[2023] KEHC 25395 (KLR)

In re Estate of Leah Wamutira Kuthua (Deceased) (Succession Cause E003 of 2022) [2023] KEHC 25395 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25395 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Succession Cause E003 of 2022

RM Mwongo, J

November 16, 2023

Between

Francis Muriuki Kuthua

Applicant

and

Susan Wanjiku Njogu

Respondent

Ruling

1. The applicant filed summons for revocation of grant dated 19th May, 2022 seeking that the letters of Administration intestate made by this Court to Susan Wanjiku Njogu and Francis Muriuki Kuthua on the 24th September 2015 be revoked and costs of this application be awarded to the applicant.

2. Although the application was premised on four grounds, at the hearing the applicant sought that only grounds (a) and (d) be canvassed and that ground (b) be struck out The grounds are as follows:a.The grant of letters of administration intestate issued as aforesaid by the High court on the 24th September 2015 in High Court Succession case No. 79 of 2014 were confirmed by the subordinate court at Kerugoya in CM Succ No.175 of 2016 without authority of the High courtb.The applicant herein who was appointed a joint administrator with the respondent as side-lined in the administration and denied his right as such administrator to fil his own summons for the confirmation of grant.c.The court of its own motion preferred the respondent as the administrator, treating the applicant herein as the protestor.d.That since the grant of letter of administration was made on 24. 9.2015 it is now 7 years and the respondent as the sole self-appointed administrator has not completed the administration of the estate, or filed any reports of her progress as required by the statute.

3. The applicant deposed to a supporting affidavit with the following major averments:i.That a grant of letters of administration intestate was issued to Susan Wanjiku Njogu and Francis Muriuki Kuthua by this court in HC Succ No.79 of 2014 on the 24th September 2015. ii.That on the 4th November 2014, he appeared before Mr.Justice R. Limo together with our lawyers and other beneficiaries and he together with the respondent were appointed administrators by consent.iii.That thereafter on the 7th March 2016, he came to learn of the following matters:a.The respondent herein had alone, filed a summons for confirmation of grant dated the 5. 9.2016. b.That the said summons had been fixed for hearing before Hon.S.M.Soita, CM on 7. 3.2016. iv.That the proceedings were thereafter conducted before the Hon. E.O Wambo, SRM who delivered a judgement on the 17. 1.2020. v.That there is no order of the High Court transferring its HC Succession Case No.79 of 2014 from itself to the two subordinate courts, i.e Chief magistrate's court and /or the senior resident magistrate's court.vi.That the proceedings to obtain and confirm the grant were defective in substance in that the subordinate court had no order of the High Court to enable them.vii.That the grant has become useless and inoperative considering that it has been in possession of the respondent and in limbo for the last 7 years since it was granted.

4. On taking directions at a mention on 16th November, 2022, the parties agreed that the summons for revocation revolved upon a point of law and could be disposed of without calling evidence. As such written submissions were agreed, and the respondent was granted leave to file a replying affidavit.

5. Although the respondent refers to a replying affidavit, none is contained in the file. The parties filed written submissions as directed.

Applicant’s Submissions Whether the proceedings for the confirmation of the High court grant have been unlawfully usurped by the subordinated court 6. This matter was commenced in the High court as HC Succession No.79 of 2014. The High Court Judge dealt with the matter in the presence of the parties and their advocates and issued a grant of letters of administration intestate.

7. For the subordinate court to assume jurisdiction over this matter, it needed an order of the High Court issued under section 18 of the Civil Procedure Act, cap 21 either of its own motion or on the application of any concerned party or parties. It therefore follows that the assumption of the High Court proceedings by the subordinate court in violation of the law was illegal, null, void and without value or effect.

Whether the Respondent administratrix has failed to proceed diligently with the administration and failure to render accounts 8. Under section76(d) of the Succession Act, a grant of representation may at any time be revoked or annulled if the court decides either on application by any interested party or of its own motion

9. Section 83 of theSuccession Act creates the duties of personal representatives.

10. The respondent has not addressed the damning questions that she failed and refused to comply with the requirements of Sections 76(d), 83 (e) and (g)of the Law of Succession Act, and that the grant in her possession is now 7 years old and she has never completed the administration of the estate.

11. Reliance was placed on the case of In re Estate of Reuben Musonye Kugu (Deceased) (Succession Cause 72 of 2004) [2021] KEHC 9747 (KLR) (24 June 2021) (Ruling) where Musyoka J found that an administratrix had been inordinately indolent and stated:“I think I should not say more, for there is adequate evidence of failure by the administratrix to discharge her duty diligently in the administration of the estate herein, and that is why the estate herein remains undistributed seven years after the grant was confirmed, and no reasons have been given for that failure. She does not merit continuing to remain in office, and her grant should be revoked.”

Respondent Submissions Whether the grant should be revoked 12. The respondent submits that the High Court was competent to determine the High Court Succession Case No.79 of 2014 by virtue of section 49 of the Law of Succession Act, Cap 160 as it was, before the said Section was amended by Sec.23 of the Magistrates Court Act of 2015. That it was then that the High Court transferred various matters to the Chief Magistrates Court premised on the fact that the Magistrates Court Act of 2015 had amended Sec.49 of the Law of Succession Act Cap 160 and granted the Magistrate’s Court jurisdiction.

13. Further, the applicant filed an Affidavit of Protest on 20th June, 2017 and fully participated in the proceedings thereafter until a decision was made in 2020.

14. The respondent submits that the applicant has not provided the proof required to support ground 76(d) (iii) of the Law of Succession Act as highlighted

15. The respondent placed reliance on the case of John Mundia Nioroge & 9 others v. Cecilia Muthoni Njoroge & another [2016]eKLR where Mativo J (as he then was) stated as follows:“A grant can only be revoked on the grounds enumerated under Section 76 of the Act, and the grounds relied upon must be proved, and even then, the court has the discretion as observed above.”

16. The respondent argues that Sec 76(d)(ii) requires the Applicant to prove that the administrator has been given due notice and failed without reasonable cause to produce to court within the time prescribe any such inventory or account of administration and she did not receive any notice to produce an inventory or account of the administration.

17. Further the respondent points out that the Applicant did not make any application in court for an inventory and account of administration; and that the Applicant has failed to demonstrate that the Grant of Letters of Administration was obtained unlawfully, but instead has shown that it was obtained with his consent or knowledge and he was even appointed as an administrator during the succession cause.

Issues for Determination 19. The only issue for determination is whether the grant should be revoked as a matter of law

Analysis and Determination 20. The applicant seeks that the grant of letters of Administration intestate made by this Honourable court to Susan Wanjiku Njogu and Francis Muriuki Kuthua on 24th September 2015 be revoked.

21. He relies essentially, on two grounds:The first ground is that the applicant herein who was appointed a joint administrator with the respondent was side-lined in the administration of the estateThe second ground is that the respondent has failed to complete the administration of the deceased’s estate.

22. On the first ground, the applicant deposed in his supporting affidavit that the grant was defective in substance in that the subordinate court had no order of the High court to enable them.

23. However, the respondent correctly submits that the High Court was competent to determine the High Court Succession Case No.79 of 2014 by virtue of Section 49 of the Law of Succession Act, Cap 160 as it was, before the said Section was amended by Sec.23 of the Magistrates Court Act of 2015. Resulting from the said amendment, the High Court administratively transferred various matters to the Chief Magistrates Court premised on the fact that Magistrates Court Act of 2015 had amended Sec.49 of the Law of Succession Act Cap 160 and granted the Magistrate Court jurisdiction.

24. This court takes judicial notice of the fact that whenever the courts’ statutory jurisdictional is changed by law, the Courts make adjustments through administrative procedures.

25. Further, the applicant avers in his application that court of its own motion preferred the respondent as the administrator, treating the applicant herein as the protestor.

26. Nevertheless, the applicant filed an affidavit of Protest on 20th June, 2017 and fully participated in it. After deliberations thereon, the court properly delivered its judgment on 17th January, 2020.

27. There is therefore no evidence that the applicant had been side-lined by the respondents in any aspect of the administration of the deceased’s estate.

28. On the second ground, the applicant deposed in his application that since the grant of letter of administration was made on 24. 9.2015 that 7 years had passed and the respondent as the sole self-appointed administrator has not completed the administration of the estate, or filed any reports of her progress as required by the statute.

29. The real question is what is the law as regards revocation of a grant?

30. Section 76 of the Law of Succession Act provides that a grant may be revoked or annulled for the reason that:“The person to whom the grant was made has failed, after due notice and without reasonable cause either—(ii)to proceed diligently with the administration of the estate;(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.” (Emphasis added)

31. The respondent’s submission that Sec 76(d)(ii) requires the applicant to provide proof that the administrator has been given due notice and failed without reasonable cause to produce to court within the time prescribed any such inventory or account of administration, is thus correct.

32. In the case of John Mundia Njoroge & 9 others v Cecilia Muthoni Njoroge & another[2016] eKLR Mativo J held:“A grant can only be revoked on the grounds enumerated under Section 76 of the Act, and the grounds relied upon must be proved, and even then, the court has the discretion as observed above. This is a matter that has been in court for long and litigation must be brought to a close. I find nothing in this application to demonstrate that the applicants have established any of the grounds stated in section 76 of the Act.”

33. It has also been shown, and this is not disputed, that the applicant had filed an affidavit of Protest on 20th June, 2017 which was decided on 17th January, 2020. The resolution of the Protest thus took well over two years of the time for administration. Consequently, it delayed the administration of the estate as the both parties engaged in the disposal of the matter in court.

Disposition 34. Whilst it is patently clear that the administrator has been rather slow in winding up the estate, that alone is not sufficient ground under section 76 of the Act to invoke the removal provisions. His conduct must be such as fits within the grounds for removal set out under section 76 of the Law of Succession Act.

35. Further, I am satisfied and do find and hold that the administrative transfer of the High Court file to the lower court following the amendment of Section 49 of the Law of Succession Act by Section 23 of the Magistrates Court Act of 2015, which gave the Magistrate’s court the jurisdiction to deal with the matter.

36. Ultimately, I do not find that the applicant has not shown sufficient cause, in terms of Section 76 of the Law of Succession Act, for the revocation of the grant dated 24th September 2015,

37. Accordingly, the application fails and is hereby dismissed.

38. Each party shall bear their own costs of this application

39. Orders accordingly

DATED AT KERUGOYA THIS 16TH DAY OF NOVEMBER, 2023. .......................R MWONGOJUDGEDelivered in the presence of:1. Chepkorir, holding brief for Njage for the Applicant2. N.Magee holding brief for Magee for the Respondent3. Murage, Court Assistant