[2022] KEHC 1753 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUSIA

SUCCESSION APPEAL NO.14 OF 2020

IN THE MATTER OF THE ESTATE OF JOHN ODUOR MUSUNGU (DECEASED)

BETWEEN

EVALINE NAFULA OSOME.............................APPELLANT

VERSUS

OMONDI HAMISI ODUNGA MUSUNGU....RESPONDENT

J U D G M E N T

[1]This appeal is against the order made by the Chief Magistrate at Busia on 27th June 2019, in Busia Succession cause No.69 of 2016, involving the estate of John Oduor Musungu (deceased) for which letters of grant of administration intestate were issued to Evalyne Nafula Oseme(Petitioner) who is the appellant herein.

[2] The sole ground of appeal is that the trial magistrate erred in law and fact in disregarding vital evidence tendered in favour of the respondent herein, Omondi Hamisi Odunga Musungu, to the detriment of the appellant.

The hearing of the appeal was by way of written submissions which were filed on behalf of the appellant by Balongo & Co. Advocates. The respondent’s submissions in opposition to the appeal were filed by J.V Juma & Co. Advocates.

[3]Having given due consideration to the appeal on the basis of the supporting grounds and the rival submissions, this court was required to revisit the issues at large which led to the issuance of the impugned order and arrive at its own conclusions.

[4]In that regard, it is apparent that the material grant was issued to the appellant on the 22nd March 2016, to administer the deceased’s estate comprising of a parcel of land described as LR No.Samia/Budongo/2484. A similar version of the grant was issued on 15th November 2016, for reasons which were not discernable from the record.

[5]Nonetheless, the summons for the revocation and/or annulment of the grant dated 20th February 2017 was filed by the respondent and after hearing thereof the court rendered its ruling on 20th June 2019, allowing the application. Thus, the grant issued to the appellant on 15th November 2016 was revoked and all subsequent acts or deeds were set aside.

There was no order by the court for the issuance of a fresh grant. Neither did the court give any directions on the way forward.

[6]This meant that the matter in so far as it related to the administration of the deceased’s estate was effectively closed and any party wishing to re-activate it was invariably required to petition freshly for grant of letters of administration intestate in a new and separate succession cause.

[7] However, an application dated 29th June 2020, was presented herein by the respondent under the provisions of Rule 73 of the Probate & Administration Rules, which provides for the inherent powers of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. In that regard, the respondent sought orders that the court appoints him as the administrator of the deceased’s estate.

[8]This was apparently followed by an application by the appellant dated 9th July 2020, for which grounds of opposition dated 22nd July 2020 were filed by the respondent. The said application was however, not traceable in this record.

Be that as it may, the respondent’s app0lication dated 29th June 2020, came up for hearing on 1st October 2020, but the parties recorded a consent to the effect that the application be allowed with no orders as to costs and that the appellant’s application dated 9th July 2020 be withdrawn with no orders to costs.

[9]Most importantly, the parties agreed that the respondent be appointed the administrator of the deceased’s estate pending the hearing and determination of the present appeal. Matter was slated for mention on 12th November 2020 on the status of the appeal, but was on that date stood over to 7th January 2021 on which date it never was placed before the court. Instead, on the 11th December 2020, the respondent filed an application for confirmation of grant dated the 3rd December 2020, which was heard by the court on the 9th February 2021, in the absence of the appellant and allowed as prayed.

[10] Consequently, a certificate of confirmation of grant was issued in favour of the respondent on the 9th February 2021.

All the foregoing processes leading to the issuance of the certificate of confirmation of grant to the respondent were undertaken with the knowledge that the respondent was appointed an administrator pending the hearing and determination of this appeal thereby implying that he was barred from applying for confirmation of grant before the conclusion of the appeal. Further, upon appointment, hitherto temporarily, the formal fresh grant of letters of administration intestate was not issued in the name of the respondent thereby implying that there was no grant to confirm.

[11]The amended grant purportedly issued to the respondent dated 3rd March 2021, was manifestly defective, invalid, null and void “ab-initio” as it could not have been issued after purported confirmation of the grant on 9th February 2021, and in any event, it related to the grant which was made in favour of the appellant on 17th March 2016, and which was revoked by the court in its ruling of the 20th June 2019. This was the original grant issued to the appellant on the 22nd March 2016.

[12]It is clear from all the foregoing facts that the respondent is guilty of abuse of the court process which clearly led to defective proceedings for obtaining fresh grant of letters of administration intestate respecting the estate of the deceased after the revocation of the previous grant issued to the appellant. It would follow therefore that every action undertaken by the parties after the revocation of the original grant was invalid and a gross abuse of the court process for the main reason that this cause had long been closed by dint of the revocation of the original grant by the lower court.

[13] The remedy available to the parties was to petition afresh for new grant of letters of administration intestate rather than attempt, as they did herein, to obtain a fresh grant on the basis of a closed and invalid succession cause No.69 of 2016.

On the same premises, this appeal is nothing short of a misconception.

Ultimately, the appeal is dismissed and in exercise of the inherent powers of this court under Rule 73 of the Probate & Administration Rules, the certificate of confirmation of grant dated 9th February 2021 and issued in favour of the respondent is hereby revoked together with the purported amended grant of letters of administration intestate issued to the respondent on 3rd March 2021.

[14]All transactions undertaken on the strength of the said certificate of confirmation of grant be and are hereby declared null and void “ab initio” with the estate property being reverted back to the name of the deceased.

Ordered accordingly.

J.R. KARANJAH

J U D G E

[DATED & DELIVERED THIS 10TH DAY OF MARCH, 2022]