[2022] KEHC 15213 (KLR)

In re Estate of Masila Mwaniki-Deceased (Succession Cause 233 of 2015) [2022] KEHC 15213 (KLR) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15213 (KLR)

Republic of Kenya

In the High Court at Kitui

Succession Cause 233 of 2015

RK Limo, J

November 11, 2022

IN THE MATTER OF ESTATE OF MASILA MWANIKI-DECEASED

Between

Boniface Tito Masila

Applicant

and

Mwaniki Masila

Respondent

and

Emiritus Kasee Musya

Interested Party

Ruling

1. This matter relates to the estate of Mwaniki Masila who died intestate on June 11, 1990. A certificate of confirmation of grant dated April 12, 2005 was initially issued to Munima Masila (now deceased) the wife to the deceased however a subsequent certificate of confirmation of grant dated September 20, 2005 was issued to Munima Masila and Kawasya Masila who were both wives of the deceased.

2. This court has perused through this cause initially filed in Machakos High Court as Succession No 279 of 2010. The same was later transferred to this court and registered under the current Succession Cause No 233 of 2015. This court was unable to locate the original petition filed and it was unclear where the documents in respect to the petition went.

3. What is apparent from the record is that there was an application dated April 8, 2020 which was seeking revocation of grant herein which application was later under the directions of this court dispensed with applicant filing a fresh summons for revocation of grant dated July 28, 2021 which is now the subject of this ruling.

4. In the summons for revocation of grant dated July 28, 2019, the applicant seeks revocation of grant of letters of administration issued to Munima Masila and Kawasya Masila, and confirmed on September 20, 2005 in respect to the estate of Mwaniki Musila.

5. The application is premised on the ground that the grant was obtained fraudulently by making of a false statement and/or concealment from court of something material to the case. Secondly, that the grant was obtained by means of untrue allegations, non-disclosure of material facts necessary

6. The applicant through his affidavit dated July 28, 2021 in support of the summons for revocation of grant, depones that he is the son of the deceased and that the administrators obtained the grant of letters of administration of the estate of the deceased fraudulently and in concealment of the fact that there were other surviving children of the deceased who were equally entitled to a share of the estate of the deceased. Further that upon receipt of the said grant, proceeded to share the estate with strangers and persons only known to the respondent herein.

7. The applicant submits that he together with two of his sisters were left out in the distribution of their father’s estate as per the schedule of distribution indicated in the certificate of confirmation of grant issued on September 20, 2005. He submits that as a result, he has been disinherited and his house which sits on parcel No Kyangwithya/Kaveta/970 has been demolished.

8. The applicant has also challenged the respondent’s allegation that he was given parcel number 69 but sold it to one Sylvester Mutunga Wambua. He submits that the allegations are untrue and unsupported. He has also challenged the administrator’s alleged will and submitted that the document does not meet the formal requirement of a valid will as provided for under section 11 of Law of Succession Act.

9. The applicant also submits that Munima Masila, the wife of the deceased and one of the administrators could only enjoy life interest in parcel No 970 as such she could not have disposed ff the parcel as she wished without the consent of all beneficiaries. He has cited the case of Tau Katungi vs Margaret Katungi & another [2014] eKLR where the court held that life interest bestows limited right the surviving spouse over the intestate estate in trust for the benefit of the surviving children.

10. The respondent responded to the application vide a statement which was filed in court on October 12, 2021. He states that he was given 4 acres of land parcel No 970 by the administrators in court on September 20, 2005 and that one George Mwema Masila was given 1 Ha He also states that the applicant had been given a different parcel which he referred to No 69 by the administrators but that he sold it to Sylvester Mutunga. He attached a document titled ‘will’’ purportedly belonging to his mother bequeathing him several items including a land parcel indicated as land parcel No 970. He asked the court to close the case.

11. The interested party Emeritus Kasee Musya filed no response to the summons for the revocation of grant.

12. This court has considered the application filed herein. The applicant seeks to have a grant issued on September 20, 2005 revoked on the grounds listed.

13. Section 76 of the Law of Succession Act provides for revocation or annulment of grant on the following grounds namely: -"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 casec.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 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; orii.To proceed diligently with the administration of the estate; oriii.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; oriv.That the grant has become useless and inoperative through subsequent circumstances.e)that the grant has become useless and inoperative through subsequent circumstances."

14. The applicant’s case is that the grant dated September 20, 2005 was obtained fraudulently by making of a false statement or by concealment from the court of something material to the case. That the administrators failed to disclose all the beneficiaries of the estate of the deceased.

15. This application as it stands is unopposed because the respondent and interested party filed no affidavit to challenge the contestations made by the applicant.

16. Proceedings leading to the issuance of the certificate of confirmation of grant are not in the court file to enable the court understand how the proceedings took place to the point where the certificate of confirmation was issued. The court file however contains a long chain of proceedings that have taken place since the filing of the initial summons for revocation of grant application by the applicant herein in 2010. The said application is dated April 8, 2010 and were filed at the court registry in Machakos on April 21, 2010.

17. There is a letter from the Area Chief in the documents filed. In the said letter, the chief listed all the children of the deceased including the applicant and the respondent together with 5 of their siblings. In the certificate of confirmation of grant that is in contention, the only two of the dependants are listed, the respondent herein and Katuu Masila. It is not clear why or how the other beneficiaries ended up not being listed.

18. Section 51 of the Law of Succession Act provides for form of application for a grant as follows: -"i.Every application for a grant of representation shall be made in such form as may be prescribed, signed by the applicant and witnessed in the prescribed manner.ii.An application shall include informationiii.In cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased;"

19. Rule 26 of theProbate and Administration Rules, provides as follows: -"i.Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.ii.An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require."

20. The above provisions were not adhered to by the administrators. The administrator should not have left out the other children of the deceased even if they are from a different mother/house. Section 40 of Law of Succession Act provides;"i.Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.’ii.The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38. "

21. There is a will that the respondent has relied in response to this application but the applicant has challenged it on the ground that it does not meet the criteria of a valid will. The formal requirements of a valid will are stipulated under section 11 of the Law of Succession Act. It states;"No written will shall be valid unless;a.The testator has signed or affixed his mark to the will, or It has been signed by some other person in the presence and by the direction of the testator.b.The signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended to give effect to the writing as a will.c.The will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witness must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.’’

22. The document relied on by the respondent in opposition to this application do not meet the threshold of section 11 of the Law of Succession Act. The purported will is therefore invalid.

23. This court finds that the applicants were not consulted and did not consent to the mode of distribution of the estate that saw them missing out yet they are beneficiaries. I find that they have established sufficient grounds under section 76 of the Law of Succession Act to have the grant issued on September 20, 2005 videPrincipal Magistrate’s Succession Cause No 45 of 2001 revoked. The same is hereby revoked and all consequential orders emanating thereof including subdivisions of the estate thereof are reversed. The estate shall revert back to the name deceased pending confirmation of grant.

24. This court in exercise of its powers hereby, appoints both Bonface Tito Masila and Mwaniki Masila to be administrators of the estate of the late Mwaniki Masila. Either of them is granted liberty to move this court for confirmation of grant before expiry of 6 months due to the age of this cause. There’s no order as to costs.

DATED, SIGNED AND DELIVERED AT KITUI THIS 11TH DAY OF NOVEMBER, 2022. HON. JUSTICE R. K. LIMOJUDGE