[2023] KEHC 25134 (KLR)

In re Estate of Julius Cheruiyot Ngeno (Deceased) (Succession Cause 3 of 2019) [2023] KEHC 25134 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25134 (KLR)

Republic of Kenya

In the High Court at Bomet

Succession Cause 3 of 2019

RL Korir, J

November 10, 2023

Between

Davis Kiprono Cheruiyot

Petitioner

and

David Kimutai Cheruiyot

1st Objector

Raymond Cheruiyot

2nd Objector

Ruling

1. Davis Kiprono Cheruiyot (the Petitioner) petitioned for Letters of Administration Intestate of the estate of Julius Cheruiyot Ngeno (deceased) through a Petition dated 29th January 2019.

2. The Grant of Letters of Administration Intestate of the estate of the deceased was issued by this court on 2nd July 2019 to the Petitioner, Davis Kiprono Cheruiyot.

3. David Kimutai Cheruiyot and Raymond Cheruiyot (the Objectors) sought to have the Grant revoked through the Summons for Revocation dated 8th November 2019 in which they relied on the following grounds: -I.Thatthe proceedings to obtain the Grant were defective in substance.II.Thatthe Grant was obtained fraudulently by making a false statement or by the concealment from the court of something material to the case.III.Thatthe Grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the Grant.IV.Thatthe procedure adopted in obtaining the Grant of Letters Administration was flouted.

4. The Application was supported by further grounds contained in the Supporting Affidavit sworn by David Kimutai on 8th November 2019.

5. Parties filed their respective witness statements, the documents they wished to rely upon and the case proceeded through viva voce evidence.

The Objectors’ Case. 6. The 1st Objector (David Kimutai Cheruiyot) filed his witness statement on 2nd March 2021 and gave sworn testimony in court. His position was that their father, the late Julius Cheruiyot Ngeno had one wife by the name Zeddy Ngeno with whom they got married in a church ceremony on 25th April 1953 and acquired property together which included Land Registration Numbers Kericho/Kimulot/146, Kericho/Kimulot/147 and Kericho/Kimulot/11 which were all registered in the name of their father.

7. It was the 1st Objector’s case that the late Anna Chepkirui Kitur (the Petitioner’s mother) was a shopkeeper in one of his father’s shops and after working for him for more than 10 years, as a token of appreciation, his father assisted her to acquire the property known as Kericho/Kimulot/1184 where she built a house and established tea farming and that was where she was eventually buried in 2005.

8. The 1st Objector stated that he did not recognize the 2nd family and that the estate was being administered by the Petitioner who was not a beneficiary or a dependant to the estate of the deceased.

9. It was the 1st Objector’s case that the Petitioner failed to obtain Consent from all beneficiaries as required by the law and that it was only proper that the Grant be revoked.

10. It was the 1st Objector’s case that he did not file Sotik Succession Case No. 74 of2018 which contained a Will.

11. The 2nd Objector (Raymond Cheruiyot) adopted his witness statement and gave evidence that mirrored the 1st Objector’s evidence.

The Petitioner’s Case. 12. The Petitioner (Davis Kiprono Cheruiyot) stated that the Grant was obtained lawfully after he followed the due process as required by law. That his desire was for the deceased’s estate to be distributed to all the beneficiaries and that neither house (house 1 and 2) should be disinherited. The Petitioner further stated that the present Application was a ploy by the Objectors and their siblings to disinherit the 2nd house.

13. It was the Petitioner’s case that the children from second house were the deceased’s children and that he did not conceal any information as his Petition recognized both houses and all the beneficiaries to the estate of the deceased.

14. The Petitioner called Patrick Kiprop Kimalel (Petitioner’s Witness Number 1) who testified that he was the chief of Chemalal village, Chemalal sub location, Konoin Sub County who testified that the deceased was his neighbour and had two wives, one Zeddy Ngeno and the other one was Ann Chepkirui and in total they had fourteen (14) children.

15. Ezekiel Leitich (Petitioner’s Witness Number 3), who was the deceased’s brother, Paulina Soi (Petitioner’s Witness Number 4), who was the deceased’s sister in law, Martha Ngeno (Petitioner’s Witness Number 7), who was the deceased’s sister in law and John Roberto Chepkwony (Petitioner’s Witness Number 8), who was the deceased’s neighbour who all testified that the deceased had two wives, Zeddy Ngeno and Anna Chepkirui and that both had children with the deceased.

16. Diana Cherono Ngeno (Petitioner’s Witness Number 9) testified that she was the deceased’s daughter from the second house and that her father took care of her and her other siblings by providing food, shelter and paying their school fees.

17. Kennedy Edward Bosire (Petitioner’s Witness Number 2) testified that he was the Land Registrar, Bomet County. He testified that the Objectors and their siblings had changed the Titles of the parcels of land known as Kericho/Kimulot/146, Kericho/Kimulot/147 and Kericho/Kimulot/11 to their names. That the entries made did not follow a legal process and amounted to intermeddling.

18. Emmanuel Karisa Kenga (Petitioner’s Witness Number 5) and No. 231671 Alex Mwongera (Petitioner’s Witness Number 6) all testified as document examiners and they testified in regards to the authenticity of the contested Will.

19. The Petitioner filed his written submissions dated 23rd February 2023 on 27th February 2023. He further filed his supplementary submissions dated 24th March 2023 on 28th March 2023. The Objectors on the other hand filed their written submissions dated 14th December 2022 on 24th February 2023.

20. Each party framed their issues for trial. The Objectors filed their list of issues dated 10th March 2021 on 25th March 2021 and they were as follows:-I.Whether the Petitioner is a beneficiary of the estate of Julius Cheruiyot Ngeno.II.Whether the Petitioner concealed material facts when applying for the Grant of Representation.III.Whether the Petitioner obtained consent from all bonafide beneficiaries of the estate of Julius Cheruiyot Ngeno when applying for the Grant of Representation.IV.Who are the beneficiaries of the Estate.V.Whether the Applicants complied with the Court Order in Bomet Citation Cause No. 10 of 2018. VI.Whether the Petitioner used defective supporting documents to file his Petition.VII.What order ought to be made in respect of costs herein.

21. The Petitioner on the other hand filed his list of issues dated 7th July 2021 on 8th July 2021 and they were as follows:-I.Whether the Petitioner and his siblings from the 2nd house (the house of the late Anne Ngeno) are the beneficiaries to the estate of Julius Cheruiyot Ngeno (Deceased).II.Whether the children of the 1st house of Zeddy Ngeno and 2nd house of Anne Ngeno were recognized as the children of the deceased and the issues settled vide a Consent Order in Chief Magistrate Court at Kericho in Civil Suit No. 244 of 2017III.Whether in the Chief Magistrate Court at Kericho CMCC No. 244 of 2017 Davis Kipronoh Cheruiyot vs David Kimutai Cheruiyot & 2 others it was recorded by Consent of both houses that both houses were the children of the deceased and an eulogy was entered that the late was married to two wives and all the children of the 1st house and that of the 2nd house were capturedIV.Did the deceased Julius Cheruiyot Ngeno die intestate or intestateV.That put differently is the purported Will of the deceased valid or invalid.VI.Is this an estate for sharing under section 40(1) of the Law of Succession Act Cap 160 Laws of KenyaVII.Whether the Objectors and the Petitioner respectively complied with the Orders of Bomet High Court Citation Cause No. 10 of 2018. VIII.Whether the Objectors David Kimutai and Raymond Kipchirchir Cheruiyot have intermeddled with the estate of the deceased and if so whether they should be ordered to account for the same.IX.What orders should be made on the costs of this cause.

22. Having considered the parties’ pleadings in the court record, their testimonies in court and their written submissions, I sieve three issues for my determination as follows: -I.Whether the deceased died testate or intestate.II.Whether the Petitioner and his siblings were dependants hence beneficiaries to the estate of the deceased.III.Whether the Application meets the threshold for the revocation of Grant within the meaning of Section 76 of the Law of Succession Act.

I. Whether the deceased died testate or intestate. 23. It was the Petitioner’s (Davis Kiprono Cheruiyot) case that the deceased died intestate. He however contended that there was a Will which was subject to proceedings in Sotik Succession cause 74 of 2018, proceedings of which I shall discuss in detail later on in this Ruling. It was his contention that the said Will did not include the 2nd house which included himself and his siblings. It was his further contention that the Will was a forgery.

24. The Petitioner submitted that there had been no appeal against the dismissal of the case in Sotik Magistrate’s Court. That in the Sotik Case, one objector, David Kimutai Cheruiyot alluded to the fact that a Will existed but in the present case, he disowned the said Will. That the Will was a forgery and an afterthought as it totally disinherited the children of the 2nd house. The Petitioner further submitted that the estate of the deceased was intestate.

25. It was the Petitioner’s submission that at the time of his death, the deceased suffered from senile dementia thus he had no capacity to make a valid Will. That during the Citation proceedings and the family meeting held on 17th February 2018, there was no mention of a Will.

26. On the other hand, the Objectors submitted that they did not know about the existence of a Will until Mr. Nyaingiri Advocate informed them of its existence. That both parties (the Objectors and the Petitioner) denied the knowledge of the Will and largely relied on the court proceedings which made it hard without the Original Will, to determine if the copies presented before Sotik Law Courts were certified copies of the Original Will. They further submitted that the executor (Mr. Nyaingiri) remained a stranger to them and they could not confirm the existence of the will or its validity.

27. It was the Objectors’ submission that they did not forge the Will. That the chain of custody of the purported Will was not established and there was no evidence to show that they took a pen and paper to prepare the Will and purport the same to be the Will and testament of their father. They further submitted that the evidence on the Will and its validity was inconclusive. That there was also no record of their instructions to any firm of advocates to file and prosecute on their behalf, a Petition for Grant of Probate of Written Will. They relied on Caroline Wambui Macharia & another vs Republic (2020) eKLR and Republic vs Agripina Wangari Thuo & 4 others (2020) eKLR.

28. I must state that the purported Will was not presented to this court during the trial for examination, nonetheless, I shall examine the evidence adduced by the parties touching on the Will.

29. Emmanuel Karisa Kenga (Petitioner’s Witness Number 5) testified that he was a forensic document examiner and that he was tasked to examine the Will. He testified that he was given the Will and three documents that were signed by the deceased so that he could compare the signatures. It was his finding that the signatures were not the same and were not from the same author. He produced a Forensic Examination Report that was marked as Petitioner’s Exhibit No. 6 which supported his findings.

30. When he was cross examined, Emmanuel Karisa Kenga stated that he did not have the original Will but used a photocopy which was clear enough for comparison.

31. No. 231671 Mr. Alex Mwongera (Petitioner’s Witness Number 6) testified that he was a document examiner. That he was given the same documents as Emmanuel Karisa Kenga and subjected them to machines to ascertain individual characteristics for identification including pen movement, pen lift, pen speed and initial and terminal strokes. He produced a Forensic Examination Report that was marked as Petitioner’s Exhibit No. 7 which stated that the signatures contained in the Will and the other documents that contained the deceased’s signatures were not made by the same author.

32. The Objectors on the other hand stated that they did not file a Will in Sotik Law Court and that the same was done by Mr. Nyaingiri Advocate without their instructions. They submitted that the purported Will was the subject of criminal charges in Criminal Case Number 3393 of 2019 in the lower court.

33. From my analysis of the evidence above, both parties could not establish the existence of a Will. PW5 and PW6’s testimonies only pointed out the fact that the purported Will was not signed by the deceased. In addition to the court doubting the existence of the Will, its validity if it was presented to this court, would be highly questionable particularly in view of the fact that the Objectors have disowned it. It is therefore my finding that there exists no Will for the estate of the deceased and thus he died intestate.

II. Whether the Petitioner and his siblings were dependants hence beneficiaries to the estate of the deceased. 34. It was the Objectors’ case that the Petitioner and his siblings were not beneficiaries to the estate of the deceased. The Petitioner on the other hand contended that they were beneficiaries to the estate of the deceased by virtue of being children of the deceased and his 2nd wife, Anne Ngeno.

35. It was not in dispute that the Objectors were the children of the deceased and his first wife Zeddy Ngeno. What was disputed was whether the Petitioner and his siblings were the children of the deceased hence beneficiaries to his estate.

36. From the outset, Section 3(2) of the Law of Succession Act provides that:-References in this Act to "child" or "children" shall include a child conceived but not yet born (as long as that child is subsequently born alive) and, in relation to a female person, any child born to her out of wedlock, and, in relation to a male person, any child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility.

37. I agree with sentiments of Onyiego J. in re Estate of JPN VG (Deceased) (2021) eKLR, where he held that:-“Under Section 3 (2) of the Law of Succession Act, a child in relation to succession proceedings includes, a biological child or a child born out of wedlock or any child legally recognized or accepted as one’s child for whom he has accepted voluntarily and assumed permanent responsibility. In the circumstances of this case, the deceased prior to his death had assumed full responsibility over the 2nd objector as his daughter. The DNA result will be immaterial since a child for purposes of succession need not necessarily be a biological child.” (Emphasis mine)

38. Section 29 of the Law of Succession Act defined a dependant as :-(a)the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;(b)such of the deceased's parents, step-parents, grandparents, 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(c)where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

39. The Petitioner stated that they were five (5) children from the union of the deceased and Ann Ngeno. He listed them as Davis Kiprono Cheruiyot, Joan Chelangat, Denis Kiplangat Cheruiyot, Norman Kipkirui Cheruiyot and Diana Cherono. He produced their birth certificates that were marked as Petitioner’s Exhibits 22 -26.

40. It was the Petitioner’s submission that they were beneficiaries to the estate of the deceased by virtue of being his children. That they were born out of the union of the deceased and Anne Ngeno and that they produced evidence in the form of birth certificates, and receipts. They also produced the deceased’s eulogy in which they were recognized and urged that the deceased spearheaded dowry negotiations and weddings for the Petitioner and his siblings as their father.

41. The authenticity of the birth certificates was not challenged during its production or during cross examination. The Objectors challenged their authenticity in their submissions. They submitted that the birth certificates for Joan Chelangat, Davies Kiprono Cheruiyot, Dennis Kiplangat Cheruiyot, Norman Kipkirui and Diana Cherono Ngeno were all issued three decades after their births and that they had glaring inconsistencies and as such they could not be relied upon to determine the relationship between the Petitioner, his siblings and the deceased. They relied on Section 8 of the Births and Deaths Registration Act.

42. It was the Objectors’ submission that the only conclusion they could draw was that the birth certificates were illegally and fraudulently obtained to advance the Petitioner’s cause. That the fact that they were produced in trial without an objection did not mean that the contents thereof could not be questioned. They further submitted that the Petitioner had not produced any other evidence to show how they obtained the certificates. They relied on Re Estate of Maxwell Mwangi Mwaniki (Deceased) (2019) eKLR where it was held that the protestor had not proved her case on a balance of probabilities regarding her relationship with the deceased.

43. I have looked at the birth certificates produced by the Petitioner is support of his case and they are prima facie evidence which shows that the Petitioner and his siblings were the children of the deceased. The Objectors did not lead evidence of fraud against the Petitioner and his siblings. They only submitted on the provisions of Section 8 of the Births and Deaths Registration Act which states that:-A registrar shall not register a birth or death after the expiration of six months from the date of such birth or death, except upon receiving the written authority of the Principal Registrar issued in accordance with the rules, and upon payment of the prescribed fee.

44. In the absence of any other evidence to the contrary and in the absence of proof of fraud in procuring the birth certificates, I find the birth certificates admissible as proof that the Petitioner and his siblings were the children of the deceased from the second house.

45. Additionally, as per section 3(2) of the Law of Succession Act, the deceased’s children for the purpose of succession do not have to be biological. I shall therefore look at and analyse the additional evidence adduced by the Petitioner in his bid to prove that the 2nd house (the Petitioner and his siblings) were children of the deceased.

46. Kiprop Patrick Chepkulul (Petitioner’s Witness No. 1) testified that he was a retired Chief in Chemalal village and that the deceased was his neighbour as they shared a land boundary. He testified that the deceased had two wives, Zeddy who had 9 children and Ann Ngeno who had 5 children. That he knew Ann Ngeno as the 2nd wife to the deceased as he saw them getting married. It was his further testimony that the deceased educated his children up to university and supported them until he passed on. He produced his letter dated 29th January 2018 which contained the two families of the deceased and the same was marked as Petitioner’s Exhibit 1.

47. When PW1 was cross examined, he stated that he knew the two families and that they stayed around 4. 5kms apart. He confirmed that he knew the families and they used to relate together. He however stated that he did not attend the marriage of Anne Ngeno but gathered that information from his in laws.

48. The role of chiefs in a succession cause is to assist the court in identifying the dependants of a deceased although some have erroneously arrogated themselves the responsibility of determining how a deceased’s estate should be distributed. On this point, I concur with Musyoka J. in re Estate of Mukhobi Namonya (Deceased) (2020) eKLR, where he stated:-“Before I get into the substance of the matter before me, it is critical that I deal with the importance of the letter from the Chief. It is not a requirement of the law, for it is not provided for in the Law of Succession Act, Cap 160, Laws of Kenya, nor in the Probate and Administration Rules. It was a device resorted to by the court to assist it identify the persons who survived the deceased, for the court has no mechanism of ascertaining the persons by whom the deceased was survived save by relying on officers of the former provincial administration, who represent the national government at the grassroots and are in contact with the people, and therefore, the best suited to assist the court identify the genuine survivors of the deceased.The Chief has no role in succession proceedings beyond what I have stated in paragraph 2. There is no role for the Chief to play in the distribution of the assets. He should simply give the court the names of the survivors, he has no duty of suggesting how the estate should be distributed. Distribution of an estate is the responsibility of the court, guided by the provisions of the Law of Succession Act and customary law, where the latter is applicable. A letter from the Chief, which does not identity the survivors of the deceased and just throws in names without identifying who those individuals were to the deceased, is of no utility to the probate court. The same case should apply to a letter that tells the court how to distribute the estate without identifying how the person to whom it purports to distribute the property to were related to the deceased.”

49. Similarly in Re Estate of Shem Kitanga (Deceased) (2018) eKLR Njagi J. ruled that:-“A succession cause starts with an introduction letter from the chief of the area where the intended Petitioner hails from. Though it is not a legal requirement, it is presumed the chief is well familiar with the family of the deceased person and can inform the court of the beneficiaries left behind by the deceased.”

50. Ezekiel Leitich (Petitioner’s Witness Number 3) who was the deceased’s cousin, Paulina Soi (Petitioner’s Witness Number 4) who was the deceased’s sister in law, Martha Ngeno (Petitioner’s Witness Number 7) who was the deceased’s sister in law, John Roberto Chepkwony (Petitioner’s Witness Number 8) who was the deceased’s neighbour, Diana Cherono Ngeno (Petitioner’s Witness Number 9), who was the deceased’s daughter and the Petitioner all testified that the deceased had two wives with Ann Ngeno being his 2nd wife and that he had children from both houses.

51. The Objectors on the other hand testified that they knew Ann Ngeno as the deceased’s employee who worked in the deceased’s shop. They stated that the deceased never cohabited with Ann Ngeno and that their father never discussed her in their family meetings. They did not call any witnesses to back up this claim.

52. It was the Petitioner’s submission that the Chief of Chemalal village where the deceased resided until his demise, wrote a letter dated 29th January 2018 and confirmed that the Petitioner and his siblings were the deceased’s children under the second household. That the aforementioned clan meeting had held that the deceased was married to Ann Ngeno through the Kipsigis Customary Law and that the deceased was the biological father to Ann Ngeno’s children.

53. The Petitioner submitted that it was not a coincidence that they all shared a surname. That the Objectors claim that they were strangers was meant to disinherit them.

54. On the other hand, the Objectors submitted that the Petitioner and his siblings were not dependent on the deceased prior to his death and as such they had no rightful claim to the deceased’s estate.

55. It was the Objectors’ submission that the deceased’s properties were acquired during the marriage of the deceased to their mother, Zeddy Ngeno. That during the years of her marriage, which was her lifetime, their mother did not envision that her property would vest in anyone else other than her children and the deceased.

56. The Objectors submitted that even though their mother predeceased their father, Section 35 of the Law of Succession Act vested a life interest on that property to the surviving husband and that he could not deal with that property to the detriment of his children’s rights to the said property as beneficiaries. That the properties could not be inherited by any other person other than Zedie’s children.

57. This court is of the view that the issue of the Objectors’ deceased mother’s estate was indeed a valid one. However, the same cannot be determined within the current Application for revocation of Grant.

58. From my analysis, I am not satisfied with the Objectors’ contention that they knew Ann Ngeno as their father’s shopkeeper and that their father neither cohabited with her nor discussed her in their family meetings. These statements are mere denials and allegations which have not been proved. The Petitioner on the hand was able to avail witnesses who were neighbours and close relatives of the deceased and their combined testimonies showed that the deceased had two wives and children from both houses. During cross examination, the Objectors’ seemed to focus a lot on whether the marriage between the deceased and Ann Ngeno took place or not and not whether the Petitioner and his siblings were children of the deceased.

59. The Petitioner stated that after the death of the deceased, the 1st house (the Objectors and his siblings) began side-lining them in the funeral preparations. That he sued them in Kericho CMCC No. 244 of 2017 and got an injunction stopping the deceased’s burial. He further stated that a clan meeting was then called by the Kimatage clan where the 1st Objector (David Kimutai Cheruiyot) had audience and gave his views. It was the holding of the clan meeting among others, that the Petitioner herein vacate the court injunction to enable the deceased be buried. The Minutes of the Kimatage Clan Meeting held on 5th November 2017 were produced and marked as Petitioner’s Exhibit 11.

60. The Petitioner further urged that as a result of the clan meeting, they filed a Consent dated 7th November 2017 in Kericho CMCC No. 244 of 2017 that would allow the burial of the deceased to go on. The Consent, also among others, stated that both families (of the Objectors and the Petitioner) would be recognized during the burial of the deceased and that the deceased’s body would be taken from the funeral home to the 2nd house at Kapkilabei for prayers before heading to the 1st house at Chemalal for an overnight stay before its interment. The Consent was signed by the advocates for the Objectors and the Petitioner and it was produced in court and marked as Petitioner’s Exhibit 16.

61. The Objectors stated that they were not involved in choosing the members who sat in the clan meeting and that they signed the Minutes because they were under duress and wanted to let the deceased rest in peace. That they signed for the purpose of a peaceful burial.

62. I do not find the above argument convincing because it would not be usual for a family to allow the body of their loved one to be transported to a stranger’s home for prayers before proceeding to his (deceased’s) home for an overnight stay and eventual burial. There must have been a basis for that decision, which to the mind of the court was a recognition of the Petitioner’s mother as the second wife of the deceased.

63. It is also salient to note that despite their alleged duress, the Consent in Kericho CMCC No. 244 of 2017 was not reviewed or appealed.

64. It is my finding based on the Objectors participation in the said clan meeting and the execution of the Consent that the Objectors are estopped by conduct from claiming that Ann Ngeno was not the deceased’s 2nd wife and the Petitioner and his siblings were not the children of the deceased.

65. The Petitioner produced receipts and they were marked as Petitioner’s Exhibit 27. The receipts showed that the deceased paid school fees and supported his children from the 2nd house. The authenticity of the receipts were not challenged upon production and the Petitioner was not cross examined on them.

66. With the totality of the evidence analysed above, I am satisfied that the deceased had two wives. That Ann Ngeno was his second wife and her children, the Petitioner herein, Joan Chelangat Ngeno, Denis Kiplangat Cheruiyot, Norman Kipkirui and Diana Cherono Ngeno were the children of the deceased and for the purposes of this suit, were beneficiaries of the estate of the decease; unless it was shown that any of them was born long after the death of the deceased in which case they would not be children of the deceased.

67. Having found the Petitioner and his siblings were the children of the deceased, there was no need to prove that they were under the maintenance of the deceased immediately prior to his death. In re Estate of the late Annelies Anna Graff (2019) eKLR, the court held:-“Section 29 (a) creates as special category of dependants who are dependants due to their relationship to the deceased. Here the wife, wives, former wife or wives and the children of the deceased are automatic dependants and it is immaterial whether or not they were being maintained by the deceased immediately prior to his death”.

III. Whether the Application meets the threshold for the revocation of Grant within the meaning of Section 76 of the Law of Succession Act. 68. The law on revocation of Grants is provided for in Section 76 of the Law of Succession Act which states that: -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.

69. Musyoka J. expounded on the application of section 76 of the Law of Succession Act expounded in re Estate of Prisca Ong’ayo Nande (Deceased) (2020) eKLR where he stated that: -“Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, 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. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or 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, becomes unqualified to hold any office of trust.”

70. It was clear therefore that the grounds upon which a grant may be revoked or annulled are statutory and it was incumbent upon any party making an application for revocation or annulment of a grant to demonstrate the existence of any, some or all the above grounds.

71. In the their Application for the revocation of the Grant issued to the Petitioner on 2nd July 2019, the Objectors stated that the Petitioner failed to disclose to this court that at the time of filing the current Petition, there were proceedings of a similar nature concerning the same estate in Sotik Law Courts, that there was a valid Will dated 8th March 2018 in the Sotik Law Court Proceedings, that the supporting documents used by the Petitioner were fraudulent and that the Petition as not duly executed and/or drafted in accordance to the law.

72. The Objectors submitted that while in litigation in Bomet High Court Citation Case Number 10 of 2018, they were informed that a Petition for Grant of Probate of Written Will namely Sotik Succession Cause 74 of 2018 had been filed by the firm of M/S Nyaingiri & Co. Advocates and for that reason they did not file a subsequent Petition as directed in Bomet High Court Citation Case Number 10 of 2018 due to the sub judice rule. That it was Mr. Thaddeus Martin Nyaingiri O’Momanyi, Advocate who sought audience with them and informed them that there was a Will dated 8th March 2017 in which he was the appointed executor.

73. The Objectors submitted that the Petitioner concealed material facts from this court. That his objection to the Sotik Succession Cause No. 74 of 2018 was filed on 29th May 2019 which was almost 5 months after he had filed his Petition in this court. That it was not in doubt that the Sotik case was filed first and that the Petition in this court offended the sub judice rule. They further submitted that the Petitioner in obtaining the Grant, had a duty to inform this court that there was a pending Petition before Sotik Law Courts.

74. The Petitioner stated that neither he nor his siblings were served with the Sotik Succession Cause and only chanced upon it after moving around courts in Kericho, Bomet and Sotik.

75. The Petitioner submitted that the Objectors failed to file and serve a Succession Cause and upon the expiry of 90 days, he moved this court by filing the instant Succession Cause. That Sotik Magistrate Succession cause No. 74 of 2018 was not filed and served in compliance with the orders of Muya J. The Petitioner further submitted that the Objectors created an untidy situation and they would want to benefit from their own wrong.

76. The Petitioner cited the Objectors in Bomet High Court Citation Number 10 of 2018 where the Objectors were cited to take out letters of administration of the estate of the deceased. In a Ruling dated 26th September 2018, Muya J. gave the Objectors (then Citees) three months to file succession proceedings failure to which the Petitioner (then Citor) would be at liberty to file the same, a month after the expiry of that three month period.

77. The Objectors in their present Application for Revocation of Grant attached an undated Petition for Probate of Written Will as “DK 2” being Sotik Succession Cause No. 74 of 2018. The copy attached in their Application was ineligible and as such, this court could not decipher the day it was filed.

78. The Petitioner (Davis Kiprono Cheruiyot) then filed his Preliminary Objection to the Sotik Succession Cause No. 74 of 2018 on 16th July 2019 and in a Ruling dated 24th October 2019, the trial court held that it had no pecuniary jurisdiction to handle the matter and downed its tools. The Petition in this court was filed on 28th January 2019.

79. The Petitioner claimed that he was not served the Sotik Succession Cause and the Objectors stated that the Sotik Succession Cause was filed without their knowledge or instructions. That the same was filed by Mr. Thaddeus Nyaingiri Advocate. In their submissions, they have disowned the Advocate. They were very categorical when they submitted that they did not instruct Mr. Nyaingiri to act for them and there was no evidence of such instructions.

80. From my perusal of the proceedings, it was clear that the Petitioner filed his Preliminary Objection on 16th July 2019 which was approximately 5 months after he had filed the current Petition before this court. It is also reasonable to state that the Petitioner complied with the Citation Ruling by Muya J. where he was at liberty to file succession proceedings, a month after the expiry of the three months that the Objectors had been given.

81. In the absence of proof of service of the Sotik Succession Cause to the Petitioner, it is my finding that the Petitioner was not served and that he proceeded to file the present Petition as per the Ruling of Muya J. in the Citation proceedings.

82. The Objectors opined that the Grant should be revoked because of the existence of a Valid Will dated 8th March 2018. I have already found earlier in this Judgment that there was no valid Will and at the risk of repeating myself, the Objectors themselves disowned the Will. This ground dies a natural death.

83. It was the Objectors’ case that the supporting documents used by the Petitioner were fraudulent and defective. The 1st Objector stated that the Petitioner obtained a fake death certificate dated 16th April 2018 while all along he was in possession of the burial permit dated 30th October 2017 and the deceased’s national identity card which he used to obtain the genuine death certificate on 11th October 2019.

84. The Objectors submitted that the deceased died aged 86 years and that he was a resident of Kimulot, Konoin and that the date of the registration of death was 27th November 2017. That a look at the Certificate of Death dated 11th March 2019 confirmed the same details. The said Death Certificate dated 11th March 2019 was produced in court and marked as Objectors’ Exhibit 3. They further submitted that the death certificate that the Petitioner relied on was issued at Kericho and indicated that the deceased was 90 years old and was a resident of Kisumu. That further according to the death certificate, the death was reported and registered on 19th December 2017.

85. The Petitioner in response, submitted that he applied for the deceased’s death certificate from the relevant authorities and was issued with the same. That his death certificate indicated the date of death as 30th October 2017 and not 19th December 2017 as alleged by the Objectors. That the date of 19th December 2017 was the date of registration. The Petitioner’s death certificate was produced and marked as Petitioner’s Exhibit No. 8.

86. The Petitioner submitted that the Objectors did not prove their allegations that his supporting documents were procured fraudulently. That fraud should not only be specifically pleaded but it should also be strictly proved. He relied on Ndolo vs Ndolo (2008) 1KLR, Vijay Morjaria vs Nansingh Madhusing Darbar & another (2000) eKLR and Kuria Kiarie & 2 others vs Sammy Magera (2018) eKLR. It was the Petitioner’s further submission that the standard of proof of fraud was higher than that of an ordinary civil case. He relied on Kinyanjui Kamau vs George Kamau (2015) eKLR.

87. The Objectors have alleged fraud and it is trite that fraud must be specifically pleaded and proved. In the case of Vijay Morjaria vs Nansingh Madhusingh Darbar & Another (2000) eKLR, the Court of Appeal held that:-“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from facts.”

88. Similarly in the case of Ndolo vs Ndolo (2008) 1KLR (G &F) 742, Court stated that:-“We start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the Respondent was making serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in criminal cases…….”

89. The Objectors did not cross examine the Petitioner on the authenticity of the death certificate when it was produced in court. They also did not lead evidence to show that the death certificate that the Petitioner used was a forgery or fraudulent. They only raised the fraudulent claims in their submissions. It is not enough to just claim fraud, it is salient that such claims are proved otherwise they just remain mere allegations.

90. It is my finding therefore that the Objectors did not prove the allegations of fraud levelled against the Petitioner and the death certificate he used. However, it remains a mystery to this court how two death certificates were issued by the same Government department in respect of one deceased. Further proof of the genuine certificate would be called for in the ongoing proceedings.

91. The final ground that the Objectors relied on was that the Petitioner failed to obtain consent from all beneficiaries as required by law. The Petitioner on the other hand stated that he filed the current Petition pursuant to and in compliance with the Citation Ruling hence no consent was required. That the petition had beneficiaries from both houses and no one was left out.

92. It was the Objectors’ submission that upon cross examination, the Petitioner confirmed that he never sought the consent of the Objectors and their siblings. That a party who petitioned for Letters of Administration Intestate needed to obtain written consents from all beneficiaries and in the instances where the parties proved unco-operative, they could be summoned or cited. It was their further submission that under Form 38 filed on 28th January 2019, only two people signed the Consent. They relied on Re Estate of Lesinko Sokorte Kiraiyo (Deceased) (2017) eKLR and Re Estate of Julius Mwai Wahome (Deceased) (2017) eKLR where Grants were revoked for a lack of Consent from all the beneficiaries and concealment of material facts respectively.

93. The Objectors submitted that the Grant issued to the Petitioner be revoked and that the 1st and 2nd Objectors be appointed administrators to the estate of Julius Cheruiyot Ngeno and they relied on in the matter of the Estate of Hannah Wambui Murigi (Deceased) (2018) eKLR and in the matter of Samuel Kimalel Tanui (Deceased) (2020) eKLR.

94. The Petitioner on the other hand stated that some members of the family did not sign the Consent as they were not available and that they had given him the go ahead in a family meeting. He further stated that he did not seek consent from the first household as they were unapproachable and had the intention of defrauding them.

95. I have looked at and considered Form 38 where the Petitioner had included everyone from both houses. However, I note that out of the whole two houses, only two people from the second house i.e. Denis Kiplangat Cheruiyot and Norman Kipkirui Cheruiyot signed the Consent. No one from the first household signed the Consent. Rule 26 (1) and (2) of the Probate And Administration Rules, 1980 provides that:-(1)Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.(2)An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.

96. The effect of the above provisions is that where a person is applying for a grant of letters of administration intestate, he must get consent from persons of equal or lower priority than him. In the present case, the beneficiaries from the 1st house and those from the 2nd house other than the Petitioner had equal priority to the Petitioner in the claim against the deceased’s estate by virtue of being the deceased’s children.

97. The question then becomes, is the lack of Consent from all the beneficiaries listed in Form 38 fatal? In re Estate of Eston Nyaga Ndirangu (Deceased) (2021) eKLR, Njunguna J. held that:-“………..I have perused the court record and I note that consent to the making of a grant of letters of administration intestate which was filed contemporaneously with the petition was only made by two beneficiaries (being Joyce Ngithi Nyaga and Julius Kinyu) and wherein they were giving the consent to one John Ndii Nyaga, Kennedy Nyaga and Lucy Wanjiku Nyaga (3rd respondent). There is no consent as to the other brothers and sisters having consented to the grant being given to the 1st and 2nd respondent. It is my view therefore that the said grant was obtained pursuant to proceedings which were defective in substance. The respondents ought to have obtained consent from all the other brothers and sisters. In Antony Karukenya Njeru –vs- Thomas M. Njeru [2014] eKLR, a grant of letters of administration was revoked as persons with equal priority did not consent to the petitioners therein applying for grant of letters of administration. (See also In the Matter of the Estate of Muriranja Mboro Njiri, Nairobi H.C. Succ. Cause No. 890 of 2003).It is my considered view therefore that the failure by the respondents more so the 1st and 2nd respondents to obtain the consents from the other siblings makes the proceedings of obtaining the same to be defective in substance and the said grant ought to be revoked and a new grant issued to the applicants.”

98. Similarly in re Estate of Jeremiah Njoroge (Deceased) (2021) eKLR, Onyiego J. held that:-“From the above case law, it is appreciated that consent from the requisite beneficiaries was not sought. Is this a ground for revocation of the grant? The answer is in the affirmative……”

99. I am persuaded by the above authorities and in accordance with Rule 26 of the Probate and Administration Rules, 1980. By the Petitioner’s own admission coupled with the above authorities, I find that the process used to obtain the Grant dated 2nd July 2019 by the Petitioner was defective in substance as he did not obtain Consent all the beneficiaries to the estate of the deceased.

100. The Petitioner identified intermeddling as an issue for determination. It called evidence of various witnesses and submitted extensively on the same. This court has noted that the said evidence and submissions. However, this court will not make a determination on the issue of intermeddling as it was made aware of Bomet Criminal Case Number 3393 of 2019 where the Objectors, David Kimutai Cheruiyot and Raymond Cheruiyot were charged with intermeddling in properties that were the subject of these succession proceedings.

101. In the final analysis, It is my finding that the Grant issued to the Petitioner Davis Kiprono Cheruiyot was obtained by defective means as he did not obtain consent from all the beneficiaries of the estate of the late Julius Cheruiyot Ngeno. It fell foul of the provisions of Section 76 of the Law of Succession Act and cannot stand.

102. I note that this is an old matter involving two households. It is in the interest of justice that the Grant be issued to two representatives of both houses to ensure a just and expeditious disposal of the matter. In the end, I make the following final orders:-i.Julius Cheruiyot Ngeno (Deceased) died intestate and for the purposes of the present proceedings had two households.ii.The Grant issued to Davis Kipronoh Cheruiyot on 2nd July 2019 be and is hereby revoked and re-issued in the names of David Kimutai Cheruiyot and Davis Kiprono Cheruiyot representing the 1st and 2nd households respectively.iii.The joint administrators shall file in this court, a full and accurate inventory of the estate of the deceased.iv.The joint administrators shall take the necessary steps towards agreeing on the mode of distribution and bringing summons for confirmation of the Grant issued herein.

Orders accordingly.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 10TH DAY OF NOVEMBER, 2023. R. LAGAT-KORIRJUDGERuling delivered virtually in the presence of Ms. Martin holding brief Mr. Arusei for the Petitioners, Mr. Kiamba for the Objectors and Siele (Court Assistant)