[2023] KEHC 25531 (KLR)

In re Estate of Harjit Singh Brah alias Harjit Singh Nihal (Deceased) (Succession Cause 3 of 2019) [2023] KEHC 25531 (KLR) (20 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25531 (KLR)

Republic of Kenya

In the High Court at Kisumu

Succession Cause 3 of 2019

RE Aburili, J

November 20, 2023

Between

Kaur Brah

Petitioner

and

Jagdeep Singh Brah

Objector

Ruling

1. This ruling determines two applications, one dated 11th March 2020 filed by the objector herein and the other dated 10th November 2022 and filed by one Upkar Singh Brah.

The applications dated 11th March 2020 2. The objector herein Jagdeep Singh Brah commenced his application vide summons for revocation of grant. The Summons are dated 11th March 2020 and filed on the even date seeking revocation/annulment of the grant of letters of administration issued to the petitioner on the 26th April 2019 in respect of the estate of the deceased Harjit Singh Brah alias Harjit Singh Nihal.

3. The application is anchored on the grounds on the face of the Summons as well as the affidavit sworn by the objector, Jagdeep Singh Brah.

4. The objector deposed that he was the deceased’s son whereas his mother (now deceased) was the petitioner in this Succession Cause, who had petitioned and obtained grant of probate on the 26th April 2019 with Will annexed in respect of the deceased’s estate.

5. The objector further deposed that the petitioner lodged the petition without the knowledge of the objector and at a time when the objector was away in the United Kingdom.

6. It was the objector’s case that the petitioner secured the grant on the basis of a forged Will as the deceased’s signature was forged. It was his case that he was very close to his father as they even held a joint bank account at Diamond Trust Bank Kisumu that they used to run a cane transport business for Nzoia Sugar Company Limited and as such he could recognise the deceased’s signature when he saw it.

7. The objector further stated that his advocate retrieved a codicil to the Will alleged to have been signed by his father but both the Will and codicil had two different signatures allegedly from the deceased.

8. It was his case that he was close to the deceased and was by his side at the Nairobi Hospital prior to his death and the deceased did not mention the existence of any will to him. The objector deposed that in contrast, his relationship with the petitioner, his mother, and his brother was strained due to concerns that he had raised regarding the way the two were dealing with the deceased’s estate.

9. The objector deposed that the alleged codicil was framed to make it look as if his interests as a beneficiary were taken care of but if read together with the Will, it is clear that the entire estate was left to the petitioner, his mother to the exclusion of the objector and further that the petitioner intended to use the grant to totally disinherit the objector.

10. The objector further averred that the petition for grant was made without his knowledge.

11. The objector filed a supplementary affidavit sworn on the 17th July 2020 and filed in court on the 20th July 2020 in which he deposed that the Will that the petitioner propounded was not signed by the deceased and was thus not the deceased’s Will and further that his elder brother and some outsiders were behind the plot to disinherit the objector.

12. Opposing the objector’s application, the petitioner (who has since died) swore an affidavit dated 11th May 2020 and filed on the 15th May 2020 in which she deposed that she was the deceased’s wife and mother to the objector herein. She deposed that the Will presented in court was the only genuine Will left by the deceased and that the deceased’s signature on the said Will was also genuine. The petitioner further deposed that the objector was not a handwriting expert to purport to give his biased opinion as to the deceased’s signature.

13. The petitioner denied barring the objector from accessing the home in Kibos and averred that the objector had taken over the deceased’s sugarcane hauling business and sold some of the assets after failing to profitably run the business before relocating to London.

14. It was the petitioner’s contention that the objector’s application was devoid of merit and ought to be dismissed

The application dated 10th November 2022 15. In the application dated 10th November 2022 and filed on the 14th November 2022, one Upkar Singh Brah, a brother to the objector herein sought rectification of grant on the basis that the grant of probate of written Will issued to the petitioner and dated 26th October 2019 be rectified and a new grant of letters of administration be issued to him on the ground that the administrator died on 6th August 2021 and there was need to replace her with a new administrator.

16. Opposing the above application for rectification of grant, the objector filed Grounds of Opposition dated 13th June 2023 raising the following grounds:i.The application is wholly misconceived and is based on a misunderstanding of the law and misinterpretation of the will of the deceased.ii.The application is wholly misconceived and is based on a misunderstanding of the law and misinterpretation of the will of the deceased.iii.The application lacks merit in point of fact and law.

17. The parties agreed to canvass the two applications by way of written submissions but as at the time of writing this ruling, only the objector had filed his submissions.

The Objector’s Submissions 18. It was submitted on behalf of the objector by his counsel that the application dated 10th November 2022 by the objector’s brother seeing rectification of the grant issued to the petitioner who had by now since passed on could not be granted first as he was not an administrator of the deceased’s estate and was thus a stranger to these proceedings and further that the application was based on a misreading of the will as his appointment would only have kicked in if the petitioner predeceased the testator.

19. The objector submitted that the grant issued to the now deceased petitioner was ripe for revocation under section 76 (e) of the Law of Succession Act as it was made to a person who died before it was confirmed as was held in the cases of Andrea Ruithibu R. Kanyari v Teresia Njoki Mbugu[2016] eKLR and in the case of Re Estate of Chemwok Chimitei (Deceased)[2021] eKLR.

Analysis & Determination 20. I have considered the two applications, the responses thereto and the objector’s brief submissions. I will first consider the application dated 11th March 2020 and filed on the even date seeking revocation/annulment of the grant of letters of administration issued to the petitioner on the 26th April 2019.

21. Revocation of grant is provided for under section 76 of the Law of Succession Act. The grounds upon which the grant may be revoked are well provided therein. The said section provides that revocation can either be at the instance of an applicant or can be by the court suo moto. However, it is a prerequisite that the conditions for revocation as set out under section 76 must be proved. In the case of Jamleck Maina Njoroge v Mary Wanjiru Mwangi [2015] eKLR, the court discussed circumstances when a grant can be revoked. The court observed that:“11. The circumstances that can lead to the revocation of grant have been set out in section 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.”

22. The power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 of the Law of Succession Act and order for revocation of or annulment of a grant. Besides, when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice. Generally, the trial court has jurisdiction to revoke a grant if the conditions under section 76 are satisfied.

23. For avoidance of doubt, section 76 of the Law of Succession Act 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; 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.”

24. The above section 76 was interpretedIn re Estate of Prisca Ong’ayo Nande (Deceased) [2020]eKLR where it was stated that:“Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the Applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.”

25. The objector invited the trial court to revoke the grant of letters of administration issued to his mother who has since died for the reasons that the Will that the petition for probate was based on was not signed by the deceased and that if at all it was signed then the signature was a forgery. Further to this, the objector stated that the grant was made without his knowledge.

26. In essence, the objector was asserting that the grant issued to the petitioner was obtained by fraud and concealment of material facts.

27. There are certain principles or requirements that must be met for the allegation of fraud to be admitted by a court of law.

28. The first principle is that an allegation of fraud must be specifically pleaded and proved. In Vijay Morjaria v Nansingh Madhusingh Darbar & Another[2000] eKLR, where Tunoi, JA (as he then was) stated as follows:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently.It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from facts.”

29. In R.G Patel v Lalji Makanji[1957] EA 314 the former Court of Appeal for Eastern Africa stated as follows:“Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.”

30. The second principle is that the burden of proof of an allegation of fraud is on the person alleging. In Ndolo v Ndolo [2008] 1KLR (G &F) 742 the court stated that:“We start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him….In cases where fraud is alleged, it is not enough to simply infer fraud from the facts.”

31. InChristopher Ndaru Kagina v Esther Mbandi Kagina & Another [2016]eKLR the court pronounced itself as follows:“It is trite law that he who alleges fraud must prove fraud. Allegations of fraud must strictly be proved. Great care must be taken in pleading allegations of fraud or dishonesty. In particular, the pleader needs to be sure that there is sufficient evidence to justify the allegations……”

32. In Moses Parantai & Peris Wanjiku Mukuru suing as the legal representatives of the estate of Sospeter Mukuru Mbeere (deceased) v Stephen Njoroge Macharia [2020] eKLR, the Court of Appeal observed as follows:“In the instant case, the appellants needed to not only plead and particularize the fraud, but also lay a basis by way of credible evidence upon which the Court would make a finding that indeed there was fraud in the transaction leading to the transfer and registration of the suit land in the name of Janet all the way to the respondent…”

33. The third principle is that the burden of proof of allegation of fraud is higher than that required in civil cases that of proof on a balance of probabilities; and lower than that required in criminal cases, that is beyond reasonable doubt. In Ndolo v Ndolo[2008] 1KLR (G &F) 742 the Court stated that:“…Since the Respondent was making serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in criminal cases….”

34. In Central Bank of Kenya Limited v Trust bank Limited & 4 Others [1996] eKLR, the court rendered itself as follows:“The Appellant has made vague and very general allegations of fraud against the Respondent. Fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof was much heavier on the Appellant in this case than in an ordinary civil case.”

35. In Moses Parantai & Peris Wanjiku Mukuru supra the Court of Appeal observed as follows:“…. Fraud is a quasi-criminal charge which must, as already stated, not only be specifically pleaded but also proved on a standard though below beyond reasonable double doubt, but above balance of probabilities……”

36. From the forgoing precedents, it is settled law that the allegation of fraud is a serious allegation that must be strictly pleaded and proved. The burden of proof is on the person alleging and the standard of proof is higher than that which is required in civil cases, which is on a balance of probability, and lower than the one in criminal cases, which is beyond reasonable doubt.

37. The Objector has specifically pleaded fraud, his only shortcoming being on proving that allegation. The objector invited the court to consider the deceased’s signature in the impugned Will and codicil as against the bank document adduced. This court is not a handwriting expert and as such, it cannot decipher how to differentiate the aforementioned signatures. If the objector strongly suspected that there was forgery or fraud, the best agency to deal with such claims involving property of the deceased person is the police investigators first to unravel the truth.

38. The objector in his supplementary affidavit dated 17th July 2020 deposed that he meant that the Will relied on by the petitioner in petitioning for grant of probate was not signed. Based on the sample of the deceased handwriting in form of bank document that the objector wanted this court to rely on, I find it perilous to agree with the objector.

39. Accordingly, the allegation of fraud fails as the Objector has not sufficiently and specifically proved it.

40. The other ground for revocation of the grant was that the objector was not involved in the succession proceedings. The law under rule 26(a) and (2) of the Probate and Administration Rules provides as follows: -“26. (1)Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.(2)An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.”

41. From the reading of the above rule, it is mandatory for every applicant who wishes to be an administrator to an estate to give notice to every person entitled in the same degree as or in priority to the applicant. Further that, such person of equal or lower priority must give consent or renunciation during filing of succession cause.

42. In re Estate of Magangi Obuki (Deceased) [2020] eKLR the court quoted the case of Re Estate of Moses Wachira Kimotho (Deceased)Succession Cause 122 of 2002 [2009] eKLR, the court pronounced itself on the importance of disclosing all material facts before a court of Law while seeking letters of administration and confirmation thereof. It observed as follows:“I am certain that had the applicants been made aware of the application for the confirmation of grant by being served they would have brought to the fore their aforesaid interest in the estate of the deceased and the resultant grant would have taken care of those interests. Further had the respondent been forthright and candid and included the applicants as beneficiaries of a portion of the estate of the deceased as purchasers for value, the court in confirming the grant would have taken into account their interest in the estate of the deceased. As it is therefore the grant was obtained fraudulently by making of a false statement and or concealment from court of something material to the cause. The respondent knew of the applicants’ interest in the estate of the deceased yet she chose to ignore them completely in her petition of letters of administration intestate. She also ignored them completely when she applied for the confirmation of the grant.”

43. I echo the observations by Gikonyo J in Re Estate of Julius Ndubi Javan [2018] eKLR (Deceased) when he stated that:“…in any judicial proceedings, parties must make full disclosures to the court of all material facts to the case including succession cases.…non-disclosure of material facts undermines justices and introduces festering waters into pure streams 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.”

44. I am satisfied that, there is ample evidence that the objector did not give his consent for the petitioner to initiate the grant of probate proceedings. This reason is sufficient to hold that the objector demonstrated within the purview of section 76 of the Law of Succession Act that the grant was obtained by concealment of material facts and misrepresentation.

45. Turning to the summons for rectification of grant dated 10th November 2022, the applicant urges that the previous administrator having passed on prior to confirmation of the grant issued to her, he should be the substitute administrator.

46. I have carefully considered that application, supporting affidavit and grounds of opposition for substitution. Rectification of a grant is well captured under section 74 of theLaw of Succession and rule 43(1) of the Probate and Administration rules. Section 47 aforesaid only grants general powers to the High Court to grant any orders it deems expedient in the circumstances but does not deal with rectification.

47. Under section 74, of theAct, a court can cause alteration or amendment to the grant hence rectification of a grant only if there are errors in names and descriptions or in setting out the time and place of the deceased’s death, or the purpose in a limited grant. None of these elements fit in the instant application.

48. The application herein is seeking to substitute a single administrator who died before completion of the administration of the estate. Section 47 of the Law of Succession is not the appropriate provision to seek such prayers. Where a single administrator or executor dies, before completion of the succession proceedings, the appropriate direction to take is for the applicant to apply for a grant of letters of administration de bonis non. This can only be done by revoking the grant under section 76 (e) and rule 44 of the Probate and Administration rules and paragraph 16 of the 5th Schedule. Legally, the grant has become useless and inoperative and incapable of rectification.

49. It is worth noting that there is no specific provision in the Law of Succession Act which provides for substitution of a single deceased administrator/executor or deceased administrators or executors. In case of such a scenario, Section 76 (e) comes into play and a fresh grant of letters of administration de bonis non is sought and issued.

50. This position was aptly considered in the matter of the estate of Mwangi Mugwe alias Elieza Ngware (deceased) andin the matter of the estate of Mary Wairimu Ngware (deceased) in Nairobi High Court Succession Cause No. 2018 of 2001 where Khamoni J dismissed an application seeking substitution of a deceased single administrator without revoking the grant first under section 76(e) of the Law of Succession Act. A similar position was taken by Angawa J in the matter of the estate of Peris Wanjiku Nduati (deceased) Nairobi High Court Succession Cause No. 2349/2001 in which she held that:“Where an administrator dies before completion of administration, the right course of action should be to seek his replacement through an application for grant of administration de bonis non”. Also see Maamun bin Rashid bin Salim EL-Rumhy v Haider Mohammed Bin Rashid El-Basamy [1963](EA.438).

51. For the above reasons, the application before me and the prayers seeking to directly substitute the sole deceased administrator is not legally and procedurally tenable. I find and hold that the application dated 10th November 2022 thus lacks merit and is hereby dismissed.

52. The upshot of the above is that the grant issued to the sole now deceased administratix is hereby revoked and the parties hereto who are beneficiaries of the estate of the deceased Harjit Singh Brah alias Harjit Singh Nihal are advised to apply for a fresh grant.

53. On costs, as the two applicants in both applications are siblings, I order that each party bear their own costs of the respective applications.

54. This file is closed.

55. I so Order

DATED, SIGNED AND DELIVERED AT KISUMU THIS 20TH DAY OF NOVEMBER, 2023R.E. ABURILIJUDGE