[2022] KEHC 11388 (KLR)

In re Estate of Johana Litswe Mutsami (Deceased) (Succession Cause 119 of 2002) [2022] KEHC 11388 (KLR) (10 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11388 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 119 of 2002

WM Musyoka, J

June 10, 2022

IN THE MATTER OF THE ESTATE OF JOHANA LITSWE MUTSAMI (DECEASED)

(Originating from Kakamega CMC Misc. Award No. 5 of 2010)

Ruling

1. This matter is fairly straightforward.

2. Representation to the estate was made to Anthony Mulima Litswa and Peter Musonye Litswa on August 8, 2006, and a grant duly issued, dated January 10, 2007. The said grant was confirmed on January 16, 2012, on an application dated July 8, 2011. Kakamega/Shinyalu/12xx was devolved to two administrators, Anthony Mulima Litswa and Peter Musonye Litswa. A certificate of confirmation of grant was then issued, dated January 16, 2012, in those terms.

3. The application that I am invited to consider is a Motion, dated August 8, 2018. It seeks that the grant of representation made on January 16, 2012 be revoked, and any registration arising from it be revoked. The case is that the administrators did not disclose a decree that had been passed in Kakamega CMC Misc Award No 5 of 2010, which had declared that Kakamega/Shinyalu/12xx be reverted to the proprietorship of the late Lusuli Mulima and Shitakhwa Mulima; Andrew Shilabula Mulima, Alfred Shitakhwa and Peter Mulima Lusila petition for representation with respect to Kakamega/Shinyalu/12xx for distribution of that property amongst themselves; and that Peter Ndeche Musonye and Anthony Mulima Litswa be evicted from Kakamega/Shinyalu/12xx and be relocated to Isukha/Murhanda/2xx and 2xx, registered in the names of the late Ikhoni Litswa and Lusuli Ikhoni. The orders emanated from proceedings of the Shinyalu Land Disputes Tribunal, and there was an adoption of its award, dated October 28, 2009. I doubt whether the tribunal had jurisdiction to make those orders, but I will leave that to the parties. The award had been adopted by a court of law, and had become a decree of the court on October 8, 2010.

4. The property that was distributed in the instant cause, on January 16, 2012, was the same property the subject of the decree of October 8, 2010. The persons who benefitted from the distribution orders of January 16, 2010 were supposed to have been evicted under the decree of October 8, 2010. The application for confirmation of grant herein was filed on July 8, 2011, after the decree of October 8, 2010 had been passed. The confirmation proceedings of January 16, 2012 were conducted when the decree of October 8, 2010 was in force

5. The administrators have opposed the application. They argue that the said decree did not exist, as they were only aware of the proceedings in Kakamega HCCC No 22 of 2011, initiated by themselves as administrators herein, against Andrew Shilabula Mulima, Alfred Shitakhwa, Peter Mulima Lusuli and the Chairman of the Shinyalu Land Disputes Tribunal, where orders were made to injunct or restrain them from interfering with Kakamega/Shinyalu/12xx, and staying their eviction from the property pending inter partes hearing of the application. The suit in Kakamega HCCC No 22 of 2011 was provoked by the decree in Kakamega CMC Misc Award No 5 of 2010, and I am, therefore not persuaded that the administrators were not aware of that decree. .

6. It would appear to me that the confirmation proceedings were mounted deliberately and purposely to defeat the decree in Kakamega CMC Misc Award No 5 of 2010, for if the administrators had a pending suit, with respect to the award by the Shinyalu Land Disputes Tribunal, which was the basis of the decree in Kakamega CMC Misc Award No 5 of 2010, why were they rushing to have their grant confirmed, and to have the disputed property shared out, when a suit was still in court over it. There was no good faith, and there is justification for the applicant to mount the application dated August 8, 2018.

7. I am invited, in the application, to revoke the grant, on grounds that it was made on the basis of a false statement or concealment from court of important facts, to wit, the decree in Kakamega CMC Misc Award No 5 of 2010. The grant the applicant seeks to revoke was allegedly made on January 16, 2012. That cannot be accurate. The grant herein was made on January 10, 2007, on a petition dated March 13, 2002, and lodged herein May 22, 2002. The decree was passed in 2010, which means that when the administrators applied for their grant of 2002, the said decree did not exist, and they cannot, therefore, be guilty of concealing it from the court or making a false statement with respect to it.

8. What was issued on January 16, 2012 was the certificate of confirmation of grant, extracted from the confirmation orders made by the court on the same date. A certificate of confirmation of grant is not the same as a grant of representation. Problems at confirmation of grant should not be an excuse for revocation of the grant, for they do not fall within the grounds set out in section 76 of the Law of Succession Act, cap 160, Laws of Kenya, upon which a grant may be revoked. I will not consider revocation of the grant herein, for the application to revoke it is misconceived.

9. What the applicant appears to be complaining about is not the process of the making of the grant, but its confirmation. The issue of who is entitled to Kakamega/Shinyalu/12xx, as between the administrators and Andrew Shilabula Mulima, Alfred Shitakhwa and Peter Mulima Lusuli, has not been resolved, for there is still litigation pending on it, being Kakamega HCCC No 22 of 2011. The administrators should not have asked this court to distribute Kakamega/Shinyalu/12xx during the pendency of Kakamega HCCC No 22 of 2011. Kakamega/Shinyalu/1223 can only be distributed after the suit in Kakamega HCCC No 22 of 2011 has been finalized.

10. In the end, I will make the following final orders:a.That orders that this court made on January 16, 2012 confirming the grant herein are hereby vacated or set aside;b.That, as a consequence, the certificate of confirmation of grant, of even date, issued on the basis of the said confirmation orders, is hereby cancelled;c.That the Kakamega county Land Registrar is directed to cancel transmission of Kakamega/Shinyalu/12xx on the basis of the said certificate of confirmation of grant of January 16, 2012, and to have the property reverted to the name of the previous proprietor or proprietors, pending further orders of this court in this cause or Kakamega HCCC No 22 of 2011;d.That the grant herein is not revoked;e.That any party, aggrieved by the orders made in this ruling, has leave of twenty-eight days, to move the Court of Appeal, appropriately; andf.That each party shall bear their own costs.

11. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 10TH DAY OF JUNE 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Mr. Momanyi, instructed by Momanyi Manyoni & Company, Advocates for the applicant.Peter Musonye Litswa, administrator, in person.