[2022] KEHC 1448 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

SUCCESSION CAUSE NO 141 OF 2008

IN THE MATTER OF THE ESTATE OF KIPSOGET ARAP CHESOEN (DECEASED)

AMOS KIMURGOR KERONEY

ALFRED KIBIY SUGE……………………………….……PETITIONERS

Coram: Hon. Justice R. Nyakundi

Keter, Nyolei & CO. Advocates for the

Beneficiaries/Protesters

Magut & Sang & Associates

R U L I N G

What is before this court is an application dated 11th April 2018 expressed to be brought under section 71 of the Law of Succession Act. The applicant seeks orders that the grant of letters of administration issued on 19th February 2009 be amended by replacing AMOS KIMURGOR KERONEY with ROHAN KIPLIMO MURGOR. The application is based on the grounds that the first administrator died on 26th January 2010 and six months had elapsed since the grant of the letters of administration were issued at the time of the application.

The application was opposed by an affidavit of protest by William Kirwa based on the grounds that the other beneficiaries are not in agreement with the mode of distribution of the estate as proposed by the applicant. The applicant has left out some beneficiaries who are beneficiaries to the estate. These are;

· Rodah Cheptoo Lelei – daughter in law

· William Kibor Lagat – daughter

· William Kiptolo Too – Grandson

· Agnes Cheptebkeny – Grandson

· Mariko Kipkoech Murgor – Grandson

· Absalom Kimosbei - Grandson

He maintained that they are dependants of the deceased and some of them have resided on the deceased’s property for 30 years. The protestor suggested an alternative mode of distribution and deponed that the beneficiaries consented to the mode of distribution dated 13th June 2018. The distribution mode suggested by the petitioner proposes an unequal mode of distribution without any explanation as to why some children of the deceased should get more property than others.

The parties have attempted to settle this matter through mediation but the same eventually collapsed.

Upon consideration of the pleadings, proceedings and submissions herein I have identified the following issues for determination;

· Whether the grant of letters of administration should be amended

· Whether there were any beneficiaries left out

WHETHER THE GRANT OF LETTERS OF ADMINISTRATION SHOULD BE AMENDED

The Court of Appeal in John Karumwa Maina v Susan Wanjiru Mwangi [2015] eKLR held;

There is absolutely no room of substitution of the deceased administrator under the Law of Succession Act. In my view, therefore, where the sole administrator is a natural person, and he or she dies, the grant becomes useless or inoperative by reason of subsequent event of his demise….

In the Estate of Simon Ngugi Nganga (2013) eKLR the court held;

"The matter of the death of a co-administrator cannot be dealt with as a rectification or review of the certificate of confirmation of grant. It is more fundamental. It touches on appointment of administrators. The grant.... was made to two persons. It is expected that the two are to act jointly at all times with respect to the administration of the estate. With the death of one of them, the grant becomes useless as the surviving sole administrator cannot act on the basis of a grant which still bears the name of a dead administrator. ....... Since the grant has become useless and inoperative, it ought to be revoked and fresh appointments of administrators be made. The surviving administrators cannot even use the grant, as it is useless, to seek the orders that the applicant now seeks in this application."

The distinguishing factor in the above authorities is that they refer to the death of an administrator once the grant has been confirmed and a certificate has been issued. In the present suit there has been no confirmation of grant and no certificate issued. The applicant has not given reasons as to why he cannot administer the estate on his own. He has not provided evidence that all the beneficiaries have consented to the appointment of Rohan Kiplimo Murgor as the new co administrator.

I also note that there is an affidavit of protest by one of the beneficiaries on the basis that there are dependants who have been left out of the distribution of the estate. William Kirwa has protested the exclusion of one daughter in law, one daughter, one granddaughter and four grandsons in the proposed mode of distribution.

Section 29 of the Law of Succession Act provides;

For the purposes of this Part, "dependant" means—

(a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;

(b) such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and

(c) where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death

By the provisions of the above section it is evident that only Dinah Chepwambok Sawe would qualify as a dependant. However, there is no evidence as to whether she was actually a daughter to the deceased. in the premises the suggested beneficiaries who were allegedly left out do not meet the threshold to be considered beneficiaries.

From the details of the supplementary affidavit filed on 20th July 2018, the facts leading up to the agreement with regards to the distribution are clearly explained.

The prayer for substitution of the deceased administrator fails. However, the application succeeds in so far as the confirmation of grant is concerned. The property is to be distributed in the proposed mode as attached to the application for confirmation of grant.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 21st DAY OF MARCH, 2022.

............................

R. NYAKUNDI

JUDGE

IN THE PRESENCE OF:

1. ALFRED KIBIY SUGE 8717628

2. WILLIAM KIRWA 7358256

3. RAEL JEPKOSGEI SUGE 13205465

4. RONAH KIPLIMO MURGOR 11363007