[2023] KEHC 19270 (KLR)

In re Estate of Kimwator Arap Boit (Deceased) (Succession Cause 65 of 1996) [2023] KEHC 19270 (KLR) (23 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19270 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 65 of 1996

JRA Wananda, J

June 23, 2023

IN THE MATTEROF THE ESTATE OF KIMWATOR ARAP BOIT (DECEASED)

Between

Chelimo Anna Matwor

Petitioner

and

Japhet Kipyego Kirwa

Objector

Judgment

1. Before this Court is the Application dated May 9, 2022 filed by the Objector through Messrs Bitok & Sambu Advocates. It seeks Revocation of the Grant issued to the Petitioner herein on August 22, 1996 and also Revocation of the subsequent Certificate of Confirmation of Grant issued to the Petitioner on June 18, 1997.

2. The Application is premised on the grounds that the proceedings to obtain the Grant were defective in substance, 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 and that it was obtained by means of an untrue allegation of a fact essential in point of law to justify the Grant.

3. The Objector also swore a Supporting Affidavit in which he deponed that he is the son of one the late Kirwa Matwor, who was the son of the late Kimatwor Arap Boit (deceased) whose estate is the subject of this Cause, the grant was issued on August 22, 1996 and confirmed on June 23, 1997, the Petitioner made an untrue allegation by describing herself as the widow of the deceased, the Petitioner is the widow of one Malakwen Arap Kebenei who was a child of the deceased, the deceased was survived by the following children; Kibusiob arap Keter, Kirwa Matwor, Malakwaen Arap Kebenei, Jepkemei and Priscilla Jesang.

4. The Objector swore further that the Petitioner concealed the names of the true beneficiaries to the estate and presented her own children as being the children of the deceased, during confirmation of the Grant the true beneficiaries did not attend Court nor provided consents for the same, at that time the children of the deceased were all still alive except Malakwen Arap Kebenei who was the husband of the Petitioner, the mode of distribution adopted was not agreeable to all the beneficiaries, the Grant was confirmed in the name of Asis Flowers Limited taking a substantial part of the estate yet the company is a stranger to the family, the Further Affidavit sworn on June 12, 1997 where the Petitioner purported to correct the earlier Affidavits maintained untrue statements where she listed her children as the children of the deceased, the Petitioner has now subdivided the suit parcel of land which constitutes the estate of the deceased being Nandi/Kokwet/601 into several portions and has begun disposing the same to third parties to the detriment of the estate, the same constitutes a material concealment of fact which entitles the Objector to seek revocation of the Grant.

Petitioner’s Replying Affidavit 5. The Petitioner opposed the Application and swore the Replying Affidavit filed on May 24, 2022. She was represented by Messrs Kipkorir Cheruiyot & Kigen Advocates. She deponed that the Grant was not obtained fraudulently neither was it confirmed pursuant to untrue statement of facts or concealment of material facts, the proceedings related to the distribution of land known as Nandi/Kokwet/601 to the rightful owners, the Petition erroneously designated the Petitioner as the wife of the deceased but the error was disclosed to the Court prior to Confirmation of the Grant and rectified vide the letter dated 8/05/1997 addressed to Court, the Chief’s letter dated March 26, 1996 had in fact clarified the issue, further in the Petitioner’s Further Affidavit dated June 12, 1997 the Petitioner also addressed the correction, the Petitioner presented the names of all the true beneficiaries and not those of the Petitioner’s own children as alleged, all the beneficiaries were present in Court including the Objector’s father Kirwa Matwor who agreed and consented to the mode of distribution, one Priscila the surviving child of the deceased is still alive and in her Affidavit dated 19/06/2022 confirmed that all the beneficiaries are satisfied and brought no complaint, the family consensually agreed that that the remaining 6 acres of Nandi/Kokwet/601 be allocated and transferred to the Petitioner to hold in trust for the family which she has done to date.

6. She deponed further that an Exchange Agreement had been concluded on 14/02/1996 before confirmation of the Grant with the consent of the entire family between one Philip Kiplelei Magut the owner of Asis Flowers Ltd and the Petitioner as the Administratrix of the estate through a family understanding, the exchange was for Nandi/Lelmokwo/432 and Nandi/Lelmokwo/83 measuring 3. 43 Hectares and 1. 4 Hectares both belonging to the said owner of the Asis Flowers Ltd with a portion of 12 acres comprised in Nandi/Kokwet/601 forming part of the estate, the Objector’s family and other family members of the deceased took over and occupied the exchanged parcels immediately after conclusion of the said Exchange Agreement around 1996 a fact which the Objector has not disclosed to the Court, after the exchange and in order to give out the exchanged portion to Asis Flowers Ltd, the Petitioner with the family’s authority applied for subdivision of the land parcel Nandi/Kokwet/601 into two portions of 12 acres and 6 acres, on 3/04/1996 the Petitioner was issued with letter of consent for the subdivision, 10 acres was transferred to Asis Flowers Ltd and 2 acres gifted to the Petitioner, the remaining 6 acres which came to be known as Nandi/Kokwet/873 was transferred to the Petitioner to hold in trust for the heirs of the deceased, at the Confirmation of Grant all beneficiaries agreed to the distribution, the Petitioner has not divided or started disposing the land parcel Nandi/Kokwet/601, she only made the Application for the subdivision aimed at enabling her to transfer the exchanged portion to Asis Flowers Ltd as per the Certificate of Confirmation of Grant.

7. The Petitioner added that the Objector is not specific on his claim over the estate but only seeking revocation of the Grant without any specific reason, he should come clear on what portion he is claiming and the reasons for the claim, the objector’s father Kirwa Matwor who allegedly died on 28/02/2014 did not during his lifetime make any claim since the Confirmation of Grant in the year 1997 which is a period of 17 years, from the time of the death of the Objector’s father in 2014 to date, no objection was also made which is a period of 8 years, this is a cumulative period of 25 years since the Grant was confirmed, the Objector had used the name of Priscilla Jesang to file the Application dated 16/03/2021 but the said Priscilla Jesang disowned the Summons for Revocation of Grant dated 19/01/2022 subsequent upon which the Court dismissed the Objection proceedings on 9/05/2022.

Hearing of the Application 8. It was then agreed and directed by Hon. Justice Ogola that the matter be canvassed by way of written Submissions and specific timelines were given for filing the Submissions. This was on May 31, 2022. The Petitioner was to begin, by filing and serving his Submissions within 14 days. However, in breach of the said timeline, the Objector’s Advocates filed their Submissions on June 27, 2022, outside the 14 days period given. In the circumstances, admission of the Submissions was declined by Hon. Justice Ogola and the same was struck out for having been filed out of time. The Petitioner was then given liberty to file her Submissions which she did on July 18, 2022

9. For the said reasons, I will only consider the Petitioner’s Submissions.

Petitioner’s Submissions 10. In his Submissions, Counsel for the Objector reiterated most of the matters already deponed in the Petitioner’s Replying Affidavit and already recited hereinabove

11. Counsel however added that the Objector has failed to demonstrate the existence of any defect in substance of the proceedings as required under Section 76 of the Law of Succession Act and as such the Application is devoid of merit. On the definition of fraud, Counsel cited the definition stated inBlack’s Law Dictionary 11th Edition. He added that whoever assets a fact is under an obligation to prove it. He cited Section 107 of the Evidence Act on this point and also quoted the case of Kuria Kiarie & 2 Others v Sammy Magera [2018] eKLR. As regards the standard of proof in claims of fraud, he cited the case of Kinyanjui Kamau vs George Kamau [2015] eKLR

12. On the definition of “defective in substance”, Counsel cited the case of Re Estate of Wahome Mwenje Ngonoro (Deceased) [2016] eKLR and also the Court of Appeal case of Matheka and Another vs Matheka (2005) 2 KLR 455 and submitted that the Applicant has failed to demonstrate the existence of any defect in substance of the proceedings

Issues for Determination 13. I have considered the Application and the Response thereto. In my view, the issue that arises for determination is “whether the Grant of Letters of Administration issued to the Petitioner and thereafter confirmed should be revoked”.

14. I now proceed to analyze and determine the said Issue.

15. First, I may mention that there was an earlier similar Application (Summons) seeking revocation of the same Grant herein. The same was allegedly filed by one Priscila Jesang who was described as daughter of the deceased. The Application was dated March 16, 2021 and was filed through Messrs Bitok & Sambu Advocates, the same Advocates acting for the present Objector. However, while the Application was still pending for hearing, the said Priscilla Jesang filed her own Affidavit on January 21, 2022 whereof she disowned the Application. She deponed that the same had been fraudulently filed using her name without her consent or knowledge. In the circumstances, The Application was struck out vide the orders made on 9/05/2022 by Hon. Justice Nyakundi. Although she did not expressly mention it in the Affidavit, a perusal of the same leaves one with no doubt that the said Priscila Jesang was “pointing a finger” towards the present Objector as the person behind the unauthorized filing of the Application.

16. I will however say no more on the issue lest I be accused of having taken a biased or prejudicial position beforehand, against the Objector.

17. Be that as it may, it is clear that the Objector’s grounds for challenging the Grant were basically that the Petitioner described herself as a “wife” to the deceased when she was in fact a daughter in law, that the Petitioner listed her children as the children of the deceased, that during confirmation of the Grant the true beneficiaries did not attend Court nor provide consents and that a portion of the estate property was irregularly allocated to a company known as Asis Flowers Limited, a stranger to the estate.

18. On the issue of Revocation of Grants, Section 76 of the Law of Succession Act provides as follows;“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.

19. In the Matter of the Estate of L A K – (Deceased)[2014] eKLR, the Court held that;“Revocation of grants in governed by Section 76 of the Law of Succession Act. The relevant portions of Section 76 are paragraphs (a), (b) and (c) since the issues raised relate to the process of the making of a grant. A grant may be revoked where the proceedings leading up to its making were defective, or were attended by fraud and concealment of important matter, or was obtained by an untrue allegation of a fact essential to the point.

20. In order for the orders sought to be granted, the Objector must therefore prove that the recognized grounds for revocation have been satisfied. Did the Objector surmount this hurdle?

21. The first allegation made by the Objector is that the Petitioner described herself as a “wife” of the deceased when she was in fact a “daughter in law” and that the Petitioner listed her children as the children of the deceased. I have perused the record and note that although it is true that in the Petition filed on 20/03/1996 the Petitioner was described as “wife” to the deceased, the same was subsequently corrected when the Chief sent a letter to the Court, prior to Confirmation of the Grant, clarifying to the Court that the Petitioner was “the wife to the son of the deceased”. Further, in the Petitioner’s Further Affidavit dated 12/06/1997, also filed before the Grant was confirmed, the Petitioner also clarified the same and deponed that the earlier description of the Petitioner as a “wife” to the deceased was an error. She then listed six children of the deceased and also the widow of the deceased, one Tapkil Matwor, as the survivors. The Grant was then much later confirmed on 23/06/1997.

22. In the Further Affidavit, the Petitioner justified why she was the one who was petitioning the Court by deponing that “the wife of the deceased, Kimwator Arap Boit, is very old and sickly and cannot perform well the duties of a Petitioner”.

23. I have not been able to confirm or verify whether at the time that the Grant was confirmed the Court pronounced itself on this clarification since only a portion of the Judge’s notes of the proceedings recorded as at that time seem to be available in the file. I attribute the missing portion of the proceedings to the age of the Court file considering that proceedings relating to issuance of the Grant and confirmation thereof were conducted between the years 1996 and 1997, almost 30 years ago! However, in view of the clarifications that I have referred to above and which are evidenced by the said letter from the Chief and also the Further Affidavit which are still present in the file, I find that at the time that it confirmed the Grant, the Court was fully seized of the true and correct set of facts including the clarification that the Petitioner was a “wife to the son of the deceased”, thus daughter-in-law, and not a “wife to the deceased”.

24. I have also looked at the Certificate of Confirmation of Grant and note that the said property Nandi/Kokwet/601, the only asset of the estate and measuring 18 acres, was distributed to only two beneficiaries, namely, Asis Flowers Limited (12 acres) and the Petitioner (6 acres). It is therefore evident that none of the Petitioner’s children was a beneficiary.

25. In respect to the allegation that during confirmation of the Grant the true beneficiaries did not attend Court nor provide consents, I have already stated that I have not been able to trace the Judge’s full notes of the proceedings recorded as at that time. I attributed this to the age of the file considering that the confirmation proceedings took place almost 30 years ago. It is therefore difficult to ascertain with certainty as to who attended Court on the date that the Grant was confirmed and what capacity capacities. In the circumstances, I decline the invitation to make a conclusive determination on whether the genuine survivors of the deceased attended Court to confirm their approval of the mode of distribution. Suffice to say, yet again, that the confirmation was conducted in the year 1997, almost 30 years ago and until now, there is no evidence that any member of the family has challenged the same. Since it is trite law that he who alleges must prove, I find that the Objector has failed to prove this allegation.

26. Regarding the Objector’s allegation that a portion of the estate property was irregularly allocated to a company known as Asis Flowers Limited, allegedly a stranger to the estate, the Petitioner has presented an explanation to the effect that before confirmation of the Grant, an Exchange Agreement was entered into between the family and one Philip Kiplelei Magut, the owner of the said Asis Flowers Ltd under a family understanding for the exchange of Nandi/Lelmokwo/432 and Nandi/Lelmokwo/83 measuring 3. 43 Hectares and 1. 4 Hectares (both belonging to the said owner of the Asis Flowers Ltd) with a portion of 12 acres comprised in Nandi/Kokwet/601 forming part of the estate. The Petitioner added that the Objector’s family and other family members of the deceased took over and occupied the exchanged parcels immediately after conclusion of the said Exchange Agreement around 1996 a fact which the Objector has not disclosed to the Court. She deponed further that after the exchange and in order to give out the exchanged portion to Asis Flowers Ltd, the Petitioner, with the family’s authority, subdivided the land parcel Nandi/Kokwet/601 into two portions of 12 acres and 6 acres. She deponed that the 10 acres portion was transferred to Asis Flowers Ltd, 2 acres gifted to the Petitioner and the remaining 6 acres which came to be known as Nandi/Kokwet/873 was transferred to the Petitioner to hold in trust for the heirs of the deceased.

27. Although the alleged Exchange Agreement has not been exhibited, I have no reason not to believe the explanation particularly since the exchange was carried out way back in the year 1996 and to date, there is no evidence that any member of the family has challenged the same.

28. I also take cognisance of the fact that both parties agree that one Priscila Jesang, earlier referred to hereinabove, is a daughter of the deceased. From the Affidavits filed, I gather that the said Priscila Jesang may be the only surviving child of the deceased who is still alive. I take further cognisance of the fact that as aforesaid, when the earlier Application for revocation was filed using her name, she quickly filed the Affidavit sworn on 19/01/2022 disowning the Application and deponed that she swore the Affidavit “to disown and dissociate myself from all the averments and the entire contents therein”.

29. The implication herein is that she had no complaint and was satisfied with the manner in which the estate has been administered and distributed. The Objector being a grandson, his allegations are therefore heavily weakened by the position taken by the said Priscila Jesang, the Objector’s father’s sister.

30. More importantly, I gather from the record that the objector’s father, Kirwa Matwor, died on 28/02/2014, 17 years after confirmation of the Grant in the year 1997. There is no evidence that during his lifetime, the Objector’s father at any time challenged the Grant. If the father, who was alive when the distribution of the estate was conducted and lived for another 17 years thereafter, never had reason to challenge the exercise, on what basis is the son challenging the same, almost 30 years after the fact?

31. I also agree with the Petitioner’s Counsel that the Objector’s Application is filed in a vacuum since he has not specified what claims he is making over the estate. He has only revocation of the Grant without making any specific claim. The Court is therefore not in a position to weigh the claim and make a determination on whether the Objector is entitled any specific portion or proportion of the estate.

32. I am therefore not persuaded by the Objector’s arguments that the Petitioner concealed material facts or that the Grant was obtained fraudulently. I therefore find that the Objector has failed to meet the threshold required under Section 76 of the Law of Succession Act. The Objector has not satisfied the Court or made a case to warrant revocation of the Grant.

Final Orders 33. In the premise, I hereby order as follows:i.The Summons dated May 9, 2022 is hereby dismissed.ii.The Objector shall bear the costs of the Application.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 23RD DAY OF JUNE, 2023. ……………..……..WANANDA J.R. ANUROJUDGE