[2017] KEHC 1274 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 162 OF 2009

IN THE MATTER OF THE ESTATE OF MULE KITOLO (DECEASED)

BETWEEN

DAUDI KITOLO MULE …………………....……………….PETITIONER

VERSUS

1. TITUS NZILA MULE

2. THOMAS NTHIANI MULE

3. DAVIS MUMO MULE

4. OBADIAH MUTUA MULE ………………………………OBJECTORS

RULING

The Objection

The Petitioner herein filed an application seeking grant of representation to the estate of Mule Kitolo (hereinafter referred to as “the Deceased”), who died on 7th January 2008. The Objectors subsequently filed an objection on 15th December2009, on grounds that they are the only surviving sons of the Deceased and that the Petitioner is a total stranger to the Deceased’s estate. Further, that the Petitioner is not a son to the Deceased and therefore lacks any right to inherit or claim anything from the estate, and lacks the locus standi to petition for letters of administration intestate.

The 1st Objector also filed an Answer to the Petition for Grant dated 3rd May 2012, wherein he contended that the application for grant by the Petitioner should be dismissed, as the Petitioner has no locus to petition for letters of administration intestate due to the fact that he is not a son to the deceased. Further, that the Petitioner should be cited for contempt and perjury for swearing a false affidavit.

Lastly, the 1st Objector also filed a Petition by way of Cross-Application for a Grant and a supporting affidavit thereto both dated 3rd May 2012, seeking a grant of letters of administration intestate of the estate of Mule Kitolo on account of being a son of the Deceased.

On 11th May 2012, this Court (Dulu J.) gave directions that this matter proceeds to hearing by way of viva voce evidence. The Objectors called two witnesses in support of their case while the Petitioner called three witnesses.

The Evidence

Evidence was adduced by the 1st and 3rd Objectors, Titus Nzila Mule and Davis Mumo Mule, as DW1 and DW2 respectively, that the deceased who was their father, was married to Ruth Ndungwa only, and that the Objectors herein are children of Ruth Ndungwa who had ten children namely; Titus Nzila, Thomas Nthiani, Davis Mumo, Obadiah Mutua, Joseph Mule, Jonh Mule, Rose Alice Munee, Nziva Kimondio, and Frolence Ndinda.

Further, that at the time of his demise, the deceased lived with the Objectors at Kithangaini on the parcel of land known as MASII/KITHANGAINI/201, and they produced a copy of the title deed as an exhibit. DW1 further testified that when their father died, the Objectors wanted to file a succession cause, but discovered that someone had applied for a grant for the estate of the Deceased, and this person was Daudi Kitolo Ngewa, the Petitioner.

DW1 and DW2 also testified that the Petitioner herein is not a son of the deceased and is a cousin of the Objectors, as his father is Ngewa Kitolo who is brother to the Deceased Mule Kitolo. Further, that the Petitioner together with his parents moved to Yatta and do not live on the deceased’s land. In addition, that during the deceased's burial, neither the Petitioner nor his mother and other siblings was mentioned anywhere in the funeral programme or burial ceremony as children of the deceased.

The Petitioner in his testimony as PW1 testified that the deceased Mule Kitolo had two wives, and that the first wife was Nzembi Mule, the Petitioner’s mother, while the second wife was Ndungwa Mule, the Objectors’ mother. Further, that he was born in Masii in 1937 and moved to Yatta in 1975 after he bought a plot there. He confirmed that he knows Ngewa Kitolo who was the deceased’s brother, and denied that Nzembi Ngewa was the wife of Ngewa Kitolo.

He further testified that he attended the funeral of his father, and that when his mother died in 1986, she was buried in Masinga where he lives, according to the deceased’s wishes. The Petitioner also confirmed that his mother’s name was not mentioned in the Deceased’s funeral programme , neither was she recognized therein as his wife, and that it was shown therein that the deceased had one wife namely Ndungwe Mule. The Petitioner also testified that after the Deceased died, he got a letter from a sub-chief of Kavungu sub-location to show he was a son of the Deceased, after the Objectors were called and refused to go to the chief’s office.

The second witness for the Petitioner (PW2), was one Joseph Mwaluko Munywoi, who stated that he knew the deceased Mule Kitolo who was a grandfather to him, and that he knows the Petitioner and Objectors who are like fathers to him. He stated that the deceased had two wives – Nzembi Mule and Ndungwa Mule, and that the Petitioner is a child of the 1st wife of the Deceased. Further, that the Petitioner lives in Yatta where he bought land. On cross-examination he stated that he did not know when the Deceased was born and did not attend the wedding of the deceased Mule Kitolo and Nzembi Mule. He also stated that Nzembi Mule was buried in Yatta where she was staying with her son.

The last witness for the prosecution was Solomom Mwololo Kimulu (PW3), who testified that he comes from Kavumbu sub-location in Masii location and is a retired Assistant Chief. He stated that his involvement in the case was as a result of a letter dated 8th October 2008 that he wrote while he was an assistant chief, regarding the children of Mule Kitolo. He produced the said letter as an exhibit. He stated that he retired as an Assistant chief on 31st December 2008.

Upon cross-examination, PW3 confirmed that he knew the Deceased, the Objectors and the Objectors’ mother. However, that he did not attend the Deceased’s funeral as he was not informed of the same, and that the Assistant Chief of Kithangaini sub-location where the Deceased came from was the one who gave the Objectors permission to bury the deceased.

PW3 stated that he is the Assistant chief of Kavumbu sub-location and the letter he produced as an exhibit was stamped as such, but he signed it as acting Assistant-chief of Kithangaini sub-location where the deceased came from. Further, that the Objectors were not present when he wrote the letter, and he was requested by the then chief of Masii location to write the letter. Lastly, it was his testimony that he knew Nzembi and that she was a wife of Mule Kitolo not Ngewa Kitolo. He however did not know where Nzembi was residing or where she was buried.

The Issues and Determination

I have read and carefully considered the pleadings filed by the Objectors and Petitioner. The issues to be decided are firstly, whether the objection by the Objectors should be upheld; and secondly if so who should be issued with the grant of letters of administration intestate with respect to the Estate of Mule Kitolo.

On the first issue, the provisions on the making of an objection are in sections 67 to 69 of the Law of Succession Act as follows:

“67. Notice of application for grant

(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 such 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 courthouse, and also published in such other manner as the court directs.

68. Objections to application

(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 such notice as aforesaid, 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.

69. Procedure after notice and objections

(1) Where a notice of objection has been lodged under subsection (1) of section 68, or 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.”

Rule 17(1) of the Probate and Administration Rules also provides as follows in this regard:

“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 been already applied for by another person may do so by lodging within the period specified in the notice of the application published under rule 7(4), or such longer period as the court may allow, either in the registry in which the pending application has been made or in the principal registry, an objection in form 76 or 77 in triplicate stating his full name and address for service, his relationship (if any) to the deceased and the grounds of his objection”.

In addition, Rule 17 sub-rule 11 provides that so long as an objection which has been lodged has not been withdrawn, no grant shall be made by any registry to the estate of the deceased, prior to the expiration of the period for the filing by the objector of an answer and cross-application specified by the court under section 68 of the Act. Further, that no registrar shall make a grant if he has knowledge of the existence of an effective objection lodged in any registry in respect of the estate of the deceased.

The Objectors have complied with the above provisions, as their objection was validly filed on 15th December 2009, within 30 days of the gazettement of the Petitioner’s application for grant in Gazette No. 12421 on 20th November 2009. It is also thus evident from the above provisions that the grant of letters of administration intestate made to the Petitioner herein on 19th July 2010 was irregular as it was made while an objection to the making of grant was pending.

I note in his respect that it is not disputed that the Objectors are the sons of the Deceased, and all the Petitioners’ witnesses acknowledged this fact. It is the status of the Petitioner as a son of the Deceased that is in dispute, and in particular as to whether the Petitioner’s mother was married to the Deceased or not.

The Objectors allege that the Petitioner’s mother was married to the Deceased’s brother, one Ngewa Kitolo, but did not call any independent witness to verify their allegations. On the other hand, the Petitioner has also not brought any evidence to show that the essentials and formalities of the marriage between his mother and the Deceased were complied with. His witnesses were not present at, nor witnessed any such marriage. I also note that the Petitioner confirmed that he has not been residing at the Deceased’s home, neither was his mother buried at the Deceased’s home.

I therefore find that in the circumstances, the Objection has some merit and that it is more appropriate that the Objectors, whose status as sons of the Deceased is not contested should be administrators of the estate of the deceased.

The concerns raised by the Petitioner as regards his interest in the Deceased’s estate can in my view be more appropriately and adequately addressed in confirmation proceedings by way of an affidavit of protest, as provided for by Rule 40 (6) and (7) of the Probate and Administration Rules, and he will therefore still have an opportunity to canvass his position.

The Objector’s Objection dated 14th December 2009, Answer to the Petition for Grant dated 3rd May 2012 and a Petition by way of Cross-Application for a Grant dated 3rd May 2012 are accordingly allowed. This Court consequently makes the following orders, arising from the findings herein:

1. The grant of letters of administration intestate issued herein to Daudi Kitolo Mule on 19th July 2010 with respect to the estate of Mule Kitolo (Deceased) be and is hereby revoked.

2. The 1st Objector herein, Titus Nzila Mule, is hereby appointed as the new Administrator of the Estate of Mule Kitolo (Deceased) and shall be issued with letters of administration intestate with respect to the Estate of Mule Kitolo.

3. The Summons for Confirmation dated 21st December 2009 and filed herein on 10th May 2010 be and is hereby expunged from the record.

4. The said new Administrator shall file and serve the Petitioner herein, the other Objectors and Beneficiaries of the Estate of Estate of Mule Kitolo (Deceased) with a fresh Summons for Confirmation of Grant within 45 days of the date of this ruling.

5. The Petitioner herein shall be at liberty to file and serve an Affidavit of Protest within 30 days of service of the Summons for Confirmation of Grant.

6. The status quo that shall obtain as regards the properties and assets belonging to the Estate of Mule Kitolo (Deceased)pending the confirmation of the said grant shall be that the Administrator, Petitioner, Objectors and Beneficiaries of the Deceased shall continue to be in possession and occupation of the said properties and assets they currently occupy; and that the Administrator, Petitioner, Objectors and Beneficiaries shall not sell, transfer, lease, undertake any further developments on, or in any manner dispose of or waste the said properties and assets.

7. There shall be no order as to costs.

Dated, signed and delivered in open court at Machakos this 2nd day of October 2017.

P. NYAMWEYA

JUDGE