[2022] KEHC 12308 (KLR)

In re Estate of Margaret Adhiambo Kocholla (Deceased) (Succession Cause 722 of 2019) [2022] KEHC 12308 (KLR) (Family) (13 May 2022) (Judgment)

Neutral citation: [2022] KEHC 12308 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 722 of 2019

MA Odero, J

May 13, 2022

N THE MATTER OF estate of MARGARET ADHIAMBO KOCHOLLA (DECEASED) HENRY AGISO OGUTU .............................. APPLICANT VERSUS HILDA AGOLA ORIMBA................................RESPONDENT

Judgment

1. Before the Court for determination is the summons for Revocation of Grant dated October 7, 2020 by which the Henry Agiso Ogutu seeks the following orders:-1. Spent.2. That the Honourable court do revoke/annul the limited grant of letters of Administration (Ad litem) issued to the respondent on September 4, 2018. 3.That the court be pleased to appoint the applicant, Henry Agiso Ogutu as the Administrator of the estate of the late Margaret Adhiambo Kocholla and give him liberty to apply for a grant of letters of administration before the expiry of the statutory period of sixty days.4. Costs be borne by the Respondent5. Mesne profits6. That the Honourable court be pleased to make such further or other orders as it may deem just and expedient in the circumstances of this case.”

2. The summons premised upon Sections 38, 47 and 76 of the Law of Succession Act, Cap 160, Laws of Kenya. Rule 44 and 63 of the Probate and Administration Rules and sections 3A and 63 (e) of the Civil Procedure Act and was supported by the Affidavit of even date sworn by the Applicant.

3. The Respondent Hilda Agola Orimba opposed the summons through her Replying Affidavit sworn on January 18, 2021.

4. The court initially directed that application be canvassed by way of written submissions. The Applicant filed the written submissions dated February 22, 2021. The Respondent filed the written submissions dated March 8, 2021 and the further submissions dated February 8, 2022. However, on June 11, 2021 the court noted that the written submissions did not adequately address critical issues in a manner which would enable court to make a just decision in this matter. Therefore, the court directed that the matter proceed by way of oral evidence.

Background 5. This Succession Cause relates to the estate of Margaret Adhiambo Kocholla (hereinafter the Deceased) who died intestate on November 7, 2018. A copy of the Death Certificate Serial Number 0644 960 appears as Annexture ‘HA01 to the Affidavit dated May 6, 2019 sworn by the Respondent.

6. Vide the Affidavit of support to the Petition for Grant of Letters of Administration Intestate dated May 6, 2019, the Deceased is said to have left the following assets.“Assetsa.Title Number Nairobi/block 111/1314b.Title Number Nairobi/block 111/1097c.Money in Kenya Commercial Bank of Kenya accounts Nos xxxx, xxxx, xxxx and xxxxd.Money in Kenya Commercial Bank of Africa accounts No xxxxe.Money in Co-operative Bank of Kenya accounts Nos xxxx, xxxx, xxxx, xxxx and xxxxf.Money in National Bank of Kenya account No xxxxg.Money in Standard Chartered Bank of Kenya account No xxxxh.Money in National Housing Corporation Bank of Kenya account Nos xxxx and xxxxi.Money in Equity Bank of Kenya account Nos xxxx and xxxxj.Shares in Kenya Commercial Bank Ltdk.Shares at Crown –Berger Kenya Ltdl.Shares at Housing Finance Company Kenya Ltdm.Shares at Barclays Bank of Kenya Ltd.n.Personal effectso.Others to be stated.Estimate Value of Kshs 20,000. 000 (Kenya Shillings Twenty Million Only).”The Deceased had no liabilities.

7. Following the demise of the Deceased the Respondent who is the sister to the Deceased applied for Grant of letters of Administration Intestate. In the Petition it was indicated that the Deceased was unmarried and had no children.

8. The cause was gazetted on August 2, 2019 and a Grant was issued to the Respondent on September 4, 2014. A summons for confirmation of Grant was filed by the Respondent on September 2, 2020. Before the same could be heard, the Applicant filed this summons for Revocation of Grant, which summons was premised on the following grounds:-1. That the Applicant Henry Agiso Ogutu is the son and the Applicant’s father Joshua Walter Anyango Ogutu is the husband to the Deceased person.2. That the deceased died at Texas Cancer Centre on November 17, 2018 in Nairobi.3. That before her death the deceased had a son and was married to the Applicant’s father which marriage lasted for a span of 26 years until her demise.4. That the Respondent misled this court into issuing her with a grant ad litem.5. That the grant of letters of administration ad litem is therefore bad in law for non-disclosure of material fact, for omission of bonafide dependents/beneficiaries and fraud.6. That the proceedings to obtain the grant were defective in substance.7. That the grant was obtained fraudulently in the making of a false statement or by the concealment to the court of something material to the cause.8. Any other ground to be advanced at the hearing hereof.”

9. The Applicant claims to be the lawful administrator of the estate of the Deceased since he was a dependent son maintained by the deceased prior to her death. The Applicant alleges that the Respondent obtained this Grand fraudulently, failed to disclose material facts and omitted to include in her Petition, bonafide beneficiaries.

10. The summons was canvassed by way of oral evidence. The Applicant gave evidence on his own behalf, whilst the Respondent also testified on her own behalf.

The Evidence 11. The Applicant Henry Agiso Ogutu told the court that he was a 4th year student at Mt Kenya University undertaking studies in Actuarial Science. He stated that he was born on May 30, 1998 and that he was the only child of the Deceased and one Joshua Walter Anyango Ogutu who died on June 19, 2020.

12. The Applicant avers that he is the lawful Administrator of the estate of the Deceased. He avers that his parents got married to each other in 1992 under Luo Customary Law. Annexed to his Supporting Affidavit is an Affidavit of Marriage (annexture ‘HAO – ‘2’).

13. The Applicant further avers that he was dependent on and was being maintained by the Deceased immediately prior to her demise. That following the death of the Deceased his studies at Mt Kenya University have stalled as he is no longer able to pay the required fees.

14. The Applicant states that he resided with the Deceased in her home in Komorock Estate until the Deceased fell ill, when the Respondent moved into the house of the Deceased and barred his father who was also ailing from accessing the house or his wife (the Deceased).

15. That following the death of the Deceased the Respondent mischievously and unlawfully interred her remains at their parents home in South Kanyikela Location, Homa Bay County instead of at her matrimonial home in Asembo Location of Siaya County. The Applicant states that his father filed a lawsuit being CMCC No 10555 of 2018 seeking to have the remains of the Deceased exhumed but failed to follow up the case due to his ill health.

16. The Applicant asserts that the Respondent misled the court into granting her letters of Administration by falsely declaring that she was the sole beneficiary to the estate of the Deceased. For this reason he urges the court to revoke the Grant issued to the Respondent and to instead issue the Grant in his name as the genuine sole survivor of the estate.

17. The summons for revocation of Grant was vehemently opposed by the Respondent. The Respondent states that she does not know the Applicant at all and has never met him before. She categorically denies that the Applicant’s claim that he is a son to the Deceased. The Respondent insisted that the Deceased was neither married nor did she have any children. That as the only surviving sibling of the Deceased she was the sole Administrator of her estate.

18. The Respondent states that the claim by the Applicant that he was a son to the Deceased and was being maintained by the Deceased prior to her death is a brazen lie. She further denounces as a lie the Applicants claim that his father got married to the Deceased in the year 1992 under Luo Customary law. The Respondent states further that the question of the existence of a marriage between the said Joshua Walter Anyango Ogutu and the Deceased was the subject of a court case being CMCC No 10555 of 2018 in which case the court in dismissing the claim by the Plaintiff that he had married the Deceased under customary law, noted that an Affidavit is not an instrument of marriage.

19. The Respondent denies that she forcefully occupied the Deceased house and denies kicking out the Applicants father from the house in Komarock. The Respondent avers that she only moved into the house of the Deceased after she received a call while in the USA, that her sister was seriously sick and needed her assistance. That she took care of the Deceased and paid all her medical bills until she died on November 17, 2018. That the Applicant’s father made no provision at all for Deceased during her illness. The Respondent denies that she mischievously and/or clandestinely moved to bury the Deceased in her parents home. She asserts that she buried the Deceased in Rapedhi Village North Kanyikela in Ndhiwa sub County HomaBay County in accordance with the wishes of the Deceased that she be buried at her parents home next to their graves.

20. The Respondent states that this summons for revocation of Grant has been brought in bad faith and is merely an attempt to delay and/or scuttle the confirmation of the Grant. She prays that the summons be dismissed with costs.

21. Upon conclusion of the hearing parties were invited to file their written submissions. The Applicant filed the written submissions dated February 22, 2021 whilst the Respondent relied upon her written submissions dated February 8, 2022.

Analysis and Determination 22. I have carefully considered this summons for Revocation of Grant, the Affidavit in Reply, the evidence on record as well as the written submissions filed by both parties.

23. The Evidence Act, places the burden of proof of any fact on the person who wishes to rely on the same Section 107 of the Evidence Act Cap 80, Law of Kenya provides as follows: -“Burden of Proof1. Whoever desires any court to give judgment as to any legal 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

24. In the summons for Revocation of Grant the Applicant sought the revocation/annulment of “a Grant of letters of Administration Ad Litem issued to the Respondent on September 4, 2018”. I have carefully perused the file and note that no such Grant Ad Litem exists. What exits in the file is a Grant of Letters of Administration Intestate issued to he Respondent on September 4, 2021. I believe this is the Grant the Applicant is seeking to have revoked.

25. The following are the issues which arise for determination.(i)Whether the Applicant was a child of the Deceased who was dependent upon the Deceased immediately prior to her death.(ii)Whether the Applicant has satisfied section 76 of the Law of Succession Act to merit orders for revocation of the Grant.

(i) Dependancy 26. It is not in dispute and is conceded by both parties that the Deceased herein died intestate. Section 38 of the Law of Succession Act, Cap 160, Laws of Kenya provides as follows: -“38 Where an intestate has left a surviving child or children but no spouse the net estate shall subject to the provisions of sections 41 and 42 devolve upon the surviving child, if there be only one or be equally divided among the surviving children.”

27. The Applicant submitted that he was a son to the Deceased and that the Deceased maintained and provided for him during her lifetime. He laments that following the demise of the Deceased, he has been living on the streets and has been unable to continue with his university education due to lack of fees.

28. The Respondent vehemently denies that the Applicant was a child of the Deceased. She insists that the Deceased was unmarried and had no children.

29. The Applicant has not adduced any evidence, e.g. a birth certificate to prove that the Deceased was his mother. Under cross-examination, the Applicant states that his birth certificate got lost. Clearly, he has taken no steps to have the same replaced. The Applicant has not availed a police Abstract to prove his claim that his birth certificate got lost. The Applicant under cross-examination stated as follows:-“I misplaced my birth certificate, I have not found it. I have no document to prove that the Deceased was my biological mother.”

30. In the beginning of his testimony the Applicant gave the court the impression that the Deceased was his biological mother. It is only under probing by counsel in cross-examination that the Applicant revealed that in fact the Deceased was not his biological mother. He alleged that he only began to live with the Deceased when he was in class 7. The Applicant stated-“I lived with my mother in Komarock. I joined my other mother when I was in class 7. I lived with Beatrice Akinyi Okech who is my biological mother. She gave birth to me…..the Deceased is my step-mother.”

31. Therefore from the Applicants own admission it is clear that the Deceased was not his biological mother thus he would have no claim to her estate as a surviving child under the provisions of Section 38.

32. The Applicant bases his claim to the estate of the Deceased on the fact that the Deceased was married to his father one Joshua Walter Anyango Ogutu and was therefore his stepmother. Secondly, the Applicant claimed that from the time he was a toddler the Deceased had been maintaining him and paying all his educational expenses.

33. Whereas the Applicant claims that his Father got married to the Deceased in the year 1992 under Luo Customary Law, he has not availed to the court any proof that such marriage actually occurred. It is trite law that he who alleges a fact must prove it. A customary marriage is a matter of fact and would require to be proved by evidence of persons who attended and/or participated in the ceremony. The Applicant has not called as witnesses any of the relatives who witnessed the customary marriage.

34. In the case of Rosemary Aoko Munjal v Noel Namenya Munjal [2015] eKLR the Honourable court cited the book, Restatement of African Law by Eugene Contran in respect of a valid marriage under Luo Law at page 175 and stated as follows:“The following are the essentials of a valid marriage under Luo Lawa.Capacity. The parties must have the capacity to marry and also the capacity to marry each other.b.Consent. The parties to the marriage and their respective families must consent to the union.c.Dho I Keny. There can be no valid marriage under Luo law unless a part of the dho i keny has been paid.d.Commencement of Cohabitation. The moment at which a man and woman become husband and wife legally is when the man and woman commence cohabitation i e when the bride is deflowered after meko”.Payment of Dho I keny, even partly, is essential to the validity of a marriage under Luo law. The applicant has not been able to prove all these.

35. There is no proof that any of the above rites of marriage were conducted for the Deceased in line with Luo Customary Law.

36. On her part the Respondent denies that the Deceased ever got married to the Applicants Father. The Applicant relied upon an Affidavit of marriage dated March 20, 1995 sworn by the Deceased and his Father as proof that the two were married, (Annexture HAO – 2 to his supporting Affidavit).

37. However it has been shown by the Respondent that the question of the marriage between the two was indeed the subject of CMCC No 10555 of 2018 Joshua Walter Anyango Ogutu vs Bernard Nyassoro & 2 others in which the Father to the Applicant sought to have the body of the Deceased exhumed for burial at his ancestral home in Wagusu Village Nyangoma Division, Bonolo sub-county, Siaya County on the basis that he was married to the Deceased. In that case the court declined to accept the Affidavit as proof of a marital union.

38. In Re Estate of Daniel Olal Nyawawa (Deceased) [2019] eKLR, Hon Justice Nyakundi rejecting an Affidavit as proof of marriage stated thus:-“In my view, the affidavit of marriage purportedly sworn jointly with the deceased is neither one of the conditions for customary Luo marriage or one by presumption to be validated. An affidavit is just an affidavit on the averments and contents disposed by the deponents. Why do I say so? The legal system of marriages is incorporated under the Marriage Act 2014” (own emphasis)

39. Similarly, I reject the Affidavit produced by the Applicant as evidence of a marital union between the Deceased and his Father. I find there is no proof that the two contracted a marriage under Luo Customary Law, as stated by the Applicant.

40. The Applicant has alleged that he was a ‘dependant’ of the Deceased and as such is entitled to a share of her estate. Section 29 of the Law of Succession Act defines a ‘Dependant’ as follows:-“29. For the purposes of this part ‘dependant’ means –a.The wife or wives, or former wife or wives and the children of the deceased whether or not maintained by the deceased immediately prior to his death.b.Such of the deceased’s parents, step-parents, grandparents, grandchildren, stepchildren, children whom the deceased had taken into his family as his own, brothers and sisters and half-brothers and half-sisters as were being maintained by the deceased immediately prior to his death, andc.Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.” (own emphasis)

41. In the case of Beatrice Ciamutua Rugamba vs Fredrick Nkari Mutegi & 5 others [2016] eKLR the Court held that:-“a dependant under section 29(b) and (c ) must prove that he or she was being maintained by the deceased immediately prior to his demise. It is not the mere relationship that matters, but proof of dependency”. (own emphasis)

42. The Applicant has alleged that the Deceased had maintained him from the time he was a toddler. That he lived with the Deceased in her house in Komarock and that the Deceased paid all his school and university fees until she died.

43. The Applicant has not tendered before this court any proof that the Deceased maintained him in any way. The Applicant has not produced any invoices/receipts to prove that the Deceased paid his school fees nor has not called any witness to confirm that he lived with the Deceased in her Komarock Home. All that the Applicant has tendered in evidence are invoices from Mt Kenya University. There is nothing to show that the Deceased had been catering for the Applicants school fees at the university.

44. Under cross-examination the Applicant told the court that his biological mother one Beatrice Akinyi Okech is still alive and that she resides with his other siblings in Kariobangi. He Applicant further told the court that the educational expenses for his siblings are being met by the Advocates Benevolent Association since his late Father was an Advocate of the High Court. He is unable to explain why the same Fund is not meeting his own educational costs. Indeed under re-examination the Applicant admitted that-“The Advocates Benevolent Association began to pay my fees from June 19, 2020 after my father died”.

45. The Applicant claim that he has been rendered destitute by the death of the Deceased has no basis. His claim that he has nowhere to live cannot be believed given the fact that his mother and siblings reside in Kariobangi. Further, the Applicants claim that he is unable to continue his education is belied by his own admission that the Advocates Association were paying his fees.

46. All in all I find no evidence to suggest much less prove that the Applicant was dependant on the Deceased immediately prior to her demise. If that was the case the Applicant would not have waited until a full two (2) years after the death of the Deceased and after Grant of letters of Administration had been issued to the Respondent to take legal action.

(ii) Revocation of Grant 47. Section 76 of the Law of Succession Act provides for the circumstances under which a Grant may be revoked as follows:-“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”.

48. 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.” (own emphasis)

49. The Applicant alleges that the Respondent obtained the Grant fraudulently and by concealment of material facts. I have carefully analysed the Petition for Grant of Letters of Administration dated September 4, 2019. The Respondent indicated that she was the only person surviving the Deceased. There is no evidence to contradict this averment. Indeed the chief’s letter dated June 7, 2019 written by the Chief of Komorack location in Nairobi. (Annexture ‘HAO-2’) to the Respondents Affidavit dated June 10, 2018. The Chief clearly writes that-.“Margaret (the Deceased) died intestate, was not married and has no children. She was born among twelve siblings who have all died leaving one Ms Hilda Agola Orimba the only surviving. Her parents are deceased”. (own emphasis)

50. The Applicant is not a child of the Deceased. He was not dependant on the Deceased immediately prior to her death. In short, the Applicant has no claim at all on the estate of the Deceased. He has only filed this summons in an attempt to create confusion seeking to benefit from the Deceased’s estate unlawfully. I was able to observe the demeanour of the Applicant as he testified. He did not strike me as an honest witness. He was definitely economical with the truth in his evidence. I find that there was no fraud and no concealment by the Respondent in obtaining the Grant.

51. This summons for Revocation of Grant has no merit whatsoever. The same is dismissed in its entirety.

52. Since six (6) months have now elapsed since the Grant was made to the Respondent. This is a Grant that was made two (2) years ago. The Respondent did file a summons for confirmation of Grant which could not be heard due to the summons filed by the Applicant. Rule 73 of the Probate and Administration Rulesempowers the court to make such orders as “may be necessary for the enols of justice or to prevent abuse of the process of the court” Accordingly, I direct that the Grant issued by this court on September 4, 2018 (erroneously referred to as a Grant Ad Litem) be and is hereby confirmed. The estate of the Deceased shall devolve entirely to the Respondent Hilda Agola Orimba. A certificate of confirmed Grant to issue as above.

Conclusion 53. Finally, based on the foregoing this court make the following orders-(1)The summons for Revocation of Grant dated October 7, 2020 is dismissed in its entirety.(2)The letters of Administration Intestate issued by the Court on September 4, 2018 be and are hereby confirmed.(3)The estate of the Deceased to devolve entirely to the Respondent Hilda Agola Orimba.(4)The Applicant shall pay the costs for this application.

DATED IN NAIROBI THIS 13TH DAY OF MAY 2022. ....................................MAUREEN A ODEROJUDGE