[2022] KEHC 14988 (KLR)

In re Estate of Juma Kaminza Kilumbi (Succession Cause 2 of 2017) [2022] KEHC 14988 (KLR) (2 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14988 (KLR)

Republic of Kenya

In the High Court at Kitui

Succession Cause 2 of 2017

RK Limo, J

November 2, 2022

IN THE MATTER OF THE ESTATE OF THE LATE JUMA KAMINZA KILUMB

Between

Rukia Abdallah

Citor

and

Zuhura Juma Kaminza

1st Citee

Rehema Juma Kaminza

2nd Citee

Halima Juma Kaminza

3rd Citee

Musa Juma Kaminza

4th Citee

Ruling

1. Before this court is S.R.G dated 10th May, 2012 applied for by Rukia Abdalla, the applicant herein. The summons for revocation of grant relates to the estate of the late Juma Kaminza Kilumbi who died on 16th January 1994 domiciled in Kyangwithya, Kitui County.

2. The Petition for letters of administration was lodged by the widow Mariam Kaele Kiminza (now deceased) and the only asset listed as forming the estate was that the parcel known as Kyangwithya/Kaveta/303 measuring about 1. 3ha. The list of dependants left behind by the deceased were listed as follows: -i.Mariam Juma –widowii.Mwanahawa Jumaiii.Rehema Jumaiv.Halima Jumav.Jaftari Jumavi.Musa Jumavii.Ramadhan Juma (deceased 28. 04. 1998)viii.Abdallah Juma (deceased 16. 03. 2007)

3. The Petitioner, Mariam, Kaele Kaminza (now deceased) was appointed the administratrix of the estate of deceased in this cause vide letters of administration issued on 24. 02. 2009 vide Kitui Principal Magistrate Court Succession CauseNo. 19 of 2008.

4. The record from the lower court shows that the grant was confirmed on 24. 03. 2010 by consent of beneficiaries and the estate distributed as follows:-a.Mariam Kaele Kaminza -0. 28hab.Zuhura Juma Kaminza-0. 19 hac.Jafari Juma Kaminza-0. 20 had.Rehema Juma Kaminza-0. 19 hae.Halima Juma Kaminza-0. 20 haf.Musa Juma Kaminza-0. 18 hag.Mahmoud Abdalla Mohamed-0. 06 ha

5. Rukia Abdallah has now applied for revocation of grant citing the following grounds namely: -a.That the proceedings to obtain the grant was defective.b.That the grant obtained was through fraud and false representation.c.That the monetary value of the estate exceeded the jurisdiction of the Lower Court because the value of the estate exceeded Kshs. 8 million.

6. In her affidavit sworn on 10th May, 2012, the applicant avers that the grant was obtained without her knowledge yet she was the daughter in law of the deceased having been married to Abdalla Juma Kaminza a deceased son of the deceased.

7. She further claims that Mahmoud Abdalla Mohamed is a stranger to the deceased yet he was listed as a beneficiary and argues that the administratrix deliberately excluded her yet she is a rightful and lawful heir to the estate of deceased.

8. In her oral evidence in court, she testified that she was lawfully married to Abdalla Juma Kaminza a deceased son to the late Juma Kaminza a deceased son to the late Juma Kaminza. She stated that she was initially a Christian but converted to Islam after marriage to the said Abdalla Juma Kaminza.

9. She testified that her mother in law, the appointed administration discriminated her under pretext that she was not a Muslim and the claims that she was not married to Abdalla Juma properly as per Islamic Law, a claim she disputed.

10. She stated that when she learnt that the late administratirix had subdivided the original parcel (estate), she lodged a caution but despite that the same was removed mysteriously and secretly without notice to her and when this application was pending in court.

11. She testified that she has been in occupation of the estate and that the portion she occupies now cuts across the resultant subdivisions to wit parcel numbers 1820, 1821 and 1822. She averred that the petitioner’s intention was to quickly dispose the parcels because the value of the land had rose steadily due to the proximity of the estate to the newly constructed highway.

12. She further stated that as a result of the secret divisions and the disposals she has been rendered landless and displaced.

13. She claims that the purchase she named as Wazir Yusuf, Mary Nyambura and Tawfiq Juma were indifferent of the fact that she was in actual occupation of the parcels they purchased and accused them of acting without due diligence and impunity.

14. She further claims that she and her children face imminent threat of eviction unless orders are issued in her favour.

15. She tendered a confirmation letter dated 25/05/2007 on indicating that she was legally married to the deceased, Abdallah Juma Kiminza (deceased) on 13th February, 2007 but had been living together as a couple since 1983.

16. She asked this court to find that she should get a share of her late husband in the estate stating that she took care of her late husband alone when he got unwell from 2003 to 2007 when he passed on. She further claims to have in occupation of part of the estate since 1983 after the deceased showed her and her late husband where to occupy and utilize. She contended under cross examination that some portions have since been developed by purchases but she could not tell who had developed stating that she was ignorant of how the purchases went in the first place.

17. When asked why she did not possess a marriage certificate, the applicant insisted that she was married to Abdallah and even showed her National Identity Card No. xxxx indicating that her names were Rukia Abdallah. She stated that she had witnesses to the marriage including one Maalim whom she says is the head of the Mosque where they worshipped.

18. She stated that they were united in marriage by Salim Maalim on 13th July, 2007 and that her late husband died on 16th July, 2007.

19. She accused her in laws of disinheriting her by disposing the estate to purchasers whom she has named as Interested Parties herein, namely Mary Nyambura Maina, Wazir Yusuf and Tawfiq Juma.

20. Waziri Juma (PW2) testified and told this court that he was a cousin to the late Abdallah Juma Kaminza adding that the applicant herein was a wife to the late Abdalla Juma. He stated that he was surprised when the family of Juma Kaminza Kilumbi left out the family of the late Abdalla Juma despite knowing the widow and and the fact that she lived in the estate with her children. He testified that the deceased gave that portion to the applicant and her late husband.

21. In her written submissions through the Learned Counsel A.M. Kilonzi & Co. Advocates, the applicant, contends that the Chief’s letter dated 15. 11. 2007 that accompanied the petition excluded Abdalla Juma Kaminza deliberately to lock the applicant out of the estate.

22. She contends that the adminstatrix in her summons for confirmation of grant also concealed the fact that applicant had an interest in the estate and that Mahamoud Abdalla Mohamed was listed as a dependent and not a creditor. According to the applicant the administratix through craft wanted to create an impression that Mohammed Abdalla Mohamed was the same as Abdalla Juma and that the same was done after the trial court had expressed misgivings about confirming the grant without the consent of all the beneficiaries. She submits that if the trial court was made aware that Abdalla Juma was deceased, the trial court would have asked the Area Chief to confirm if the said Abdalla had children or not.

23. She submits that she had exhibited the pictures of her house in an earlier application dated 17th July, 2018 and that there was no dispute of that fact and that Rehema Juma conceded to that fact in her statement.

24. She faults the respondents for secretly and mysteriously removing the caution she had placed on the parcel forming the estate and that the removal gave rise to numerous subdivisions of the estate.

25. The Respondents have opposed this application Rehema Juma Kaminza (DW1) testified that her late brother Abdalla Juma Kaminza was not married to the applicant herein.

26. According to her, the applicant and her deceased brother first cohabited for a short while before parting ways.

27. She testified that her late brother Abdalla was buried in the estate alongside her late father, the deceased in this cause. She testified that neither the applicant nor her children attended the burial of the late Abdallah Juma which in her view meant that they were not family members.

28. She stated that her late mother Miriam Kaele Kaminza distributed the estate among all the children of the deceased and sold the remaining shares to purchasers who have developed their plots.

29. She denied the applicant’s claim that she resides on the estate insisting that the applicant brought her children to the parcel number 1367 which she had sub-divided before transferring them to her 2 children Wazir Yusuf and Tawfiq Juma and a purchaser namely Mary Nyambura Maina.

30. She accuses the applicant of staking claim on her share of the estate faulting her of not joining purchaser’s like David Mutito Mumo, Wambua Munyao and Benjamin Masai Kunga.

31. She claims that the purchasers are not aware of the proceedings herein and it would not be fair to revoke the grant without giving them a chance to be heard. She however did not explain why she did not move the court for the necessary orders to join them in laws.

32. In her written submissions through their counsel J.K. Mwalimu & Co. Advocate, the respondents submit that the applicant was not legally married to Abdalla Juma Kaminza and that theirs is no presumption of marriage under Islamic Law submitting that they were justified to exclude her in the estate.

33. They submit that Mohamed Abdalla Mohamed was a creditor to the estate and lawfully got what he had purchased from the deceased.

34. This court has considered the applicant’s case and the response made. This is an application for revocation of grant. Section 76 of the Law of Succession Act provides as follows:-‘‘Revocation or annulment of grantA 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.’’

35. This application has raised the following issues for determination namely: -i.Whether the proceeding leading up to the issuance of grant were defective.ii.Whether the Lower Court was seized with the monetary jurisdiction to deal with the matter.iii.Whether there was concealment of material or misrepresentation made by the petitioner/administratrix.

36. (i)Whether the proceedings were defective.The record shows that the Petition for letters of administration was done at the Lower Court vide Kitui RM’s Court Succession Cause No. 19 of 2008. The proceedings indicate that the petition was duly gazetted as captured by the proceedings. The trial court noted that there was no objection filed and duly issued a grant of letters of administration on 19th February, 2009 to Mariam Kaele Kaminza. The grant was issued on 24th February, 2009 and was confirmed on 24th March, 2010. There is no defect in the proceedings pointed out by the applicant and this finds none in that regard.

37. (ii)Whether the Lower Court was seized with monetary jurisdictionThere is no dispute that at the material time, the monetary jurisdiction of the magistrate’s courts was limited to Kshs. 100,000 under Section 48 (now repealed) of the Law of Succession Act.The Applicant has not placed any evidence before me on the value of the estate despite deponing in her affidavit in support that the applicant estate was worth over Kshs. 8 million. I find that the parties and the applicant in particular surprisingly did not place weight on this crucial issue either during trial or vide her written submissions.The issue is crucial because it goes to the root of the petition filed. Having said that, this court has perused through the petition for letters of administration and in particular Form P & A 5 and that the Petitioner estimated the estate to be worth Kshs. 100,000 and though from the form there is some alterations it is not certain whether the alterations were done prior to the filing of the petition or mischievously after the summons of revocation of grant was filed.

38. In the absence of representations and submissions this court is unable to make a finding about the monetary value of the estate at the material time and am also unable to find that the trial court lacked monetary jurisdiction to deal with the matter.

39. (iii)Whether there was misrepresentation/concealment of material facts.This court has seen a letter from the Area Chief namely Fredrick Kitema dated 15th November, 2007 and the contents of the later the name of the late Abdalla Juma Kaminza is missing. The Petitioner in her petition as per Form P & A 5 also failed to state that the deceased left behind a son by the name Abdalla Juma Kaminza. The affidavit sworn on 28th May, 2007 is contrary to the information contained in a letter dated 7th November, 2007 by Kadhi which indicates that the deceased left behind a son named Abdalla Juma who died on 16th March, 2007.

40. This court has perused through the proceedings of the trial court and have noticed that the trial court noted on 24th March, 2010 that there were beneficiaries absent and those noted as absent included. Abdalla Juma Kaminza. The administratrix who was in court did not disclose that the said Abdallah Juma was deceased. The record shows that the trial court gave her time to clarify the anomalies regarding distribution of the estate and at 3PM she went back to court and claimed that she was illiterate but had written down the proposed mode of distribution which the trial court adopted. This court agrees with the applicant’s submission that the name of Mohamed Abdalla Mohamed was brought in as a beneficiary and may have misrepresented the true facts to the trial court and misled it into believing that the concerns earlier expressed about the beneficiaries left out and in particular Abdalla Juma had been catered for. The Late Mariam Kade Kaminza in her affidavit sworn on 20th December, 2012 avers that Mohamoud Abdallah was a purchaser who bought his parcel from deceased but I still find that there was concealment on the part of the administratrix in regard to the interests claimed by the applicant herein. She represented Mohammed Abdalla Mohammed as a dependant when she appeared in court on 24th March 2010 when she stated that all the beneficiaries were her children when the said purchaser was not. There were misrepresentations on her part.

41. This court is also persuaded on the evidence tendered that the applicant was married to Abdalla Juma and were living together as husband and wife on the estate of deceased if they were not formally married. The Respondents have tried to evade that fact by claiming that she only cohabited with the late Abdalla Juma but they have failed to explain how the applicant came into the estate and occupied the portion. Rehema Juma Kamunza states that she subdivided her portion and transferred the same to her sons. The fact that she subdivided that portion and sold part of it before transferring the other portions to her sons in my view shows that there was an attempt to evade justice.

42. Besides this, during trial, the said Rehema kept saying that her sons and the said purchaser Mary Nyambura were not parties yet all of them were properly cited by the applicant but failed to turn up in court to defend their positions.

43. This court is persuaded by the applicant that the removal of caution placed by the applicant to protect her interests in the estate may have been done irregularly and un-procedurally without notice to her. That issue is matter that should further be interrogated through a full trial for the interest of justice. This court cannot disregard the conduct of the respondents herein who from the very beginnings tried as much as they could to avoid addressing to the issues raised by the applicant with the excuse that the estate had been fully administered. This court finds that if the administration of the estate of the deceased was done unlawfully or irregularly the same cannot be sanitized by the fact that the administratrix who did the wrong cannot be called to account through the respondents. Under Section 76 a grant can be revoked at any stage even after the estate or portions of it has passed to 3rd parties. The legal procedures must at all times he followed.

44. It is apparent that after the applicant moved this court for revocation of grant, the administratrix and the respondents proceeded with haste to subdivide the estate and purported to dispose some of the resultant portions to third parties with a view to defeating any claim from the applicant whom they knew has a legitimate over the estate.

45. This court finds that the applicant has established and proved to the required standard in law that the administratrix concealed material facts and in particular her claim on the estate. She knew the applicant was residing on the estate and attempted to subdivide and transfer the portion she occupied with a view to disinheriting her. In the premises this court finds that it is in the interest of justice to invoke the provisions of Section 76 of Law of Succession Act in order to revoke the grant issued on19th February, 2009 and confirmed on 24th March, 2010. The grant is hereby revoked and all the consequential Orders including subdivisions and transfers are hereby reversed. The property shall revert back to the original Kyangwithya/Kaveta/303 and remain in the name of deceased pending distribution of the same in accordance with the law. This court further appoints Rehema Juma Kaminza and Rukia Abdalla as joint administratrixes to the estate of the late Juma Kaminza Kilumbi. I give leave to either of them to move this court for confirmation of grant before the expiring of 6 months in view of the age of the cause. All the interested parties to be served with any summons or motion. I will make no order as to costs so each party to bear own costs.

DATED, SIGNED AND DELIVERED AT KITUI THIS 2ND DAY OF NOVEMBER, 2022. HON. JUSTICE R. K. LIMOJUDGE