[2022] KEHC 15457 (KLR)

In re Estate of Jared Odhiambo K’obungah (Deceased) (Succession Cause 217 of 2006) [2022] KEHC 15457 (KLR) (16 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15457 (KLR)

Republic of Kenya

In the High Court at Kisumu

Succession Cause 217 of 2006

RE Aburili, J

November 16, 2022

N THE MATTER OF THE ESTATE OF JARED ODHIAMBO K’OBUNGAH-DECEASED AND IN THE MATTER OF A PETITION BY LILIAN ABONGO OLANGO AND GEORGE DANIEL OLUOCH OBUNGA BETWEEN JENIPHER ABONGO OBUNGA.................1STADMINISTRATOR/APPLICANT LILIAN ABONG’O OLANG’O................2ND ADMINISTRATOR/RESPONDENT

Ruling

1. The application herein dated October 25, 2021 is brought by the 1st administratix/applicant seeking the following orders:a.The judgement of the court delivered on October 4, 2021 be reviewed by making the following orders:i.1283 shares held at Standard Chartered Bank limited and the unpaid bonus due thereon which forms part of the estate of the deceased be given to the applicant.ii.Title number Central Kasipul /kamuma/4331 also forming part of the deceased estate be given to the applicant or the deceased grandson Trevor Onyango.

2. The applicant avers that land parcel Central Kasipul /kamuma/4331 be given to the deceased grandson Trevor Onyango who was under the care and maintenance of the deceased and that all the parties to the matter were aware. That in the distribution by the court, the parcel was given to the respondent and her children although in the initial negotiations leading to the confirmation of the grant, the respondent had not expressed interest in the property.

3. Regarding the shares, the applicant asserts that the same was not distributed by the court due to oversight and that the same should be given to her.

4. The respondent opposed the application and filed her replying affidavit deposing that the applicant had failed to give details of the shares allegedly held at Standard Chartered Bank. She proposes that the details of the shares be made public and the same be distributed equally among all the beneficiaries.

5. On the issue of Land Parcel No Central Kasipul /kamuma/4331, the Respondent depones that the same was distributed to her and her 3 children. That allowing the orders sought would disinherit her and the children. She disputes the fact that the deceased had taken in Trevor as his own as the said Trevor had his own biological parents and that he should inherit from them. She urges the court to maintain the mode of distribution as per the judgement of the court.

6. The application was canvassed by way of written submissions. Both parties complied and filed their respective submissions which I have considered.

7. From the parties’ respective rival positions, find the issue for determination is whether the applicant has met the conditions for review of decision of this court on the distribution of the estate of the deceased.

8. Review of decisions of a probate court is governed by rule 63 of theProbate and Administration Rules, which provides as follows:“63. Application of Civil Procedure Rules and High Court (Practice and Procedure) Rules(1)Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely orders v, x, xi, xv, xviii, xxv, xliv and xlix (Cap 21, Sub Leg), together with the High Court (Practice and Procedure) Rules (Cap 8, Sub Leg), shall apply so far as relevant to proceedings under these Rules.(2)Subject to the provisions of the act and of these rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased persons shall be those existing and in force immediately prior to the coming into operation of these rules.”

9. InJohn Mundia Njoroge & 9others v Cecilia Muthoni Njoroge &another [2016] eKLR, the court cited rule 63 of the Probate and Administration Rules, and then stated as follows:“As stated above, the only provisions of the Civil Procedure Rules imported to the Law of Succession Act are orders dealing with service of summons, interrogatories, discoveries, inspection, consolidation of suits, summoning and attending witnesses, affidavits, review and computation of time. Clearly, Order 45 relating to review is one of the Civil Procedure Rules imported into succession practice by rule 63 of the Probate and Administration Rules. An application for review in succession proceedings can be brought by a party to the proceedings, a beneficiary to the estate or any interested party. However, the application must meet the substantive requirements of an application brought for review set out in Order 45 of the Civil Procedure Rules.”

10. It is, therefore, clear that any party seeking review of orders, in a probate and succession matter, is bound by the provisions of section 80 of the Civil Procedure Act whose procedural aspect is governed by order 45 of the Civil Procedure Rules.

11. Section 80 of the Civil Procedure Act provides that:“Any person who considers himself aggrieved-(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Act, May apply for a review of judgement to the court, which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”

12. The procedural provisions of order 45 provide that:“1. (1)Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.(2)…”

13. Order 45 provides for three circumstances under which an order for review can be made. To be successful, the applicant must demonstrate to the court that there has been discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed. A party may successfully apply for review, secondly, if he can demonstrate to the court that there has been some mistake or error apparent on the face of the record. The third ground for review is worded broadly: an application for review can be made for any other sufficient reason.

14. From the above, it is discernible that for an order of review to be granted, an applicant must show:a)discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or;(b)on account of some mistake or error apparent on the face of the record, or(c)for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without un reasonable delay.

15. Applying the above parameters to the present application, can it be said that the applicant has now discovered new and important matter which was not available at the time of rendering judgement?

16. Having perused the record, I note that there is correspondence from Image Registrars indicating that the deceased held 1,283 shares at Standard Chartered Bank. I therefore find that these shares form part of the estate of the deceased and ought to have been included in the list of assets of the intestate estate of the deceased. They do not belong to any one individual or beneficiary of the estate which is intestate. They can only be distributed to all the beneficiaries.

17. It is also worth noting that none of the parties had clearly brought out this part of the estate by way of production of share certificates or any other evidence showing that the deceased had shares.

18. The applicant proposes that the shares be allocated to her although she has not advanced any reason justifying such distribution. The court in the judgement delivered on 4th October, 2021 had distributed the estate of the deceased in accordance with section 40 of the Law of Succession Act. In the circumstances, I find and hold that the 1,283 shares ought to be listed as an asset of the state of the deceased and is available for distribution equally among all the deceased beneficiaries.

19. Concerning the land parcel Central Kasipul /kamuma/4331, the same was given to the respondent and her children in the list of assets of the deceased as per the confirmed grant. The applicant wishes the same to be re-distributed to her grandson one Trevor Onyango on the basis that he was being maintained by the deceased. I have equally considered the respondents’ objection on the issue.

20. On whether the issue could be appropriate for review or appeal, Mativo J in Republic v Advocates Disciplinary TribunalEx parteApollo Mboya (2019) eKLR quoting from Meera Bhanja v Nirmala Kumari ChoudhuryAIR 1995 SC 455 stated that:The power of review is available only when there is an error apparent on the face of the record. I emphasize that review proceedings are not an appeal. The review must be confined to error apparent on the face of the record and re-appraisal of the entire evidence or how the judge applied or interpreted the law would amount to exercise of Appellate Jurisdiction, which is not permissible

21. Having considered the rival positions taken by the parties on the issue of the already distributed estate and the legal position on whether such a prayer is available to the applicant, I am of the view that a prayer for review is not appropriate in the circumstances. An appeal challenging the decision to distribute the estate the way it was done by the court would have been appropriate in the circumstances as there is no error apparent on the record capable of being rectified.

22. I must add that the law is clear that grandchildren are not direct or automatic beneficiaries of the estate of the deceased unless they are claiming through their deceased parents or where there is a valid will. Under section 29 of the Law of Succession Act, grandchildren are in the 4th degree of beneficiaries of an intestate estate. The section sets out the meaning of the term ‘dependant’ as follows:“For the purposes of this part, "dependant" means—(a)……;(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

23. In Cleopa Amutala Namayi v Judith Were Succession Cause 457 of 2005 [2015] eKLR, Mrima, J observed thus:“Be that as it may, under Part V of the Act, grandchildren have no automatic right to inherit their grandparents …. The argument behind this position is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents indirectly through their own parents…. The children to the grandparents inherit first and thereafter the grandchildren inherit from their parents. The only time where the grandchildren can inherit directly from their grandparents is when the grandchildren’s own parents are dead…”

24. Section 27 of the sameActprovides that:“In making provision for a dependant the court shall have complete discretion to order a specific share of the estate to be given to the dependants, or to make such other provision for him by way of periodical payment or a lump sum, and to impose such conditions as it thinks fit.”

25. It follows that unless there is consensus of all the primary or first line beneficiaries of the estate, one beneficiary cannot determine that a grandchild is a direct beneficiary of the estate unless the said grandchild is being assigned the share belonging to its deceased parent beneficiary and child of the deceased intestate.

26. In any event, there must be tangible evidence to show that one was being maintained by the deceased prior to his demise. In the case ofBeatrice Ciamutua Rugamba v Fredrick Nkari Mutegi & 5 others [2016] eKLR, it was observed that:“A dependent under section 29 (b) and (c) must prove that he or she was being maintained by the deceased immediately prior to his demise. It is not the mere relationship that matters, but proof of dependency that counts.”

27. In my view, a grandfather living with a grandchild whose parents are alive does not assume the role of being a natural parent to that child unless he adopts that child, however much he loves that child and or provides for it. This is the spirit of section 29 of the Law of Succession Act. In the final analysis therefore, I make the following orders:a.The application is partially allowed only to the extent that the 1,283 shares held by the deceased Jared Odhiambo K’obungah at Standard Chartered Bank together with unpaid dividends be and is hereby included as one of the assets of the estate of the deceased and is hereby equally distributed to all the beneficiaries of the estate of the deceased Jared Odhiambo K’obungah , and shall be held jointly by the applicant and the respondent administratixes herein jointly in trust for themselves and their respective children.b.The other distribution already done by the court vide judgement delivered on October 4, 2021 remains undisturbed.c.Amended certificate of confirmation to issue reflecting the order No (a) above.d.Each party shall bear their own costs of the application.

28. This file is now closed. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 16TH DAY OF NOVEMBER, 2022R.E. ABURILIJUDGE