[2022] KEHC 14993 (KLR)

In re Estate of Jackson Makuku Omita (Deceased) (Succession Cause 1214 of 2012) [2022] KEHC 14993 (KLR) (4 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14993 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 1214 of 2012

WM Musyoka, J

November 4, 2022

Judgment

1. This matter is on the estate of Jackson Makuku Omita. He died on January 12, 1997, according to Certificate of Death No 692108. According to the Assistant Chief of Ibokolo Sub-Location, by letter dated February 7, 2011, he was survived by 2 sons, named as Godfrey Omito Makuku and Geoffrey Omito Makuku, and a creditor, a person who had allegedly purchased land from the estate, said to be Wycliffe Opwaka Mukungu. It is said the deceased was also known as Makuku Omito Shiriswa. He died possessed of Marama/Lunza/1494.

2. Representation to the estate was sought in intestacy by Geoffrey Omito Makuku, vide a petition dated June 23, 2010, filed herein on February 2, 2011. Geoffrey Omito Makuku reflected himself as the sole survivor of the deceased, and that the deceased had died possessed of Marama/Lunza/1494. A notice of objection to the making of the grant was lodged by a Godfrey Omito Makuku, dated July 29, 2011. The prospective objector, Godfrey Omito Makuku, died, and on July 16, 2014, the petitioner, Geoffrey Omito Makuku, informed the court that Godfrey Omito Makuku had been given his land. He then went ahead to ask for his grant to be confirmed, and orders were granted accordingly. On July 27, 2014, he was back in court informing the court that a mistake had been made, for a grant had not yet been made, and asked the court to review the confirmation orders of July 16, 2014, and orders were made for issuance of a grant to him, and a grant of letters of administration intestate was duly issued to him, dated July 23, 2014. I shall refer to Geoffrey Omito Makuku hereafter as the administrator.

3. On September 9, 2014, the administrator lodged a summons herein, dated August 11, 2014, for confirmation of his grant, and it is that application that I am called upon to determine in this judgment. He discloses the children of the deceased to be himself and the late Godfrey Omito Makuku. He discloses the asset of the estate to be Marama/Lunza/1494. He proposes that he same should devolve upon himself and Jones Konya Akhwaba, described as a purchaser.

4. An affidavit of protest was lodged in the cause, by Regina Ayuma Ambundo, sworn on March 13, 2015. She alleges that she had purchased 1 acre out of Marama/Lunza/1494 from the administrator, on April 1, 2014, at a time when the administrator was holding a limited grant obtained in Mumias SRMCSC No 9 of 2011. He had also by then filed the instant succession cause. She complains that her interest has not been factored in the confirmation application. She attaches copy of a sale agreement, dated April 1, 2014, and Gazette Notice No 7925 of July 8, 2011, in respect of Mumias SRMCSC No 9 of 2011. I shall refer to Regina Ayuma Ambundo as the protestor.

5. The protestor filed a supplementary affidavit, sworn on February 29, 2016, where she essentially argues points of law. She cites section 82(b) of the Law of Succession Act, Cap 160, Laws of Kenya. She asserts that she disclosed her personal details, including national identity card number, to indicate the seriousness of the matter, and to demonstrate that the administrator had received money from her.

6. Directions were given that the protest, dated March 13, 2015, be disposed of on the basis of viva voce evidence.

7. The oral hearing began on September 25, 2019. The protestor was the first on the stand. She stated that the person who sold her the land claimed to be the owner, and showed to her a title deed bearing his name. She identified the seller as the administrator herein, and the property as Marama/Lunza/1494. She said she was not told that the land was subject to probate proceedings. She said she did not take possession, nor fix the boundaries. She could not recall the name of the Advocate who handled the transaction. She paid Kshs 680, 000. 00 in cash, for the property, in 2 instalments.

8. The administrator testified next, on September 30, 2021. He urged the court to confirm the grant in the terms proposed. He stated that he had an engagement with the protestor to sell the land. They did not go to an Advocate, but worked with a surveyor. He said that the agreement placed on record was different from the one they had entered into. He said he was paid Kshs 200, 000. 00. He said he wanted to refund the money. He stated that he had disclosed to the surveyor the pendency of the probate proceedings. He said that the thumbprint on the agreement produced in court was not his. When examined by the court, he stated that the deceased had other children, apart from himself. He said that the deceased had 3 daughters, who he named as Juliet Amenya Makuku, Elda Mukolwe Makuku and Rispa Omung’ala Okuku. Rispa Omung’ala Okuku was said to have died, but was survived by 2 daughters.

9. At the close of the oral hearing, the parties took dates for filing submissions. I have read through the submissions, and noted the arguments. Only the administrator submitted on the law. He cites section 80 of the Law of Succession Act, with regard to when a grant of letters of administration intestate becomes effective, and submits that since the sale with the protestor happened before the grant was made, it was unlawful. He also cites section 45 of the Act, to say handling an estate asset without a grant of representation amounted to a criminal offence. He further cites In Re Estate of Veronica Njoki Wakagoto [2013] eKLR (Musyoka, J), to make the same point. He also cites section 82(b)(ii) of the Act, with respect to sale of immovable property.

10. I will start by addressing the issue of giving of directions on protests. A protest has no independent life of its own. It is nothing but a reply to the summons for confirmation of grant. The filing of summons for confirmation of grant is provided for under section 71 of the Law of Succession Act, while that for filing of an affidavit of protest is provided for under Rule 40(6) of the Probate and Administration Rules. There are no protest proceedings which are independent of the confirmation proceedings. Protest proceedings are subsumed in the confirmation hearings. So, the issue of taking and giving directions on disposal of protest proceedings, as if they are independent of the confirmation proceedings, should not arise.

11. In, In the Matter of the Estate of Ephrahim Brian Kavai (Deceased), Kakamega HCSC No 249 of 1992 (unreported) (Waweru, J), it was said that a court faced with a summons for confirmation of grant must first of all be satisfied that the administrator has complied with the proviso to section 71(2) of the Law of Succession Act and Rule 40(4) of Probate and Administration Rules, before it considers the application on its merits. According to the court, in that matter, that issue is so important, so crucial, that confirmation orders made before the administrator satisfies the court, in terms of these two provisions, would even be illegal. The satisfaction is about the administrator demonstrating that he had ascertained the persons beneficially entitled in a share in the estate and ascertainment of their respective shares or entitlement in the estate.

12. For avoidance of doubt, the proviso to section 71(2) and Rule 40(4) provide as follows:'71(2) The court to which application is made, or to which any dispute in respect thereof is referred, may—(a)If it is satisfied that the grant was rightly made to the applicant, and that he is administering, and will administer, the estate according to law, confirm the grant; or(b)If it is not so satisfied, issue to some other person or persons, in accordance with the provisions of sections 56 to 66 of this Act, a confirmed grant of letters of administration in respect of the estate, or so much thereof as may be unadministered; or(c)Order the applicant to deliver or transfer to the holder of a confirmed grant from any other court all assets of the estate then in his hands or under his control; or(d)Postpone confirmation of the grant for such period or periods, pending issue of further citations or otherwise, as may seem necessary in all the circumstances of the case:Provided that, in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled; and when confirmed such grant shall specify all such persons and their respective shares.''40(4) where the deceased has died wholly or partially intestate the applicant shall satisfy the court that the identification and shares of all persons beneficially entitled to the estate have been ascertained and determined.'

13. The deceased herein died in 1997. That means that he died after the Law of Succession Act had come into force in 1981. He died intestate. That would mean that the estate falls for distribution in terms of Part V of the Law of Succession Act. As at the filing of the confirmation application, he was survived only by children, which would mean his estate falls for distribution according to section 38 of Law of Succession Act, which provides for equal distribution of the property amongst the children.

14. Sections 2(1) and 38 of the Law of Succession Act are relevant here. They provide as follows:'2. Application of Act(1)Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after, the commencement of this Act and to the administration of estates of those persons.(2)'38. Where intestate has left a surviving child or children but no spouseWhere an intestate has left a surviving child or children but no spouse, the net intestate estate shall devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.'

15. The administrator has not been very candid when it comes to disclosure of the members of the family of the deceased, who are entitled to shares in the estate. Section 51 of the Law of Succession Act provides for what ought to be disclosed in applications for grants of representation. Section 51(2)(g) provides for disclosures where the deceased had died intestate, as in this case. The disclosures envisaged are of the surviving spouses, children, grandchildren of the deceased whose own parents are dead, siblings, among others. Section 51(2)(g) is in mandatory terms. The administrator did not comply with it. He had a brother, Godfrey Omito, who died during the pendency of these proceedings. He did not disclose him in his petition, and his brother had to file a notice of objection, complaining about his non-disclosure and that of other beneficiaries. The administrator had sisters. He did not disclose them. Their existence only came up at the oral hearing, on questioning of the administrator by the court. There was, therefore, no compliance with section 51(2)(g), and it can be surmised that the administrator obtained representation on the misrepresentation or lie that he was the sole child of the deceased. Section 71(2)(a)(b) requires the court to consider whether a grant was obtained properly, and, under section 71(2)(c) there is discretion to revoke a grant of representation and appoint another administrator. Section 71(2)(a)(b) should be read together with section 76(a)(b) of the Act, where there is discretion to revoke a grant if the process to obtain it was marred by defects, concealment of facts, fraud and misrepresentation.

16. Sections 51(2)(g), 71(2)(a)(b)(c) and 76(a)(b) of the Law of Succession Act state as follows:'51. Application for grant

ab.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.''71(2) The court to which application is made, or to which any dispute in respect thereof is referred, may—(a)If it is satisfied that the grant was rightly made to the applicant, and that he is administering, and will administer, the estate according to law, confirm the grant; or(b)If it is not so satisfied, issue to some other person or persons, in accordance with the provisions of sections 56 to 66 of this Act, a confirmed grant of letters of administration in respect of the estate, or so much thereof as may be unadministered; or(c)Order the applicant to deliver or transfer to the holder of a confirmed grant from any other court all assets of the estate then in his hands or under his control''76. Revocation or annulment of grant 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.'

17. No explanation has been given as to why the presence of the of the daughters was concealed at the stage of applying for grant. I suppose it is on account of their gender. Customary law does not apply here, for it was ousted by section 2(1) of the Law of Succession Act, upon the Act coming into force. See Rono vs Rono & another [2005] 1 KLR(Omolo, O’Kubasu & Waki, JJA), In Re the Estate of Harrison Gachoki (Deceased) [2005] eKLR (Okwengu, J), In re Estate of Juma Shiro (Deceased) [2016] eKLR (Mwita, J), In Re Estate of Gamaliel Otieno Onyiego (Deceased) [2018] eKLR (AJ Makau, J), and In re Estate of Mbiyu Koinange (Deceased) [2020] eKLR (Muchelule, J). The applicable law to the estate is Part V of the Act, which does not distinguish between children by categorizing them into boys or girls, sons or daughters, male or female. They are treated the same, as children of the deceased. All of them, regardless of gender or marital status, ought to be disclosed, and by dint of section 38 of Law of Succession Act, they ought to be given their due share in the estate. See Ejidioh Njiru Mbinga v Mary Muthoni Mbinga & another [2006] eKLR (Khaminwa, J) and Ludiah Chemutai Bett v Joseph Kiprop Tanui [2017] eKLR (M Ngugi, J).

18. When it comes to confirmation of grant, the applicable law is the proviso to section 71(2) and Rule 40(4), these provisions should be read together with sections 38 and 51(2)(g). The persons who would be entitled to a share in the estate of the deceased would be his children. By children here is meant both male and female, sons and daughters. In his confirmation application, the administrator only disclosed himself and his late brother. His sisters, the daughters, of the deceased, were concealed. They were not disclosed for a second time, at the filing of the confirmation application. There was no compliance, therefore, with the proviso to section 71(2) and Rule 40(4). It would be unlawful for me to go ahead and consider distribution of the estate, as per the application, before the administrator complies. Doing so would lead to disinheritance of the daughters or their progeny.

19. The second issue, related to that, is about the family of the late Godfrey Omito Makuku. Although it was said that he was dead, that by itself is not enough. Section 41 allows his children to step up and get the share due to him. The said children were not disclosed. They were not produced at the oral hearing to state their case. The administrator says that the late Godfrey Omito Makuku had been given his share during the lifetime of the deceased. It is the administrator saying so, the late Godfrey Omito Makuku did not say so. Indeed, the late Godfrey Omito Makuku was keen on raising some issue, hence he filed an objection. The fairest thing should have been to involve his children in the matter, so that they could have their say. The fact that Godfrey Omito Makuku died, did not mean that the issue that he wanted to raise died with him. If he had an interest in the estate, upon his death that interest, by dint of section 41, passed to his children, if any, and they should have been brought into the matter.

20. Section 41 states as follows:'41. Property devolving upon child to be held in trustWhere reference is made in this Act to the 'net intestate estate,' or the residue thereof, devolving upon a child or children, the property comprised therein shall be held in trust, in equal shares in the case of more than one child, for all or any of the children of the intestate who attain the age of eighteen years or who, being female, marry under that age, and for all or any of the issue of any child of the intestate who predecease him and who attain that age or so marry, in which case the issue shall take through degrees, in equal shares, the share which their parent would have taken had he not predeceased the intestate.'

21. On the dispute presented by the protestor, I would say that the same is in the nature of a land case, as to whether there was a valid sale of land by the administrator to the protestor, to warrant her being treated as a beneficiary of the estate. If she had transacted with the deceased, in terms of the deceased having sold the land to her, then she would have a beneficial interest in the estate, making her a beneficiary, who should be disclosed at confirmation and allocated a share in the estate. She did not transact with the deceased, and, therefore, she is not a beneficiary of his estate.

22. Does she otherwise have a beneficial interest in the estate? The transaction allegedly happened on 1st April 2014. This cause and another had been initiated. However, by then no full grant had been made in either, and, therefore, there was no administrator in office. The grant was made in this cause on July 22, 2014. That is when the administrator herein was appointed. Under section 80(2) of Law of Succession Act, a grant of letters of administration intestate becomes effective from the date it is made. In this case, it became effective on July 22, 2014. Under section 79 of Law of Succession Act, the grant vests the assets of the estate in the administrator. In this case, the assets of the estate were vested in the administrator effective from July 22, 2014. Vesting of assets, by dint of section 79, enables the administrator to exercise the powers set out in section 82. The powers include that to sell estate assets. These powers are only available from the date when the grant becomes effective. The administrator herein could only exercise power to sell assets effective from July 22, 2014, and even then section 82(b)(ii) is relevant. It says that immovable assets cannot be sold before the grant is confirmed. The grant herein has not been confirmed and, therefore, the land sold, allegedly to the protestor, which is immovable property, could not have been validly sold. SeeIn re Estate of Joseph Masila Mutiso (Deceased) [2017] eKLR (DK Kemei, J), In re Estate of Madongo Wasirwa alias Matongo Wasirua (Deceased) [2020] eKLR (Musyoka, J) and Simon Mwangi Ngotho & another v Susannah Wanjiku Muchina [2022] eKLR (Kasango, J). The purported transaction between the administrator and the protestor had no legal validity whatsoever, and the protestor acquired no beneficial interest in Marama/Lunza/1494 by dint of that transaction. Did the subsequent appointment of the administrator help matters? No. Section 80(2) is framed in a manner that makes it clear that the principle of relation back does not apply in intestacy, to cure or authenticate the unlawful acts of the person who is subsequently appointed administrator. See Otieno vs Ougo and another [1987] KLR 407 (Nyarangi, Platt & Gachuhi, JJA) and Troustik Union International & another v Mrs Jane Mbeyu & another [1993] eKLR (Apaloo CJ, Kwach, Cockar, Omolo & Tunoi JJA).

23. Sections 79, 80(2) and 82(b)(ii) of the Law of Succession Act provides as follows:'79. Property of deceased to vest in personal representativeThe executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.''80. When grant takes effect(2)A grant of letters of administration, with or without the will annexed, shall take effect only as from the date of such grant.''82. Powers of personal representatives

Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers—(a)(b)To sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best:Provided that –(i)(ii)No immovable property shall be sold before confirmation of the grant.'

24. Section 45 is also relevant. It provides for what is known as intermeddling, that is to say handling estate assets when a person has no legal authority to do so. According to section 45, authority to handle the property of a dead person emanates from a grant of representation. Any one purporting to handle estate assets, including buying or selling the same, contravenes that provision. SeeGitau and two others v Wandai and five others [1989] KLR 231 (Tanui, J) and In re Estate of Francis Kimani Muchiri (Deceased) [2018] eKLR (Musyoka, J). The acts are both unlawful and criminal, and no transaction, in contravention of section 45, can have any shade of legality, and no transaction tainted with criminality can be upheld by the courts. The sale of April 1, 2014 happened before representation in intestacy had been granted to anyone. By dint of section 45 of the Law of Succession Act, disposing of an asset before representation was granted, amounted to intermeddling with the asset, and the transaction was tainted with criminality. It conferred no rights at all on the protestor, for the administrator did not, then, have any authority to transact on behalf of the estate. The transaction was unlawful, and in furtherance of a criminal enterprise. It had absolutely no legality, and the protestor acquired no beneficial interest in the estate, as a consequence. See In re Estate of Mbiyu Koinange (Deceased) [2020] eKLR (Muchelule, J).

25. Section 45 of the Law of Succession Act provides as follows:'45. No intermeddling with property of deceased person

(1)Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.(2)Any person who contravenes the provisions of this section shall—(a)Be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and(b)Be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.'

26. The protestor did not submit on the point, but she appeared to be making it in her papers, rather obliquely, that she was an innocent purchaser for value without notice of want of title. Section 93(2) of the Law of Succession Act gives a limited protection to such persons, but that provision appears to be limited to cases of revocation of grant, and where the property had in fact been transferred to the buyer after confirmation. What I am determining is a summons for confirmation of grant, and not a revocation application. Even then, that protection is not available where the transaction is outrightly unlawful. An intermeddler, like the administrator in this case, cannot confer a good title, when acting contrary to sections 45 and 82(b)(ii) of the Act. See In re Estate of Mbiyu Koinange (Deceased) [2020] eKLR (Muchelule, J). The protection under section 93(2) can only arise where land is sold after confirmation of grant or with leave of court before confirmation, and then thereafter the grant is revoked, and where the land had in fact been transferred to the name of the buyer. See Jane Gachoki Gathecha v Priscilla Nyawira Gitungu & another [2008] eKLR (Omolo, Waki & Aluoch, JJA), Monica Adhiambo v Maurice Odero Koko [2016] eKLR (Nagillah, J), Albert Kithinji Njagi v Jemima Wawira Njagi & another; Simon Nyaga Njeru & another (3rd Respondent/Interested Parties) [2020] eKLR (Njuguna, J), Salim Yusuf Mohamed & Another v Nabhan Swaleh Salim & 2 Others [2012] eKLR (F Tuiyott, J) and In re Estate of the Late Njagi Mutindwa Irunga [2022] KEHC 420 (KLR) (Gitari, J).

27. Section 93(2) says:'93. Validity of transfer not affected by revocation of representation(1)(2)A transfer of immovable property by a personal representative to a purchaser shall not be invalidated by reason only that the purchaser may have notice that all the debts, liabilities, funeral and testamentary or administration expenses, duties, and legacies of the deceased have not been discharged nor provided for.'

28. Although Jones Konya Akhwaba was projected as a creditor of the estate or purchaser of an asset of the estate, by the administrator, his name did not come up at the oral hearings. The administrator did not testify on his interest in the estate, nor place any documents on record on the nature of his dealings with the estate. Jones Konya Akhwaba, himself, did not file any papers and did not take to the witness stand to establish his claim. There is , therefore, no evidence, that he was entitled to a share in the estate of the deceased.

29. The final orders are:(a)That I hereby postpone confirmation of the grant herein, in terms of section 71(2)(d), of the Law of Succession Act, to allow the administrator act as I will direct him here below;(b)That the administrator shall file a further affidavit to disclose all the daughters of the deceased, and shall disclose all the children of any of the daughters who might have died;(c)That, in the further affidavit, the administrator shall disclose all the successors of the late Godfrey Omito Makuku, be they widows or children;(d)That summons for confirmation herein shall thereafter be heard, on a date I shall allocate at delivery of this judgment, when the administrator shall avail all the persons mentioned in orders (b) and (c), above;(e)That I declare that, from a succession prospective, the protestor has no beneficial interest in Marama/Lunza/1494, and this court has no jurisdiction to determine the validity of the land sale between her and the administrator from a land or property law perspective;(f)That each party shall bear its own costs; and(g)That any party aggrieved by the orders made herein has leave of 28 days, to move the Court of Appeal, appropriately.

30. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 4th DAY OF November 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Mr. Shifwoka, instructed by Nyikuli Shifwoka & Company, Advocates for the Administrator.Mr. Luchivya, instructed by Marisio Luchivya & Company, Advocates for the protestor.