[2017] KEHC 2744 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

SUCCESSION CAUSE NO. 263 OF 2014

IN THE MATTER OF THE ESTATE OF MBOGO KIBIRA NJAGI alias MBOGO (DECEASED)

AND

SOPHIA WANJIRA MBOGO……….......PETITIONER/RESPONDENT

VERSUS

ROSE WANGECHI MUTHIKE……….1ST PROTESTOR/APPLICANT

NANCY WAKERA KINYUA………....2ND PROTESTOR/APPLICANT

RULING

1. This ruling relates to a Preliminary Objection raised by the Petitioner Sophia Wanjira Wambogo opposing the protestor’s application dated 24th June, 2015. In the application, the 2nd protestor Judy Wakuthi Munene seeks orders that the grant of letters of administration which was confirmed to Sophia Wanjira Mbogo on 15th June, 2015 be annulled or revoked. That the status quo on the subject matter land being land Parcel No. INOI/NDIMI/27 be maintained.

2. The preliminary objection is based on the following grounds:

(i) The application does not satisfy the ingredients for an application for revocation of grant.

(ii) The provision available is that of review and setting aside under rule 63 of the Probate and Administration Rules Cap. 160.

(iii) The applicant’s indolence or failed to put in any protest cannot form ground for application for revocation under Section 76 of the Law of Succession Act Cap. 160.

3. The facts of this matter are that the petitioner Sophia Wanjira Mbogo was issued with letters of administration in the estate of Mbogo Kibira Njagi (deceased) her husband on 30th April, 2015. Citation to accept or refuse letters of administration was served on Rose Wangechi Muthike and Judy Wakuthie Munene the protestors who entered appearance on 30th May, 2014. Since there was no objection raised, the petitioner applied for the confirmation of grant and the grant was confirmed on 15th June, 2015. The whole share of the estate of the deceased Land Parcel No. INOI/NDIMI/27 was to go to the Petitioner.

4. The protestors filed the application dated 24th June, 2015 which is the subject matter of the Preliminary Objection. Their contention is that they were served with the application on 15th June, 2015 which is the date it was supposed to come up for hearing and their advocate was not in Court as he was not aware of the matter. The protestors proposed that the estate of the deceased be shared as follows:

- Rose Wangechi Muthike and Judy Wakuthii Munene to get ½ share jointly.

- Sophia Wanjira Mbogo – ½ share.

5. Upon filing the application, the Court ordered that the status quo be maintained pending the interpartes hearing of the application on 7th July, 2015. According to the protestors, despite the order, the petitioner went ahead and sub-divided the Land comprising the estate amongst her children and one grandson. That is to say;

Sophia Wanjira Mbogo - widow INOI/NDIMI/3017 and 3018.

Peterson Karimi Mbogo - son INOI/NDIMI/3015

Florence Wakaria Mbogo - daughter INOI/NDIMI/3016

Marclus Kimotho Mbogo - son INOI/NDIMI/3019

David Kinyua Wangui - grandson INOI/NDIMI/3020

6. The protestors proposed that the estate be distributed equally between the widow and the deceased children as follows:

Sophia Wanjira Mbogo - widow

Peterson Karimi Mbogo - son

Florence Wakaria Mbogo - daughter

Marclus Kimotho Mbogo - son

Rose Wangechi Muthike - daughter

Judy Wakuthii Munene - daughter

This is deponed in the supplementary affidavit of protest sworn on 2nd February, 2016.

7. The petitioner raised a preliminary objection. The parties filed submissions which I have considered. The first issue is whether the application dated 24th June, 2014 satisfied the ingredients for an application for revocation of grant.

The party coming to Court must satisfy the Court that there are reasons as provided by the applicable law to warrant the Court to order the grant to be revoked. The petitioner submits that the application for confirmation of grant was served on the advocate on record for the protestors, Igati Mwai and Company Advocates. The protestors did not oppose the application but instead appeared in Court and did not raise any objection to the confirmation of the grant. That the protestors are seeking time to respond to the application for confirmation. The petitioner is stating that he disclosed all the issues and it was upon the protestors to oppose before the grant was confirmed. That the protestors can only seek remedy by way of appeal.

8. On their part the protestors are submitting that there is no explanation as to how the application is defective as it is brought under Section 76of the Law of Succession Act which gives Court wide powers to revoke the grant of representation.

9. The applicable provision for revocation or annulment of grant is Section 76 of the Law of Succession Act. It provides:

“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) ……………………”

10. The provision is clear that the grant may be revoked whether confirmed or not. Parties are not shut out from making application for revocation or annulment before the Court which confirmed the grant in favour of an appeal. The protestors are contending that they were served with the application for revocation of grant the same date it was coming up in Court and their advocate was not in Court. The protestors were not given an opportunity to confirm whether or not they objected to the confirmation of grant. As beneficiaries entitled to the estate the practice is that they ought to have been present in Court when the grant was confirmed.

11. I am of the view that since the petitioner did not serve the protestors with the application in good time, concealed their existence when the matter was before the judge for confirmation as beneficiaries entitled to the estate as daughters of the deceased and denied them an opportunity to be heard, before the grant was confirmed, the proceedings to obtain the grant were defective in substance. This brings the application within the ambit of Section 76 (a) of the Law of Succession Act. The application by the protestors to revoke the grant is therefore properly before the Court. This ground must fail.

12. The second issue which arises is whether a preliminary objection can be raised on a contested fact. A preliminary objection is raised where facts are not in dispute as it enables a Court to determine the points of law. There are facts in dispute which the Court has to determine whether or not the protestors were served with the application for confirmation of grant in good time. A question of fact is raised that requires to be established by evidence. It cannot be a ground for preliminary objection. I am persuaded to follow Munyao Sila, J., Leputei Ole Koros & Another -V- Attorney General and 3 others (2016) eKLRwhere he stated:-

“Where facts are not contested, the court is able to make a determination of law on the preliminary objection, but where facts are in contest, then automatically, the issue falls out of the ambit of a preliminary objection. It would be improper for a court to make a contested determination of fact within a preliminary objection.”

Further in A.K.N. -V- JNM (2014) EKLR W Musyoka J stated

“This court is of the considered view that the issues raised in the Preliminary Objection herein are of a nature that would apparently require calling of evidence, it raises questions of fact and law in regard to which both the Applicant and Respondent are in several respects in disagreement. The court has to establish whether or not there is marriage relationship as to between the parties. The Preliminary Objection is thus not sustainable. A party, who raises a Preliminary Objection, must do so only on a pure point of law and nothing else.”

This is not a matter which can be determined on a preliminary objection as the Court has to establish whether the protestors were served or not.

13. Thirdly, the Court has to determine whether the option available to the protestors is that of review or setting aside. Review is provided under Order 45 Civil Procedure Rules. Rule 63 of the Probate and Administration Rules Cap. 160 Laws of Kenya provides:

“1) Save as is in the Act or in these rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure rules, namely Orders V, X, XI, XV, XVIII, XXV, XLIX (Cap. 21. Leg.)., together with the High Court (Practice and Procedure) rules (Cap. 8, sub. Leg.), shall apply so far as relevant to proceedings under these Rules.

2) Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased persons shall be those existing and in force immediately prior to the coming into operation of these Rules.”

Order 45 Civil Procedure Rules

“Any person considering himself aggrieved:-

a. by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or

b. by a decree or order from which no appeal is hereby allowed,

and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reasons, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.

The conditions or the grounds upon which an application for review may be made are:-

a) a discovery of a new and important matter of evidence, which after the exercise of due diligence was not within the applicant’s knowledge or could not be produced by him at the material time;

or

b) there is a mistake or error apparent on the face of the record; or

c) for any other sufficient reason.”

The protestors are not talking about discovery of a new matter of evidence of sufficient importance as to alter the order sought to be reviewed. Discovery denotes existence of facts as at the date of the making of the court order, but which facts were not within the knowledge of the parties at the time, hence their failures or inability to place them before the court at the time. They are also not seeking alteration of the earlier order of the court on the ground that there is a mistake or error on the record. Any other sufficient reason is all encompassing; it denotes any facts that justify review of the earlier orders.

The remedy of the applicants is not in an application for review.

14. The applicant moved to Court with speed and filed the application. The confirmation was on 15th June, 2016 and the application was filed on 24th June, 2016. The applicants were prompt and not indolent. This is a succession matter and involves members of the same family. Determinations should be based on amicable resolutions other than give one side what would appear to be an upper hand as this would prolong and escalate the dispute. I am of the view that the application is properly before the Court. The Court has discretion to revoke or annul the grant whether or not confirmed even on its own motion. I find that the Preliminary Objection is without merits. I dismiss it.

Dated and delivered at Kerugoya this 5th day of October, 2017.

L. W. GITARI

JUDGE

Read out in open court in the presence of 1st Protestor, 2nd protestor absent, Petitioner – absent, court clerk Naomi Murage.

L. W. GITARI

JUDGE

5. 10. 2017