[2022] KEHC 1369 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

SUCCESSION CAUSE NO.112 OF 2010

IN THE MATTER OF THE ESTATE OF LAURENCE ONGOMA (DECEASED)

PETER LUNANI ONGOMA.........................ADMINISTRATOR

VERSUS

ANN BIBBY RADOLI......................PROTESTER/APPLICANT

R U L I N G

[1] The subject grant respecting the estate of Laurent Ongoma (deceased) was firstly issued to John Francis Muyodi on the 12th July 2009, but was re-issued afresh to John Francis Muyodi and Peter Lunani Ongoma on the 20th July 2016. Unfortunately, in the year 2019, John Francis Muyodi passed away leaving Peter Lunani Ongoma as the sole administrator of the deceased’s estate.

Later, on the 13th October 2020, the sole administrator through the firm of Muigai, Kemei & Co. Advocates, applied for confirmation of the grant on the basis of the mode of distribution specified in paragraph 7 of the supporting affidavit deponed by the applicant, in which a total of five (5) immovable properties (herein, the estate property) were identified for distribution among the rightful beneficiaries. These included parcels of land described as Marachi/Elukhari/415,438,944,1409 and 430.

[2]On 17th December 2020, the application was placed in court for hearing in the presence of the applicant’s counsel Mr. J.P Makokha, and a beneficiary’s counsel, Mr. Wanyama.

Some of the beneficiaries were also in attendance, and they included, Thomas Mwanza Makokha, Ayieko Ongoma Mark, Kenny Otieno Omondi, Peter Lunani Ongoma (applicant), Edgar Lunani and Beata Kuchio Mkok.

After hearing both counsel, the court confirmed the grant and dismissed the affidavit of protest to confirmation dated 26th October 2020 and filed herein on 27th October 2020, by the beneficiary Anne Bibby Radioli, daughter to the deceased.

[3]A certificate of confirmation dated 17th December 2020, was accordingly issued tin terms of the mode of distribution set out in the summons for confirmation.

However, on the 5th March 2021 the application dated 4th March 2021 was filed by the aggrieved protestor Anne. Bibby Radoli, seeking the main order that the court proceedings that were conducted on 17th October 2020 inclusive of orders which confirmed the grant and dismissed the applicant’s protest as well as the certificate of confirmation of grant dated 17th December 2020 be reviewed and set aside and the applicant be heard on her protest on its merits. This was prayer (b) of the application which invariably impacted on prayer ( c ) of the application.

Prayer (d) was not relevant for the purposes of the application while prayer ( e ) was essentially for costs of the application and not for anything else.

Order 45 Rules (1) and (2) of the Civil Procedure Rules and Rules 63 and 73 of the Probate & Administration Rules, provided the legal basis for the application.

Although this is a succession cause, Order 45 of the Civil Procedure Rules would apply herein by dint of Rule 63 (1) of the Probate & Administration Rules.

Indeed, in John M. Njoroge & Others Vs. Cecilia M. Njoroge & Others (2016) eKLR, the court held:-

“As stated above, the only provisions of the Civil Procedure Rules imported to the Law of Succession Act are orders dealing with service of summons, interrogatories, discoveries, inspection, consolidation of suits, summoning and attending witnesses, affidavits, review and computation of time. Clearly, Order 45 relating to review is one of the Civil Procedure Rules imported into succession practice by Rule 63 of the Probate & Administration Rules. An application for review in succession proceedings can be brought by a party to the proceedings, a beneficiary to the estate or any interested party. However, the application must meet the substantive requirements of an application brought for review set out in order 45 of the Civil Procedure Rules.”

[6]Thus, the substantive requirements of Order 45 of the Civil Procedure Rules, which deals with review are firstly, the discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant and could not be produced at the time when the decree was passed. Secondly, an applicant must demonstrate that there has been some mistake or error apparent on the face of the record. Thirdly, review can be possible for any other sufficient reason.

The Civil Procedure Act was revised in the year 2010, and the former Order XLIV (44), became the current. Order 45 of the Civil Procedure Rules 2010. Therefore, the usage of the old Order XLIV (44) by the applicant in the application did not render it defective and/or incompetent as the respondent/administrator seemed to contend in his submissions. In any event if there was any error in that regard, then it was merely an error in form which would be non-fatal in the circumstances.

[7] In sum, Order 45 of the Civil Procedure Rules and Rule 63 of the Probate & Administration Rules, were properly invoked alongside Rule 73 of the Probate & Administration Rules, which provides for the inherent powers 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, in the application by the applicant/beneficiary dated 4th March 2021 which was however abandoned for the current application dated 24th March 2021 for revocation and/or annulment of the certificate of confirmation of grant which is more or less a hybrid form of the previous application considering that similar orders are prayed for by the applicant only that in the present application S.76 of the Law of Succession Act was invoked together with Rules 44,63 and 73 of the Probate & Administration Rules.

[8]Given that the present application is made vide a summons for revocation and annulment of the certificate of confirmation of grant, it was unnecessary and irregular for the applicant to invoke Rule 63 of the Probate & Administration Rules for purposes of having the court review its proceedings and orders of the 17th December 2020 so as to hear the applicant’s protest on the merits. In any event, the protest is no longer tenable having been overtaken and rendered obsolete by the present application which is not targetted at the grant of letters of administration issued on 20th July 2016, but the certificate of confirmation of grant issued on 17th December 2020 to the administrator/respondent herein and on the basis of which the estate property was distributed among the beneficiaries inclusive of the applicant/beneficiary herein.

[9] S.76 of the Law of Succession Act provides for revocation or annulment of grant for reasons “inter-alia” that the proceedings to obtain he grant were defective in substance or that the grant was obtained fraudulently by the making of a false statement or by the concealment from the curt of something material to the case.

Therefore, the basic issue arising for determination herein is whether the applicant has provided satisfactory and credible evidence to establish that indeed, the certificate of confirmation of grant dated 17th December 2020 was obtained in proceedings which were defective in substance or was obtained by fraud or by concealment of material facts.

[10]Among the grounds relied upon by the applicant was that she was never served with the summons for confirmation of grant and was also not served with any hearing notice for the 17th December 2020, but nonetheless took necessary precaution to instruct her advocate to prepare a general protest relating to the family meeting held on 10th October 2020. The applicant implied that there was delay by the court registry in listing the matter for hearing on 17th December 2020. However, in her supporting affidavit, the applicant confirmed that she became aware of the scheduled hearing date on 14th December 2020 after being notified by her advocate but due to her inability to travel to Busia from Nairobi she instructed the advocate to seek an adjournment. Later on the scheduled date of the hearing she learnt from her advocate that her protest was dismissed as she had signed the consent to confirmation of the grant and mode of distribution.

[11] The record shows that the proceedings on the 17th December 2020 proceeded regularly in the presence of counsels representing the applicants in the application for confirmation which applicants also included the applicant/beneficiary in the present application. However, the applicant herein was represented by her own advocate (Mr. Wanyama) who sought for guidance of the court in respect of the intended protest by the beneficiary.

It is instructive to note that some of the other beneficiaries attended the confirmation proceedings and raised no objection to the proposed mode of distribution. It is also instructive to note that the protestor’s counsel did not specifically apply for an adjournment, but only brought to the attention of the court that the protestor was in the family meeting on distribution and was protesting the proposed mode of distribution.

[12] The court after considering all that was stated by both sides allowed the application for confirmation and accordingly confirmed the grant. In the process, the court fixed a date (24th March 2021) for rendering of accounts and dismissed the protest with leave to the protestor to appeal.

The foregoing facts clearly indicate that there was nothing irregular and/or defective in the proceedings of the 17th December 2020, which the applicant herein was aware of and indeed attended through her advocate. After confirming the grant and dismissing the protest, the court gave the protestor leave to appeal. Instead of appealing, the protestor brought the application dated 4th March 2021, which was superseded by the present application.

[13] The main ground for this application was that the material certificate of confirmation of grant was fraudulently obtained in that the consent to confirmation of grant and to the mode of distribution which were relied upon by the administrator/applicant were never signed by the present applicant as alleged and were in fact false documents to the extent that the signatures appearing thereon purporting to be those of the present applicant were forged as confirmed by a handwriting expert.

The report of the handwriting expert was annexed to the supporting affidavit and marked exhibit “ABR – 5”. It is dated 6th January 2021 and was prepared and signed by a forensic document examiner called Emmanuel Kenga, who opined that the signatures appearing on the consent to confirmation of grant and to the mode of distribution purporting to be those of the applicant/beneficiary were made by a person other than the applicant/beneficiary.

[14] The report is very detailed and precise but its authenticity was not confirmed by its author by way of a supporting affidavit to the present application and cannot therefore be relied upon to lend evidence to the applicant’s allegation that her signatures were forged thereby implying that the material certificate of confirmation of grant was obtained fraudulently. In any event, fraud borders on criminality and it was not indicated herein by the applicant that a fraud report against the administrator/respondent was made to law enforcers such as the police for necessary action.

It would therefore follow that on all fronts, this application fails to meet the threshold set by S.76 of the Law of Succession Act for revocation or annulment of the material certificate of confirmation of grant dated and issued on 17th December 2020.

As a result, the application must fail for want of proof and merit and is hereby dismissed with each party bearing their own costs.

Ordered accordingly.

J.R. KARANJAH

J U D G E

[DATED & DELIVERED THIS 22ND DAY OF MARCH 2022]