[2022] KEHC 11382 (KLR)

In re Estate of Jackson Kalo Katesi (Deceased) (Succession Cause 593 of 1999) [2022] KEHC 11382 (KLR) (10 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11382 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 593 of 1999

WM Musyoka, J

June 10, 2022

IN THE MATTER OF THE ESTATE OF JACKSON KALO KATESI (DECEASED)

Judgment

1. The application for determination is dated 23rd July 2015. It seeks revocation of the grant made herein, on grounds that the same was obtained fraudulently through the making of a false statement and concealment of matter from the court.

2. It is brought at the instance of John Mwanzi Kalo. He is a son of the deceased. He avers that the administrators, Wellington Kalo and Ezekiel Kalo, had entered into a consent and shared out the estate asset, South Kabras/Bushu/1431. He lists the individuals who survived the deceased as Michael Ndevela Kalo, Ibrahim Nyangala Kalo, Wellington Senelwa Kalo, Truphena Gwedeya Kalo, Esther Kamadi Wangusi Kalo, Ezekiel Kalo and John Mwanzi Kalo. The actual relationship between these individuals and the deceased is not disclosed. He avers that at the stage of applying for representation, the administrators did not disclose three daughters of the deceased, being Rebecca M’Moji Burudi, Truphena Gwedeya Kalo and Esther Kamadi Wangusi. He submits that their exclusion was fraudulent and intended to disinherit them. Rebecca M’Moji Burudi, Michael Ndevela Kalo, Ibrahim Nyangala Kalo and Ester Kamadi Wangusi Kalo are said to be dead, but survived by offspring, who were left out at distribution. It is averred that the consents of the children of the deceased were not sought at distribution.

3. The reply to the application is by Ezekiel Kalo. His affidavit was sworn on 24th October 2020. He avers that the deceased was a polygamous man, who had married three wives. Of the three wives, the first two had children, who he has listed in the application. The said first two wives are said to be dead. He is said to have died possessed of South Kabras/Bushu/939, which he subdivided into South Kabras/Bushu/1431 and 1432, each measuring 2. 2 hectares, but some 1. 4 hectares were left out of the subdivision. South Kabras/Bushu/1432 was registered in the name of John Mwanzi Kalo for the first house; while South Kabras/Bushu/1431 remained in the name of the deceased, but was meant for the second house. Ibrahim Nyangala Kalo was settled on South Kabras/Bushu/1155; James Ungauli Kalo was settled on South Kabras/Bushu/1321; and Michael Ndevela Kalo was settled on another piece of land, which is not disclosed. He further avers that the 1. 4 hectares that had been left out during the subdivision of South Kabras/Bushu/1431 and 1432 was later on brought into the register through rectification, and the acreage of South Kabras/Bushu/1431 and 1432 was increased to 3. 1 hectares each. He avers that John Mwanzi ought to share South Kabras/Bushu/1432 with other members of his side of the family, being Michael Ndevela Kalo, Ibrahim Inyangala Kalo, Rebecca Burudi and Ester Kamadi. He asserts that this succession cause was only for the second house, who are to share South Kabras/Bushu/1431, and the members are Wellington Senelwa Kalo, Ezekiel Kalo, Truphena Iminza Agoya, James Kalo and Ezekiel Kalo. He avers that James Kalo had already been given his share of land, being South Kabras/Bushu/1321. He avers further that Truphena Agoya had already renounced her share by an affidavit she swore on 6th June 2000, and since she was got married in 1977 she was not entitled to a share in the estate. He states that the widow of Michael Ndevela was on South Kabras/Bushu/1432, where she was settled by the deceased, and that was where her husband was buried. He further avers that the third wife of the deceased did not have children with the deceased, and that after the deceased died she relocated to her previous husband, and she had signed a consent at confirmation to that effect. He avers that the interest of Rebecca Burudi lay in South Kabras/Bushu/1432 as she was a child in the first family, and so was that of Esther Kamadi. He asserts that the two are not protected by the Law of Succession Act, Cap 160, Laws of Kenya, as they got married in 1956 and 1972, respectively.

4. John Kalo swore a further affidavit on 7th February 2021, to assert that South Kabras/Bushu/1432 was an inter vivos gift to him by the deceased, and he was not meant to share it with anyone else. He submits that his uterine siblings should get their share from South Kabras/Bushu/1431.

5. The application was canvassed viva voce. John Mwanzi Kalo was the first on the witness stand. He said that his main complaint was that when representation was sought, the administrators did not involve his side of the family, the first house. Secondly, he complained that the two administrators shared out South Kabras/Bushu/1431 between themselves, leaving out everyone else. He said that he was never called to court, and that he did not sign any documents, except his application. He asserted that the deceased was his father, and that he and his sisters were entitled to a share in his estate, being South Kabras/Bushu/1431. During cross-examination, he conceded that he had benefitted from being registered as proprietor of South Kabras/Bushu/1432. He said that only one member of the second household was allocated land during the lifetime of the deceased, and that was James Kalo. He asserted that South Kabras/Bushu/1432 was not given to him to hold in trust for his siblings, but it was an absolute gift to him. He said South Kabras/Bushu/1155 was not a gift to Ibrahim Inyangala Kalo, but land that he bought. He said that Michael Ndevela Kalo had also bought his own land.

6. Margaret Wambui Kalo followed. She said that she and her husband bought South Kabras/Bushu/1155 in 1982, from a Baraza. She asserted that 1155 was not given to them by the deceased. She said that they moved out of the ancestral land, South Kabras/Bushu/1131, in South Kabras/Bushu/1982, once they bought 1155. She said South Kabras/Bushu/1155 was 2. 1hectres, and that all had land elsewhere. She said that only john and James had been gifted land by the deceased.

7. Ezekiel Kalo testified next. He said that Ibrahim, James, john and Michael had been settled by the deceased. He said that it was only he and Wellington who were entitled to South Kabras/Bushu/1431, being the only asset that the deceased died possessed of, and it was meant for the second house. He stated that Truphena renounced her interest. He said that members of the first house had left out Rebecca, Truphena and Esther. He said that grandsons should get through their parents. He urged the court to uphold what the deceased had done. He said that at confirmation he, James, Truphena and Wellington attended court, together with members of the first house. He said that everyone participated at confirmation.

8. At the close of the oral hearing, the parties were given time to file written submissions, both sides have complied. I have read through their respective written submissions and noted the arguments made.

9. The application for determination is premised on section 76 of the Law of Succession Act, Cap 160, Laws of Kenya. The said provision states 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.”

10. Under section 76, a court may revoke a grant so long as the case is brought within the grounds listed above, 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. In the first place, it would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation were not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant of 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, unqualified to hold any office of trust.

11. In the instant case, the applicant anchors his case on the first general ground, that there were issues with the manner the grant was obtained. He has raised arguments about the process of obtaining the grant having had challenges. He states that the administrators had not disclosed all the survivors of the deceased and beneficiaries of the estate.

12. The framework for applications for grants of representation is set out in section 51 of the Law of Succession Act. The most relevant portions, for the purpose of this application, are in subsection (2) (g), which state as follows:“Application for Grant51. (1)…(2)Every application shall include information as to—(a)…(b)…(c)…(d)…(e)…(f)…(g)in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased;(h)...”

13. My understanding of section 51(2) (g) is that the petitioner is required to disclose all the surviving spouses and children of the deceased, and any grandchild of the deceased whose own parent is dead. The provision is in mandatory terms.

14. In the petition filed herein, the administrators only disclosed themselves, that is Wellington Kalo and Ezekiel Kalo as the children of the deceased. Clearly, there was no compliance with section 51(2) (g) section 51(2) (g). The deceased had three wives, two of whom had children. He should have disclosed all the children of the deceased, sons and daughters, alive or dead, married or unmarried. Where any of the children are dead, they should have disclosed their children. They should have been grouped in terms of houses, in keeping with section 40 of the Law of Succession Act. This cause is in respect of the estate of the deceased, and all the survivors of the deceased should have been disclosed, be they widows, children or grandchildren whose own parents were dead. The administrators should not have disclosed only those that they considered to be entitled to South Kabras/Bushu/1431.

15. Distribution of an estate is the responsibility of the court, it should not be up to the petitioners, at the stage of applying for administration, to determine who is entitled to a share in the estate, and, therefore, who should be listed in the petition. They should list every survivor. The issue of who gets a share should be left to the confirmation stage, and even then, at that stage it is still the court which will determine who is entitled to a share. The fact that the deceased might have shared out some of the assets during lifetime, what is known as lifetime or inter vivos distribution, should not be an excuse to leave out any survivor. Such a survivor, who benefitted from inter vivos distribution, should be listed in the petition. Whether he should get a share at distribution is a matter for determination at confirmation. Section 42 of the Law of Succession Act requires that such inter vivos gifts be taken into account, and that can only happen when the beneficiaries of such gifts are involved in the succession process. Section 42 is about bringing such assets to the hotch potch, and that can only happen where all the beneficiaries are brought on board. Daughters of the deceased should also be disclosed. They are children of the deceased, and the provisions of the Law of Succession Act do not make a distinction between sons and daughters. There is no discrimination. Even based on marriage. The deceased herein died in 1996, long after the Law of Succession Act had come into force in 1981. His estate is for distribution under Part V, and not customary law. Daughters are equally entitled with the sons. The fact of marriage is not a disentitling factor. What matters is when the deceased died, and not when the daughter got married. The argument that they got married in the 1950s and 1970s, before the Act came into force is irrelevant, and the argument that they are to be excluded on that account is fallacious. It is not for the sons to decide whether the daughters are entitled or not. Their entitlement is a matter of law, which is now buttressed by Article 27 of the Constitution, which envisages equality of the gender, and equal treatment of men and women, essentially outlawing discrimination based on gender. The only way daughters may be exclude from benefit is by themselves, the daughters, renouncing or waiving or surrendering their entitlement to a share. They cannot be ignored or treated as if they never existed or are not interested. They must be disclosed and involved. Excluding them only exposes the administrators to having their grants revoked.

16. I believe I have said enough to demonstrate that the process of obtaining the grant herein was defective, to the extent that about 80% of the survivors of the deceased were excluded from the succession process. It is on account such things that grants are revoked, and the instant one is no exception.

17. I note that the administrators got their grant confirmed. The confirmation hearing, when the confirmation orders were made, happened on 20th February 2012. Ezekiel Kalo and two sons of Wellington Kalo were in court. The rest of the survivors were not. The process was not as inclusive as required by Rules 40 and 41 of the Probate and Administration Rules. It is surprising that that happened, yet protests had been filed by John Mwanzi Kalo, Michael Ndevera Kalo, James Indaguli Kalo and Ibrahim Inyangala Kalo, vide separate affidavits sworn on 5th July 2001. A considered ruling was not rendered, taking these protests into account, yet they raised the same issues as have been raised in the instant revocation application. If all the survivors of the deceased had been disclosed in the petition, and had been involved or heard at confirmation, the issues now being raised by John Mwanzi Kalo would have been dealt with then, and the matter closed.

18. I could go on and on, but so far I am persuaded that a proper case has been made out for revocation of the grant that was made herein on 21st March 2000, and confirmed on 20th February 2012. The final orders that I shall make in the circumstances are as follows:a.That I hereby allow the application dated 23rd July 2015, and revoke the grant herein, set aside the confirmation orders of 20th February 2012 and cancel the certificate of confirmation of grant dated 20th February 2012;b.That as a consequence of (a) above, I direct the Land Registrar, responsible for Kakamega County, to cancel the transmission of South Kabras/Bushu/1431 in the names of Wellington S. Kalo and Ezekiel B. Kalo, based on the cancelled certificate of confirmation of grant;c.That I appoint Ezekiel B. Kalo and John Mwanzi Kalo, administrators of the estate of the deceased herein, and a grant of letters of administration intestate shall issue to them accordingly;d)That the new administrators shall, within the next ninety-days, whether jointly or severally, apply for confirmation of their grant in proceedings that shall include surviving sons and daughters of the deceased, and the children of any sons and daughters of the deceased who have since died;(e)That, should the administrator who will not have filed a summons for confirmation of grant, be unhappy with the proposals made by the applicant, who will have filed the application, and any of the other survivors of the deceased, and any other persons with a beneficial interest in the property, he or she or they shall have liberty to file an affidavit or affidavits of protest to that application in terms of Rule 40(8) of the Probate and Administration Rules;(f)That the matter shall be mentioned on a date, that I shall allocate at the delivery of this judgment, for mention for compliance;(g)That each party shall bear their own costs; and(h)That any party aggrieved, by any of the orders made above has leave of twenty-eight days, to move the Court of Appeal, appropriately.

19. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 10THDAY OF JUNE 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. WO K’Ombwayo, instructed by M. Kiveu, Advocates for John Mwanzi Kalo.Mrs. Muleshe, instructed by Phoebe Munihu Muleshe & Company, Advocates for Ezekiel Kalo.