[2022] KEHC 13123 (KLR)

In re Estate of Kimaiyo Arap Keter (Deceased) (Succession Cause 17 of 2021) [2022] KEHC 13123 (KLR) (19 September 2022) (Ruling)

Neutral citation: [2022] KEHC 13123 (KLR)

Republic of Kenya

In the High Court at Kapsabet

Succession Cause 17 of 2021

EKO Ogola, J

September 19, 2022

Between

Mary Jemutai & 4 others

Applicant

and

Mary Jelagat Keter

Respondent

Ruling

1. The petitioner herein petitioned this court for a grant of letters of administration intestate which were issued on July 17, 2009. What is pending before this court is a summons for revocation of grant dated January 26, 2010. The applicants seek the following orders;1. The grant of letters of administration issued to Mary Jelagat Keter on July 17, 2009 be revoked.2. Costs of this summons be awarded to the applicants/objectors.

2. The summons is based on the grounds that the grant was obtained fraudulently by making of a false representation and through concealment of material facts. The applicants further contend that the petitioner is not a person entitled to apply for a grant of representation over the estate of the deceased person. The summons is further grounded on the claim that the petitioner has sold and leased part of the estate and that the proceedings were defective in substance.

Applicant’s Case 3. The applicants dispute the allegations by the petitioner that she was married to the deceased as per the Nandi customary law. They aver that they ought to have been present at such a function but they categorically stated that the ceremony never happened and it is a fabrication of the respondent and her witnesses to circumvent justice.

4. Citing section 29 of the Law of Succession Act, the applicant submitted that the 2nd and 3rd applicants are the children of the deceased and therefore rank in priority in inheriting the estate of the deceased and this fact is acknowledged by the respondent at paragraph 6 of her replying affidavit. He averred that it is trite law that, in succession proceedings properties/assets are intended to be inherited by the children of the deceased and any surviving spouse(s) are only entitled to enjoy a life interest on the net intestate save for the personal and household goods which they inherit absolutely as enshrined at section 35 (l) (a) of the Law of Succession Act.

5. According to the applicants, the respondent did not disclose that the deceased had issues from the unions he had with his deceased wives. She wittingly misrepresented herself as the only widow to inherit the capital assets of the deceased to the detriment of all the rightful beneficiaries of the deceased.

6. The entire household of the deceased comprises of two houses and the 1st house is comprised of 2 issues while the 2nd house is comprised of 4 issues.

7. Citing Jamleck Maina Njoroge v Mary Wanjiru Mwangi(2015) eKLR the applicants submitted that the proceedings to obtain the grant were defective in substance for having been done in secrecy and without the knowledge and involvement of the true beneficiaries of the deceased, the applicants herein. They also relied on ISB v MS &another; ZSM & 3others (interestedparties) (2021) eKLR where the court held;“Under section 51(2) g the petitioner is required to disclose all the surviving spouses and children of the deceased The provision is in mandatory terms...The law makes very clear provisions that an administratrix is obliged to disclose the children of the deceased and the children of any of them who had died. This is required because, as a surviving widow, one is not entitled absolutely and exclusively to the intestate estate of her departed husband. If anything, she is entitled to only to a life interest over the property, for the ultimate destination of the property of the deceased is not to her bin to the children of the deceased. Her entitlement to absolute access to the estate is limited to personal and household goods, but not to capital assets, which are destined to the children. It is about a parent passing property on to his or her descendants but not to his or her contemporaries or ascendants."(emphasis ours)

8. The applicants produced as annexures MJ 2 (a) & (b) copies of official search showing land parcels numbers Nandi/Ngechek/469 and Nandi/Ngechek/496 were registered in the name of Kimaiyo Arap Keter, the deceased herein in 1996 and 1975 respectively. They also produced a sale agreement dated 10/9/2002 as annexure MJ 3 between the respondent Mary Jelagat Keter and Paul Karan for the said property yet she did not have the capacity to sell the estate before confirmation of the grant. According to them, therefore, the sale was null and void. They relied on section 82 (b) (ii) of the Law of Succession Act and in Re Estate of Isaac Kaburu Marete (Deceased) (2017) eKLR and in Re Estate of Agwang Wasiro (Deceased) (2020) eKLR.

9. The applicants asked that the grant of letters of administration made in favour of Mary Jelagat Keter ought to be revoked to avert the disinheritance of the rightful dependants of the deceased, Kimaiyo Arap Keter.

Respondent’s Case 10. The respondent opposed the application vide a replying affidavit filed on March 4, 2020 and submissions on June 27, 2022.

11. It was the respondent’s case that according to Cotran in his book Restatement of African Customary Law at page 119, the following are the essentials of a valid marriage under Nandi customary law:a)Capacity. the parties must have capacity to marry and also the capacity to marry each other.b)Consent. the parties to the marriage and their respective families must consent to the union.c)Ratet. no marriage is valid unless the ratet ceremony is performed.d)Kanyiok (bride price). there can be no marriage unless there is an agreement to pay Kanyiok.e)Commencement of cohabitation. the moment at which a man and woman become husband and wife legally is when they commence cohabitation, i.e. when the bride moves to the bridegroom’s house.

12. The respondent submitted that DW1 Johana Kipkoech Arap Kogo testified that he performed the Nandi customary marriage between the petitioner and the deceased herein around November, 1988. DW2 the petitioner, testified that the pre-wedding otherwise known as koito was conducted prior to the wedding at her home. She testified that the deceased’s first wife Tapyontin Chepchumba was present during the ceremony. The issue of bride price was discussed and the deceased paid 4 cows and sheep to her parents. The evidence of the objectors did not displace the above facts. In any event, it reinforced the position that the petitioner was married to the deceased herein. They confirmed that she lives on the suit land to date. Her children also live on the suit land.

13. The petitioner’s exhibit No 2, the affidavit of Mary Jemutai which was sworn in 1998 in support of petition for grant of letters of administration in Eldoret High Court succession cause No 58 of 1998 listed the petitioner as a widow and her children as the children of the deceased. The listed children are the children of the petitioner with the deceased and was acknowledged by the objectors. This piece of evidence is crucial as it came 12 years later in 2010 when the objectors decided to challenge the marriage of the petitioner to the deceased.“40. section 107(1) of the Evidence Act, chapter 8o of the Laws of Kenya, provides that:“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”.41. Mabeya J in Safarilink Aviation Limited v Trident Aviation Kenya Limited & Another (2015) eKLR, stated that:"...failure to rebut evidence tendered by one party leaves the court with no option but to draw an inference that the facts as presented are true..."42. The objector has proved on a balance of probabilities that she got married to the deceased under the Nandi customary law and that their marriage was blessed with two issues and thus her and her children are dependants of the deceased and are therefore entitled to a share of his Estate in accordance with the provision of section 40 of the Law of Succession Act. Her case succeeds.”

14. The totality of the evidence points to a conclusion that the petitioner was duly married to the deceased and is therefore entitled to inherit the estate of the deceased together with her children.

15. The respondent cited section 66 of the Law of Succession Act which provides the order of priority of persons to be considered as administrators before the court can issue a grant of letters of administration. She also relied on rule 7 (7) of the Probate and Administration Rules, 1980 and stated that she had a right to apply for the grant in priority and did not need to seek the consent of the objectors herein when doing so.

16. She urged that although the objectors have alleged that Sarah Cheptoo was a wife to the deceased, the petitioner has disputed this fact and has adduced evidence to show that she was not married to the deceased including the fact that she was buried at her parents’ home at a place called Segut. According to the petitioner, the said Sarah Cheptoo was not married to the deceased and had no children with the deceased and therefore her children are not entitled to inherit the estate of the deceased.

17. With regard to the sale of land, she submitted that Rosebella Missiong bought 15 acres from the deceased and the proceeds of purchase were used to discharge parcel number Nandi/Ngechek/469 from AFC where the deceased had taken a loan and used the title deed as security. She had a case with the objector herein being Kapsabet LDT 71/97 where the court adopted the decision of the tribunal to award her 15 acres of Nandi/Ngechek/469. It is therefore not true that the petitioner sold the land to her.She asked that the application be dismissed with costs.

Issues For Determination 1) Whether the grant of letters of administration should be revokedWhether the grant of letters of administration should be revoked

18. Section 76 of the Law of Succession Act states as follows:“76. 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.”

19. The court further expounded on the provisions of section 76 in re Estate of Prisca Ong’ayo Nande (deceased)[2020] eKLR where it was 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.”

20. The applicants’ contention is that the petitioner was not married to the deceased and as such is not a person suitable to apply for the grant. I note that the petitioner filed a replying affidavit on March 4, 2020 wherein she stated that she was married to the deceased when he had one wife called Tapyontin Chepchumba Keter who had two issues. The petitioner knew of Sarah Cheptoo as a neighbour, and she was not the second wife to the deceased otherwise she would not have been buried in her maternal home.

21. The petitioner also brought to the attention of the court the existence of miscellaneous application 230 of 1998 wherein the aapplicant herein had acknowledged her as the widow to the deceased. I have perused the pleadings and the same is annexed as annexure MJK-1, and marked as exhibit 1.

22. DW1, Johana Kipkoech adopted his statement dated October 29, 2018 wherein he stated that he was a specialist in Nandi customary marriages and that he conducted the wedding between the deceased and the respondent on November 1998. The respondent produced a letter from the area district officer wherein the chief acknowledged the petitioner/respondent as the widow to the deceased.

23. Section 66 of the law of Succession Act provides;Preference to be given to certain persons to administer where deceased died intestateWhen a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—(a)surviving spouse or spouses, with or without association of other beneficiaries;(b)other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by part v;(c)the public trustee; and(d)creditors:

24. The applicants have not produced any evidence that there was a marriage between the deceased and Sarah Cheptoo. This is further compounded by the fact that she was buried in her maternal home and not where she was married. They failed to prove that the petitioner was not a widow to the deceased. The upshot of the foregoing is that the petitioner had the requisite capacity to petition the court for a grant of letters of administration. Further, she has priority over the rest of the beneficiaries to petition for the grant.

25. The applicants claimed the petitioner sold part of the estate and failed to account for the proceeds to the beneficiaries. The estate comprises of land parcel numbers Nandi/Ngechek 469 and 496. Annexed as MJ2 (a) and MJ2 (b) are the certificates of official search for the respective parcels. I also take note of the sale agreement annexed as MJ3 dated September 10, 2002 purporting to sell 6. 5 acres of land parcel number Nandi/Ngechek 496 one Paul Karan. I am hard pressed to find that the parcel of land was sold off as the official searches were conducted in 2009 whereas the agreement is purported to have been made in 2002. It is evident that there has been no change in ownership. From the evidence on record, it is clear that the petitioner has not sold off any part of the estate.

26. On the issue of the inclusion of Rosebella Missiong as a beneficiary to the estate, the respondent contended that the deceased sold her 15 acres of land himself. In her witness statement Rosebella Missiong stated that she has been in occupation of the said land to date. Further, that the deceased sold the land to her to settle loan arrears he had with the AFC. None of the parties state which part of the parcels of land from which this 15 acres was sold. There is also no sale agreement provided as evidence that the sale was made. This therefore begs the question; does the application for revocation of grant meet the threshold? I think not. Given that the petitioner did not know the facts as to the exact parcel of land that was purchased, she cannot have concealed material facts. She disclosed the facts to the best of her knowledge. Further, Rosebella Missiong has occupied the property she purchased to date which in the absence of a purchase, even in the lifetime of the deceased, would not have been allowed.

27. In the premises I find that the application is unmerited and dismiss the same. Parties to bear their own costs.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 19TH OF SEPTEMBER 2022. E. K. OGOLAJUDGE