[2024] KEHC 16239 (KLR)

In re Estate of Kipkoech arap Tanui aka Benjamin Kipkoech Tanui - Deceased (Succession Cause 315 of 2006) [2024] KEHC 16239 (KLR) (18 December 2024) (Ruling)

Neutral citation: [2024] KEHC 16239 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 315 of 2006

E Ominde, J

December 18, 2024

IN THE MATTER OF THE ESATATE OF KIPKOECH ARAP TANUI aka BENJAMIN KIPKOECH TAUI – DECEASED

Between

Tabusambu Jelel Tanui

Applicant

and

Rhoda Tanui

Respondent

Ruling

1. Before me for determination are two Applications. The 1st Application is dated 10/7/2024 filed by Tabusambu Jelel Tanui while the 2nd Application is dated 5/8/2024 filed by Rhoda Tanui. The Applicants have both filed the said Applications in their respective capacities as the (2) widows of the deceased.

The 1st Application 2. By Summons dated 10/7/2024, the Applicant, Tabusambu Jelel Tanui seeks the following orders:-1. Spent.2. That the Respondent by herself, her agents and or servants be restrained from carrying out any dealings by way of sale or rent collection, appropriation in respect of the assets of the estate of the late Benjamin Kipkoech Tanui aka Kipkoech Tanui comprised of the following: -a.Mogobich Tea Estate Limited aka Mogobich Tea Estates (1983) Ltd.b.Tinderet Engineering Limited.c.LR No. Nandi/Koylat/197 in the name of Kapkures Tea Estated.LR No. 1181/35 (IRN 5041 in the name of Tinderet Engineering Company Limitede.LR No. 1482/35 in the name of Mogobich Tea Estate Limitedf.LR No. 1482/3 in the name of Mogobich Tea Estate Limitedg.Bank Account No. 049XXXXXX72963 held at Equity Ban Limited – Kapsabet Branch.h.Any other accounts operated by either;-i.Mogobich Tea Estate Limitedii.Mogobich Tea Estates (1983) Limitediii.Tinderet Engineering Limited.iv.Rhoda Tanui -in any bank throughout Kenya and with any subsidiary of Eastern Produce Company Limited i.e Kapchorua Tea Estates Limited or any other that shall become known to the Applicant with concurrence of the Court.

3. In the alternative and without prejudice to the foregoing, the Court be pleased to distribute the deceased’s estate to the beneficiaries and their dependants.

4. The Grant of Letters of Administration made to Rodah Tanui and Tabusambu Jelel Tanui on 20/4/2007 and confirmed on 20/7/2009 vide a Certificate issued on 5/8/2009 be revoked and annulled for becoming useless and inoperative through subsequent events.

5. The Respondent who has assumed control of the entire estate and excluded the Applicant and other beneficiaries be condemned to bear costs of this Summons.

3. The Application is premised on the grounds stated on the face thereof and it is further supported by the Affidavit sworn by the said Applicant on the same date.

4. She deposed that she is the 1st widow of the deceased herein, that there exists a Grant of Letters of Administration made to her and the Respondent in respect to the estate of their late husband, that the said Grant was made in error as it portrays her as the second wife while she is the 1st house, that the letter from the Chief only named (2) of her children being Paul Tanui and Daniel K. Tanui while she in fact had others namely; Richard Kipkios Tanui, Emily Jepkosgei, Jane Jepkorir, Naodia Jebet and Pauline Jepkemboi who were kept away from the Courts view and were totally disinherited

5. The Applicant further deposed that ever since the grant was issued the Respondent has been running the estate comprising land property registered in the names;- Mogobich Tea Estates Limited, Mobogich Tea Estates (1983) Limited and Tinderet Engineering Company Limited which owns parcels of land shown in the body of the Application like a personal enterprise without involving her or giving her due share of the income, that she recently learnt of disposal of the estate land and that she protested to Court and to the Respondent through a letter which did not elicit any response.

6. The Applicant added that she has grandchildren born of her children who predeceased her and who look up to her for provision but who live in squalor because she cannot access the necessary income from the estate accounts.

7. According to the Applicant it's important that the grant be annulled so that all beneficiaries are provided for even if it means being placed under the public trustee where some accounting and equity can obtain.

8. Pending the issuance of final orders with regard to the Summons herein, the Applicant prays that the Court orders the estate preserved to prevent further haemorrhage, wastage and unlawful enrichment by one household at the expense of the other and in the alternative and without prejudice to the foregoing, the Applicant prayed that the estate be distributed to the heirs and their estates to create some equity among them and prevent wastage.

9. The Applicant maintained that from the foregoing, the Court can see that the grant made to her and the Respondent has become ineffective and useless as it only benefits one house out of two.

10. The Applicant contends that the Respondent and her cahoots collect lots of monthly rental income from Tinderet Engineering Company Limited property in Kapsabet Town and bonus from Kapchorua Tea Estates limited, who manage the tea estates on behalf of Mobogich Tea Estates Limited and Mobogich Tea Estates (1983) Limited and are even expecting a bonus this July 2024which they appropriate exclusively to the chagrin of the other heirs.

11. According to the Applicant, it is unlawful for an estate to remain undistributed for 19 years and that as a result of the delay to distribute some beneficiaries have missed out and the denial is extended to their children, which is unequitable and immoral.

The Response 12. In opposing the Application, the Respondent filed a Replying Affidavit dated 29/8/2024 wherein she deposed that for a grant to be revoked, there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of false statement, or by concealment of something material to the case, or that the grant was obtained by means of untrue allegations of facts essential in point of law and that the instant Application neither raises any of the abovementioned grounds/conditions nor do the above conditions apply in the present case.

13. The Respondent maintained that the Applicant voluntarily swore a Further Affidavit dated 16/7/2009 in support of the Summons for Confirmation of Grants dated 22nd June 2008 which Summons provide the names of the beneficiaries and the mode of distribution and as such she cannot purport to come up with a list of new beneficiaries more than 15years later, that both of the parties herein voluntarily and mutually confirmed changes they sought to make in respect to the distribution of the estate and no changes were made as regards beneficiaries and as such, the Applicant had a fair opportunity to make appropriate changes if need be at the time or thereabout by leave of the Court which she failed to do and thus cannot rely on her own ignorance to seek to revoke the entire grant years later.

14. According to the Respondent, the Applicant slept upon her rights and acquiesced for a great length of time and thus cannot purport to revoke the grant almost 15 years later with no justifiable reason for revocation or the inordinate delay and as such is evidently disentitled to the said orders and that Court should not fall for the Applicant's scheming and extortionist tactics and frail attempts to add strangers as beneficiaries of the estate. The Respondent added that in any case, the Applicant has not even furnished this Court with any evidence to show that the strangers are in fact the deceased's issues by virtue of having been born while the deceased was alive.

15. The Respondent maintained that the Account Number stated in the Application, to wit 049XXXXXX72963 held at Equity Bank Limited-Kapsabet Branch is a personal account that is in no way affiliated to the Estate of the deceased and as such, granting the orders will be an infringement on her rights without having been heard.

16. The Respondent further maintained that she not taken sole control of the estate or excluded the Applicant/beneficiaries or misappropriated any of the properties in the estate as contended by the Applicant and thus the Application is a sham marred with falsities with no evidence or support from said beneficiaries

17. In the end, the Respondent deposed that this Court lacks jurisdiction to entertain this Application as it relates to properties situated within Nandi County and that the instant Application is nothing short of an abuse of the Court process and a waste of scarce judicial time.

18. The Application is equally opposed by (4) of the beneficiaries to the estate herein through the Replying Affidavit sworn by Felix Tanui on 5/9/2024, who stated that he is one of the beneficiaries of the estate herein and indicated that he is swearing the said Affidavit on behalf of Three (3) other beneficiaries known as; Daniel Tanui, Ronald Tanui and Patropa Jepngetich.

19. He deposed that the Probate and administration proceedings intestate of the Estate of the late Kipkoech arap Tanui herein was filed by the Applicant in the year, 2006, that the Applicant jointly with the Respondent herein were the Petitioners in the said proceedings and subsequently became administrators to the said estate and according to him, the Applicant therefore is aware of what transpired in the entire succession proceedings to its logical conclusion. He maintained that the Applicant being the Petitioner, supplied this Honourable Court with all the requisite documentations which the Court relied on until its issuance of Certificate of confirmation of grant to the estate with schedule on mode of distribution of the Estate.

20. In response to paragraph 13 of the Applicant’s supporting affidavit, he stated that merely being referred to as the 1st wife or the 2nd wife does not qualify as a ground for annulment/revocation of grant, that both wives of the deceased (parties herein) were catered for in the schedule and mode of distribution of the Estate and all consented to the same and if the Applicant was aggrieved by being referred to as the 2nd wife instead of 1st wife, she ought to have raised the same during pendency of succession proceedings and not 15 years later after distribution of the estate.

21. In response to Paragraph 3(a), of the Applicant’s Affidavit, he stated that the Applicant was the Petitioner and administrator in this succession cause. She is the one who sought the Chief’s letter for purposes of filing succession proceedings and submitted the same to Court after verifying its correctness and it cannot be that the Applicant who was the Petitioner and administrator of this estate is now claiming, 18 years later, that she forgot to submit the names of her own children as beneficiaries. He contended that if any beneficiary to the estate was left out as is alleged, then the Applicant should be liable to Court for lying and concealing material facts to the Court and added that the beneficiaries, allegedly locked out of the estate have not themselves filed any objection and or summons for revocation of grant before this Court to enable the Court ascertain their allegations and that the Applicant cannot thus come and claim on their behalf. He reiterated that the Chief’s letter was sought by the Applicant and all information therein were given and verified by her before she submitted the same to Court.

22. In response to paragraph 4 of the Applicant’s Affidavit, he stated that Mogobich Tea Estates Ltd is a non-existent company and the Applicant is in a mission to fish for any evidence to hold on to, in an attempt to mislead this Honourable Court into granting orders sought, that the Court record confirms that it was neither part of the Assets of the Deceased nor listed on the schedule and mode of distribution of properties of the Estate, that Mogobich Tea Estates (1983) Limited was distributed to beneficiaries including the Applicant whom was given her share as captured in item No. 38 of the schedule, that Tinderet Engineering Company Limited is not part of the Estate of the deceased, that he Court record confirms that it was neither part of the Assets of the Deceased nor listed on the schedule and mode of distribution of properties of the Estate and that it is the Applicant who submitted list of assets of the Estate of the deceased to Court and is fully aware that the said property was not part of the Estate of the deceased.

23. He added that the Applicant has been fully involved in the running of all the relevant assets of the deceased Estate and it is untrue that she has been locked out of the Estate of the deceased. With regard to Mogobich Tea Estates (1983) Ltd (Proceeds) he stated that after considering that the Company above owned a vast Tea Estate, all its shareholders/beneficiaries including the Applicant herein agreed that, the same would be run by a well known Tea Company known Kapchorua Tea Kenya PLC and profits to be shared as per individual shares and be send directly from the said company to the shareholders/beneficiaries individual accounts in accordance with their number of shares in the schedule; that since its distribution, every beneficiary has been receiving his share of the profits as per their shares as distributed in the schedule in this successions cause, there has been no complaint on the issue of profits as the same is always channelled directly to individual accounts from the said company running the Tea Estate and that the latest pay to beneficiaries was made on 23/5/2024 and all the beneficiaries to the company herein were fully paid, including the Applicant as shown herein below; Tabusambu Jelel Tanui - kshs.250,000/=, Mrs. Rhoda Tanui- Kshs.1, 000,000/=, Mr. Felix Tanui - Kshs.250,000/=, Mrs Patropha Jepngetich Kshs.250,000/= and Mr. Daniel Kiptoo Tanui Kshs.250,000/=.

24. With regard to Mogobich Tea Estate (1983) Ltd, he stated that the company runs in a manner similar to any other company and in accordance to the companies Act and Rules, that all the decision making is made through resolutions determined by voting, that the Applicant as a shareholder has always been an active participant in the decision making of the company, that all the shareholders are always notified prior of any meetings and all given a chance to attend the meetings and make decisions, that rhe company meetings are rarely done and only done when new issues arise for the sole reason that the Tea estate is run by another company and every beneficiary gets their proceeds in their individual accounts and that the Applicant has been part of the decision making of the company and it is untrue that the company has been running without her involvement as they wish to show vide minutes belonging of the company; Tabusambu Jelel Tanui - the Applicant herein was among members present on the company meeting held on 16/3/16, Tabusambu Jelel Tanui - the Applicant herein was among members present on the company meeting held on 10/12/18 and Tabusambu Jelel Tanui - the Applicant herein was among members present on the company meeting held on 22/1/19.

25. With regard to parcel of land known as Nandi/Koylat/197, he stated that the Applicant herein was given this entire parcel of land to hold on her own behalf and in trust for Paul Kiptanui Tanui,Daniel Kiptoo Tanui and Felix Kibet, that the Applicant has been living in the said parcel of land since 1986 and currently lives in the parcel of land together with Daniel Kiptoo Tanui and Felix Kibet Tanui in accordance with the schedule and mode of distribution, that the Applicant herein is in possession and in control of the entire parcel of land and that the Applicant in a show of might and control in entire parcel and has even refused to transfer the Parcel of land to the beneficiaries in accordance with the schedule and mode of distribution

26. In response to paragraph 5 of the Applicant’s Affidavit, he denied the said allegations and stated that no such action as alleged has occurred and maintained that if the Applicant has any evidence to the contrary she needed to submit the same to the Court, that the contents of the demand letter being Applicants Exhibit JJT2 contains lies and assumptions without any cogent evidence to support the allegations therein and that no transfer and or subdivision can occur without the involvement of both administrators and at no point have we circumvented this well laid out legal process.

27. In response to paragraph 6 of the Applicant’s Affidavit, he stated that the Applicant is lying under oath by calling herself a squalor when she has been receiving proceeds from the estate of the deceased as shown in our attached exhibits. According to him, the Applicant chamber summons Application has no concrete grounds to warrant granting of orders as prayed.

28. He further deposed that the Applicant has even freezed all of the Respondent’s personal bank account which accounts do not form part of the deceased estate without attaching any exhibit to show the link between the said accounts and the deceased estate.

29. He maintained that the Applicant's Application as it is, does not warrant this Honourable Court into revoking the grant granted and that the grant to the Estate herein was issued and distribution done in the year 2009 and revoking the same 15 years later and after distribution is complete will extensively disturb the estate and its beneficiaries.

The Applicant’s Further Affidavit 30. In her Further Affidavit dated 4/11/2024 in response to the Replying Affidavit sworn by Felix Tanui, the Applicant deposed that it is not true when the Respondent alleges that she was fully aware of what transpired in the entire succession proceedings to its logical conclusion as she was kept in the dark and the co-administrator took advantage of my illiteracy to unfairly gain advantage in the entire succession proceedings, that the assertion by the Respondent in dismissing the fact that she was not properly recognized/identified as the 1st wife and instead referred to as 2nd wife cannot be swept under the carpet as it's a classic act of concealment of material fact.

31. in response to paragraph 9 to 13 of the replying affidavit, she reiterated that the Respondent herein who is younger and better educated and informed than her took advantage of my illiteracy of Court documents and process to completely mislead her into committing herself to facts which she has come to realize were false and detrimental to her family.

32. She maintained that in succession proceedings all beneficiaries as a rule ought to be roped in unless they have expressly chosen to be side stepped and as such the mere reason that she might unintentionally have omitted them cannot provide fodder for the Respondent to continue with her fraudulent activities of disinheriting others and added that the singular reason why her children have not filed objection proceedings and/or summons for revocation of grant is because she being co-administrator and having more information because the acts of fraud were perpetuated against her and that she is in a better position to correct the misdeeds and also address these acts done by my co-administrator the Respondent herein.

33. She contended that her children who were left out of the succession proceedings have not been disputed by the Respondents what she is only complaining of is the fact that they ought to have been roped into the succession proceedings earlier than the instant date annexed and marked “TJT 1 (a) (b) (c) (d) (e)" are copies of birth certificates for Noadiah Chebet, Pauline Jepkemboi as well as death certificate for Emilly Jepkosgei Lelei, Jane Jepkorir Tanui and Paul Kiptenai Tanui all who had been left out.

34. She maintained that the companies Mogobich Tea Estate a.k.a. Mobogich Tea Estates (1983)Limited are one and the same thing and as such it should not form a borne of contention at all and that in the local area that it is situated, the company is recognized by both names.

35. She contended that the Further Affidavit pursuant to the Court leave granted on 15/06/2009 that was filed in Court is strange to her and even a casual look at the signatures appended clearly shows that Rhoda Tanui has appended her signature on the part they alleged she signed thus it is not a genuine document annexed and marked “TJT 2" is the further affidavit allegedly sworn on 16th July 2009 to which she is completely unaware of it.

36. She further contended that the assertions by the Respondent that Tinderet Engineering Company Limited does not form part of the estate of the deceased nor listed on the schedule and mode of distribution of the properties of the estate is not factually true as the affidavit in support of petition for letters of administration intestate dated 31/10/2006 clearly indicates that Tinderet Engineering Company Limited forms part of the assets of the deceased.

37. In further response to the assertions by the Respondent that all beneficiaries are receiving their benefits in relation to Mogobich Tea Estate 1983Ltd, the Applicant deposed that the same is not true as some beneficiaries who are children to the deceased herein and grand children who have taken the place of their deceased parents are not benefiting at all same is evidenced by the documentary evidence as produced in paragraph 7 above.

38. She denied the assertions by the Respondent that all beneficiaries are actively involved in decision making of Mogobich Tea Estate is not true at all as she and the rest of her family members have completely been kept in the dark the alleged minutes of the meeting is fabricated for purpose of deceiving this honourable Court even a casual look at the alleged company meeting does not have signature of the attendees nor the original handwritten minutes if any.

39. The Applicant maintained that she has been completely been away from the affairs of the estate despite being a co-administrator the Respondent in cahoot with strangers to the estate are running the estate in secrecy and concealment of material facts from her and the other beneficiaries from her side of the family.

40. According to the Applicantit is high time this Honourable Court stamps its feet and stops the wanton wastage of the estate property by the Respondent without due regard to the other beneficiaries from her immediate family (children) as even others have been omitted from the succession proceedings.

41. The Applicant reiterated that the Respondent took advantage of my illiteracy to misinform me of the true events in relation to the estate it is only recent when she discovered that the Respondent has been taking her for a ride while wantonly wasting away the property of their deceased husband.

42. The Applicant reiterated that this Honourable Court is clothed with enough powers to remedy the injustice that has been perpetuated for a very long time on her and the other beneficiaries from my family including those completely left out of the succession.

The 2nd Application 43. By Summons dated 5/8/2024, the Applicant, Rodah Tanui seeks the following orders:-1. Spent. 2. Spent.

3. That the orders issued on 31/7/2024 be reviewed, varied and or set aside.

4. That the Summons dated 10/7/2024 be struck out and dismissed with costs for want of jurisdiction.

5. That costs of this Application be borne by the Respondent.

44. The Application is premised on the grounds stated on the face thereof and it is further supported by the Affidavit sworn by the said Applicant on the same date.

45. She deposed that the Respondent filed Summons dated 10/7/2024 and obtained ex-parte orders which included freezing of bank accounts, that her personal bank account number 04902955372963 held at Equity Bank Kapsabet Branch which does not form part of the estate of the late Kipkoech Tanui was frozen, that the orders issued on 31/7/2024 are very prejudicial to her and all the beneficiaries of the estate as they cannot access money to cater for necessities such as food, are unable to purchase fuel for vehicles and machinery and are unable to pay daily wages to work employed at one of the tea estates and that she is 93 years old, sickly and solely depends on the income from the estate for sustenance and medication.

46. She added that some of the properties affected by the said order including Tinderet engineering Company Limited do not form part of the estate of the deceased.

47. The Applicant contended that she was not given an opportunity to be heard as she was neither served with the Summons dated 10/7/2024 nor hearing date.

48. The Applicant further deposed that she did instruct an Advocate by the name of Songok to represent her and that his role as far as this matter is concerned ended when the Certificate of Confirmation of Grant was issued on 20/7/2009.

49. According to the Applicant, this Court had no jurisdiction to issue the said orders as all the properties in question are situated in Nandi County, that the orders issued on 31/7/2024 are in the nature of an injunction against the use of land which is a preserve of the Environment and Land Court and that the lack of jurisdiction is reason enough for this Court to down its tools.

50. There was no response filed with regard to this Application.

Submissions 51. It was agreed that the two Applications be canvassed vide written submissions and all parties filed their respective submissions.

Applicant’s Submissions 52. In regard to the issue of jurisdiction, Counsel for the Applicant relied on the proviso of Section 47 of the Law of Succession Act and Rule 41 (3) of the Probate and Administration Rules. Counsel cited the case of Priscilla Ndombi and Zipporah Mutinga-vs-Gerishon Gatobu Mbui, Meru Succession Cause No. 720 of 2013 the Court held that ;-

53. “The primary duty of the probate Court is to distribute the estate of the deceased to the rightful beneficiaries. As of necessity the estate property must be identified. Where issues of ownership of the property are raised in a succession cause, they must be resolved before such property is distributed. And that is the very reason why Rule 41(3) of the Probate and Administration Rules was enacted so that claims which are prima facie valid should be determined before confirmation.

54. Counsel also relied on the holding in re Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR where the Court has this to say:-With regard to the assets, one of the questions that may present itself would be the ownership of the assets presented as belonging to the deceased. An outsider may claim that the property does not form part of the estate and therefore it need not be placed on the probate table.

55. Counsel submitted that even as such is a claim by the Application by Rhoda Tanui through her Advocate, a look at the P& A Form 5 however shows that the alleged property Tinderet Engineering forms part of the deceased’s estate.

56. Counsel submitted that the Respondent herein also claims the Court lacks jurisdiction as the properties are situated in Nandi County, however a closer look at the succession proceedings show the matter was filed by the two widows by the Court sitting in Eldoret and it is the very same Court that issued grant to the succession proceedings herein as such they are clothed with the requisite power to handle any Application that affects the succession proceedings and as such the Eldoret High Court has jurisdiction to entertain the Application. Counsel pointed out that by the time of filing the succession proceedings the Kapsabet Court did not possess pecuniary jurisdiction.

57. Counsel further submitted that it is trite law that jurisdiction is everything and he cited the classical case of Motor Vessel Lilian S-vs-Caltex Oil (Kenya) Ltd, Civil Appeal No.509 of 1989. Counsel added that jurisdiction relates to the mandate and/or authority of a Court to hear and determine the matter and that it is derived from the constitution of Kenya and from statute.

58. Counsel contended that the claims by the Rodah Tanui that the Honourable Court lacks jurisdiction to issue injunction orders in relation to the parcels of land forming the succession proceedings is far from the truth as the issue at hand is not on a dispute over ownership of the parcels of land but rather mismanagement of the parcels of land forming the succession proceedings.

59. Counsel maintained that in light of the above the Honourable Court has jurisdiction to issue such orders as may be deem fit to protect and preserve the assets of the deceased whenever such a need arises as the present one.

60. According to Counsel, Rodah Tanui through her advocate on record is only try to create a red herring in order to avoid being answerable to the many transgressions she has engaged herself into in relation to the instant succession cause.

61. To sum up her submissions on jurisdiction, Counsel for the Applicant maintained that the Court has requisite jurisdiction to handle the Application as filed by Tabusambu Jelel Tanui and what Rhoda Tanui should be busy doing is answering the heavy questions placed at her door step by her co-Petitioner and other beneficiaries. In regards to malfeasance and misappropriation of the estate properties.

62. Counsel cited Section 76 of the Law of Succession Act which he submitted governs issues of Revocation of Grants by Section 76 and that the relevant portions of Section 76 are paragraphs (a) (b) and (c) and that since the issues raised relate to the process of making of a grant, then 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 allegations of fact essential to the point.

63. Counsel added that the circumstances under which a grant can be revoked were disclosed in the matter of the Estate of IAK (Deceased) 2014 eKLR. Counsel. He further submitted that the power to revoke or uphold a grant is discretionary and that this principle was enunciated in the persuasive decision in Albert Imbuga Kesigwa-vs-Mecho Kavai Kisigwa Succession Cause No. 158 of 2000 where Mwita J stated; -“Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds".

64. Counsel maintained that this discretion is not to be exercised whimsically or capriciously and there must be evidence of wrong doing for the Court to invoke Section 76 and order to revoke or annul a grant and that when a Court is called upon to exercise this discretion it must take into account interests of all beneficiaries entitled to the deceased estate and ensure that the action taken will be for the interests of justice.

65. Counsel urged that in this case it is not in dispute that some of the beneficiaries were left out of the proceedings as evidenced by the Chief’s letter as well as Court documents that has their names missing and that a total of 5(five) children of Tabusambu Jelel Tanui are not included facts which if allowed would cause a major injustice to the said beneficiaries.

66. That it also has come out that Rodah Tanui a co-Petitioner has been running the affairs of the estate to the exclusion of the other co-Petitioner and beneficiaries and in fact she has not attempted to dispute the same what her advocate is arguing is that the affairs has been like that for the last 15 or so years and as such Tabusambu Jelel Tanui ought not complain now and that also through the evidence on record it has clearly come out that the Rodah Tanui a co-Petitioner in cahoot with strangers to the estate has been taking the proceeds to the estate to her personal accounts and using the same for her own needs at the expense of the deceased estate and other beneficiaries.

67. Counsel contended that, the Co-Petitioner, Rhoda Tanui has completely failed to render accounts to the estate of the succession proceedings herein and that in fact even by her advocates own admission she is not in charge of the estate due to her old age and it is strangers who have been pulling the strings behind the back to waste away the estate. Counsel further contended that Rodah Tanui has brought to Court a strange affidavit dated 16/7/2009 which she claims was sworn voluntarily by Tabusambu Jelel Tanui which is factually not correct as the contents of the affidavit are strange to Tabusambu Jelel Tanui the affidavit has never come to her attention until recently.

68. Counsel alleged that Rhoda Tanui has recently disposed off one of the parcel of land belonging to the estate without any involvement of the co-Petitioner and her children and pocketed the proceeds together with strangers to the estate, that for the longest time the co-Petitioner Rodah Tanui has been collecting rental income from the properties belonging to the estate of the deceased herein without rendering accounts over the same nor declaring the same to other beneficiaries and the co-Petitioner and that she has pocketed all the rental proceeds for her own exclusive use whereas other beneficiaries languish in poverty and any attempts of protest have been met with threats of dire consequences by people working in cahoot with Rhoda Tanui.

69. Counsel reiterated that a grant whether confirmed or not can be revoked on the grounds enumerated under Section 76 of the Act and that it is a well settled proposition of law that it is the duty of a person invoking the jurisdiction of a Court to make a full and true disclosure of all relevant facts.Counsel maintained that he should not suppress any facts on Application for a grant of letters of administration must come in the manner prescribed and must be perfectly frank and open with Court and if she makes a statement which is false or conceals something which is relevant from the Court the grant shall be revoked.

70. Counsel maintained that if the Court comes to the conclusion that the affidavit in support of the Application was not candid and did not fully state the facts but either suppressed the material facts or stated them in such a way as to mislead the Court as to the true facts the Court ought for its own protection and to prevent an abuse of its process, will revoke the grant.

71. Counsel urged that indeed from the above submissions it is clear that Rhoda Tanui has clearly offended the provisions of Section 76 of the Laws of Succession by withholding crucial materials from the Court such exclusion of other children to the deceased in the succession proceedings misappropriation of estate proceeds, exclusion of the co-Petitioner and her family affairs of the estate, failing to render accounts of the estate when demanded of her amongst other transgressions as captured both in the Application by Tabusambu Jelel Tanui as well the her replying affidavit dated 14/8/2024.

Respondent’s Submissions 72. With regard to the issue of revocation of grant, Counsel for the Respondent pointed out that it is imperative to note that the Applicant was one of the Administrators of the Estate of the late Kipkoech Arap Tanui and she is the one who petitioned for Letters of Administration alongside the Respondent. Counsel submitted that the Applicant actively participated in all the steps that led to the issuance of the Certificate of Confirmation of Grant. As an Administratrix, the Applicant enjoys the same powers as the Respondent. She has not demonstrated any steps, if any, she has made to have the Estate transmitted and has not demonstrated that the Respondent is frustrating any efforts to have the deceased's properties transmitted as per the schedule to the Certificate of Confirmation of Grant. Counsel urged that the Applicant cannot therefore purport to blame the Respondent for the failure to commence the process of transmission.

73. Counsel further submitted that the Certificate of Confirmation of Grant was issued on 5/8/2009, the Applicant filed the instant Application in the month of July, 2024, over 15 years after the Grant was confirmed and that the Applicant has not explained why it took her this long to file the instant Application. According to Counsel the Applicant is evidently guilty of laches and does not deserve the orders sought. Additionally, Counsel submitted that the Applicant also sought an order to have the Court distribute the Estate. Counsel contended that distribution of the Estate was done when the Grant was confirmed and thus the Court is functus officio in respect of this issue. Counsel urged that the only remaining step is the transmission of the Deceased's property to the beneficiaries, which is the duty of both the Applicant and the Respondent. Counsel cited the High Court in In re Estate of Kiberenge Mukwa (Deceased) [2021] eKLR regarding the process that follows after a grant is confirmed;“After a grant has been confirmed, the processes that follow, that is to say with respect to the implementation or execution of the confirmation orders as encapsulated in the certificate of confirmation of grant, have nothing to do with the Law of Succession Act, as the said law or the rules made under it, the Probate and Administration Rules, do not provide for what should happen after the certificate of confirmation of grant has been generated from the confirmation orders. The process of the carrying into effect of the confirmation orders is regulated by land legislation through a process known as transmission, which is not provided for under the Law of Succession Act"

74. Counsel further submitted that the Applicant did not move the Court by way of review or Appeal from the time the Grant was confirmed, she did not take any steps to commence the process of transmission and from the persuasive authority cited herein above, the Court is functus officio and the remaining process of transmission is not within the jurisdiction of this Honourable Court. Counsel urged the Court to find that the Applicant has not met the threshold for Revocation of Grant.

75. With regard to the injunctive orders being sought, Counsel submitted that the Applicant at prayer 2 of his Application sought for a restraining order. Counsel acknowledged that this Court has the jurisdiction to issue injunctive orders since the process of transmission has not taken place. Counsel maintained that an injunctive order is an equitable relief and it is trite that equity aids the vigilant, not the indolent. Counsel contended that the Applicant has filed the instant Application fifteen (15) years after the Grant was confirmed and she is therefore guilty of laches and on this ground alone, the prayer for injunction fails.

76. Counsel further submitted it is common ground that for an injunction to be issued, the Applicant must satisfy the three requirements settled in Giella Vs. Cassman Brown [1973] EA 348 where the Court held that an Applicant must demonstrate that they havea prima facie case with a probability of success, demonstrate irreparable injury which cannot be compensated by an award of damages if a temporary injunction is not granted, and if the Court is in doubt show that the balance of convenience is in their favour.

77. Counsel contended that the Applicant has not demonstrated that she has a prima facie case as she was a Petitioner in this matter and a co-administratrix of the Estate of the late Kipkoech Arap Tanui who participated in the Succession proceedings and that she wields all the powers of an Administratrix but has chosen to play victim. Counsel reiterated that the Applicant has also filed this Application fifteen (15) years after the Grant was confirmed which is a clear indication of a vexatious litigant who is out to waste the precious judicial time.

78. According to counsel, the Applicant has also not demonstrated that she is likely to suffer irreparable injury which an award of damages cannot compensate.

79. Counsel urged that in the unlikely event that this Honourable Court finds that the Applicant has met the threshold for the grant of an injunction, this Court should consider the prejudice the entire family of the late Kipkoech Arap Tanui would suffer if the restraining orders are granted and that the estate's beneficiaries including the Applicant and the Respondent who is ninety-three (93) years old depend on the estate's proceeds for sustenance. Additionally, Counsel urged that the Applicant herein has not indicated how long the restraining orders are meant to last, making it unsuitable to grant the orders.

The (4) Beneficiaries Submissions 80. Regarding revocation of grant, Counsel for the (4) beneficiaries submitted that Section 76 of the Law of succession Act states that an interested party can apply for the revocation/annulment of Grant and it is incumbent upon any party making such an Application to demonstrate the existence of grounds as per the Act and that the grounds upon which a grant may be revoked or annulled are thus statutory and it is incumbent upon any party making an Application for revocation or annulment of a grant to demonstrate its existence.

81. Counsel maintained that the Probate and administration proceedings intestate of the Estate of the late Kipkoech Arap Tanui herein was filed by the Applicant jointly with the Respondent in the year, 2006, that the Applicant being an administratix of the said estate was part of the entire Succession process from its inception to the time of issuance of the grant and later confirmation of the same and that the Applicant being the Petitioner, supplied this Honourable Court with all the requisite documentations and information which the Court relied on until its issuance of certificate of confirmation of grant to the estate and schedule on mode of distribution of the Estate in the year 2006.

82. Counsel contended that the Applicant has not shown any defectiveness in the succession process leading to issuance of grant and final confirmation and distribution of the Estate herein, that the Applicant in one of her grounds states that, she was referred to as the 2nd wife instead of the 1st wife in the succession proceedings. According to counsel this is a flimsy ground that does not qualify as a ground for annulment/Revocation of grant under the Section 76 of the Succession Act. Counsel further submitted that the Applicant states that she was not catered for fully in the Estate and that she has been locked out of the Estate of the deceased. Counsel urged the Court to be guided by their replying affidavit where they have attached exhibits to show that the Applicant was catered for in the schedule and distribution of properties. Counsel reiterated that it is important to note that the Applicant being the Administratrix of the Estate of the deceased was tasked with making the schedule of properties and distribution in relation to the Estate, she also consented to her share of the Estate at the time of confirmation and that the Applicant cannot therefore claim to have not gotten her rightful share of the Estate.

83. Regarding the issue of the Chief’s letter, Counsel submitted that the Applicant has raised a ground that the Chiefs letter submitted was not correct, and on this head Counsel maintained that it is the Applicant who was the Petitioner and administratix in the succession cause herein and that it is the Applicant who sought the Chief's letter and submitted the same to Court for purposes of filing succession after verifying its correctness and thus cannot now claim that the same was not correct.

84. On the ground that some of the beneficiaries were locked out of the estate Counsel submitted that, the Applicant who was the Petitioner and administratix in this estate cannot, 18 years later after confirmation of grant and distribution allege that she forgot to submit the names of her own children as beneficiaries when she was the person tasked with submitting the names of the beneficiaries of the Estate to the Court, that alleged beneficiaries, allegedly locked out of the Estate have not themselves filed any objection and or summons for revocation of grant before this Court to enable the Court ascertain their allegations and thus the Applicant cannot therefore claim to have come to this Court on their behalf without any powers and or legal authority to do so.

85. Regarding allegations, that the Applicant has not been involved in the running of the estate of the deceased, Counsel referred the Court to their Replying Affidavit wherein they have demonstrated to this Court that the Applicant has been fully involved in the running of all the relevant assets of the deceased Estate and it is untrue that she has been locked out of the Estate of the deceased. Counsel added that Applicant can only be involved in the running of the part of Estate which she is entitled as per the schedule of distribution issued in the Estate, she thus cannot generalize and allege that she is not being involved in the running of the entire estate including properties which have been duly transferred to beneficiaries as per schedule through transmission.

86. According to Counsel, the Applicant in is unending fishing expedition to hold on to any ground that comes her way, has gone ahead and listed properties that were and are not part of the deceased estate in her Application.

87. Counsel maintained that the Applicant's Application as it is, does not have grounds or the grounds adduced does not meet the threshold as stipulated under Section 76 of the Succession Act on revocation of grant.

88. In view of the injunctive orders being sought, Counsel submitted that on the basis of the well accepted principles set out by the Court of Appeal in Giella vs Cassman Brown the Court has had to consider the following questions before granting injunctive relief: is there a prima facie case, does the Applicant stand to suffer irreparable harm and on which side does the balance of convenience lie. Counsel added that the Court in responding to prayers for injunctive relief, should always opt for the lower rather than the higher risk of injustice.

89. On a prima facie case, Counsel submitted that the Applicant has failed terribly to establish a prima facie case on the face of the Application as shown in our replying affidavit and submissions hereinabove and therefore she should not be granted the injunctive orders as sought.

90. In regard to irreparable damage, Counsel submitted that it is the Respondents that will suffer irreparable damage and not the Applicant if injunctive orders are granted and/or extended, that the injunctive orders issued include freezing of Respondents Bank accounts that are the source of their livelihoods of and whom are now struggling financially and that Applicant will not suffer any damage if injunctive orders are not issued.

91. On a balance of convenience, Counsel submitted that considering the evidence adduced by the Respondent the balance of convenience tilts against grant of injunction.

92. Counsel maintained that the Applicant has failed terribly to satisfy the set standards, grounds and conditions for grant of injunctive orders as sought.

93. According to Counsel, disturbing the Estate of the deceased which distribution was done in the year, 2006 on flimsy grounds as adduced by the Applicant, would greatly inconvenience the beneficiaries cause disharmony and disturb the assets and properties of the Estate herein.

Determination 94. The issues that arise for determination are as follows;a.Whether the court has the requisite jurisdiction to handle this matterb.Whether the Application by Tabusamu Jelel has met the threshold for the revocation of the Grant herein.c.Whether the Applicant, Tabusambu Jelel Tanui has established grounds to warrant the issuance of the injunctive orders being sought.

95. On the 1st issue for determination, this cause was filed at Eldoret High Court before the establishment of the High Court at Kapsabet. The Grant the subject matter was issued and confirmed at the High Court in Eldoret. The Establishment of Courts is an administrative of the Hon the Chief Justice in conjunction with the Judicial Service Commission. It is therefore not legal function. Once established, the High Court then has original and unlimited jurisdiction on all matters that fall within its Constitutional mandate as provided under Article 165 of the Constitution just as this cause does. For this reason I am satisfied that the court has the requisite jurisdiction to handle the matter.

96. The On the 2nd issue for determination, Section 47 of the Law of Succession Act vests Court with wide discretion in granting protective powers for purposes of safeguarding the estate of a deceased person. It provides:“The High Court shall have jurisdiction to entertain any Application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.”

97. Rule 73 of the Probate and Administration Rules provides that: -“73. Nothing in these Rules shall limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”

98. The revocation or annulment of grant of Letters of Administration and the jurisdiction of the Court to entertain the Application to revoke the grant is a matter properly expressed under Section 76 of the Law of Succession which states that:“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.”

99. The issue of revocation of Grants, Section 76 was expounded upon by Hon. Justice W. Musyoka in the case of Re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR where he stated as follows:“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.”

100. The Court in the case of Jamleck Maina Njoroge v Mary Wanjiru Mwangi (2015) eKLR at paragraph 11 of its ruling in revoking a grant reiterated the grounds upon which a grant can be revoked. It stated as follows:-a.“11. The circumstances that can lead to the revocation of grant have been set out in Section 76 Law of Succession. For a grant to be revoked either on the Application of an interested party or on the Court’s own motion there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of false statement, or by concealment of something material to the case, or that the grant was obtained by means of untrue allegations of facts essential in point of law.”

101. In the case of Matheka and Another vs Matheka [2005] 2KLR 455 the Court of Appeal laid down the following guiding principles as to revocation of grantsSUBPARA (a)SUBPARA “i.A grant may be revoked either by Application by an interested party or by the Court on its own motion.SUBPARA (b)SUBPARA ii.Even when revocation is by the Court upon its own motion, there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by the making of a false statement or by concealment of something material to the case or that the grant was obtained by means of untrue allegation of facts essential in point of law or that the person named in the grant has failed to apply for confirmation or to proceed diligently with the administration of the estate.”

102. . In the case of Tirus Mwaniki Njiru Vs Jane Igandu (2021) eKLR, Njunguna J. held that:-“These grounds ought to be proved with evidence as the power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds but not to be exercised whimsically or capriciously.”

103. Having carefully considered the Application dated 10th July 2024 and addressed my mind at great length to the facts deposed in support of the said Application, and having also considered the record of the Court, It is my finding that the Applicant in the said Application being a Co-Administratix of the said estate with the Respondent, participated in the entire Succession process from its inception to the time of issuance of the Grant of Letters of Administration to both of them and was thereafter also present at and did participate in the proceedings for the Confirmation of the said Grant.

104. The record of the Court at the confirmation proceedings show that the same proceeded before the Hon Lady Justice P. M. Mwilu (as she then was). It further shows that all the dependants were present. It also shows that the Petitioners then being the Applicant and the Respondent were represented by an Advocate one Mr. Kibor and that in fact, the petitioners had been represented by the firm of Nyaundi Tuiyot throughout the succession process.

105. The record further state that there were no objection at all and all the parties were in agreement and the grant was confirmed. With the records reflecting as I have summarized, I find a lot of difficulty in finding in favor of the Applicant. Even her allegation that she was taken advantage of by the Respondent because she was illiterate cannot hold any ground because they were both represented by Counsel and the presumption then is that all the parties were appropriately briefed at every stage of the process.

106. Additionally, the Applicant being the Petitioner, is among the persons who supplied the Court with all the requisite documentations and information which the Court relied and issued the Letters of Grant of Administration and the subsequent Certificate of Confirmation of Grant to both Administratrix based on the schedule on the mode of distribution of the Estate that they themselves agreed upon and presented to Court in the year 2006. It beats logic in my view that in this circumstances, the Applicant could overlook the fact that her own children were not included as beneficiaries in a process in which she fully participated.

107. This Application in my well-considered pinion has failed to meet the threshold for Revocation set out in Section 76 of the Law of Succession Act to the effect that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by the making of a false statement or by concealment of something material to the case or that the grant was obtained by means of untrue allegation of facts essential in point of law or that the person named in the grant has failed to apply for confirmation or to proceed diligently with the administration of the estate.”

108. As has been stated in the authorities herein cited to revoke or not to revoke a grant is a matter of the discretion of the court in consideration of all the relevant, particular and peculiar circumstances pertaining to any case before it. Being a discretionary mandate, it then akin to an equitable remedy which must be exercised judiciously. In this regard then the maxim of equity that Equity aids the vigilant and the swift and not the indolent.

109. The Applicant having waited since 2006 to move the court after the grant had been confirmed cannot be termed to be a swift litigant by any stretch of the imagination and especially in seeking to overturn a process that she participated in fully. In this regard, the fact of the time lapse as deposed to by the Respondents is indeed relevant and cannot just de dismissed offhand as the Applicant would wish the Court to do because this Applicant is guilty of laches and the court has not at all been convinced that it should exercise discretion in her favor.

110. In light of the above, I find that the Application dated 10th July 2024 lacks merit and the same is dismissed in its entirety. It follows therefore that the that the interim order granted by the Hon Mr. Justice Nyakundi are now hereby vacated and as a result the Application dated 5th August 2024 filed by the Respondents is rendered moot since my orders on the Application dated 10th July 2024 have effectively dealt with the issues raised in the said Application.

111. Each party is to bear their own costs

READ DATED AND SIGNED AT ELDORET ON 18TH DECEMBER 2024E.OMINDEJUDGE