[2023] KEHC 24481 (KLR)

In re Estate of John Mukanda Mukonambi (Deceased) (Succession Cause 327 of 2011) [2023] KEHC 24481 (KLR) (31 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24481 (KLR)

Republic of Kenya

In the High Court at Bungoma

Succession Cause 327 of 2011

DK Kemei, J

October 31, 2023

IN THE MATTER OF THE ESTATE OF JOHN MUKANDA MUKONAMBI........... DECEASED

Between

Joseph Mukonambi Mukanda

Petitioner

and

Catherine Nanyama Sirengo

1st Objector

Dorcas Naliaka Mukanda

2nd Objector

Judgment

1. The two objectors herein filed objections dated November 28, 2011 and February 14, 2021 respectively to the making of a grant of representation of the estate of John Mukanda Mukonambi deceased herein who died on 1st July, 1990 to Joseph Mukonambi Mukanda on the grounds inter alia; that the objectors are daughters of the deceased herein and who have priority to apply for letters of administration; that they have been left out in the list of the beneficiaries by the petitioner herein ( Form P & A 5); that the petitioner has not come to court weith clean hands as he has not revealed material facts; that there has been conspiracy to disinherit the objectors; that the petitioner has denied the objectors and their sisters their constitutional right to get a share from the estate of their father.

2. The Petitioner filed a response dated 28/6/2022 to both objections wherein he averred inter alia;that the objectors are his sisters who got married much earlier and have moved on with their families; that their deceased father prior to his death shared out all his parcel of land among the sons and no daughter was allocated or given a portion during his lifetime; that all their sisters never came to ask for land or any allocation and that the sons have now settled with their children also having homes on the said shares; that in total their father left behind 9 sons and 10 daughters surviving him and that none of the daughters ever made a claim for land; that after the demise of their father, the 1st objector came back home from her marriage wherein he allowed her to stay in his home and tghat he made a provision of 0. 25 acres from his own personal share just in case she may not live at the place she had moved in successfully; that the 1st objector stayed and farmed on a portion of land given to her and managed to purchase one at cheranganyi where she settled and lives there todate; that the 1st objector must have influenced the 2nd objector to join in the bandwagon based on a non-existent clan distribution yet ther deceased died after sharing out the whole land; that the land on the ground cannot even provide for the sons adequately.

3. The matter proceeded by way of viva voce evidence.

4. Moses Makhanu Sumba (OW1) testified that he is a brother of the deceased. He stated that the deceased had three wives and that he had not distributed his land before he died. He stated that the 1st objector comes from the the same house. He further added that the 1st objector was staying with her parents befgore they died and that the clan distributed thsa aland and allocated her three acres.

5. The 1st objector Catherine Nanyama Sirengo (OW2), testified that she was the deceased’s daughter and that she had the capacity to have her priortity to apply for letters of administration and that t she had been left out in the list of those surviving the deceased. She stated that the clan members distributerd the land during the Bukusu ceremony (lufu) whewrein they allocated her three acres of land. She maintained that the petritioner and his sons later chased her away from the land and demolished her house. On cross-examination, she stated that the clan members did not give him the minutes of their deliberations. She rejected the proposal by the petitioner to give her 0. 25 acres of land from his portion.

6. Brown Mukonambi Mafucha (OW3) testified that the petitioner and his children have chased the 1st objector from her three acre portion of land and who has now been forced to be a squatter in Cheranganyi. On cross-exanination, he stated that the deceased was his uncle and that his male children had established their homes prior to his death. He also stated that the court should go as per the wishes of the clan. He also stated that a married girl is at liberty to come to her home and establish a house.

7. Dorcas Naliaka Mukanda (OW4) testified that she is the 2nd objector and a biological daughter of the deceased and that she had been left out of the list of beneficiaries in form P & A 5 and that her mother who is now deceased was the second wife to the deceased John Mukanda Mukonambi whose share of the estate should be given to her. On cross-examination, she stated that she is from the second house. She stated by her brothers and that she now wants to get back her share of the estate.

8. The Petitioner Joseph Mukonambi Mukanda testified that he is the decased’s first born son and that the deceased died intestate and left behind sons and daughters from his three houses. That the deceased apparently settled some of his sons but did not fully share out the estated. That clan members shared out the deceased estate majorly among the sons and one of the daughters who had problems in her marriage and came back home . That in the list of distribution by the petitioner dated January 27, 2020, she appears on list as No. 10 with a share of 0. 25 acres. That she has objected and now claims 3 acres. The petitioner prays that the 1st objector should suffice and the objection by the 2nd objector be found to be an afterthough and should be dismissed. He was of the view that the issue of female children inheriting property of their parents is a recent development. He also confirmed that he had agreed with the clan elders that he allows the 1st objector to remain on the land. He also agreed that the land belonged their father.On re-examination, he stated that there is no land available for distributionand that he had purchased the land at Miyanga area. He also maintained that he has n o land to give unless they go back and discuss. He finally sougfht for the dismissal of the objection.

9. The parties filed and exchanged written submissions which I have duly considered.

Analysis And Determination 10. I have considered the rival affidavits as well as the submissions. I find it is not in dispute that the objectors are daughters of the deceased herein and ipso facto beneficiaries of the estate. It is also not in dispute that the intreoductory letter presented by the area chief did not include all the children of the deceased. It is also not in dispute that the petitioner has since been issued with letter of grant of administration intestate. That being the position, I find the issue for determination is whether the objection to making of a grant by the objectors meets the threshold for the revocation of a grant within the meaning of section 76 of the Law of Succession Act.

11. Under section 76 (b) of the Law of Succession Act, a grant can be revoked if a party concealed material information from the court. In the case of Jamleck Maina Njoroge v Mary Wanjiru Mwangi [2015] eKLR the court discussed the circumstances when a grant can be revoked. Ther court observed as follows:‘’11. The circumstancesthat can liead to the revocation of grant have been set out in section 76 of the Law of Succession Act. For a grant to be revoked either on the application of an interested party or on the court’s own motion there must be evidence that that the proceedings to obtain the grant were defective in substance, or that the grant was ob tained fraudulently by the making of a false statement, or that the grant was obtained by means of untrue allegations of facts essential in point of law.’’

12. The objectors herein have accused the petitioner for failing to disclose all beneficiaries to the court and now seek to have the grant revoked on that ground. Indeed, the power to revoke a grant is a discretionary one and must be exercised judiciously and on sound grounds taking into account the interests of all the beneficiaries entitled to the estate. I have perused the chief’s introductory letter dated 10/10/2011 which only indicated eleven (11) children yet the deceased had nineteen (19) children comprised of nine sons and ten daughters. The petitioner has claimed that all his sisters were married and were not catered for and hence the reason why he did not list their names and further that the deceased did not provide for them while he was still alive.

13. Under section 51(2)(g) of the Law of Succession Act, the petitioner is required to disclose all surviving spouses and children of the deceased. The provision is in mandatory terms. As regards children, section 3(2) of the said Act provides that the children shall include a conceived person, a child born out of wedlock in relation to a female person whereas in relation to a male person, a child whom he has sired or has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed parental responsibility. Again, under section 29 of the Law of Succession Act, a dependant is described as the wife or wives,and children of the deceased whether or not maintained by the deceased immediately prior to his death, such of the deceased’s parents, step-parenyts, grandparents, grandchuildren, step-children, children whom the deceased had taken into his family as his own etc. It would appear therefore that the objectors, being daughters of the deceased, ought to have been included in the list of beneficiaries. Even though the petitioner has claimed that he did not list them since the female children were not to inherit the deceased’s assets, he was still under obligation to list them and that the issue of whether they will be getting any shares was to be determined during the confirmation of grant. Further, there is no evidence that the petitioner consulted all the beneficiaries for consent to take out letters of grant of administration intestate. It is thus clear that the petitioner did not comply with the provisions of the Law of Succession Act and hence the grant issued to him ought to be revoked. However, it is noted that both the petitioner and objectors concentrated on the issue of distribution of the estate yet summons for confirmation of grant are yet to be filed so that the parties can present their rival modes of distribution of the estate of the deceased. The objectors also just sought for revocation of grant and did not indicate as to whether they would wish to take up the role of a petitioner in the estate. If the grant is revoked, then the estate is likely to stand prejudiced in the absence of a petitioner. Since the objectors concerns is in regard to distribution of the estate, I find that retaining the petitioner would be quite appropriate in the circumstances. The objector’ concerns will be taken into consideration during the hearing of the summons for confirmation of grant to be filed by the petitioner herein.

14. In view of the foregoing observations, I make the following orders:i.The objections to making of a grant lodged by the objectors are dismissed with no order as to costs.ii.The petitioner is ordered to file summons for confirmation of grant within fourteen (14) days from the date hereof .iii.The objector be at liberty to file and serve affidavits of protests within seven days upon being served by the petitioner.iv.The petitioner is granted leave to file a further affidavit if need be within three (3) days of service of protest.v.Mention on 22/11/2023 to confirm compliance and for further orders.vi.As parties are family members, I order each party to bear their own costs.

FATED AND DELIVERED AT BUNGOMA THIS 31ST DAY OF OCTOBER 2023D.KEMEIJUDGEIn the presence of :Onkangi for Onyando for 1st ObjectorDorcas Naliaka 2nd ObjectorNo appearance Sichangi for Petitioner