[2017] KEHC 2988 (KLR)

REPUBLIC OF KENYA

HIGH COURT AT NAIROBI

FAMILY DIVISION-MILIMANI LAW COURTS

SUCCESSION CAUSE NO. 1642 OF 2010

IN THE MATTER OF THE ESTATE OF LAURENT NTIRAMPEBA (DECEASED)

BEATRICE KANYANZIRE

EDDIE NTIRAMPEBA.....PETITIONERS (Succ. Cause No. 423 of 2004)

VERSUS

ADAM GASONGO..........PETITIONER (Succ. Cause No. 1642 of 2010)

R U L I N G

1. The application before the Court is a consolidation of Succession Cause No. 423 of 2004 and Succession Cause No. 1642 of 2010, wherein both Applications in respect of the two Succession Causes relate to the Estate of the Deceased, Laurent Ntirampeba. The Applications for Revocation were heard contemporaneously The Summons for the Revocation of Grant are dated 14th April, 2015 and 24th April, 2015 respectively.

2. In the Summons dated 14th April, 2015, the Applicant therein, Beatrice Kanyanzire seeks that the Grant of Letters of Administration intestate issued on the 15th of February, 2011, to the Respondent, Adam Gasongo, in Succession Cause 1642 of 2010 be revoked on grounds that:

a. The Grant was obtained fraudulently by concealment from the court of important matters;

b. The Applicant and the deceased’s son Eddie Ntirampeba are the duly appointed Administrators of the estate of the deceased vide High Court Succession Cause Number 243 of 2004, Nairobi.

c. That Adam Gasongo did not obtain the Consent of the beneficiaries of the Deceased at the time of obtaining the Grant of Letters of Administration in this matter.

d. That Adam Gasongo evidently misled this court to believe that he is the sole heir to the deceased’s estate a fact that is grossly deceptive and misguided to the detriment of the Applicant and her children

e. The Grant was obtained by means of untrue allegations of fact essential to justify revocation of the Grant in this matter

3. The Applicant indicated in her Affidavit that she was the wife of the deceased and produced a Marriage Certificate as evidence. She explained that upon the death of Laurent Ntirampeba on 5th January, 2003, she and their son, petitioned for Letters of Administration for his intestate estate in Succession Cause No. 423 of 2004. The Grant was confirmed by the Court on 18th April, 2007 and a Certificate of Confirmation of Grant was duly issued. She had children with the Deceased, all of whom were listed as heirs together with her in the Grant.

4. The Application dated 24th April, 2015, as made by Adam Gasango, was a Summons for the Revocation of Grant made to Beatrice Kanyanzire on the 4th of August, 2005 and confirmed on the 15th of April, 2007. The summons was brought on grounds that the Grant issued to Beatrice Kanyanzire was obtained fraudulently and by concealment of material and important matters. In his Affidavit, the Applicant stated that he is the brother to the deceased and administrator of his estate as evidenced by a Grant issued on 15th February, 2011 and confirmed on 29th May, 2012.

5. The Applicant asserted that the deceased never married Beatrice Kanyanzire and that they merely cohabited for a short period of time before she abandoned the deceased and moved with her children to Europe in 1996. He stated that in the year 2000, at a family meeting, the Deceased agreed to pay him a salary of Kshs. 4,500,000 in back payment. The Deceased did pay him Kshs. 3,800,000 and in kind by giving him the subject property, Kshs. 700,000 being the cost of the Plot.

6. In the application for Grant of Letters of Administration issued to the Respondent, on 15th February, 2011 and confirmed by the Court on 29th May, 2012, the Respondent, in this application, averred that he was the brother to the Deceased and the sole heir entitled to the whole of the estate of the deceased.

7. In the written submissions, counsel for the Applicant averred that their Application for the revocation of the Grant issued to the Respondent, wherein he is indicated as administrator and sole heir, is premised under the provisions of section 76 of the Law of Succession Act (cap 160)andRules 44(1) and 44(2)of theProbate and Administration Rules.It is supported by the Affidavit filed on the 14th of April, 2015 and a further Affidavit filed on 18th September, 2015 and a Witness Statement filed on 8th January, 2016, all sworn by the Applicant, Beatrice Kanyanzire.

8. Counsel for the Applicant, relied on the evidence adduced at the hearing, and the witness statement by the Applicant. He submitted that the consent of the Applicant was not obtained, neither did the Respondent whilst applying for the Grant herein disclose to the Court the existence of the previous Grant issued to the Applicant in Succession Cause No. 423 of 2004. Counsel asserted that the Respondent was not the brother of the deceased, but the step-brother.

9. The submissions of the Applicant rely on this section of the Law of Succession Act and indicate that underSection 66, a step brother to the Deceased, qualifies as other kindred of the Deceased set out in Section 39. His claim cannot therefore rank in priority to that of the Applicant who is the widow of the Deceased. By law, Adam Gasongo should have given notice or obtained consent in the succession proceedings.

10. The Applicant relied on three cases in support of the right to have her consent sought. In the Matter of the Estate of M’Muketha M’Twamwazi [2013] eKLR, Re: Estate of the late Elijah Kilonzo Kithuma (Deceased) [2016] eKLRand Penina Akumu Nyabola v. Robert Mbai Nyabola [2011] eKLR.

11. As regards Succession Cause No. 423 of 2004, it was the submission of counsel for the Applicant that the Respondent does not rank at the same level as the widow and children of the deceased. Furthermore, the Respondent was well aware of the existence of the Grant issued by the Applicant and took no action. As such, his application for revocation ought to be dismissed with costs.

12. Counsel for the Respondent, in his Submissions, indicated that during the hearing, the Applicant was unable to explain the reason why all her children had different names. She stated that when she sought asylum in France, the deceased was using the name Fred Hatunga, a claim she was unable to support with any documentation.

13. His submissions relied on evidence adduced by the Respondent in his testimony that he stayed with his brother and the Deceased incorporated him into his business, though he did not receive any salary. When they went back to Burundi in the year 2000 they held talks with their relatives and it was agreed that he would be paid Kshs. 4,500,000 in back pay, less Kshs. 700,000 which was the cost of the plot. He also testified that he was given the original title to hold which however, was not transferred to his name.

14. Counsel for Respondent in his submissions argued that the Applicant was not the wife of the Deceased and relied on a letter from one Reverend Catherine Njagi an Assistant Pastor at the A.C.K St. Francis Church in Karen Nairobi confirming that such a Marriage Certificate did not exist in their records. Counsel for the Respondent asserted that the Marriage Certificate was a forged document. He prayed that the court do dismiss the Applicant’s application dated 14th April, 2015.

15. From the foregoing the central questions for determination are:

a. Whether the applicant is or is not a widow of the deceased.

b. Whether the grant should be revoked

c. Which grant should be revoked

16. Section 76 law of Succession Act provides that:

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.

17. At the hearing, testimony was given by the Applicant that she and the deceased wedded on 4th of July 1987 in a Karen church. She supported this claim with evidence of a Marriage Certificate, a Certificate from a Notary Public in Burundi and photographs of the wedding ceremony. The Respondent however denies the status of the Applicant as wife and relies on a letter they received from the A.C.K Church in Karen upon inquiry, indicating that no records of such marriage were found.

18. The A.C.K Church in that later however stated that the Marriage Certificate in question was issued by the C.P.K Church, Karen, a distinct and separate legal entity from theirs. Furthermore, at the hearing, the Witness summoned by the Respondent to address the issue concerning the validity of the Certificate did not testify. The validity of the Marriage Certificate cannot therefore be questioned based on Records from an entirely different religious institution to that which issued the Certificate.

19. Besides the validity of the marriage certificate the Applicant demonstrated that she was the widow of the deceased and her children are the result of their marriage, for purposes of the Law of Succession. She demonstrated that there had been long cohabitation with the deceased and they had built a reputation as husband and wife.

20. In the obiter dictum of Nyarangi JA in Njoki v Mutheru [1985] KLR pg 896, he observed thus concerning presumption of marriage.

“In my judgment, before a presumption of marriage can arise, a party needs to establish long cohabitation and acts showing general repute. If the woman bears a child or better still children, so that the man could not be heard to say that he is not the father of the children, that would be a factor very much in favour of presumption of marriage. Also, if say, the two acquired valuable property together and consequently had jointly to repay a loan over a long period, that would be just what a husband and wife do and so it would be unreasonable to regard the particular man and woman differently. Performance of some ceremony of marriage would be strong evidence of the general repute that the parties are married.”

21. The Applicant in her testimony stated that she had been living with the Deceased since 1985 before they were married in 1987. As a result of the war in Burundi, the Deceased sought asylum in France while the Applicant moved to Rwanda and subsequently to Kenya with the children. The Deceased later joined her in Kenya where they made a home together in Kileleshwa and bought a plot in Karen. The Applicant later moved to London, with the children and the husband would then visit.

22. The photographs submitted in evidence by the Applicant clearly show her and the deceased together as a family on several occasions over the years including photographs of her and the Deceased at their wedding ceremony, on outings with their babies, during an inspection of the house under construction and one in hospital when the Deceased later took ill. This evidence covered a long span of time. There therefore exists an irrefutable legal presumption of the marriage between the applicant and the deceased, even if the marriage certificate was to be discounted. I find however that the marriage certificate has not been shaken.

23. Section 66 of the Law of Succession Act provides for the preference to be given to certain persons to administer the estate where a deceased person died intestate. It states:

“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—

(a) surviving spouse or spouses, with or without association of other beneficiaries;

(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;

(c) the Public Trustee; and

(d) creditors:

Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.”

24. On the question of revocation of the grant issued, it is settled law that a person who approaches the Court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have a bearing on the adjudication of the issues raised in the case. A duty is owed to the court to bring out all the facts and refrain from suppressing any material facts. If one is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right, but the duty to deny relief to such person. This was the expression of the court in R. v. Kensington Income Tax Commissioner [1979] I KB 486 by Viscount Reading, Chief Justice of the Divisional Court.

25. Rule 26of theProbateandAdministration Rulesrelates to the requirements attached to Grants of letters of administration as regards notifications and consents; and states:

(1) Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.

(2) An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.

(3) Unless the court otherwise directs for reasons to be recorded, administration shall be granted to a living person in his own right in preference to the personal representative of a deceased person who would, if living, have been entitled in the same degree, and to a person not under disability in preference to an infant entitled in the same degree.

26. The effect of failure to comply with Rule 26 of the Probate and Administration Rules was discussed in Al-Amin Abdulrehman Hatimy v. Mohamed Abdulrehman Mohamed & another [2013] eKLRwhere the court held that the Law of Succession by virtue of Rule 26 requires that any petition for issue of a Grant must be accompanied by a consent duly signed by all persons entitled in the share in the same estate. The duty of a litigant is to make a full and fair disclosure of the material facts.

27. In sum therefore, the Respondent made an application to the court for Grant of Letters of Administration wherein he indicated that he was the sole heir to the estate of the deceased. He did not disclose to court that the deceased left a wife and children, nor that the widow had already obtained letters of Administration in the estate in Succession Cause No. 423 of 2004. This is a fact which he ought to have known because he obtained services from the same counsel who had earlier represented the widow in the same estate. The Respondent did not give the widow notice before filing his petition, neither did he obtain her consent.

28. For the foregoing reasons the requirements of Section 76 (a), (b) and (c) of the Law of Succession Act have been satisfied. The court therefore orders as follows:

i. The summons dated 24th April, 2015 brought by Adam Gasango for revocation of grant of Letters of Administration made to Beatrice Kanyanzire on the 4th of August, 2005 and confirmed on the 15th of April, 2007 in Succession Cause 1642 of 2010 is found to lack merit and is dismissed accordingly.

ii. The Grant of Letters of Administration intestate issued on the 15th of February, 2011, to Adam Gasongo in Succession Cause 1642 of 2010 is hereby revoked.

iii. The summons dated 14th April, 2015 brought by Beatrice Kanyanzire for revocation of the Grant of Letters of Administration issued on the 15th of February, 2011, to Adam Gasongo in Succession Cause No. 423 of 2004 is found to have merit and is granted.

There are no orders as of costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3rd DAY OF October, 2017.

………………………………………

L. A. ACHODE

JUDGE

In the Presence of: ……………………………………….Advocate for the Petitioner

(Succ. Cause No. 423 of 2004)

In the Presence of: ……………………………………….Advocate for the Petitioner

(Succ. Cause No. 1642 of 2010)