[2022] KEHC 11960 (KLR)

In re Estate of Josephat Kumaruti Mukonyi (Deceased) (Succession Cause 651 of 2012) [2022] KEHC 11960 (KLR) (13 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11960 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 651 of 2012

WM Musyoka, J

May 13, 2022

IN THE MATTER OF THE ESTATE OF JOSEPHAT KUMARUTI MUKONYI (DECEASED

Judgment

1. The estate herein relates to the estate of Josphat Kumaruti Omukonyi, who died on June 21, 2001. According a letter from the Chief of Shianda Location, dated June 6, 2011, he was survived by a widow, Josca Olucho Okumaruti; a son, Peter Lumbasi Kumaruti; and three daughters, Linet Nechesa Mubo, Phanice Juma Kumaruti and Eunice Machio Wanyama. He died possessed of East Wanga/Eluche/1XX. Representation to his estate was sought in a petition filed in Mumias SRMCSC No 63 of 2011, on September 8, 2011, by the widow, Josca Olucho Okumaruti. She listed the survivors as the five individuals named in the Chief’s letter, and listed East Wanga/Eluche/1XX as the property that the deceased died possessed of. A grant of letters of administration intestate was made to her on September 28, 2011, and I shall refer to her hereafter as the administratrix. The grant was confirmed vide an application in Mumias SRMCSC No 63 of 2011, and but the confirmation orders were made, on that application, on February 26, 2013 by Dulu J, after the matter was transferred to the High Court, as Kakamega 651 of 2012. A certificate of confirmation of grant was issued, dated March 12, 2013. East Wanga/Eluche/1XX was shared out between Josca Olucho Okumarati 8 acres and Wesonga Lwamba Makari 1 acre.

2. A summons for revocation of the grant, dated March 9, 2015, was lodged at the registry. It was brought at the instance of Peter Lumbasi Okumaruti. He sought that the grant revoked, and the transmission of the assets based on the confirmation orders reversed. He complained that the proceedings to obtain the grant were defective and were stained by fraud and concealment of matter. He complained that he was not allocated a share in the estate, and that Wesonga Lwamba Makari was not a survivor of the deceased or a person beneficially entitled to a share in the estate. In the affidavit in support of the application, sworn on March 9, 2015, he averred that he was the only son of the deceased, and, therefore, eligible to a share in the estate. He said he was unaware of the proceedings leading up to the confirmation of the grant. He complained that the administratrix did not include all the children of the deceased in the process, and the estate was distributed in a manner that disinherited some of the heirs.

3. The application was responded to by Wesonga Lwamba Makari, one of the beneficiaries at confirmation, through an affidavit that he swore on April 23, 2015. He conceded that he was he not an heir, but had acquired interest in the estate as a purchaser, having bought 1 acre of East Wanga/Eluche/1XX from the administratrix, to finance the succession process. He said that he became a co-petitioner to secure his interest. He averrred that the applicant was always aware of the proceedings, and even attended court in the run-up to the confirmation of the grant. He stated that he had not disinherited the beneficiaries of the estate, in the sense that the administratrix held the rest of the estate, measuring 8 acres in trust for the children of the deceased, who included the applicant. He said that the East Wanga/Eluche/1XX was sub-divided in order to have what was due to him transferred to his name. He asserted that the applicant was aware of the sale to him. He attached a copy of the sale agreement of 1 acre from East Wanga/Eluche/1XX to him by the administratrix. The agreement was dated July 30, 2011.

4. When the application dated March 9, 2015 was came up before the Judge, on December 10, 2015, it was resolved by consent. The certificate of confirmation of grant dated March 12, 2013 was cancelled, and East Wanga/Eluche/1XX was distributed afresh, so that Jesca Oluochi Okumaruti got 3 acres, Wesonga Lwamba Makari 1 acre and Peter Lumbasi Okumaruti 5 acres. A fresh certificate of confirmation of grant was issued in those terms, dated to December 10, 2015.

5. On August 28, 2017, Peter Lumbasi Okumaruti, filed a Motion, dated July 16, 2017, in which he sought that the executive officer of the court signs the necessary forms to facilitate transmission of the property as per the certificate of confirmation of grant dated December 10, 2015. He complained that the administratrix had failed to execute the relevant forms, hence the application. The application was served, but there was no response to it, and I granted the orders sought on July 16, 2018.

6. The orders of July 16, 2018 appear to have sparked or prompted the filing of an application dated July 17, 2018. That application was filed at the instance of Linet Nechesa Mubo. I shall refer to her hereafter as the applicant. She seeks revocation of the confirmed grant, stay of the order made July 16, 2018 and preservation of East Wanga/Eluche/1XX pending fresh distribution. The grounds on the face of the application are that the grant was obtained fraudulently by the making of false statements and concealment from court of important matter, the proceedings to obtain the grant were defective and the cause was filed secretly.

7. In her affidavit in support of the application, sworn on July 17, 2018, she avers to be a daughter of the deceased, and to have been present in court on July 16, 2018 when the court made the order. She says that she was present with her advocate, who was unable to address the court, as she had not filed any papers. She avers that East Wanga/Eluche/1XX was 9 acres. She states that the distribution of the estate as per the confirmation orders was unacceptable to her, as she and her siblings had been excluded from inheriting the estate of their late father. She asserts that it was unfair that only her mother and two others had been listed a survivors and beneficiaries of the estate. She lists the rightful beneficiaries and their shares as follows: Josca Olucho Okumaruti 2 acres, Peter Lumbasi Okumaruti 3 acres, Linet Nechesa Mubo 1 acre, Phanice Juma Okumaruti 1 acre, Eunice Wanyama 1 acre and Wesonga Lwamba Makari 1 acre. She states that the administratrix intended to defraud her and deny her the portion of the land she had purchased and occupied, yet retaining the purchase money that she had paid for it.

8. The applicant swore a further affidavit on September 24, 2018, principally to correct the impression created in her affidavit of July 17, 2018, that she was a purchaser of property from the deceased, rather than being a daughter of the deceased. She asserts that she is fighting for her inheritance, and not enforcing rights of a purchaser.

9. Upon being served, the persons named in the application, as respondents, filed their respective replies to the application. The replies by Eunice Mapesa Wanyama, Josca Oluoch Okumaruti and Juma Phanice Kumaruti, by way of affidavits sworn on September 24, 2018, are uniform and are all on all fours with the supporting affidavit that the applicant swore on July 17, 2018, save that all three aver that they were not represented in court on July 16, 2018, when the orders that prompted the filing of the revocation application were made.

10. Peter Lumbasi Okumaruti swore an affidavit on May 17, 2019 in reply. He avers that the applicant was at all times aware of the succession cause, and even attended court on December 10, 2015, when the grant was confirmed. He states that he was aware that the administratrix, working together with the applicant, disposed of 1 acre of East Wanga/Eluche/1XX to Wesonga Makari. He argues that the applicant had not explained to the court how she came to be aware of the proceedings. He states that there was no need to interfere with the grant as the applicant was only complaining about distribution. He further states that after the grant was confirmed, 4. 5 acres were disposed of to one Kennedy Nabuko Lubanga, East Wanga/Eluche/1XX and the land was demarcated and developed, and the orders sought would expose the buyers to prejudice. He argues that the application is coming too late in the day, as the applicant did not object when the grant was applied for at the lower court, nor file appeal after the confirmation orders were made. He finally states that the court had already made a determination as to whom the grant was to be made, and who the beneficiaries of the estate were. He has attached a copy of a sale agreement dated July 30, 2011 between Josca Olucho Okumaruti and Wesonga Lwamba Makari, where 1 acre was disposed of. The witnesses to that sale included the applicant. He has also attached a second sale agreement, made on March 8, 2014, between Peter Lumbasi Okumaruti and Kennedy Nabuko Lubanga disposing of 2 acres. There is a third sale agreement between Peter Lumbasi Okumaruti and Kennedy Nabuko Lubanga, dated December 20, 2014, disposing of ½ acre. There is a fourth agreement, dated March 16, 2016, between Peter Lumbasi Okumaruti and Kennedy Nabuko Lubanga, disposing of 1 acre.

11. The administratrix swore another affidavit on February 25, 2020. She avers that she participated in the confirmation proceedings, but she was ignorant, and due to lack of knowledge, she had excluded some of the beneficiaries of the estate. The rest of the affidavit is a repetition of what she averred in her affidavit of September 24, 2018.

12. Directions were given on July 15, 2019, for disposal of the application dated July 17, 2018 by viva voce evidence. The oral hearing happened on January 20, 2021. The applicant, Linet Nechesa Mubo, was the first on the witness stand. She testified that the deceased was her father and also of Eunice, Phanice and Peter Lumbasi; and the husband of the administratrix. He died possessed of East Wanga/Eluche/1XX. She said that she did not know why she was not involved in the succession process. She asserted that all the female children of the deceased were not involved. She stated that she was illiterate. She stated that she was not aware that the land was sold to anyone. She said that Wesonga Lwamba assisted the administratrix with the succession matter, and the administratrix was to give him 1 acre for that assistance, and she that explained why he was given that 1 acre at confirmation. After that Peter Lumbasi came in and was allocated 5 acres. She said that Peter applied to have a court official sign the papers, but she did not attend court at the time. She stated that she did not attend court on July 16, 2018 when the order to that effect was made. She said she did not know who was using the 3 acres allocated to the administratrix, and denied leasing the 3 acres out. She said that she had no objection to Lwamba Makari getting 1 acre. She further said that her daughter was not given a share of the land. She further said that she was not in court when Peter Lumbasi came to court to challenge the matter.

13. Juma Phanice Kumaruti followed. She testified that the daughters of the deceased were not involved in the process. She said that the administratrix had been chased out of the land by their brother, Peter Lumbasi, and that it was only he who was using the land. She said that she was not in court at the confirmation of the grant, and that it was after she heard about it that she came to court. She further said that she was not in court on July 16, 2018. She said that Wesonga Lwamba Makari was a buyer to whom the administratrix had sold a portion of the land, to pay school fees for a child of Peter Lumbasi, and she had no objection. She further said that by the time the deceased died in 2001 he had not sold his land to anyone. During cross-examination, she stated that when the grant was confirmed, and the administratrix was given 8 acres, she did not oppose, but she objected in 2015 when she was given 3 acres. She stated that she did not know whether Peter Lumbasi had sold 2. 5 acres. She said that she attended court on July 16, 2018, specifically to object to the administratrix getting 3 acres. She said that they had been told that there was a case in court, but had not been told what was coming up. During re-examination, she said that the appearance on July 16, 2018 was about the administratrix signing transfer forms without their knowledge. She said that she swore an affidavit to state that she was objecting, and that she was not aware of what was happening. She said that, according to succession law, the property ought to have been devolved upon the administratrix, and thereafter to the children.

14. Eunice Mapesa Wanyama followed. She described herself as the last born child of the deceased. She said that she was not involved in the succession proceedings, and that at confirmation the estate was shared out between the administratrix, Wesonga and Peter Lumbasi. She said that she did not agree with that distribution. She said that the deceased had not sold any of his lands before he died. She also said that there were persons who were working on the land, but she did not know who they were. She said that she learnt of the succession proceedings in 2020, otherwise before then things were being done in the dark. She said that as a family they did not know what was happening. She said that she did not attend court in 2018, when Peter filed some application.

15. The administratrix, Josca Oluoch Okumaruti, testified next. She explained that Wesonga Lwamba Makari was the person who gave her money to undertake the succession she said Peter Lumbasi Okumaruti was here son. She said that he really troubled her. She said that although she was the administratrix, it was Peter Lumbasi who sold the land after confirmation, without involving her. She said that she did not involve Peter in the succession proceedings, as they did not relate well, and he used to beat her. She testified that Peter chased her away from home. She said that she did not leave out any of her children, but the perosns who drew the papers are the one who left them out. She said that she did not oppose Linet getting her share of the estate. She stated that the deceased had not sold the land before he died. She said that when she was given 3 acres, she did not accept that. She said that she did not know who was using the 3 acres. She said she should be given 3 acres and Peter 2 acres, adding that if the 3 acres are given to her daughters, she would have nowhere to till. She said that all her children knew that she was doing succession, except Peter because he did not like her. She said she had not given Peter a share initially because he had chased her away from home, two months after the deceased died. She stated that it was the applicant who used to bring her to court, and was with her everywhere over everything. She said that she did not want the status quo if it meant she retain 3 acres. She said she wanted to get 6 acres and Peter 1 acre. Alternatively, Peter could be given 1 acre and the balance shared by the rest. She then said she should get 4 acres and the children share the rest.

16. Wesonga Lwamba Makari followed. He said that he bought land from the deceased in 2013, and he got a title deed for it. He said that he has never used the land, and that it was Peter Lumbasi who was using it. He later said he bought the land from the administratrix and not from the deceased. He said that the applicant knew that he had bought the land. He said that he was to get the land after the succession proceedings, and, therefore, the applicant knew about the proceedings. He said that there was a challenge to the initial distribution, and the same had to be repeated. He said that he did not know Kennedy Lubanga, asserting that he was the sole purchase of the estate asset, adding that he did not know of any other buyers.

17. Peter Lumbasi Okumaruti followed. He stated that the administratrix initiated the succession proceedings without involving him. He objected, and the distribution exercise was repeated, whereat he was given 5 acres, the administratrix got 1 acre and Lwamba got 1 acre. He said that all the acres were intact. He then sold 4. 5 acres of his share to Kennedy Lubanga because of school fees, and remained with 0. 5 acre. He asserted that it was the applicant who was using the 3 acres meant for the administratrix and the 1 acre meant for Lwamba. He said that she began to use those portions before the deceased died. He said that if his share was reduced to 3 acres he would not be able to refund Kennedy. He urged the court to stick to the previous distribution, so that he can retain the 5 acres. He stated that the administratrix and the deceased were not on good terms. They disagreed, the administratrix was chased away and returned only after the deceased died. He confirmed that the second distribution, which involved him, excluded the three daughters, but the daughters were aware of the proceedings. He stated that he sold 4. 5 acres to Kennedy Lumbasi. He said that as the court had distributed the property, he did not agree with the proposals by the applicant. He said he did not oppose the daughters of the deceased getting their share, because the law allowed them to. He said that he was in occupation of his portion.

18. Mourice Baraza Oranga followed. He testified that he had a power of attorney from Kennedy Nabuko Lubanga. He said that the donor had bought a portion of East Wanga/Eluche/1XX from Peter Okumaruti, measuring 4. 5 acres, where he planted wheat, maize and trees. He opposed distribution afresh. He said that the land was sold to them after confirmation. He said that as at the date of sale, the property was still in the name of the deceased. He said that he knew about the children of the deceased, but added that he did not know whether the daughters of the deceased had not been provided for. He said that the daughters had a right to get their share of the land.

19. At the close of the oral hearing, the parties were given time to file written submissions. The applicant filed written submissions, dated November 6, 2021; and so did Peter Lumbasi Okumaruti, dated October 28, 2021. In her written submissions, the applicant cites sections 51(2)(g) and 66 of the Law of Succession Act, Cap 160, Laws of Kenya, and decisions in Stephen Marangu M’itirai vs Silveria Nceke & 4 others eKLR (JA Makau J), Jesse Karaya Gatimu vs Mary Wanjiku Githinji [2014] eKLR (Ngaah J) and Matheka & another vs Matheka [2005] 1 KLR 455 (Omolo, O’Kubasu & Onyango Otieno JJA), to make the point that omission of a section of the survivors of the deceased and beneficiaries of the estate is a solid ground for revocation of a grant.

20. The application for determination is premised on section 76 of the Law of Succession Act, Cap 160, Laws of Kenya. The said provision states as follows:“Revocation or annulment of grant A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—(a)that the proceedings to obtain the grant were defective in substance;(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either—(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or(ii)to proceed diligently with the administration of the estate; or(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(e)that the grant has become useless and inoperative through subsequent circumstances.”

21. Under section 76, a court may revoke a grant so long as the case is brought within the grounds listed above, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. In the first place, it would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation were not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant of letters of administration intestate was made instead of a grant of probate or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator thereafter got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, unqualified to hold any office of trust.

22. In the instant case, the applicant anchors her case on the first general ground, that there were issues with the manner the grant was obtained. She has raised arguments about the process of obtaining the grant having had challenges. She states that the administrator had not disclosed all the survivors of the deceased and beneficiaries of the estate, and the resultant distribution resulted in a disinheritance of those excluded.

23. The framework for applications for grants of representation is set out in section 51 of the Law of Succession Act. The most relevant portions, for the purpose of this application, are in subsection (2) (g), which state as follows:“Application for Grant(1)…(2)Every application shall include information as to—(a)…(b)…(c)…(d)…(e)…(f)…(g)in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased;(h)...”

24. My understanding of section 51(2) (g) is that the petitioner is required to disclose all the surviving spouses and children of the deceased, and any grandchild of the deceased whose own parent is dead. The provision is in mandatory terms.

25. In the petition filed herein, the administratrix disclosed herself as the widow of the deceased and the four children of the deceased, that is to say, the son, Peter Lumbasi Kumaruti, and the three daughters, Linet Nechesa Mubo, Phanice Juma Kumaruti and Eunice Machio Wanyama. There is consensus that the five made up the immediate family of the deceased. All five were listed in the Chief’s letter, and the group of five was transported into the petition. It cannot, therefore, be argued that the administratrix had not disclosed the applicant and her sisters as daughters and, therefore, heirs in the estate of the deceased.

26. It could be they were not notified of the proceedings, but being notified of the proceedings and not being disclosed in the proceedings are two different things. Being notified of the proceedings has something to do with right or entitlement to administration, and is governed by Rules 7(7) and 26 of the Probate and Administration Rules. However, these provisions are only relevant with respect to petitions by persons who have a right or entitlement which is inferior or lesser to that of those not applying. The rules require the petitioners to obtain consents of or renunciations by persons with a superior or equal right or entitlement to administration, or to issue citations to persons with such superior right or entitlement. In this case, the petition was at the instance of the administratrix, a widow of the deceased. She had a prior right or entitlement to administration over her children, the applicant included. She, therefore, was not bound to comply with Rules 7(7) and 26 of the Probate and Administration Rules. See In re Estate of Job Kibiwott Tanui (Deceased) [2016] eKLR (Kimondo J, In re Estate of Mary Karugi Mwangi [2018] (Meoli J),In re Estate of Kageto Gitome (Deceased) eKLR (Muigai J), In re Estate of Gamaliel Onyiego (Deceased)[2018] eKLR (JA Makau J), In re Estate of Peter Ambani Mataywa (Deceased) [2019] (Musyoka J) and In re Estate of George Muriithi Gitahi (Deceased)[2019] (Nyakundi J).

27. The principal complaint appears to be with respect to distribution of the estate, that the estate was distributed in a manner that did not include all the beneficiaries. As stated above, the estate herein was distributed twice. The first distribution was vide an application dated April 18, 2012. The sole estate asset was proposed for distribution to the administratrix and Wesonga Lwamba Makari, at the ratio of 8:1. The grant was confirmed on February 26, 2013. There were only two individuals in court that day, the administratrix and her Advocate, Mr Otinga. The four children of the deceased were not in attendance. The second distribution was ordered on December 10, 2015. The same was not founded on any confirmation application, but on a summons for revocation of grant, dated March 9, 2015, which had been brought by Peter Okumaruti, the son of the deceased. The orders on distribution were made on a date when the matter was coming up for directions on the disposal of the revocation application. The attendance on December 10, 2015 was by the Advocates by the administratrix, the applicant in the application for revocation, that is Peter Lumbasi, and Peter Lumbasi himself. The daughters of the deceased were not present. As the daughters did not feature in any of the proceedings when distribution was ordered, it is no surprise that they came up with the revocation application dated July 17, 2018, although their principal complaint is on distribution, and not the manner in which the grant was made.

28. Were the proceedings on distribution in order? Distribution of an estate is ordered through a confirmation application. The law on that is section 71 of the Law of Succession Act and Rules 40 and 41 of the Probate and Administration Rules. The proviso to section 71, as read together with Rule 40(4), is that the administrator, applying for distribution, must satisfy the court that they have properly ascertained the persons beneficially entitled to a share in the estate and have properly ascertained the shares due to such beneficiaries. The effect of it is that the court then incurs a duty to be satisfied, before it confirms the grant, that the administrator asking for confirmation has properly ascertained the persons beneficially entitled to a share in the estate and the shares due to such beneficiaries.

29. This business, of the administrator satisfying the court and the court being satisfied that the persons beneficially entitled and their shares had been properly ascertained, is of critical importance in the confirmation process, and the failure to get the satisfaction ought to vitiate the process. The court in In the Matter of the Estate of Ephrahim Brian Kavai (Deceased) Kakamega HCSC No 249 of 1992 (unreported) (Waweru J), asserted that the requirements of the proviso to section 71(2) of the Law of Succession Act are in mandatory terms, and that failure by the court to satisfy itself, that the persons beneficially entitled to a share in the estate and their shares had been properly ascertained, by the administrators applying for confirmation, renders any orders made on the confirmation of the grant, and the resulting certificate of confirmation of grant, illegal. The court stated that the confirmation process in intestacy is not a mere formality, where a grant is simply confirmed because the six months timeline, stated in the law, has expired, rather it is the most important aspect of intestate succession. It was observed that most of the disputes in succession proceedings would be avoided were the court to properly handle the confirmation process. (See also In the Matter of the Estate of Benjamin Ng’ono Mbati alias Ng’ono Mbati (Deceased)Kakamega HCSC No 77 of 2014 (Musyoka J) (unreported) and In the Matter of Mutialo Silwale (Deceased) Kakamega HCSC No 258B of 2011 (Musyoka J) (unreported).

30. What the court ought to be satisfied about, which places a corresponding duty on the administrator to place material before the court so as to satisfy it so, is as to whether all the persons who are beneficially entitled to a share in the estate have been ascertained, and that the shares due to them have also been ascertained. Persons beneficially entitled, in the context of intestate succession, refers to two categories. The first is that of the immediate surviving members of the family of the deceased, often referred to as survivors. These are set out in sections 35 to 39, in Part V, of the Law of Succession Act. These include the surviving spouse, children, parents, siblings, grandchildren, and so forth, of the deceased. The court should be satisfied that these have been ascertained properly, in terms of the administrator properly identifying the persons who have survived the deceased. The second category is that of creditors, mentioned in sections 39 and 66 of the Law of Succession Act, whether they take the form or character of pure creditors or buyers of the assets of the estate from the deceased. They could be described as liabilities or purchasers also. The general term for both groups is beneficiaries, that is persons who have a beneficial interest in the estate. The beneficial interest of the surviving family members arises naturally from their filial relationship with the deceased, while that of creditors or liabilities has something to do with the transactions that they had had with the deceased. For the first group, where there are doubts, proof that they were members of the family of the deceased would suffice. For the second group, in case of a contest, proof of the transactions they had with the deceased would suffice. In allocating shares, what is available for distribution is the net intestate estate, and it would mean that the liabilities and creditors have to be settled first, and the surviving family members shall then share the net intestate estate thereafter, in the manner set out in sections 35, 36, 38 and 39 of the Law of Succession Act.

31. Rule 40 gives guidelines on what ought to be contained in the affidavit in support of the application for distribution of the estate, otherwise known as the application for confirmation of the grant. Rule 40(3) requires that, in that affidavit, the applicant ought to give particulars of the children of the deceased. Rule 40(6) requires or permits any person who wishes to object to the proposed distribution to file an affidavit of protest. That provision presupposes that whoever wishes to protest would be aware of the filing of the application, and that awareness can only be brought to the potential protestor by the person filing the application. The potential protestors would, ideally be the persons referred to in Rule 40(4), as beneficially entitled to a share in the estate, and that would the categories that I have discussed in the foregoing paragraph. Without notice that the application has been filed, the persons beneficially entitled, such as the children of the deceased, would have no reason to file a protest when they have no knowledge in the first place that an application proposing distribution had been filed. So, the first duty of the administrator-applicant is to bring to the notice of the persons beneficially entitled of the filing of his application. Rule 40(8) envisages that where no protest has filed the court will consider the application on the basis of a consent in writing by all the dependants or persons who are beneficially entitled to a share in the estate, in Form 37. This is critical. Rule 40(8) is telling the court that where there is no protest, it may proceed to confirm the grant, based on a consent executed in Form 37, by the dependants of the deceased or the persons beneficially entitled to the estate, including the children. The court is being told, before approving any proposed distribution, look out for a consent in Form 37, duly executed by the persons beneficially entitled to the estate, who should include the children of the deceased, if any. Rule 41(1) is also relevant. It provides for what should happen at the confirmation or distribution hearing. The court is required to read the application, the affidavits and the protests, and then hear the applicant, the protestor and any other person interested. Any other person interested would be any other person beneficially interested in the estate, like the children of the deceased, who is not protesting or who has not filed any papers taking one position or other on the proposed distribution. Such a person beneficially interested in the estate, can only be present at distribution if they had been given notice of the distribution hearing. Cumulatively, the proviso to section 71(2) and Rules 40(3) (4) (6) (8) and 41(1) presuppose that the confirmation application will have been served on all the persons beneficially interested or, at least the same is brought to their attention, so that they can file affidavits of protest or execute the consents in Form 37 or attend at the hearing of the confirmation application so that the court can hear them. Failure to involve the persons beneficially entitled to a share in the estate, such as the children, is fatal to the application, by dint of the proviso to section 71(2), as interpreted in In the Matter of the Estate of Ephrahim Brian Kavai (Deceased) Kakamega HCSC No 249 of 1992 (unreported) (Waweru J).

32. Was there compliance with the proviso to section 71(2) and Rules 40 and 41? The summons for confirmation of grant, dated April 18, 2012 did not comply with Rule 40(3), which is in mandatory terms, which requires that the particulars of the children of the deceased ought to be given in the affidavit sworn in support of the confirmation application. Although the administratrix had listed the four children of the deceased, in her affidavit in support of the petition, dated September 8, 2011, she did not list their names in the confirmation, application, yet they were the principal persons beneficially entitled to a share in the estate of the deceased, for the deceased had died intestate, and was survived by a widow and children, who were entitled to share the estate in terms of section 35 of the Law of Succession Act. The consequence of the failure to comply with Rule 40(3) was that the administratrix had failed to comply with the proviso to section 71(2) and Rule 40(4), which required her to satisfy the court that she had properly ascertained the persons beneficially entitled to the estate and their shares. The particulars of the children were not given in the affidavit, contrary to what is required under Rule 40(3), and the children were not provided for at all in the distribution, and no explanations were offered for their exclusion from benefit.

33. In addition to that, Rule 40(8) was not complied with, for the application was not accompanied by a consent in Form 37. As stated above, Form 37 is executed in support of the proposed distribution, by the persons who are beneficially entitled to a share in the estate, and who have not protested. The four children of the deceased had not filed any protests to the application. Never mind that there is no evidence that they were ever served with the application. The absence of protest affidavits by the children presupposed that they were not opposed to the proposed distribution, which, then, should have triggered compliance with Rule 40(8), the filing of consents in Form 37, duly executed by the said children. Rule 40(8) is in mandatory terms. The confirmation application was heard on February 26, 2013. The children were not in attendance, as persons beneficially entitled or interested in the estate. Again, Rule 41(1) was not complied with.

34. The said non-compliances must have prompted the son of the deceased to file his summons for revocation of grant, dated March 9, 2015. As stated above, the said application was compromised, on a date when it was coming up for directions, December 10, 2015, by having the distribution of February 26, 2013 tinkered with so as to make provision of Peter Lumbasi. Did that cure the problems of the distribution ordered on February 26, 2013? It did not. Firstly, Rule 40(3) still remained uncomplied with. The revocation application had been brought by only one of the four children of the deceased. It was only that one child of the deceased who was in court on December 10, 2015, and the alteration of the distribution orders of February 26, 2013 only favoured that one child. Whatever the court was trying to cure by its orders of December 10, 2015 only partially dealt with the problem, for the other three children of the deceased were not ascertained and their shares determined. They were not heard, contrary to Rule 41(1), and they were not given a chance to file their representations, contrary to Rule 40(6). The distribution ordered on 10th December 2015 was unlawful, so long as it disinherited the three children, without hearing them. When the court chose to convert the mention for directions, on the disposal of the revocation application, into a forum for distributing the estate, it should have realized that it was bringing itself within the realm of section 71 of the Law of Succession Act and Rules 40 and 41 of the Probate and Administration Rules, and it should have remained faithful to and sought compliance with the principles set out in those provisions, for it was no longer handling a revocation application at that stage, but a distribution process.

35. Of course, I do note that the three disinherited children are daughters. They must have been deliberately overlooked because of their gender, on the basis of the cultural mindset that daughters are not entitled to share in the intestate estate of their departed father. Well, that position belongs to a bygone era. The deceased herein died on June 21, 2001, long after the Law of Succession Act had come into force in 1981. He died intestate, and therefore, his estate is for distribution in terms of Part V of the Law of Succession Act. Sections 32 and 33 of the Law of Succession Act allow some room for application of customary law to intestate estates of persons dying after 1981. Unfortunately, that window is very narrow. It covers only a very small section of Kenya, which excludes Kakamega County. Consequently, the intestate estates of persons, dying and owning property within Kakamega County, are wholly subject to Part V of the Law of Succession Act. The distribution proposed to children of intestates under sections 35 and 38 of the Law of Succession Act is to the children of the deceased, not to the sons of the deceased. The reference to children in those provisions means that the said provisions are gender neutral. No distinction is made between male and female children, whether married or unmarried. It presupposes equal treatment of such children. The deceased herein was survived by a son and three daughters. These were the children of the deceased for the purposes of succession to his estate. Under sections 35 and 38 of the Law of Succession Act, they should take equally.

36. What I have said above, regarding the provisions of sections 35 and 38 of the Law of Succession Act, should be taken together with the provisions of the Constitution of Kenya, 2010. Article 27 provides for equality and freedom from discrimination. It asserts, at Sub-Article (1), that every person is equal before the law and has the right to equal protection and equal benefit of the law Sub-Article (3) reinforces it, by stating that women and men have the right to equal treatment, including the right equal opportunities in political, economic, cultural and social spheres of life. The constitutional principles enshrine the policy and law stated in the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to which Kenya is a signatory, and which has the force of law in Kenya, by dint of Article 2(5)(6) of the Constitution. Women are to be treated equally with men, and without any form of discrimination based on their gender, is the bottom-line. The three daughters of the deceased are women, who should have the benefit of Article 27 of the Constitution and the principles spelt out in CEDAW.

37. I believe that I have said enough to demonstrate that the proceedings relating to distribution of the estate of the deceased herein were fundamentally flawed. They trampled on the rights of the daughters of the deceased, and completely disinherited them. The daughters have a valid cause to have the distribution ordered earlier revisited, to correct the injustice visited on them.

38. The question that I have to ask myself is whether there would be any justification for me to revisit the distribution to correct the injustice, given that what is before me is a summons for revocation of grant. The discretion given to the court, under section 76 of the Law of Succession Act, is to revoke grants under certain circumstances. I have dealt with this here above. There are three general circumstances. One is where there were problems with the process of obtaining the grant. Either the process was defective for the reasons that I have discussed above or the process was tainted by fraud and misrepresentation. The second is where the grant was obtained through a clean process, but then the administrator ran into challenges in the administration of the estate. He would be in trouble for failing to apply for confirmation of grant within the timelines set out in sections 71 and 73 of the Law of Succession Act, that is six months after its making or within one year of its making. There would also be trouble, where he fails to exercise diligence in the administration of the estate, like failing to collect or get in assets, or to do such things as are expected of him as administrator. It could be because he is required to render accounts of his administration, and he fails to do so. The third, is where the grant becomes useless and inoperative, due to the death or bankruptcy or incapacitation of the sole administrator.

39. In the instant case, the applicant appears to rely on the first general ground or circumstances, problems with the process of obtaining of the grant. I have looked at the record, and from my conclusions above, I have not seen any circumstance that would suggest that the grant was obtained irregularly. The applicant says that she and her siblings were not disclosed. That is not true. They were listed in the petition. It can only mean that the applicant is not referring to the process of obtaining the grant, but that of its confirmation.

40. Is the fact there were problems with the process of confirming the grant a ground for revocation of the grant? I do not think so. The provisions of section 76 make confirmation of a grant an issue, that could lead to its revocation, only where the administrator fails to apply for confirmation of his grant within the timelines stipulated. The grant, made to an administrator, who applies for its confirmation within the stated timelines, but which application is bedeviled by the flaws and non-compliances that I have discussed above, is not available for revocation under section 76. What should be available for scrutiny and revisiting would be the orders on confirmation or distribution made in that flawed confirmation process, by way of either appeal or review, but not through a revocation application. For that reason, the revocation application before me, dated July 17, 2018, is not properly conceived. The applicant ought to have sought review of the orders made on December 10, 2015. I shall, accordingly, not revoke the grant as sought by the applicant.

41. However, all is not lost. The court can still exercise the inherent power saved under Rule 73 of the Probate and Administration Rules, as well as Article 50 of the Constitution of Kenya, 2010, to revisit the distribution, for the court should not turn its face away from the obvious injustice visited upon the daughters of the deceased through the orders on distribution that the court made on February 26, 2013 and December 10, 2015. The said orders should be set aside, and I do hereby do order their setting aside. The consequence is that the certificate of confirmation of grant, dated December 10, 2015, is hereby cancelled, and all transactions, carried out based on it, are hereby nullified. I shall not proceed to re-distribute the estate based on the proposals before me, lest I fall into the same pit as my predecessors, instead I shall direct the administratrix to file a fresh application for confirmation of her grant, in which she shall involve the four children of the deceased, and all other persons beneficially entitled, and she shall ensure strict compliance with the provisions of section 71 of the Law of Succession Act and Rules 40 and 41 of the Probate and Administration Rules. Each party shall bear their own costs. There is leave, of twenty-eight days, for any person, aggrieved by the orders that I have made herein above, to lodge appeal at the Court of Appeal.

42. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 13th DAY OF MAY 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Ms. Wilunda, instructed by EA Wilunda & Co., Advocates, for the applicant.Mr. Mukisu, instructed by Mukisu & Co., Advocates, for Peter Lumbasi Okumaruti.Mr. Namatsi, instructed by Namatsi & Co., Advocates, for the administratrix.