[2022] KEHC 13689 (KLR)

In re Estate of Mburati Kaburi (Deceased) (Civil Appeal E038 of 2021) [2022] KEHC 13689 (KLR) (3 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13689 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal E038 of 2021

LM Njuguna, J

October 3, 2022

IN THE MATTER OF THE ESTATE OF MBURATI KABURI (DECEASED)

Between

Catherine Wawira Muruiki

Appellant

and

Elizabeth Wangechi Mwai

1st Respondent

Simon Mwangi

2nd Respondent

Nester Wangagi Ireri

3rd Respondent

Sued as the administrator of the Estate of Peter Mwai Mburati

(Appeal against judgment of Hon. J. Ndengeri delivered on 31. 10. 2019, in Embu CMCC No. 541 of 2017)

Judgment

1. The appeal herein arose from the judgment of Hon J Ndengeri delivered on October 31, 2019, in Embu CMCC No 541 of 2017, in which suit, the appellant sought before the trial magistrate for orders that the grant issued to one Peter Mburati be revoked for reasons that she was not a beneficiary of the estate but largely that the respondents obtained the grant herein fraudulently.

2. When the appeal came up for hearing, the parties took directions to dispose the same by way of written submissions and which directions were complied with.

3. The appellant submitted that the administrator (her father) obtained a certificate of confirmation of grant in respect to the estate herein fraudulently. She argued grounds 1, 2, 4, 9, 10 and 12 together thus submitting that there were false entries in Form P&A 5 where it was indicated that the deceased left three survivors namely Peter Mwai Mburati, Ngiri Mburati and Gachoki Mburati. That an affidavit in support of the summons for confirmation of grant dated September 6, 1991 where it was indicated that the deceased was survived by Simon Mwangi Mwai, Peter Mwai Mburati and Nester Wangingi Ireri.

4. The appellant argued that even after the confirmation of grant, part of the deceased’s land that was distributed to Peter Mwai reverted to the deceased Mburati Kaburi’s name. It was her case that the grant was confirmed before the expiry of six months without any application seeking for confirmation before the expiry of six months which is highly irregular. The appellant relied on the cases of Re estate of Ambutu Mbogori (2018) eKLR and Re estate of Julius Ndubi Javan (2018) eKLR.

5. It was further submitted that section 51 (2) (g) is in mandatory terms that all the beneficiaries must be notified prior to filing of the petition seeking for letters of administration. That the beneficiaries listed in the Form 9 were not direct beneficiaries of the deceased in that one Simon Mwangi is a son to the administrator and as such, he could not inherit from the estate when his father was still alive. Reliance was made on the case of Re Estate of Wahome Njoki Wakagoto(2013) eKLR. That the 3rd respondent is not a relative but a purchaser but to the contrary, she was listed as a daughter of the deceased which in fact was an error and such, the grant herein was obtained fraudulently.

6. In reference to grounds 3,5,6,7 and 8, the appellant submitted that the 3rd respondent did not acquire a good title as an innocent purchaser given that any transaction entered into in regard to the assets of the estate before confirmation of grant is thus unlawful. Reliance was placed on section 93 of LSA. On ground 1, the appellant argued that the trial court erred by holding that the 1st respondent is not the administrator of the estate of Peter Mwai in that it failed to consider a supplementary affidavit wherein the appellant annexed the letters of administration for the estate of Peter Mwai Mburati issued on September 18, 2014 in Kerugoya Succession Cause No 432 of 2014. That the trial magistrate thus erred in holding that the appellant had failed to follow the procedure of enjoining the administrator’s represenatteive.Reliance was made on the case of Julia Mutune M’mborki v John Mugambi M’mboroki & 3 Others [2016] eKLR. Thus this court was urged to allow the appeal herein as prayed.

7. On their part, the respondents submitted that the appellant is a grandchild of the deceased herein and the daughter of the administrator Peter Mwai Burati (deceased); the 1st respondent was the widow of the deceased and not his legal representative; the 2nd respondent is a son of the deceased administrator while the 3rd respondent is a purchaser. It was submitted that the administrator and his brothers had their respective pieces of land thus LR Mbeti/Gachoka/1053 was to vest upon the administrator. That the appellant’s father was issued with grant of letters of administration which was confirmed on December 11, 1991 which she never challenged at any point. The respondents thus defined four grounds under which they argued their case.

8. The first issue raised by the respondent was that this court is bereft of jurisdiction to determine the matter at hand. That the grant being challenged is not anymore governed by the LSA and thus the requisite court with jurisdiction to deal with the matter herein is the Environment and Land Court, the reason being that the estate has been distributed in accordance to the certificate of confirmation of grant and title deeds issued. The respondents relied on Succession Cause No 307/2008; ACK St Mathews Church Ndunduri v Julia Njura Ephantus and 9 Others.

9. The second ground is that the 1st respondent has been sued as the administrator of the estate of Peter Mwai Mburati while no grant has ever been produced to demonstrate this status. That the grant referred to by the appellant is in relation to the suit in Kerugoya Succession Cause No 432 of 2014 and was limited to substitution of the 1st respondent in ELC case No 651 of 2013 Kerugoya. The 2nd respondent thus reiterated that the status of the 1st respondent as an administrator of Peter Mwai Mburati is unfounded. The third ground was to the effect that the appellant is not a beneficiary to the estate of the deceased herein as she is only a grandchild. In that regard, it was submitted that the appellant could only challenge her father’s desire to apportion his son a share by invoking provisions under section 26 and 29 of LSA and PA rule 67 to demonstrate that indeed she was a dependant of the deceased herein.

10. The fourth ground is in relation to the alleged concealment of material facts to which the respondent submitted that, the appellant was not entitled to any information before the filing of petition for letters of administration as she was not a beneficiary nor a dependant. That there was no irregularity as the procedure followed by the deceased administrator was in congruence with the provisions of the LSA. In relation to the fact that the grant was confirmed within three months of petition, it was submitted that no one ever challenged the direction by the court. In the end, this court was urged to dismiss the appeal with costs.

11. It’s now settled that the role of the first appellate court is to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. The first appellate court ought not to ordinarily interfere with findings of fact by the trial court unless it was based on no evidence at all, or on a misapprehension of it or the court is shown demonstrably to have acted on wrong principles in reaching the findings. [See Selle & ano v Associated Motor Boat Co Ltd(1968) EA 123].

12. I have read through and considered the memorandum of appeal and the submissions of both counsels. I have also considered the authorities referred to by each counsel to support their legal propositions in the matter. Further, I have read and re-evaluated the record and evidence adduced by the appellant. In my view, the only issue which this court is invited to decide is whether the trial court was right in declining the appellant’s application for revocation.

13. The grounds upon which the said application was premised were that the same was obtained fraudulently by concealment of material particulars and making of a false statement; that the grant was obtained by means of untrue allegations of facts essential in point of law to justify the grant; and that the proceedings to obtain the grant were defective in substance.

14. To begin with, the respondents raised the issue of jurisdiction and it is of importance to deal with the same prior. It is now trite that jurisdiction is everything and a court cannot arrogate itself jurisdiction which it does not have. [See Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others SC Application No 2 of 2012.

15. Of importance to determine also is whether or not the appellant herein lacks locus standi to bring this appeal as alleged by the counsel for the respondents in their submissions. The argument is that the appellant is a grandchild of the deceased and therefore she is not a beneficiary of the suit property.

16. Locus standi is basically the right to appear or be heard in court or other proceedings. That means if one alleges the lack of the same in certain court proceedings, he means that a party cannot be heard, despite having a case worth listening. The issue herein is whether the appellant lacks the requisite locus standi to seek relief from the court to revoke the grant in question issued to one Peter Mwai Burati (deceased). In my view, issues regarding locus standi are critical preliminary issues which must be dealt with and settled before dwelling into other substantive issues.

17. Under section 76 of the Law of Succession Act, any party interested in the estate of a deceased may bring the application under that section and/or rule 2 as read with rule 17(1) of the Probate & Administration Rules. Rule 17(1) of the Probate & Administration Rules provides that:-“Any person who has not applied for a grant to the estate of a deceased and wishes to object to the making of a grant which has already applied for by another person may do so.”

18. The circumstances under which a grant can be revoked are provided for under section 76 (a) - (e) of theLaw of Succession Actand include;a.Where the proceedings to obtain the grant were defective in substance;b.Where 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.Where 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.Where 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.Where the grant has become useless and inoperative through subsequent circumstances.

19. In the instant case, the appellant has submitted that the petition was filed behind her back and further that, the grant was confirmed before the expiry of six months which is highly irregular. It was her case too, that, having conducted an official search, she found that the portion of land was no longer in her deceased’s father’s name any more and that the said land had been subdivided.

20. It is my considered view that the process of confirmation of grant is always after the grant has been made. What section 76 provides are the conditions or circumstances under which a grant can be revoked. Allegations of fraudulent process ought to be in relation to obtaining the grant and not the process of confirmation of the same. [ See inre Estate of Prisca Ong’ayo Nande (deceased) [2020] eKLR a person who is aggrieved by the orders made with respect to a confirmation application has no remedy under section 76 of the Law of Succession Act, for that provision does not envisage revocation of certificates of confirmation of grants. Such an aggrieved party has only two recourses under general civil law, that is to say; appeal and review, to the extent that the same is permissible under the Law of Succession Act.

21. It is not in doubt that the appellant herein is a grandchild of the deceased. She prays that this court revokes the grant issued to the deceased administrator for the reason that she did not participate in this cause and further, she was never notified of the proceedings. The question that I therefore will proceed to determine is whether the administrator erred by failing to inform the appellant herein.

22. Of importance to determine is whether the appellant herein has locus to challenge the said grant given that the administrator of the estate herein was her father. I find guidance in the case of Cleopa Amutala Namayi v Judith Were Succession Cause 457 of 2005 [2015] eKLR Mrima, J observed thus:“Be that as it may, under Part V of the Act grandchildren have no automatic right to inherit their grandparents …. The argument behind this position is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents indirectly through their own parents…. The children to the grandparents inherit first and thereafter the grandchildren inherit from their parents. The only time where the grandchildren can inherit directly from their grandparents is when the grandchildren’s own parents are dead…

23. As such, the appellant’s position in my view, is not supported by the law in that a grandchild is only entitled to the share due to his or her deceased parent in the estate under the principle of representation stated in section 41 of the Act. [See the Court of Appeal in Christine Wangari Gachigi v Elizabeth Wanjira Evans and 11 others NKU CA Civil Appeal No 221 of 2007 [2014]eKLR.

24. In reference to whether the 1st respondent had a legal capacity to be sued, the respondent submitted that the 1st respondent being a widow to the deceased administrator does not automatically mean that she becomes his legal representative. Having perused the record, I find that indeed the 1st respondent had previously been issued with a limited grant in Kerugoya Court in Succession Cause No 432 of 2014 which legally was in reference to ELC 651 of 2013 and not relating to the succession cause herein.

25. As there was no valid substitution of the 1st respondent to legally represent the deceased administrator, I find therefore that no orders sought against her can issue as she is not properly before the court.

26. The appellant also argued that she was a dependant of the deceased herein. The meaning of dependency is defined under section 3 of the Amended Law of Succession Act, 2019. a)…………b)such of the deceased’s parents, step parents, grandparents, grand children, step children, children whom the deceased had taken into his family as his own, brothers and sisters and half-brothers, half sisters, as were being maintained by the deceased immediately prior to his death.

27. There is a condition precedent which a person claiming dependency has to establish. It requires that the person claiming dependency must prove that he/she was being maintained by the deceased immediately prior to his demise. It is trite that he who alleges must prove; it is not enough to argue that the 2nd respondent who is her brother was listed as a beneficiary of the estate of the deceased herein while she was left out. [SeeIn re Estate of the Late M’thigai Muchangi (deceased) [2020] eKLR; In re Estate of the Sandislau Murianki Mutwiria (deceased) (Miscellaneous Succession Cause No 49 of 2018 [2022] KEHC 423 (KLR) (16 March 2022)].

28. I have considered the evidence in the court record and on a balance of probabilities, I find that the appellant has not brought any tangible evidence to show that she was being maintained by the deceased herein. In the case of Beatrice Ciamutua Rugamba v Fredrick Nkari Mutegi & 5 others [2016] eKLR, it was observed that “a dependent 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 that counts.”

29. In the end and for the reasons above, I uphold the determination by the lower court and dismiss the appeal herein with no order to cost.

30. It is so ordered.

DELIVERED, DATED ANDSIGNED AT EMBU THIS3RD DAY OFOCTOBER, 2022. L. NJUGUNAJUDGE.................... for the appellant.................... for the Respondent