[2020] KEHC 1813 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

P&A NO. 14 OF 2018

IN THE MATTER OF THE ESTATE OF JAFETH BIRABU RUKOKHE

CAROLINE LILIAN JELIMO.......................................................APPLICANT

VERSUS

JAMES AGALOMBA LUGOHE..............................................RESPONDENT

AND

BEATRICE ADUMA............................PROPOSED/INTERESTED PARTY

RULING

What is pending before the court is the preliminary objection dated 16th December 2019. The applicant raised a preliminary objection on the grounds that;

a) The applicant’s cause and instant application are incompetent and fatally defective for failure to take out a grant of representation as required by Section 82of the Law of Succession Act.

b) The objection herein is misconceived and belated as the procedure for challenging the confirmation of grant is not by way of objection but by means of affidavit pursuant to rule 40(6) of the Probate and Administration rules.

c) This court has no jurisdiction to issue orders to direct the DCIO Nandi Central/Kapsabet to initiate investigations to ascertain authenticity of the letter dated 15/02/2016 purportedly emanating from Silah K Banoi, the chief Kiptuiya location, Nandi County, arrest and prosecute the authors as the same is the preserve of the CID alone.

d) That under Section 29 of the Law of Succession Act, the applicant being a daughter in law to the estate of the deceased herein is not entitled to inherit and no nexus to the deceased has been established according to the consanguinity table.

e) Applicant’s application is fatally defective since the same is not brought under any provisions of the law.

APPLICANT’S CASE

The applicant filed submissions on 17th January 2020.

He cited the case of Mukisa Biscuit Manufacturing Co. Ltd vs West Distributors (1969) EA 696 where the court stated that;

‘A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.’

It is the applicant’s submission that a preliminary objection will only succeed if it raises points of law which do not require proof by way of evidence.

The applicant herein filed this instant cause for revocation of grant issued to the respondent. The applicant alleged that she is the daughter in law to the deceased and a widow of his son namely Manasseh Amukumbi Bilavu. She stated that she was the legal representative of her husband. A grant of letters of representation in respect of the estate of Manasseh Amukumbi Bilavu was a mandatory facet to pursue any claim and without the grant, the applicant’s claim is untenable in law. The applicant referred to Section 82 of Cap 160 which only empowers a personal representative to represent the estate in proceedings. The applicant is not the representative of the estate of the deceased. The applicant referred the court to the case of Troustic International Union and Ingrid Jane Mbeyu & Another (1993) EKLR.

The applicant maintained that the objection herein is misconceived and belated as the procedure for challenging the confirmation of grant is not by way of objection but by means of affidavit pursuant to rule 40(6) of the Probate and Administration rules.

The applicant submitted that the applicant being a daughter in law to the estate of the deceased herein is not entitled to inherit and no nexus to the deceased has been established according to the consanguinity table. The applicant cannot claim to be a dependant of the deceased as when he passed away she was not depending on him. The applicant cited Section 29(b) of the Law of Succession Act and submitted that the respondent is not one of the dependants. He also cited the case of Re Estate of Karuri Magu (deceased) 2016 – EKLR. On the issue of whether the deceased had taken the applicant into his own family as his own. He also relied on the case of Re Estate of M’Muthamia Mwendwa – deceased (2016) EKLRon this issue.

The applicant urged the court to allow the preliminary objection with costs.

RESPONDENT’S CASE

There are no submissions on record for the respondent.

ISSUES FOR DETERMINATION

1. WHETHER THE APPLICANT’S CAUSE IS INCOMPETENT

Before delving into the issues for determination, it is important that the court state what a preliminary objection is. In the case of Mukisa Biscuit Manufacturing Co. Ltd vs West Distributors (1969) EA 696 the court stated that;

‘A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.’

If the point of law that is raised is proven, it disposes of the suit.

Section 82 of the Law of Succession Act provides;

Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers—

(a) to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative;

(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) any purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased; and

(ii) no immovable property shall be sold before confirmation of the grant;

(c) to assent, at any time after confirmation of the grant, to the vesting of a specific legacy in the legatee thereof;

(d) to appropriate, at any time after confirmation of the grant, any of the assets vested in them in the actual condition or state of investment thereof at the time of appropriation in or towards satisfaction of any legacy bequeathed by the deceased or any other interest or share in his estate, whether or not the subject of a continuing trust, as to them may seem just and reasonable to them according to the respective rights of the persons interested in the estate of the deceased, and for that purpose to ascertain and fix (with the assistance of a duly qualified valuer, where necessary) the value of the respective assets and liabilities of such estate, and to make any transfer which may be requisite for giving effect to such appropriation:

The respondent seeks to revoke the grant of letters of administration issued to the applicant herein. She basis her application on the fact that she is a daughter in law to the deceased. The question that arises therefrom is whether she qualifies as a beneficiary in order to have the locus standi to seek revocation of the grant. Section 29 of the Law of Succession Actprovides;

For the purposes of this Part, "dependant" means—

(a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;

(b) such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and

(c) where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

By the definition set down in the law, the applicant does not fall under dependants as she has not shown how, if at all, she was being maintained by the deceased or taken into his family prior to his death. She is therefore not a dependant under Section 29 of the Law of Succession Act. She has also not taken out a grant of representation for the estate of her late husband and therefore cannot be deemed to represent his interest in the estate.

By determining that the respondent is not a dependant and has no locus standi to seek for revocation of grant, the issue of the form of the objection does not arise as even if she had filed an affidavit of protest she has no capacity to pursue the same.

The application is fatally defective and the preliminary objection succeeds in its entirety. Its allowed with costs to the applicant.

S. M GITHINJI

JUDGE

DATED, SIGNED and DELIVERED at ELDORET this 2nd day of November, 2020.

In the presence of:-

Mr. Kagunza for the Applicant/Respondent

Mr. Oyaro for the proposed interested party (Absent)

Gladys - Court Assistant