[2023] KEHC 25152 (KLR)

In re Estate of M'Tabari M'Atheru M'Ikanamba (Deceased) (Civil Appeal E136 of 2022) [2023] KEHC 25152 (KLR) (8 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25152 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E136 of 2022

LW Gitari, J

November 8, 2023

IN THE MATTER OF THE ESTATE OF M’TABARI M’ATHERU M’IKANAMBA (DECEASED)

Between

Lydia Gacheri

1st Appellant

Douglas Kinoti

2nd Appellant

and

Luke Micubu Kalaibua

Respondent

(Appeal against the ruling in Maua Chief Magistrate’s Court Succession Cause No. 133 of 2017 delivered on 9th April, 2021)

Judgment

1. This is an appeal against the ruling in Maua Chief Magistrate’s Court Succession Cause No. 133 of 2017 delivered on 9th April, 2021 which was in respect to the application dated 21st December, 2021 by the Appellants herein. In the said application, the Appellants sought the revocation of the grant issued to the Respondent herein. In the end, the said Application was dismissed with costs to the Respondent.

2. Aggrieved by the ruling of the subordinate court, the Appellants initiated this appeal vide the Memorandum of Appeal dated 4th October, 2021. They raised the following grounds of appeal;a.That the Learned Magistrate erred in law and fact by misconstruing that gazette notice was enough notification of the probate and administration proceedings before court.b.That the Honourable Magistrate erred in law and fact by holding that the Appellants were not beneficiaries to the deceased’s estate to take shares of their parents who were children of the deceased and also deceased.c.That the Honourable Magistrate erred in law and fact by holding that the principle of representation where a beneficiary has died was inapplicable in succession proceedings.d.That the Honourable Magistrate erred in law and facts in holding that the Appellants’ consent was not necessary prior to filing the succession herein.e.That the Honourable Magistrate erred in law and fact by holding that the Appellants were not supposed to get a share of the deceased’s estate.f.That the Honourable Magistrate erred in law and fact by disregarding the Appellants’ affidavits and submissions and failed to give the same any consideration at all.

3. The Appellants thus prayed for orders that:a.The appeal to be allowed and the judgment made by Hon. Tito Gesora (Chief Magistrate Maua) on 9th April, 2021 be set aside and the summons for revocation of grant dated 21st December, 2020 be allowed.b.The Respondent do pay the Appellant’s cost of this appeal.c.Any other relief this Honourable Court may deem fir to grant to meet the justice in this appeal.

4. The appeal is opposed and it was directed that the same was disposed of by way of written submissions. Notably, only the Appellants filed their submissions.

The Appellant’s Submissions 5. It is the Appellant’s submissions that the learned magistrate erred in law and in fact in holding that the Appellants are not entitled to their mother’s share of the deceased’s estate. That their mother was a daughter of the deceased herein and that the subordinate court’s finding that their mother did not predecease the deceased was a misinterpretation of the law. It was further the Appellant’s submission that them being the grandchildren of the deceased herein, they had a right to inherit the rightful share of their mother. They relied on the case of In Eddah Wangu & Another v. Sacilia Magwi Kivuti (Deceased) Substituted with Ribereta Ngai [2021] eKLR to buttress their position.

6. The Appellants further faulted the subordinate court for dismissing the application for revocation on the ground that the Appellants did not file any objection when the gazette notice was issued. To this end, it was their submission that not filing an objection should not have hindered them from inheriting their parents’ estate especially given that they were not notified when the succession cause was filed and/or before the same was filed. They placed reliance on the provisions of Section 76 of the Law of Succession Act and cited the case of In Mary Wambui Kinyua v. Francis Mukingo Kibutu & Another [2016] eKLR in support of this position.

7. Finally, the Appellants faulted by the subordinate court for finding in favour of the Respondent’s assertion that the deceased had transferred his estate to the beneficiaries before his demise. The Appellants thus urged this court to allow the appeal and find that the Appellants are entitled to their parents’ shares of the estate of the deceased.No submission was filed by the respondent

Issue for Determination 8. I have carefully considered the Ruling of the trial court, the grounds of appeal and the record of appeal as well as the submissions by the appellants. The main issues that arises for determination are:-1. Failure to file objection to the making of a grant2. Rights of grandchildren to inherit the grand parents.3. Gift inter vivos4. Whether the appeal is meritorious.

Analysis 9. This is a first appeal. It is therefore this Court’s duty to evaluate the entire evidence on record bearing in mind that it had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle v Associated Motor Boat Co. Ltd. [1965] EA 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.

10. Guided by the said authority, I now turn to the evidence that was presented before the trial court.

11. The impugned ruling was in respect of the application that was filed by the Appellants herein dated 21st December, 2021 which sought, in the main, the revocation of the grant given to the Respondent herein on 6th August, 2019. The said application was premised on the grounds that:a.The succession cause was filed secretly without seeking any consent from the Appellants prior to the filing.b.The Respondent obtained the grant fraudulently by making false statements and through concealment of material facts from the court.c.The court was not told that the deceased had other dependants who were in occupation of the estate.d.The grant was obtained by means of an untrue allegation of facts essential in point of law to justify the grant.

12. The subject proceedings relate to the estate of the late M’Itaabari M’Ethuru M’Kanambe (deceased) who died intestate on 10th January, 2010. As per the chief’s letter dated 5th May, 2017, the deceased was survived by the following beneficiaries:a.Luke Micubu Kalaibua – Sonb.Julius Muroki Kalaibua – Sonc.Francis Mugambi – Sond.David Muthoni – Deceased (with two sons and five daughters)e.Joseph Mpekethu – Deceasedf.Mwonjiru Ngore – Daughter - (married)g.Kabiro Isaac – Daughter – (married)

13. Ground no. 1 of the Appellants faulted the subordinate court for finding that the publication in the gazette notice of an application for a grant was enough notification of the probate and administration proceedings before court.

14. Rule 7 of the Probate and Administration Rules (the Rules) contains the general provisions for application for grants. Rule 7(4) provides for the publication in the gazette of the notice of an application for a grant as follows:“The registrar shall cause to be inserted, at the cost of the applicant, in the Gazette and, if he so decides, in a daily newspaper, and to be exhibited conspicuously in the courthouse attached to the registry where the application is intended to be made, a notice of the application for the grant in Form 60 inviting objections thereto to be made known to that registry within a period, to be specified in the notice, of not less than thirty days from the date of the last of such publications.”The Law of Succession Act provides that a person may object to the issuance of letters of administration in respect of a deceased’s estate within the period stipulated in the notice published in the Kenya Gazette . Section 67 of the Law of Succession Act provides as follows:-“1)No grant of representation, other than a limited grant for collection and preservation of assets, shall be made until there has been published notice of the application for the grant, inviting objections thereto to be made known to the court within a specified period of not less than thirty days from the date of publication, and the period so specified has expired.(2)A notice under subsection (1) shall be exhibited conspicuously in the court-house, and also published in such other manner as the court directs.”In addition Section 68 of the Law of Succession Act provides as follows:“1. Notice of any objection to an application for a grant of representation shall be lodged with the court, in such form as may be prescribed, within the period specified by the notice, or such longer period as the court may allow.2. Where notice of objection has been lodged under subsection (1), the court shall give notice to the objector to file an answer to the application and a cross-application within a specified period.”These provisions are stating that a person may object to the issuance of Letters of Administration in the estate of a deceased person within the period stipulated in the Gazette Notice. The procedure is under Section 69 of the Law of Succession Act which provides:“1)Where a notice of objection has been lodged under subsection (1) of section 68, but no answer or no cross-application has been filed as required under subsection (2) of that section, a grant may be made in accordance with the original application.2)Where an answer and a cross-application have been filed under subsection (2) of section 68, the court shall proceed to determine the dispute.”The pre-requisite notice that is required before letters of administration can be issued is the advertisement in the Kenya Gazette. Any objection to the issuing of the Letters of Administration must be filed within thirty (30) days from the date of the Advertisement of the Notice in the Kenya Gazette. Page 90 of the record of Appeal, the applicant has shown that a gazette notice in respect of the estate of the deceased was publicized. The learned trial magistrate while relying on Section 69 of the Interpretation and General Provisions Act, Cap 2 Laws of Kenya which provides that -“The production of a copy of the Gazette containing a written law or a notice or of a copy of a written law or a notice purporting to be printed by the Government Printer shall be prima facie evidence in all courts and for all purpose whatsoever of the due making and tenor of the written law or notice.”held that there was a gazette notice and the applicant should have raised objection before the grant was confirmed. The finding was in error because the objection envisaged under Section 67 of the Act refers to issuing of a grant to the Petitioner/Administrator.An objection to the confirmation of grant is a protest which is a protest to the mode of distribution of the estate. See Rule 40 sub-rule (6) of the Probate and Administration Rules.

15. The purpose of the publication of the notice of the application of grant in the gazette is to notify and inform all persons concerned that an application for a grant of representation had been filed in respect to a specified estate and to invite any objections to the application. The Argument by the Appellants that the learned magistrate erred in construing the gazette as sufficient notice of the probate proceedings before it, is in my view wrong. The fact that the gazette notice was correct in all respects and that it referred to an application for a grant of representation in respect of the estate of the deceased herein served as a proper and sufficient notice to the Appellants herein.This is not withstanding, the application which the learned trial magistrate was dealing with was a summons for revocation of grant. In this regard, the law on revocation of grant is anchored at Section 76 of the Law of Succession Act. Section 76 (a) (b) (c) of the Law of Succession Act 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;”The sections aims at ensuring that all is not lost for a party who for some reason did not object to the issuing of a grant. The Law of Succession Act provides that one can still challenge the issuance of a grant by seeking revocation or annulment of grant under Section 76 of the Law of Succession Act. A party can also file a protest where a grant has not been confirmed to challenge the mode of distribution of the estate.

16. I note that what was before the learned trial magistrate was a summons for revocation of grant. The trial magistrate erred in holding that since the applicants were deemed to have had notice, they should have raised objection before the grant was confirmed. An application for revocation of grant can be made by a party irrespective of whether a grant has been confirmed or not. Section 76 gives the court wide powers to revoke a grant as it can revoke it whether confirmed or not even on its own motion or on an application by any interested party. The fact that the appellants had not filed an objection to the issuing of grant was no bar to them moving the court to revoke the grant. In summons for revocation of grant the appellants had alleged that the grant was obtained on the basis of false statements and concealments of material facts in that there were dependants to the estate of the deceased who were also deceased. I agree with the submissions by the appellants that not filing an objection should not deter them from inheriting their parent’s estate. The trial magistrate erred by failing to consider merits of the summons for revocation of grant.

17. The Appellants have also faulted the subordinate court for finding that they were not beneficiaries of the deceased’s estate. As per the affidavit of the 2nd Appellant sworn on 21st December, 2020, the 2nd Appellant is the son to one Rael Kaulo (deceased) who was a daughter to the deceased herein. He deposed that the said Rael Kaulo (deceased) was survived by Douglas Kinoti (the 2nd Appellant herein), Jeremiah Gikundi, Abed Ntombura, and Karambu Morris.

18. On the other hand, the 1st Appellant deposed vide her affidavit also sworn on 21st December, 2020, that she was the daughter of the late Joseph Mpekethu who was the son of the deceased. According to the 1st Appellant, her father was married to one Rosemary Kalayu (deceased) and was survived by the 1st Appellant and her sister, Justa Kajuju.

19. In opposition to the said application for revocation of grant, the Respondent herein averred that the Appellants are not dependants of the deceased but were consulted before the filing of this cause for the sake of harmony in the family but were uncooperative. That it was therefore not true that the succession cause was filed secretly. The Respondent further contended that he bought parcel no. LR Njia/Burieruri/4400 from his late brother Joseph Mpekethu M’Itabathi who gave him possession of the same long before he passed on and that the said parcel of land is where the Respondent resides with his family. Further, that the Respondent had no interest in the other parcels of land of the estate and that his brothers had no objection with him becoming the administrator of the estate.

20. In the impugned ruling, the subordinate held as follows:“.... In my view, the resolution of this matter rests on the issue of dependency and right to succeed.The net estate devolve to surviving children equally by virtue of Section 38 of the Law of Succession Act Cap 160 subject to Section 41 [which] provides that the people whom the net estate devolve to and for whom it is to be held in trust are male children who haven’t attained the age 18 or female children of the deceased who marry before the age of 18 and the share of a child who has children and who predeceases the deceased.The applicants have brought the application on the ground that they are children of the deceased daughter but a look at the dates of the death of their mother and grandfather respectively show that the deceased only died on 15/3/2010 and 01/01/2020 therefore their mother did not predecease her father. They are therefore out of the purview of section 41 of the Law of Succession Act in the case of the 1st Applicant.Secondly, the 2nd applicant says he is the child of Joseph Mpekethu together with her sister Julia Kajuju. The same chief who indicated on 01/04/2019 that her father was not married. The court had asked him to indicate whether Mpekethu had any beneficiaries. He did not indicate as much. He did not know the 2nd applicant and her sister.”

Whether grand children have a right to inherit from their grandparents..............................The trial magistrate did not consider the claims by the appellants whether they had a right to inherit. The appellants have urged the court to find that since the appellants were grandchildren of the deceased, they had the right to inherit. The appellants cited the case of Eddah Wangu & Another v Sacilia Maguri Kivuti (deceased) substituted with Riberata Ngai [2021] eKLR. Where the court held that grandchildren inherit the share that should have gone to their parents.It was stated;“what this means therefore is that whee a fchild of a deceased person has predeceased the deceased, then such a child cannot be said to be beneficiary. The rightful beneficay ought to be the spouse of the deceased child (who should hold the property given to her in trust for the children of the deceased child) or where the deceased child is not survived by a spouse but has children, the right person as the beneficiary of the deceased’s estate ought to be the child of deceased (grandchild of the deceased). Where the child who predeceased the deceased was not survived by either a child of spouse, then such a deceased child cannot be said to be a beneficiary of the estate."Similarly, in the case of Cleopa Amutala Namayi v Judith Were Succession Cause No. 457 of 2005 [2015] eKLR Quoted In Eddah Wangu & Another v Sacilia Magwi Kivuti (deceased) Substituted With Ribereta Ngai [2021] eKLR Mirima 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 ....”I have considered the above decisions. I am persuaded by the decisions as they correctly interpret the position of grand children with regard to the estate of their grandparents. Indeed under Section 29(b) of the Act which defines meaning of dependants, grandchildren are defined as dependants. It means that grand children who were living on the estate of the deceased and their parents(s) die before the deceased, they are entitled to the share that should have gone to their parents. The grandchildren share amongst themselves the share of their parent. I agree with the appellants submissions that they ought to have considered the appellants claims not withstanding the fact that they had not filed an objection. 21. Rule 26(1 of the Probate and Administration Rules provides that-“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.”Sub-rule (2) requires that a consent by person entitled to the estate in equal or lower degree, be in writing in From 38 or 39 and be supported by an affidavit. Though the respondent had deponed that the appellants were informed, this was not substantiated and is also an admission that he ought to have obtained their consent.

Gift Inter- Vivos 22. The trial magistrate relied on the respondent contention that the petitioner had his share given during the lifetime of the deceased. I however find that no proof was tendered by the respondent to show that the deceased had already transferred any of his properties to the beneficiaries before his demise. Section 42 of the Law of Succession Act provides:-“Where-(a)an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or(b)property has been appointed or awarded to any child or grandchild under the provisions of Section 26 or Section 35,that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.”No evidence was tendered to proof that the deceased had given any part of his estate which can fall under this definition.For the reasons above, I find and hold that the trial magistrate erred in holding that the appellants summons for revocation of grant was not properly before the court for the reasons that they had not filed an objection to the issuing of the grant of letters of administration to the respondent. By so doing, the summons for revocation of grant was not heard and determined on merits. For these reasons I find that the appeal has merits.I therefore order as follows:-1)The ruling dated 9/4/2021 in Maua Chief Magistrate’s Court Succession Cause No.133/2017 is set aside.2)The matter is remitted back to the Chief Magistrate’s Court at Maua for hearing and determination of the summons for revocation of the grant issued to the respondent on merits. The summons to be heard by any other magistrate with jurisdiction other than the trial magistrate.3)I award the costs of the appeal to the appellants.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 8TH DAY OF NOVEMBER 2023. L.W. GITARIJUDGE8/11/2023Ms Asuna Holding Brief, Mr. Mutembei for AppellantMr. Kaberia for RespondentThe Judgment has been read out in open court.L.W. GITARIJUDGE8/11/2023