[2022] KEHC 15574 (KLR)

In re Estate of Lawrence Abusalitsa Namoya (Deceased) (Succession Cause 70 of 2005) [2022] KEHC 15574 (KLR) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15574 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 70 of 2005

PJO Otieno, J

November 11, 2022

Between

Solomon Malenya Abusalitsa

Petitioner

and

Wilfrida Khitembuli

Objector

and

Akata Museti

Interested Party

Agnes Khatemeshi

Interested Party

Alice Muhika

Interested Party

Ezina Mukanzi

Interested Party

Maurice Namoya

Interested Party

Dauglas Shilobele

Interested Party

Judgment

1. Pursuant to summons for revocation of grant dated February 5, 2021, the Objector sought, in the main, that the grant of letters of administration issued to the Petitioner be revoked and that property that belonged to the estate, being Kakamega/shinyalu/1021, 1052 And 1222 And Kakamega/shiakungu/959, but which were transferred to third parties be restored to the estate.

2. The grounds set out to premise the request for revocation were set out to be those set out at Section 76 a & b of the Law of Succession Act. Those grounds were reiterated in the Affidavit sworn by the objector in support of the application. In that affidavit it is said that the deceased had three wives with a total of eight (8) children. It is said that the 1st wife had no child, the second had only one child, the Objector, while the 3rd had seven children. The deceased was said to have left behind four parcels of land which were disclosed in the succession cause. The parcels according to the Objector included Kakamega/shinyalu/1222 which had been sold to St Agnes Secondary School.

3. The process leading to grant and certificate of confirmation was faulted for having been conducted secretly and in total exclusion of the objector and thus contrary to the law. She then proposed that the estate be redistributed afresh with her getting Kakamega/shiakungu/959 absolutely, on the basis that the same was given by the deceased to her before his death. As exhibits, she showed to court the Grant and certificate of confirmation on how the land has been shared out.

4. After being served with grounds of opposition by the petitioner as well as Replying Affidavits by Petitioner and six interested parties, the objector the filed an affidavit termed a replying affidavit to affidavits by interested parties in which she reiterates being a beneficiary to the estate who was unfairly disinherited and that the bare minimum she demands is to get Kakamega/shiakungu/959 absolutely or a share in each of the assets of the entire estate. She then denied that Kakamega/shinyalu/1222 was sold to the school by her mother, Daria Mutola, but by Dina Musinawho took advantage of the Objector’s ignorance by asking her to witness the sale agreement. She asserts that by the time she witnessed the sale agreement she did not know that she had equal rights with her other siblings over the estate.

5. The application was opposed by not only the Petitioner but six other beneficiaries who sought to participate as Interested Parties. For the petitioner, both grounds of opposition and replying affidavit were filed. In the grounds of opposition the petitioner takes the position that if the objection believed there was an oral will over Kakamega/shiakungu/959, she ought to have filed a cross petition or protest to distribution but not wait till this late in the day to raise such concerns. It was added that the application by Joseph Munanga Waseand Caleb Munangawas withdrawn by consent on February 18, 2016 and they ceased being parties to the Cause and therefore their inclusion in the application by the Objector is only to convolute the matter.

6. In the Replying Affidavit, the position taken is that the objector had full knowledge of the cause courtesy of the publication in the gazette and that while the deceased was indeed a polygamist, he was only married to two wives and that Daria Mutolawas a concubine who had been inherited by the deceased and would cohabit with him intermittently but was given a parcel of land which was sold by the Objector to the school hence the consent by which the grant was confirmed with the school getting that parcel of land. To the Petitioner the application is an afterthought and a spiteful design to disrupt the agreed mode of distribution to which she benefited.

7. The six Interested Parties are in fact the other beneficiaries to the estate including daughters to whom no shares were given, save for the 6th who is a grandson to the deceased by virtue of being the son to one Philip Shilovele. The grandson and daughters of the deceased say they were aware of the Cause and fully satisfied with the mode of distribution. They deny the allegations that title number Kakamega/shiakungu/959 was given to the Objector by the deceased and assert that it was, the Objector, alone who sold Kakamega/shinyanul/1222 to St Agness Secondary School. All say that the objection is not bona fides but intended to assist the Objector get additional land from the estate and destabilize the family peace and that none of them was so in support of the objection and that the Objector was not acting on their behalf. All pray that the objection be dismissed.

8. Even though it had been directed by the court that matter be heard by way of viva voce evidence, when Counsel attended court on June 29, 2022, both agreed that the fact that the Objector was a daughter to the deceased being not in doubt, the matter could be dealt with by way of submissions rather than viva voce evidence.

9. Pursuant to such agreement, both parties filed their submissions on the July 29, 2022. In her submissions, the Objector underscore the point that being a daughter, which was not disputed, she was entitled to a share in the estate, then relied on Section 38 and 40 of the Law of Succession Act and the decision in Re Estate of John Musambanyi Katunanga [2014] eKLR for the proposition that the spirit of Part V of the Act is equal distribution of the estate among children.

10. On that spirit of the law, the Objector then gives a proposal on distribution where she asks to be given Kakamega/shiakungu/959 in whole while the rest of the children share the other two parcels of land.

11. On the threshold for revocation of a grant, the Objector stresses the fact that she and the other children being girls were excluded then cites the decision in Re Estate of Julius Ndubi Javan [2018] eKLR for the proposition that non-disclosure undermines justice and must be subjected to reverse osmosis to attain purity. On assertion by the Petitioner that their application was bad for having been brought too late in the day, the Objector cited to court the decision in Re Estate of Josephine Magdalena (Deceased) [2016] eKLR for the proposition that Limitation of Actions Act does not apply to Cause governed by the Law of Succession Act. Re Estate of Charles Ngotho Gachunga (Deceased) [2015] eKLR was also cited for the proposition that the office of an administrator is a lifelong one where one can be called at any time for account and that section 76 of the Act puts no time limit within which revocation of grant may be sought.

12. On those points, the Objector prayed that the grant be revoked and the estate be redistributed afresh as proposed by her.

13. For the Petitioner, the position taken in the submission is that the Petition was initially lodged by his mother who died midstream and when he took over, he realized that not all children of the deceased had been included just like only one of the assets had been disclosed hence he took action and brought all the children and assets into the cause including the objector. The Objector was pointed out as having participated in the process including distribution by signing a consent dated September 7, 2012 annexed to the Affidavit in Support of Summons for Confirmation of Grant dated the same date. It was stressed that the Objector participated fully in the process and endorsed the allocation of Kakamega/shinyalu/1222 to St Agnes Secondary School to which the Objector had sold the property.

14. To the Petitioner, no justice would be served by revocation of grant since the target of the Objector is only one parcel of land she says was bequeathed to her by the deceased but without evidence.

15. After the examination and appraisal of all the materials availed to the court, the court finds that there are three issues that demand determination by it: The issues are:-i)Whether the Cause was initiated and presented without involvement of the Objector to merit revocation of the grant?ii)Who sold parcel No Kakamega/Shinyalu/1222 to St Agness Secondary School?iii)Whether the Objector is entitled to parcel No Kakamega/Shiakungu/959 on the basis that the same was bequeathed to her by the deceased?

16. For the court to issue an order revoking the grant, the Applicant must satisfactorily prove at least one the grounds in Section 76 of the Act. In the instant matter the Objector maintains that she was not consulted. However, when the summons for confirmation of grant dated March 7, 2012 was filed, it had an annexture dated the same day and headed ‘Consent on Distribution (General Form)’ which was evidently signed by five people. The signatories to that consent were Agata Museti, Agnes Khatemeshi, Alice Muhika, Ethna Muikanzi and Wilfrida Khitembuli Abusalitsa. The application equally listed the Objector as a beneficiary and did assign to her that property known as Kakameg/Shinyalu/1222. That application was listed before court on several occasions till the March 27, 2017 when it was allowed by consent of the two Counsel present in court.

17. While addressing the court on that day, Mr Mukabwa advocate is recorded by the court to have said:-“The beneficiaries are present. Matter is for confirmation of grant the beneficiaries have signed a consent. The share of W. Khitembuli is the one she sold to the school.”

18. On the basis of such address, the court found that all the beneficiaries were in court and did not object to the mode of distribution and therefore confirmed the grant as proposed at paragraph 5 of the Affidavit in support.

19. That short history of the matter shows that the Objector was not only named as beneficiary but equally benefit from the estate in that her sale of one of the assets of the estate was ratified by the administrator and the court by allowing that asset to go to the purchaser; St Agnes Secondary School.

20. In addition all beneficiaries of the estate agree that the estate was distributed justly and fairly and that the Objector is just but a rabble rouser.

21. The court finds that none of the grounds set in Section 76 of the Act has been established satisfactorily to exist in this cause to merit revoking the grant. The court takes the view and is of the learning that the remedy of revocation of grant is a tool by which court protects those entitled to the estate from being prejudiced by misconduct or impropriety by the administrator. It is purposed to ensure that none of the beneficiaries is disinherited. It is not intended to be resorted to for every infraction of the procedure that does not militate against the principles of law in a Succession Cause. Here the court finds that there was never fraudulent act by making any false statement or concealment of any material particulars from the court by excluding the Objector nor was there any improper, irregular or defective process. As at the date the application for revocation of grant was filed and prosecuted, the estate had been distributed, and I believe administration concluded. It is therefore cannot be true that there had been failure to proceed diligently with the duty to administer the estate. The court finds the application for revocation to lack merits and therefore the same is dismissed.

22. That conclusion ought to rest this determination but, there were two auxiliary issues the court isolated which it must comment upon before penning off.

23. The first of the two issues concerns who sold the estate property known as Kakamega/Shinyalu/1222. While the Objector in her application asserted that it was not her but by all beneficiaries of the estate, the Petitioner and the other beneficiaries, who came in as interested parties, swore that it was the Objector who alienated that property to the School because the deceased in his life time had given that land to one Doriah Mutola, the mother to the Objector. To the replying affidavits the objector chose not to respond. I find, on a balance of probabilities that it was more probable than not that it was the Objector who sold that land to the School. For that reason, and taking into account that that parcel of land measured 0. 7 Ha. was distributed to the Objector absolutely and that it was only the Objector, among all the daughters who got a share of the land, I do find that she got a fair share of the estate and she is not entitled to additional shares.

24. On the last issue, whether the Objector is entitled to Kakamega/Shiakungu/959, on account that the deceased had allocated same to her, raises the claim of an oral will by the deceased. The Law of Succession Act, under Section 9, qualifies and recognizes an oral will only if:-(a)It is made before two or more competent witnesses.(b)The testator dies within a period of three (3) months from the date of making the will...

25. In this case the Objector says not when the land was given to her by the deceased and if there were at least two competent witnesses present when the allocation was being done by the deceased. In addition it is not discernable, therefore, whether the deceased died within three (3) months of making the intention to give the land to the Objector. It is to the court not proved on a balance of preponderance that the deceased made any enforceable wish to give to the Objector that property known as Kakamega/Shiakungu/959. Without satisfaction of the statutory prerequisites of an oral will the court finds that no oral will was made by the deceased in favour of the Objector.

26. Consequently, the application for revocation of grant fails in its entirety and is therefore dismissed. Each party shall bear own costs. Matter shall be mentioned on January 19, 2023 for the administrator to confirm that the administration has been concluded.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 11TH DAY OF NOVEMBER 2022. PATRICK J O OTIENOJUDGEIn the presence of:Mr Mukabwa for the Petitioner/RespondentNo appearance for Wilunda for the ObjectorCourt Assistant: Polycap