[2022] KEHC 1154 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

SUCCESSION CAUSE 295 OF 2014

(IN THE MATTER OF THE ESTATE OF LILIAN JEPKOSGEI MUTAI -DECEASED)

BETWEEN

WILSON BARMAO MUTAI..................................................1ST PETITIONER/RESPONDENT

JAMES KIHEN ROTICH......................................................2ND PETITIONER/RESPONDENT

VERSUS

PENINAH JEPKEMBOI MUTAI........................................................OBJECTOR/APPLICANT

Coram: Hon. Justice R. Nyakundi

Bulbul-Koitui & CO. Advocates for the petitioner/respondents

Morgan Omusundi Law FirmAdvocates for the objector

M/S Rioba Omboto & CO. Advocates

R U L I N G

Introduction & Background

1. The 1st Petitioner/respondent is the husband to the objector/applicant and father to the deceased, while the 2nd petitioner/respondent is the objector/applicant’s son in law and husband to the deceased. The objector/applicant is wife to the 1st Petitioner and mother to the deceased.

2. The genesis of this matter dates back to 2014 when the petitioners herein commenced succession proceedings in respect of the estate of Lilian Jepkosgei Mutai (deceased).

3. After filling, the court issued grant of letters of administration intestate to the petitioners herein on the 24th of September 2015 and mode of distribution adopted later on the 3rd of April 2020. It is this grant that the objector seeks to revoke vide summons dated the 5th of August 2020 and further seeks to be made a beneficiary/administrator of the estate of the deceased. In particular, the objector/applicant’s application is premised on grounds that the respondents/petitioners fraudulently obtained the said grant by making a false statement or concealment of material facts.

4. She further averred that the petitioners/respondents failed to disclose the fact that the deceased was holding the estate in trust of the applicant and other beneficiaries and that no consent was received from all the beneficiaries and dependants of the estate of the deceased.

5. She was adamant in her supporting affidavit that she and her children have always resided on the properties known as KITALE MUNICPALITY BLOCK 15/KOITOGOS/1495, KITALE MUNICPALITY BLOCK 15/KOITOGOS/1497 and KITALE MUNICPALITY BLOCK 15/KOITOGOS/1728 curved out of KITALE MUNICPALITY BLOCK 15/KOITOGOS/215, all of which are registered in the name of the deceased. She thus contended that the same was held by the deceased in trust of the objector and other beneficiaries.

6. The objector further stated that the 1st petitioner left her in Kitale and relocated to burnt forest within Uasin Gishu County in 1999 after selling a portion of their matrimonial home. In fact, it was her averment that the reason the deceased registered the properties in her name was to protect the same from the 1st petitioner/respondent whom she indicated was hell bent on selling the properties.

7. The application was vehemently opposed by the Petitioners through the reply of the 2nd petitioner sworn on the 20th of September 2021 who averred that the objector’s application was frivolous, vexatious and devoid of merit since the aforementioned properties belonged to the 1st Petitioner/respondent before he transferred the same to the deceased before the two were married. He explained that it is for this reason that he consented to the grant being confirmed in the name of the 1st petitioner/respondent. The 2nd petitioner annexed a copy of the consent dated the 19th of December 2019 and marked JKK-1.

8. In addition, the 2nd petitioner confirmed that the Objector is her mother in law but noted that in the order of consanguinity, he ranks first, being the spouse of the deceased. In any case, his view was that the objector/applicant can claim her share through the Environment and Land Court since a title has already been issued over the properties.

9. Finally, the 2nd petitioner strongly suggested that the objector/applicant transferred some of her land parcels namely: KITALE MUNICPALITY BLOCK 19/BIDII/79, KITALE MUNICPALITY BLOCK 15/KOITOGOS/ 363 and 207 to her daughter Gladys Chelagat Mutai, in what he termed as a scheme to conceal the same and continue her narrative that she doesn’t have any land yet she is in possession of both parcels of land. He annexed copies of the register for the said parcels marked JKK-2 which indicate the same were previously registered in the name of the Objector/applicant, who transferred the same to Gladys Chelagat Mutai between January 2017 and September 2018.

10. Directions on case management taken directed the application to be canvassed by way of written submissions.

Objector/Applicant’s Submissions

11. On behalf of the applicant, Learned Counsel Mr. Omusundi submitted that the applicant/objector has a duty to prove any grounds set out in Section 76 of the Law of Succession Act before a grant issued is revoked. Counsel reiterated their position that the grant was fraudulently obtained by the petitioners to the detriment of the objector and her family since the objector’s matrimonial properties had been registered in the name of the deceased and in trust for her other siblings. She thus contended that the petitioners’ failure to disclose the above was wrong and amounted to shortchanging her. In this regard, counsel made reference to the case In Re Estate of Moses Wachira Kimotho (Deceased) Succession Cause 122 of 2002 [2009] eKLR.

12. Counsel further submitted that the properties registered under the deceased in trust of the objector and her family particularly KITALE MUNICPALITY BLOCK 15/KOITOGOS/1495, KITALE MUNICPALITY BLOCK 15/KOITOGOS/1497 and KITALE MUNICPALITY BLOCK 15/KOITOGOS/1728 are exclusively of her use since they form part of her matrimonial home considering that the 1st Petitioner abandoned her in 1999.

13. Finally, Learned Counsel submitted that the manner in which the chief’s letter was obtained was fraudulent since the letter is from the Chief Tarakwa Location yet the deceased never resided there. Counsel thus submitted that the same cannot stand and urged court to revoke the grant and referred court to the decisions in Re Estate of Shem Kitanga (deceased) and In Re Estate of Ambutu Mbogori [2018] eKLRwhere the court in both cases discussed the importance of the chief’s letter is a succession cause.

Petitioners Submissions

14. While opposing the application, learned Counsel for the Petitioners submitted that there are no irregularities or anomalies in the application for confirmation of grant nor are there any beneficiaries left out to warrant what they referred to as the drastic move of revocation of a grant. Counsel position was that the objector/applicant had not proven any fraud and accordingly, counsel was of the view that mere allegations of fraud cannot amount to reasons a grant should be revoked.

15. With regard to the Chief’s Letter, Counsel Submitted that the same is not a legal requirement but it supports the petitioner’s case since the deceased had other properties in Burnt Forest area and the Chief’s letter is thus valid. In this regard, counsel submitted that there is no requirement of two letters from Chief’s of different location as the contents of the letter is not disputed as the same served the important purpose of identifying and ascertainment of the deceased, the dependants as well as the deceased properties. Consequently, counsel submitted that the applicant/objector is neither a proven dependant nor immediate beneficiary of the estate of the deceased as per the chief’s letter and in accordance with the provisions of the Law of Succession Act.

16. Counsel further submitted that the properties owned by the deceased are registered in her name and title deeds issued in her singular name. In this regard, counsel observed that no evidence was brought forth by the applicant to prove that she registered the same in trust for the objector/applicant or her siblings. This according to the Petitioners therefore, amounts to a fishing expedition by the Objector/applicant in what they referred to as Dead Sea. In this regard, counsel relied on the cases of Patrick Mathenge Gachii & 3 others vs Karumi Wambugu & another [2010] eKLR and High Court Succession Cause No.864 of 1996 [2015] eKLR.

17. In addition, counsel submitted that pursuant to Section 35 (1) (b) of the Law of Succession Act, a surviving spouse is entitled to a life interest in the whole residue of the net intestate estate and since the 2nd petitioner is the surviving widow, the same is entitled to him unless he remarries which Counsel submitted, he is yet to remarry. In this regard he made reference to Section 66 of the Law of Succession Act.

18. Furthermore, Learned Counsel submitted that the 1st petitioner ranks higher than the applicant in succession matters and as such, the 1st petitioner was therefore properly able to apply for letters of administration jointly with the 2nd petitioner without seeking consent from the applicant. In any event, Counsel submitted that the issues raised by the applicant are mainly those between herself and her husband, the 1st Petitioner and the same do not have any relations with the deceased properties.

19. Moreover, it was submitted that the applicant does not reside in any of the mentioned properties registered in the name of the deceased but she rather resides on properties mentioned in annexture JKK-1. Counsel therefore saw mischief in the same submitting that the true intentions of the objector/applicant was to transfer her properties to her daughter Gladys so as to pave way for her instant application and benefit from estate of her married daughter and revert back to transfer the same from her daughters thus unjustly enriching herself in the end.

20. Finally, in light of the above, counsel submitted that the applicant has not met the threshold to bring these proceedings since matrimonial issues cannot be dealt with in this court and urged court to dismiss the application and allow the petitioners to administer the estate.

DETERMINATION

What the court is being asked by the mother of the deceased by raising an objection to the making of the grant is to revoke it under section 76 of the Succession Act. This statutory guidance provides that letters of grant of administration issued to an administrator may be revoked if the court is satisfied that the proceedings to obtain the grant was defective, that the grant the grant was obtained fraudulently or making a false statement or concealment from court a material factor that the grant was obtained by means of untrue allegations of facts or essentials on points of law to justify revocation.

It will be seen from the objectors perspective as a mother she was never involved in the making of the intestate grant of representation. In alluding to this facts the objectors asserts that the property registered in the name of deceased was to be held in trust for herself and other siblings. To reflect on this claim by the objector one has to read the provisions of Section 67 of the Law of Succession Act. In this respect priority in the making of the grant is in accordance to the following order.

(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 the public trustee and creditors.

What of this case however, the grant of letters of administration was made in favour of the father to the deceased one Wilson Mutai and the widower one James Rotich. It soon became apparent that the grant of letters administration was confirmed to the effect that Wilson Mutai was to be the beneficiary to hold in trust of Gideon Kiptoo a son to the deceased Lillian Mutai. It is crystal clear that there was no mention of the other children or the widower James Rotich as being entitled to any share of the estate referenced to the deceased. It should be noted that the initial court which presided over the proceedings had in its possession compelling evidence to do so in the making of the grant of representation. Rather unhelpfully, the mother has joined the proceedings long after confirmation of grant seeking a revocation of it on the strength that she was left out of the equation as a beneficiary. Hitherto, under as such cases indicate the courts have tended to focus on the degree to which the claim on revocation or annulment is intertwined with the set provisions under section 76 of the Act. In emphasizing these criterion the court confronts the question whether there is prima facie evidence that the objector was a direct dependent of the deceased during her lifetime. It is not disputed that the deceased had entered into a marriage union with one James Rotich. Therefore the standard and burden of proof is in the mother to proof dependency. That relationship demonstrates that the statutory language in such provisions does indeed apply marriage equivalence as one of the key characteristic for eligibility as one of the heirs to the estate. In this respect the widower and her children rank high in priority to the mother of the deceased. One might argue that there was a special reason to revert why James Rotich thought it wise to revert the estate of the deceased to Wilson Mutai. This court has anxiously reviewed the proceedings which forms the basis of revocation by the objector. Being motivated by Section 76 of the Act and the principles in Jacmleck Maina Njoroge –v- Mary Wanjiru (2015)Eklr, Albert Kisigwa –v- Recho Kavai cause no 158 of 2000, Patrick Mathenge and 3 others -v- Wambugu (2010)Eklr, estate of Manase Osiako (2012)Eklr to rule that the objector has not discharged by way of evidence for the confirmed grant to be revoked. She has not brought herself within the provisions of section 29(b) of the Law of Succession Act. If indeed the objector is of the view that there is an error apparent on the face of the record or mistake or discovery of new evidence in her possession nothing could have been easier than to demonstrate that fact in terms of section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. See also the principles in National Bank of Kenya Ltd –v – Njau (1995) to (1999) 2EA 249, Nyamogo & Nyamogo –v- Kogo (2001)EA 174.

In my view on the law and the evidence the great question on revocation as contemplated is section 76 remains un answered by the objector. The duty of this court is to seek and find the proper balance between the necessity for fair and just trials and the importance of finality of judgments. In the case at bar the court is not being told that the verdict on confirmation of grant was against the weight of the evidence or substantial legal error occurred at the trial or important questions remain unresolved to warrant revocation. It is suggested that if the objector feels strongly about the property having reverted to her husband in unprecedented circumstances this may not be the correct forum. It is not desirable at this point to reopen the succession proceedings in which the summons does not satisfy the laid down guidelines. I take the position that the agitation by the objector that she was a dependant of the deceased in her life time may be in the realm of remoteness. In any event the questionable parcel of land is now registered wholly in the name of her husband. If she is in need of a portion of it the probate court may not come through for her. For those reasons the objection fails with no orders as to costs.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 28th DAY OF MARCH, 2022

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

R. NYAKUNDI

JUDGE