[2022] KEHC 11896 (KLR)

In re Estate of Masinde Muliro (Deceased) (Succession Cause 125 of 1993) [2022] KEHC 11896 (KLR) (18 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11896 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 125 of 1993

EKO Ogola, J

July 18, 2022

IN THE MATTER OF THE ESTATE OF MASINDE MULIRO (DECEASED)

Between

Angela Muliro

Applicant

and

Mukasa Mwambu Muliro

1st Respondent

Regina Rosalina Wandera

2nd Respondent

Ruling

1. By way of summons for revocation or annulment of grant, dated October 8, 2020, the applicant seeks revocation or annulment of the grant of letters of administration issued in respect of the Estate of Masinde Muliro (deceased) granted to Mercia Muliro in December, 1994 and confimed on November 29, 2004.

2. The application is premised on grounds that the sole administatix Mercia Muliro died on November 24, 2015 hence the grant has become useless and inoperative; the estate remains un-administered; the court file was certified lost by the Deputy Registrar and an order for reconstruction was allowed on October 23, 2019 via a motion dated May 21, 2019 and lastly that the confirmed grant is defective as it was acquired fraudulently due to material non-disclosure and exclusion of some of the beneficiaries.

Applicant’s Case 3. The application is further supported by the affidavit of Angela Muliro, the applicant sworn on October 8, 2020.

4. The applicant deposed that the deceased herein died on the August 14, 1992 and the letters of administration intestate were issued in December 1994 to Mercia Muliro and were later confirmed on October 29, 2004.

5. The applicant contends that the said grant was obtained fraudulently due to concealment of material facts relevant to this case, that the deceased at the time of his death had two wives namely Mercia Muliro and Redempta Nekesa Muliro. However, when petitioning court for the grant of letters of administration, the surviving wife Mercia Muliro excluded the children of Redempta Nekesa Muliro from the list of beneficiaries, that the deceased had left a valid will dated December 5, 1980 which was never disclosed to the court.

6. The applicant averred that the sole administratix, her step-mother Mercia Muliro died on November 24, 2015 hence the grant that has since been confirmed to her is now useless and inoperative. The applicant further averred that she is aware that letters of administration are personal in nature, therefore the letters of administration that had been issued to Mercia Muliro cannot be sub-delegated or inherited by another person.

7. The applicant contends that despite the court confirming the grant to Mercia Muliro, she did not administer the estate of the deceased in accordance with the law. Therefore the estate of the deceased remains un-administered and continues to waste away.

8. The applicant further averred that the original court file was certified lost hence making reconstruction a necessity.

9. The applicant prayed that the grant issued to Mercia Muliro be revoked to enable her apply for afresh grant to ensure the disposal of the estate of the deceased.

10. The applicant averred that she is a daughter of the deceased hence a lawful beneficiary of the estate.

Respondents’ Case 11. The application is opposed by a replying affidavit jointly sworned by Mukasa Mwambu Muliro and Regina Rosalind Wandera January 26, 2021. They averred that they are the son and daughter to the deceased and Mercia Muliro the sole administratix (now deceased). The respondents contend that the claims by the applicant regarding the deceased having married two wives was unsubstantiated. They further contend that the applicant has not furnished court with any certificates of birth of the children she allegedly claims were sired by the deceased and the said Redempta Nekesa Muliro. The respondents further contend that the applicant save for mentioning that she is a daughter of the deceased failed to provide any proof to substantiate her claim. The respondents further contend that the applicant’s claims that the deceased left a valid will was a mere allegation without proof.

12. The respondents contend that the applicant has not provided any proof of the unsubstantiated allegations of fraud levelled against the deceased administratix,Mercia Muliro. According to the respondents, allegations of fraud require a high standard of proof. The respondents, further contend that the applicant has not placed before court any evidence of wastage of the deceased’s estate as alleged.

Rejoinder 13. In a rejoinder, the applicant filed supplementary affidavit sworn on February 12, 2021 and reiterated that the deceased left a valid will dated December 5, 1980. The applicant provided a copy of the same. The applicant averred that the deceased and Redempta Nekesa Muliro was blessed with five issues namely: Sampentia Valentine Mkhaye, Kaggwa Namusonge Muliro, Hellen Namaemba Muliro, Musoke Naburuku Muliro and Angela Mukhwana Muliro. The applicant averred that vide Kitale ELC No 19 of 2013, Mukasa Mwambu Muliro informed court the estate of the deceased has never been administered after the death of Mercia Muliro. The applicant contends that the citation filed by Timothy Masika Wanyama dated November 20, 2018 further proves that the estate of the deceased is un-administered and continues to waste away.The applicant averred that the following properties of the deceased have not been distributed; Trans- Nzoia/Sibanga LR No. 11209, Kitale Municipality LR No 21XX/28/IV, LR No 94XX (Wesakulia) and Kimilili/Kimilili/6XX among others.

Submissions 14. The application was canvassed by way of written submissions. Both parties filed their respective submissions.

Determination 15. The issue for determination herein is whether the applicant’s application meets the threshold for the revocation of a grant within the meaning of section 76 of the Law of Succession Act.

16. Section 76 of the Law of Succession Act states as follows:“76. Revocation or annulment of grantA 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; 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; ore)that the grant has become useless and inoperative through subsequent circumstances.”

17. The applicant herein has invited the court to revoke the grant of letters of administration made to Mercia Muliro in December, 1994 and confirmed on November 29, 2004 for being useless and inoperative. The applicant’s case is that she is the daughter of the deceased and that the sole administratix of the estate of deceased Mercia Muliro died on November 24, 2015 rendering the grant that had been issued to her useless and inoperative.

18. InJulia Mutune M’mboroki Vs John Mugambi M’mboroki & 3 others [2016] eKLR the court held that;There is absolutely no room of substitution of the deceased administrator under the Law of Succession Act. In my view, therefore, where the sole administrator is a natural person, and he or she dies, the grant becomes useless or inoperative by reason of subsequent event of his demise…..Accordingly, in such case, the proper procedure is to apply for revocation of grant of letters of administration under section 76(e) of the Law of Succession Act on the reason that the grant has become useless and inoperative through subsequent circumstances and a grant to be made to another person named in the application.

19. A grant of representation is made in personam. It is specific to the person appointed. It is not transferable to another person. It cannot therefore be transferred from one person to another.

20. Being guided by the foregoing it is clear that where an administrator dies, a grant becomes useless or inoperative. In the instant cause it is not disputed that the sole administratix of the deceased estate, Mercia Muliro died on November 24, 2015. The grant of letters of administration that was issued to her in December, 1994 and confirmed on November 29, 2004 has since been rendered useless and inoperative by virtue of her death.

21. The applicant also contends that the confirmed grant is defective as it was acquired fraudulently due to material non-disclosure and exclusion of some of the beneficiaries. Having already found that the grant of letters of administration that was issued to Mercia Muliro, in December, 1994 and confirmed on November 29, 2004 has since been rendered useless and inoperative by virtue of her death, I need not to say more.

22. In light of the above, I invoke the inherent powers of this court granted under section 76 of the Law of Succession Act and order that the grant of letters of administration issued to Mercia Muliro (deceased), in December, 1994 and confirmed on November 29, 2004 be and is hereby revoked in its entirety. Fresh application for the grant shall be made by any of the beneficiaries. It is so ordered.

23. There shall be no orders as to costs.

DATED AND DELIVERED AT ELDORET THIS 18TH DAY OF JULY 2022. ………………………………………E. K OGOLAJUDGE