[2022] KEHC 16434 (KLR)

In re Estate of LMK (Deceased) (Succession Cause 408 of 2003) [2022] KEHC 16434 (KLR) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16434 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 408 of 2003

MW Muigai, J

December 8, 2022

Between

Elizabeth L Mbither Munyao

1st Administrator

Daniel Nzioki Munyao

2nd Administrator

and

Florence Wanza Munyao

1st Interested Party

Victoria Mutheu Munyao

2nd Interested Party

Boniface Mutiso Munyao

3rd Interested Party

Micheal Muli Munyao

4th Interested Party

Peter Kavulunze Munyao

5th Interested Party

Mercy Nzisa

6th Interested Party

Ruling

Court Record 1. LMK died intestate on September 2, 2002 vide death certificate serial No 6xxx4.

2. EMLM and DNM petitioned for letters of administration intestate on December 5, 2003 and annexed the following documents:a.The death certificate of death certificate No xxxx– LMK who died on September 2, 2002 aged 59 years issued at Machakos.b.The chief’s letter dated November 7, 2005 confirming the list of beneficiaries left behind by the deceased.

3. The deceased left the following heirs/beneficiaries surviving him;-i.EMM – widowii.FMM – son (11 years)iii.BMM – son (9 years)iv.CNM – daughter (3 years)

4. The deceased left behind the following properties;-i.PlotNoxxxx Kangundo marketii.Shares held at Kyanzave Farmers Co-op societyiii.Funds held with Barclays Bank & Housing Finance Accountsiv.Children’s account with Barclays Bank.

5. The grant of letters of administration was issued to EMLM and DNM on May 24, 2006.

6. The certificate of confirmation of grant was issued on June 25, 2008 that the properties and funds to be registered in the name of EMLM and to hold in trust for the minor children at the time.

Chamber Summons 7. The interested parties/applicants namely; FWM, Vietona MM, BMM, MMM, PKM, MN filed application under chamber summons on July 2, 2013 for an order that the confirmed grant issued to EMLM and DNM made on June 25, 2008 be:-i.revoked/annulled forthwith andii.the administrators be ordered to give full account of the deceased properties and money administered.

8. The grounds were that the administrators failed to reveal that the deceased had 2 wives and 8 children, failed to list all the assets of the deceased and failed to safeguard the said properties. The 2nd administrator DN is not a beneficiary of the estate but is a brother to the 1st administrator. The administrator, ought to disclose that they are all beneficiaries and disclose the benefits held by the public trustee.

9. MMM filed further affidavit and deposed that the retirement benefits of the deceased were to be paid /shared equally between the 2 families as evidenced by letter of April 28, 2003 from District Officer to District Commissioner and letter of June 7, 2013 from District Commissioner to Administrator General Public Trustee.

10. The 1st administrator filed her replying affidavit sworn on December 6, 2018 filed on January 23, 2019 and deposed as follows; that the 1st applicant, FWM was/is not a wife of the deceased, that she sued the deceased in District Magistrate CauseNo349/1980 FW v LMK filed for confirmation of marriage and civil case No46/1982 and the court found that there was no marriage. A copy marked EMM-1 a copy was annexed to the application.

11. The applicant filed another suit on maintenance whereby the matters was dismissed; that the deceased never married the 1st applicant either traditionally or in any other way as no customary traditions were performed.

12. That the administrator is the only legal wife of the deceased as they were married with the deceased in church on December 5, 2000; a copy of the marriage certificate was attached and marked EMM-4.

13. The children of the 1st applicant were well catered for by the deceased during his lifetime and he even gave them land in Matungulu as shown by the copy of written instructions in Kikamba and translated in English as per the annexed copy marked EMM-5; where he categorically stated that giving the children land did not mean that he wanted their mother back; that the only assets that belonged to the deceased are those in the confirmed grant; that the 2nd administrator has not benefited from the estate in any way; that the administrator has not sold any of the deceased’s properties.

14. On February 16, 2022 this matter was dismissed for non-attendance and the court file closed.

Chamber Summons Dated 4th May, 2022 15. The interested parties/applicants filed their application videchamber summons seeking the following orders;-i.That this court review/set aside the High Court orders made on February 16, 2022 dismissing this instant cause.ii.That upon the granting of prayer No1 this court reinstate the instant succession cause herein for the hearing of the summons of revocation of grant application dated June 26, 2013 and issue directions on disposal of the said application.iii.That costs of this application be in the cause.The suit was reinstated on and the instant/pending application was set down for hearing and determination.

Amended Applicants Further Affidavit: 16. The 4th applicant sworn an affidavit on behalf of the other applicants on June 22, 2022 deposing as follows; that the deceased was a polygamous man with 2 households which was not disclosed by the petitioner in her petition for letters of administration; that the retirement benefits of the deceased are the only benefits shared equally between the two wives of the deceased; that the grant was erroneously issued to one wife household instead of the 2 wives of the deceased; that the administrator have used the said grant to disinherit the applicants by claiming that they are personal representatives of the deceased; that the grant should be revoked on account of misrepresentation of facts as property number 56 does not form part of the estate of the deceased but estate of one WKM.

Applicants Submissions 17. On behalf of the applicants it is submitted that their application dated June 26, 2013 sought that the grant be revoked under section 76 of the Law of succession Act cap 160 Laws of Kenya.

18. The following are the key grounds for consideration that the deceased was a polygamous man with two households which was not disclosed by the petitioner in the petition for letters of administration; that the grant was erroneously issued to one household instead of the two household instead of the two households of the deceased hence the application; that the administrators have been using the said grant to disinherit the applicants by claiming that they are the sole personal representatives of the deceased; that the said grant should be revoked on account of misrepresentation of facts as property No 56B Kangundo market does not form part of the estate of the deceased.

19. The applicants raised two issues for determination as follows:i.Whether the grant of letters of administration issued to the administrators should be revoked pursuant to section 76 of the Law of Succession Act.ii.Whether the 2nd administrator is a beneficiary of the estate of the late LMK.

20. In the instant case, the applicants were never notified by the administrators of their plan to file a petition for grant of letters of administration and as such they never consented in the making of the aforementioned grant nor renounced their right to apply for the grant. in the certificate of confirmation of grant, all the properties of the deceased were allocated to the administrators hence effectively disinheriting the applicants’ household.

21. That the beneficiaries are required to give a written consent in form 38 or 39 as provided in rule 26(2) of the Probate and Administration Rules but going by the documents lodged and filed in court by the administrators, it is clear that there is no consent from the applicants was ever obtained and this renders the proceedings followed to obtain the grant defective in substance as contemplated under section 76 of the Law of succession Act.

22. Reliance was made in the case of Anthony Karukenya Njeru Thomas M. Njeru[2014] eKLR where a grant of letters of administration was revoked as person with equal priority did not consent to the petitioners therein applying for grant of letters of administration.

23. On whether the grant was obtained fraudulently by making of a false statement or be concealment from the court of something material to the case, in the instant case the administrators filed the petition and listed the dependants of the deceased as the 1st administrator and her 3 children. The administrator also attached a letter dated November 7, 2005 from the chief which stated that the 1st administrator and her children were the only family of the deceased. The administrators knew very well that the deceased had another wife and children before he married the 1st administrator as the 2nd wife.

24. It is therefore the applicants’ case that the non-disclosure of all the beneficiaries of the deceased’s estate amounts to concealment of material facts. The applicants have sufficiently proved this fact by availing a letter dated June 7, 2013 from the then area chief of Kangundo showing clearly that the deceased was a polygamous man with two households.

25. See the case of Re Estate of NK (deceased) 2017 eKLR where the court revoked the grant of letters of administration because it was irregularly obtained to the exclusion and consent of all the beneficiaries.

26. In the matter of the Estate of LAK (deceased) [2014] eKLR the court held that:“Revocation of grants in governed by section 76 of the Law of Succession Act. The relevant portions of section 76 are paragraphs (a), (b) and (c) since the issues raised relate to the process of the making of a grant. A grant may be revoked where the proceedings leading up to its making were defective, or were attended by fraud and concealment of important matter, or was obtained by an untrue allegation of a fact essential to the point.”

27. Also in Re of the Estate of JOO – (deceased)[2014] eKLR the court in discussing the issue of who ought to benefit from the estate of the deceased stated thus:“Going by the above provision, where a deceased person is survived by spouse and child or children, the other relatives are not entitled to a share in the intestate estate of such person. The spouse and child are entitled to the estate to the exclusion of all the other relatives.”

28. In the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa, succession cause No158 of 2000, Mwita J in his decision noted thus:“Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not a discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”

Administrators Submissions 29. On behalf of the administrators it is submitted that Florence Wanza Munyao did not adduce any evidence to show she was a wife to the deceased and neither did she rebut the affidavit evidence produced by the administrator – EMM who had clearly shown that the deceased and Florence were never married.

30. That the administrators listed all the deceased properties hence the contention that she failed to list all assets cannot arise. The applicants have come up with their own list of items but has not produced any evince of ownership of the alleged properties.

31. That the applicants have not shown how the administrators have failed to safeguard the properties of the deceased. It is the applicants who have been meddling with the deceased’s properties as they have sold plot No xxxx Kangundo Market which they are now attempting to claim to justify their illegal act.

32. That the 2nd administrator has not benefited from the estate in any way and has never been listed as a beneficiary. The reason why she included him when petitioning the grant was as per legal advice that it was important to have two administrators.

33. That it is the applicants who were dealing with the public trustee hence were in a better position to know the assets the said trustee is holding. It is trite law that pension does not form part of the estate of the deceased. Reliance is made in the case of Benson Mutuma Muriungi v CEO Kenya Police Sacco & another [2016] eKLR where the court analyzed the assets that do not form part of a deceased’s estate and pension benefits is one of those.

Determination 34. The court considered the pleadings and submissions filed by parties through counsel and the issue for determination is whether the applicants/interested parties are beneficiaries of the deceased’s estate and ought to get a share of the deceased’s estate.

35. Hon L Achode J (as she then was) in Betty Sation Kisoso v Priscilla Jeruto Kisoso, succession cause No 2119 of 2010, rendered herself as follows:(24)On the issue of confirmation of grant, the circumstances that can lead to the revocation of grant have been set out in section 76 Law of Succession. For a grant to be revoked either on the application of an interested party or on the court’s own motion there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of false statement, or by concealment of something material to the case, or that the grant was obtained by means of untrue allegations of facts essential in point of law.(25)A grant may also be revoked if the person named in the grant has failed to apply for confirmation or to proceed diligently with the administration of the Estate. See - Matheka and Anor v Matheka [2005] 1 KLR pg 456. It may also be revoked if it can be shown to the court that the person to whom the grant has been issued has failed to produce to the court such inventory or account of administration as may be required. (Emphasis added)36. 107. Burden of proof(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108. Incidence of burdenThe burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

36. The applicants/interested parties deposed that they are beneficiaries of the deceased’s estate. The wife/widow FWM asserted that she was married to the deceased LMK. The 1st applicant did not tender evidence to confirm the fact; either evidence of traditional/customary rituals that were undertaken by the parties and family of a Kamba Customary marriage; or evidence of a civil marriage by production of a marriage certificate or evidence of long cohabitation to enable the court infer presumption of marriage. In the absence of any evidence to prove any form of marriage this court cannot declare the 1st applicant wife/widow or former wife/widow of the deceased and therefore one of the beneficiaries of the deceased’s estate.

37. The 2nd - 6th applicants deposed that they are children of the deceased. Again, the claim has to be proved by cogent and tangible evidence for example sibling DNA testing. Or testimony from the larger/extended family members.

38. The beneficiaries, survivors and /or dependents of the deceased’s estate are entitled legally to completion of administration of the estate and distribution fairly, equitably of the assets that comprise of the deceased’s estate.

39. However, on record is a letter /agreement annexed by the respondent, where the deceased gave the children land in Matungulu confirms that they were catered for and the said property was not included in the assets of the deceased’s estate. Secondly, the respondent deposed that by the time of the deceased’s death the children of 1st applicant were grownups working earning a living while the respondent had minor children.

40. In the absence of inter partes hearing through viva voce evidence adduced, it is a herculean task to determine in the absence of cogent and tangible evidence that the applicants are beneficiaries of the deceased’s estate.

41. There are documents/exhibits on record which by and of themselves confirm a civil marriage between the respondent and the deceased, the applicants provided no evidence of any other form of marriage recognized for purposes of law of succession.

42. The co administrator DNM brother to the 1st administrator according to the certificate of confirmation of grant of June 25, 2008 was/is not a beneficiary of the assets of deceased’s estate as the properties were to registered in the name of the respondent EMLM.

43. The pension benefits of the deceased through the Public Trustee were apportioned and each party were given a share.

44. Plot number xxxx Kangundo was bought by the deceased and respondent annexed are the sale agreement and payment receipts.

45. The respondent deposed that there is no property to distribute as what was confirmed in the confirmed grant of June 25, 2008 was used up in the upkeep of the children who were minors at the time.

46. From the evidence on record, the applicants have not provided evidence on the fact that the applicants are beneficiaries of the deceased’s estate and that the deceased failed to provide for them.

47. The totality of the evidence is not sufficient to warrant revocation and/or nullification of grant and the applicants/application for revocation of grant filed on July 2, 2013 is dismissed.

48. No orders as to costs as it is a family matter.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 8TH DECEMBER,2022 (VIRTUAL/PHYSICAL CONFERENCE).M.W. MUIGAIJUDGEIN THE PRESENCE OF:Ms Sheila Mugo- For the AdministratorsMr. Munguti - For the Interested PartiesPatrick - Court Assistant