased, this court finds that the provisions of section 37 of the Law of Succession Act come into effect. It provides that: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.

21. I have read the Memorandum and Articles of Association of Kupenda Africa Limited. It shows that the deceased and the Respondent held 250 shares. It is not for this court, sitting as a Probate Court, to determine the issues of ownership of Kupenda Africa Limited. It is upon the Respondent to move to the right forum for that decision to be made to enable him claim against the estate of the deceased.

22. As far this cause is concerned, I am satisfied that the Applicant has proved, on a balance of probabilities that the grant herein was obtained fraudulently by a false allegation that the administrator was married to the deceased and concealment from the court that the Applicant was the only surviving dependent and beneficiary of the estate of the deceased.

23. The summons for revocation of grant dated April 15, 2021 succeeds. The grant of letters of administration issued by this court on the September 23, 2019 is hereby revoked. Faith Makena did not disclose her age. In order to avoid leaving the estate without an administrator it is the view of this court that Makena selects a second relative, in the next 30 days, to join her as a co-administrator of the estate of the deceased. She did not disclose her age and the view of this court is that she may require help in the administration of the estate of the deceased.

24. Orders shall issue accordingly.

DATES, SIGNED AND DELIVERED THIS 21ST DAY OF JULY 2022. S N MUTUKUJUDGE