[2023] KEHC 18061 (KLR)

In re Estate of Musa Mukhwani Mumasi alias Mukhwani Musa Mumasi (Deceased) (Succession Cause 793 of 2006) [2023] KEHC 18061 (KLR) (2 June 2023) (Ruling)

Neutral citation: [2023] KEHC 18061 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 793 of 2006

WM Musyoka, J

June 2, 2023

IN THE MATTER OF THE ESTATE OF MUSA MUKHWANI MUMASI alias MUKHWANI MUSA MUMASI (DECEASED)

Ruling

1. I am called upon to determine an application for revocation of grant. It is dated October 19, 2019, and brought at the instance of Beatrice Nechesa Mumasi. I shall refer to her as the applicant. She avers that the grant was obtained in defective proceedings, where false statements were made and facts concealed. 2 principal points are made. 1, that Rose Rebecca had no child with the deceased, and she remarried after the deceased died, having married Johnson Sukuma Mumasi. 2, that the 4 children of the deceased were not disclosed, that is to say Stanley Chimoi, Rael Cheptai, Margaret Mayai and Lydia Khayanga. The applicant avers to be a widow of the deceased, who was not informed when representation was sought.

2. The application was served on EK Owinyi & Company, Advocates, then on record for the administratrix, Noel Pamela Ambani. The said firm subsequently withdrew from acting for the administratrix, with leave of court. When the matter was due for hearing, on 20th July 2022, a hearing notice, dated 23rd May 2022, was served on Noel Pamela Ambani, Rose Rebecca Muyanzi and David Mmasi Lutomia, according to the affidavit of service, sworn on 22nd June 2022, and filed herein on 19th July 2022.

3. The application was canvassed by way of oral evidence, adduced on 20th July 2022, by the applicant, Beatrice Nechesa Mumasi. She described herself as a widow of the deceased, and a co-wife of Noel Pamela Ambani and Rose Rebecca Muyanzi. She complained that Noel Pamela Ambani and Rose Rebecca Muyanzi shared out the estate without involving her and the children. She said that she had 3 children, while Rose Rebecca Muyanzi had 1 and Noel Pamela Ambani did not have any. She stated that she wanted the estate shared out amongst the children.

4. She produced the documents in her list of documents, dated 4th February 2022, as her exhibits. They are copies of search certificates for properties, being S/Kabras/Chemuche/3200, 3201, 3202, 4199, 4200, 4201, 4202 and 4203. S/Kabras/Chemuche/3200, measuring 3. 54 hectares, closed on 8th August 2018, following subdivision into S/Kabras/Chemuche/4201, 4202 and 4203. S/Kabras/Chemuche/3201, measuring 3. 54 hectares, was closed on 3rd August 2018, after it was closed on subdivision into S/Kabras/Chemuche/4199, 4200, 4201 and 4202. S/Kabras/Chemuche/3202, measuring 3. 54, is registered in the name of Beatrice Nechesa Mumasi, since 16th February 2012. S/Kabras/Chemuche/4199, measuring 3. 14 hectares is registered in the name of Noel Pamela Ambani, since 8th October 2018. S/Kabras/Chemuche/4200, measuring 0. 40 hectares is registered in the name of David Mmasi Lutomia. S/Kabras/Chemuche/4201, measuring 0. 96 hectares, is registered in the name of Rose Rebecca Muyanzi. S/Kabras/Chemuche/4202, measuring 1. 22 hectares, is registered in the name of David Mmasi Lutomia. S/Kabras/Chemuche/4203, measuring 0. 36 hectares, is registered in the name of Rose Rebecca Muyanzi.

5. In her written submissions, dated August 30, 2022, the applicant cites section 40 of the Law of Succession Act, Cap 160, Laws of Kenya, to argue that the distribution should have been founded on the principle that distribution of the estate of a polygamist gives primacy to the number of children in each house. She also cites section 35(1)(b) of the Law of Succession Act, with respect to the interest of a surviving widow determining upon her remarriage.

6. According to section 76 of the Law of Succession Act, a grant of representation is liable to revocation on 3 general grounds: where the process of obtaining the grant had difficulties, where there was failure of administration, and where a grant had become useless and inoperative. The application before me is founded on the first ground. It is grounded on failure by the administratrix to disclose certain facts, and misrepresenting some.

7. The deceased herein died on November 12, 1993, after the Law of Succession Act had come into force. According to the Chief of Chemuche, whose letter is dated 7th March 2006, the deceased had 3 wives, being Beatrice Nechesa Mmasi, Noel Pamela Ambani and Rose Muyanzi. Beatrice Nechesa was said to have had 3 children: Stanley Chemai Mukhwani, Rael Cheptai Mukhwani and Margaret Khamai Mukhwani. Rose Muyanzi was said to have had 1 child, Khayanya Mukhwani. The property he died possessed of is described as S/Kabras/Chemuche/1141.

8. Representation in the estate was sought, in a petition filed herein on 11th December 2006, by Noel Pamela Ambani and Rose Rebecca Muyanzi. They indicated that the deceased had been survived by the 3 widows and 4 children indicated in the letter from the Chief, and had died possessed of the asset indicated, plus death gratuity. Curiously, although the petition was by 2 individuals, Noel Pamela Ambani and Rose Rebecca Muyanzi, the documents that were forwarded to the Principal Registrar, for the purpose of publication of the cause in the Kenya Gazette, bore the name of 1 individual, Noel Pamela Ambani. Gazette Notice No. 371, of 19th January 2007, carried the name of that 1 individual, and so did the grant of letters of administration intestate that was issued on 17th April 2007.

9. The administratrix filed a summons for confirmation of grant, dated 11th February 2008, where she disclosed the 4 children, and the 3 widows. She proposed distribution of the 2 assets equally between the 3 houses or widows. The grant was confirmed in those terms, on 17th February 2010, and a certificate of confirmation of grant was issued in those terms, on 3rd March 2010.

10. The applicant initially filed a summons for revocation of grant on 26th January 2011, dated 25th January 2011. The file before me has no evidence of service of the said application, but I note that the same came up for hearing several times, and the administratrix was represented by an Advocate. It came up on 21st March 2012, 19th February 2013, 18th March 2013 and 9th April 2014, when Mr. Nyikuli appeared for the administratrix. On 11th May 2016 and 1st December 2016, Ms. Wilunda attended for the administratrix. On 15th April 2017, it was Ms. Bikeyo who appeared for her, and thereafter it was Mr. Otsyeno. The application, dated 25th November 2011, was subsequently withdrawn, on 17th September 2019, and replaced with the instant application, dated 19th October 2019.

11. So, is the administratrix guilty of the sins that the applicant accuses her of? In terms of disclosure of the individuals who survived the deceased, there was full disclosure, of the 3 widows and the 4 children. It is not true, therefore, that the children were not disclosed, when representation was sought.

12. As to whether the applicant had been notified prior to the proceedings being commenced, there could be credence to her claim that she was not notified, for some of the documents that are required to be lodged at the registry, at the time representation is sought, specifically signed by the individuals who are not seeking representation, are not on record. I have in mind rules 7(7) and 26 of the Probate and Administration Rules. They require filing of consents, renunciations and issuance of citations. Rule 7(7) is relevant to situations where the person applying has a lesser right to those not applying. He should cause citations to issue, to those not applying, to either apply or renounce their entitlement to apply. In the alternative, they could get the consents or renunciations of those not applying. Rule 26 is relevant for persons who have equal right to apply with others not applying. The person applying is required to get the consent or renunciation of the person or persons not applying. In the instant case, the petitioners were widows. Not all of them applied, for only 2 out of the 3 applied. Under rule 26, the 2 who applied ought to have gotten the consent or renunciation of the 1 widow not applying.

13. Since rule 26 is the one relevant for the purposes of this case, it is the one that I shall set out. It states as follows:“Grants of letters of administration(1)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.(2)An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.(3)Unless the court otherwise directs for reasons to be recorded, administration shall be granted to a living person in his own right in preference to the personal representative of a deceased person who would, if living, have been entitled in the same degree, and to a person not under disability in preference to an infant entitled in the same degree.”

14. The question is, was rule 26 complied with? Rule 26(1) requires notice to every person equally entitled to apply. The applicant was equally entitled with the 2 who applied. Rule 26(1) requires that she should have been notified. Was she? If she was, how is that to be established? The answer is in rule 26(2). A renunciation or a consent in Form 38 or 39, or an affidavit by the petitioners addressing the issue as to why the other person with prior right is not applying. I have gone through the record, and I have not seen any evidence of compliance. There is no renunciation by the applicant, giving up her right or entitlement to administration of the estate. There is also no consent by the applicant, agreeing to the petitioners going ahead to apply for administration in her exclusion. The is no affidavit explaining why the 2 petitioners were proceedings without including the applicant as a co-petitioner, and why they had not obtained her renunciation or consent. The non-compliance with Rule 26 gives credence to the argument by the applicant, that the administratrix obtained representation to the estate in a stealthy manner, without involving her. To that extent, the grant was obtained in a defective process, which did not comply with the relevant law. That is a good enough ground for revocation of the grant.

15. Revocation of grant is discretionary, in the sense that the court may or may not revoke the grant, even where a case has been made out for it, like in this case. Should I exercise discretion to revoke the grant herein? I note that the administratrix and her co-petitioner did disclose all those who needed to be disclosed. The only problem with the process is that they did not comply with Rule 26. In a sense there was proper disclosure. So, should the applicant be complaining? Her case is about the way the estate was distributed. She says the children were not provided for. She has also cited section 40 of the Law of Succession Act. She appears to be saying that her non-involvement had the consequence of orders being made on distribution which were biased against her.

16. What does section 40 say? It provides for distribution of the estate of a polygamist. The assets are shared out amongst the houses, with each house consisting of a widow and her children, if any, or children only, where the is no surviving widow. The assets are not to be shared equally between the houses, but the entitlement of each house would depend on the number of survivors in the house. Distribution is proportionate to the number of survivors in each house. The house with the highest number of survivors would take the lion’s share, while the house with the smallest number would have the least share. Section 40 is all about equity. The position stated in section 40 contrasts with customary law, where the houses take equal shares, regardless of the number of survivors in each house.

17. Section 40 states:“(1)Where an intestate has married more than once under any system of law permitting polygamy, his personal estate and household effects and the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.(2)The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections section 35 to 38. ”

18. So, section 40(1) provides that the property be shared out between the houses, taking into account the number of children in each house, including the surviving widow in that house. After the distribution, under section 40(1), section 40(2) kicks in, and reverts distribution within each house to sections 35 to 38 of the Law of Succession Act. What does that mean? That where a house has a surviving widow and surviving children, then distribution will follow section 35, with the property in that house devolving to the surviving widow, during life interest, and thereafter to her children, in equal shares. Where the house comprises of a surviving widow, who has no children, then section 36 would apply, and the widow would be entitled to take the first Kshs. 10, 000. 00 from the estate or 10% of the estate, whichever is bigger, absolutely, and hold the rest in life interest. Where the house comprised only of children, there being no surviving widow in that house, section 38 would apply, and the estate would be shared equally between the children in that house.

19. The relevant portions of sections 35, 36 and 38 state as follows:“35. Where intestate has left one surviving spouse and child or children(1)Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to —(a)the personal and household effects of the deceased absolutely; and(b)a life interest in the whole residue of the net intestate estate: Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person.(2)...”“36(1) Where the intestate has left one surviving spouse but no child or children, the surviving spouse shall be entitled out of the net intestate estate to—(a)the personal and household effects of the deceased absolutely; and(b)the first ten thousand shillings out of the residue of the net intestate estate, or twenty per centum thereof, whichever is the greater; and(c)a life interest in the whole of the remainder: Provided that if the surviving spouse is a widow, such life interest shall be determined upon her re-marriage to any person”“38 Where intestate has left a surviving child or children but no spouseWhere an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.”

20. The deceased had 3 widows and 4 children. The configuration is that 1 widow had 3 children, the other had 1 child, and the other had no children. Applying section 40(1), would mean that one house had 4 units, the other 2 and the last house 1, translating to a ratio of sharing of 4:2:1. The property, the subject of the estate, that is to say S/Kabras/Chemuche/1141, should be shared using that formula, so that the house with 4 members ought to get 4 shares of the land, followed by the house with 2 members which should get 2 shares, and finally the house with 1 member, which should get 1 share. That ratio of 4:2:1 would be subject to revision, if it turns out to be true, that one of the widows had remarried. Section 35 provides that the share due to a surviving widow would lapse upon her remarriage. So, if it be true that that widow remarried, then her share would be extinguished.

21. The applicant asserts that one of her co-wives remarried, Rose Rebecca Muyanzi, and she has mentioned the name of the man she married, Johnson Sukuma Mumasi. The said co-wife has not responded to that allegation, for the instant revocation application has not been replied to, neither had the previous one been responded to. There is evidence that both applications had been served. Indeed, after the first revocation was filed, the applicant and the other parties attended court several times, on it. The fact that no responses were filed to that application would mean that that allegation has not been denied, and is not controverted, and I shall take it to be true. That would mean that that co-wife of the applicant is no long a surviving spouse of the deceased, for she is now the spouse of another, and she, accordingly, loses her entitlement under section 35, and it would mean that the share in her house should be reduced by 1 unit, to leave 1, that of her child. The ratio of distribution, under section 40(1), should work out to 4:1:1. The entitlement of the house to which she belonged would be reduced to 1 share of S/Kabras/Chemuche/1141.

22. After applying section 40(1) to distribution of S/Kabras/Chemuche/1141, section 40(2) would become applicable. 4:1:1 makes a total of 6 units. S/Kabras/Chemuche/1141 should be divided in 6 units, and shared out so that the house with 4 members take 4 units, and the other 2 houses take 1 unit each. The house of the applicant had a surviving widow and 3 surviving children, and so section 35 would apply, with the share due to that house devolving upon the surviving widow, during her lifetime, and thereafter to her children upon determination of the life interest. The house of the former widow, who remarried, now has only 1 member and has 1 share, and section 38 should apply to that house, so that the property devolves absolutely upon the 1 child in that house. The other house has a surviving spouse, with no child, and section 36 applies, where the surviving widow takes the first Kshs. 10, 000. 00, out of the share due to the house, or the 10% of the said share, whichever is greater, and thereafter hold the rest during life interest.

23. The applicant complains that the fact of her non-involvement in the process disadvantaged her, and disinherited her and the children. Did it? Yes, it did. Going by the distribution in section 40, her house was entitled to 4 units out of 6. The distribution that the court approved, in the proceedings that had excluded her was equal distribution. Firstly, section 40 was not followed, yet the Law of Succession Act applies to the estate, for the deceased died after the said Act had become operational, and the applicant had not consented to a mode of distribution which departed from what the Act provides. See Justus Thiora Kiugu & 4 others vs. Joyce Nkatha Kiugu & another [2015] eKLR (Visram, Koome & Otieno-Odek, JJA) and In re Estate of Juma Shiro (Deceased) [2016] eKLR (Mwita, J). Secondly, a former widow benefited from the distribution, when section 35 requires that she be excluded. Thirdly, the other 2 houses benefitted from shares that ought to have gone to her house, and ultimately her children were shortchanged. The distribution approved by the court followed the customary law approach, of equal shares between the houses, without considering the number of children in each house. See Kanyi vs. Muthiora [1984] KLR 712 (Kneller JA, Chesoni & Nyarangi, Ag JJA) and Koinange and 13 others vs. Koinange [1986] KLR 23 (Amin, J). That customary law position is inequitable, and, in any case, customary law does not apply to the instant estate, in view of section 2(1)(2) of the Law of Succession Act. See Rono vs. Rono and another [2005] eKLR (Omolo, O’Kubasu & Waki, JJA),In re Estate of Kiprono arap Ng’etich[2016] eKLR (M. Ngugi, J) and Joseph Achichi Aburili vs. George Ochola Aburili[2017] eKLR (Majanja, J).

24. The applicant appears to be complaining about the distribution, yet what happens at confirmation of grant is not one of the grounds, under section 76 for revocation of a grant. That may be so, and is, indeed, so. However, she has demonstrated that the original sin was committed at the stage when administration was sought, for, contrary to rule 26(1)(2), she was qualified, equally with the other 2 widows, to petition for representation, but she was not included in the petition, and her consent or renunciation was not obtained. That made the process of obtaining the grant defective in substance. That exclusion appears to have been carried over into the confirmation process, where she was not involved, for the summons for confirmation of grant, dated February 11, 2008, was not accompanied by a consent in Form 37, duly signed by her, contrary to rule 40(8) of the Probate and Administration Rules, agreeing to that equal distribution allowed by the court. When the confirmation application came up for hearing on February 17, 2010, she was not in court, for the Advocate who appeared only represented the administratrix, and she was not heard on her position on the proposed distribution, under rule 41(1) of the Probate and Administration Rules, given that she had not consented to the distribution as required under rule 40(8).

25. Rules 40(8) and 41(1) say as follows:“40. Application for confirmation of grant(8)Where no affidavit of protest has been filed the summons and affidavit shall without delay be placed by the registrar before the court by which the grant was issued which may, on receipt of the consent in writing in Form 37 of all dependants or other persons who may be beneficially entitled, allow the application without the attendance of any person; but where an affidavit of protest has been filed or any of the persons beneficially entitled has not consented in writing the court shall order that the matter be set down as soon as may be for directions in chambers on notice in Form 74 to the applicant, the protester and to such other persons as the court thinks fit.”“41. Hearing of application for confirmation(1)At the hearing of the application for confirmation the court shall first read out in the language or respective languages in which they appear the application, the grant, the affidavits and any written protests which have been filed and shall then hear the applicant and each protester and any other person interested, whether such persons appear personally or by advocate or by a representative.”

26. One gets the sense that the system was rigged against the applicant, right from the very beginning. The applicant had the most children, 3. The other widow had 1, and the third had none. Applying section 40 of the Act, as should have been the case, meant she had the highest stake in the estate. Her exclusion must have been timed to ensure that she would not be heard, and in the process lose out to those who had lesser stakes. I am satisfied, from the material before me, that a case has been made out, for revocation of the grant that was made to the administratrix on 23rd March 2007. Should it be revoked? Yes, it should, for the sake of justice. Fresh administrators should be appointed, to represent the interests of all the houses of the deceased.

27. The documents, that the applicant placed on record, demonstrate that S/Kabras/Chemuche/1141 was subdivided, after the grant was confirmed on 17th February 2010, and portions of that land are now held by a third party, David Mmasi Lutumia. That then raises the question as to whether I should cancel the subdivision of S/Kabras/Chemuche/1141, that was based on the confirmation orders of 17th February 2010, given that the land has been subdivided, and part of it is held by a third party. Section 93 of the Law of Succession Act protects such third parties, who acquire a portion of the estate after confirmation, where a grant is subsequently revoked. Caselaw, however, says that section 93 is not absolute, and will not be reckoned, where fraud played a role. I would add that the same should not apply in circumstances where innocent survivors and beneficiaries stand to be shortchanged by the alleged sales, even where the buyers entered into the transactions without notice. See In Re Estate of Christopher Jude Adela (Deceased)[2009] eKLR (Rawal, J), Fredrick Kivala Nzuki vs. Josephine Kathathi Muli [2021] eKLR (Limo, J), In Re Estate of Salim Islam Saadan (Deceased)[2016] eKLR (Thande, J) and In re Estate of Simon Njogu Gicheni (Deceased) [2021] eKLR (Mwongo, J).

28. From the official searches on record, it appears that what was allocated to the applicant and the administratrix is still intact. That would say that it is portions of the share allotted to Rose Rebecca Muyanzi that were sold. It is this Rose Rebecca Muyanzi who is said to have remarried after the demise of the deceased, having married Johnson Sukuma Mumasi. The transfers or registrations in favour of David Mmasi Lutumia happened in 2019, during the pendency of the revocation application, dated January 25, 2011. It is Rose Rebecca Muyanzi who stood to lose out the most, should the applicant be heard in this matter, and should the grant herein be revoked. The sales to David Mmasi Lutumia were, no doubt, designed to defeat the pending revocation proceedings. If there was good faith on the part of Rose Rebecca Muyanzi, she would have waited for the said revocation proceedings to be determined, before embarking on disposing of the assets, the subject of the proceedings. Allowing the status quo to remain, would be to disadvantage the applicant and her 3 children, for Rose Rebecca Muyanzi benefitted from the estate, when she should not have gotten anything out of it, and even if she were to get anything, it would not have been anything beyond a life interest in what is due to a widow with 1 child. The subdivision of S/Kabras/Chemuche/1141 should be cancelled, and the property reverted to the estate, to await fresh distribution. I note from the record that David Mmasi Lutumia was served with notice for the hearing on July 20, 2022, but he chose to stay away.

29. The applicant proposes that, after the grant is revoked, that I should redistribute the estate amongst the 4 children of the deceased. I agree, that the children are the ultimate beneficiaries of the estate of their late father. I understand the applicant to be renouncing her life interest in favour of her children. I also understand her to submit that since Rose Rebecca Muyanzi remarried, she lost her life interest, and what is due to her house should go directly to her child, absolutely. That is quite in line with the law. For the administratrix, she ought to retain her life interest, in line with section 36 of the Law of Succession Act, for she has not expressed her position on the matter, and the court cannot impose a position on her, and a redistribution of the estate, where there is no agreement, will have to be in full compliance with sections 35 and 40 of the Law of Succession Act, going by Justus Thiora Kiugu & 4 others vs. Joyce Nkatha Kiugu & another[2015] eKLR (Visram, Koome & Otieno-Odek, JJA) and In re Estate of Juma Shiro (Deceased)[2016] eKLR (Mwita, J).

30. The final orders are:a.That the grant made herein, on 23rd March 2007, is hereby revoked, and a fresh grant shall issue to Beatrice Nechesa Mumasi, Lydia Khayanga Mukhwani and Noel Pamela Ambani;b.That the orders made on 17th February 2010, confirming the grant of 23rd March 2007, are hereby set aside, and the certificate of confirmation of grant, issued on 3rd March 2010, based on those orders, is hereby, consequently, cancelled;c.That all the transactions carried out on the basis of the orders made on 17th February 2010, and the certificate of confirmation of grant of 3rd March 2010, are hereby nullified;d.That, as a consequence of (c), above, I direct the Land Registrar, responsible for Kakamega County, to cancel the registrations in respect of S/Kabras/Chemuche/3200, 3201, 3202, 4199, 4200, 4201, 4202 and 4203, and revert the property to its original registration as S/Kabras/Chemuche/1141, in the name of the deceased;e.That I hereby confirm the grant made in (a) above, and distribute S/Kabras/Chemuche/1141, at the ratio of 4:1:1, between the houses of Beatrice Nechesa Mumasi, Rose Rebecca Muyanzi and Noel Pamela Ambani;f.That the 4/6 share, due to the house of Beatrice Nechesa Mumasi, shall devolve upon Stanley Chemai Mukhwani, Rael Cheptai Mukhwani and Margaret Khamai Mukhwani, equally;g.That the 1/6 share, due to the house of Rose Rebecca Muyanzi, shall devolve upon Lydia Khayanga Mukhwani, absolutely;h.That Noel Pamela Ambani shall take the first Kshs. 10, 000. 00, out of the 1/6 share, due to her house, or 10% of that share, whichever is greater, absolutely, and shall hold the rest during life interest;i.That a grant of letters of administration intestate and a certificate of confirmation of grant shall issue accordingly;j.That each party shall bear their own costs; andK.That any party, aggrieved by these orders, has leave of 30 days, to move the Court of Appeal, appropriately.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 2ND DAY OF JUNE 2023WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.AppearancesMr. Iddi, instructed by Nandwa & Company, Advocates for the applicant,Noel Pamela Ambani, the administratrix, in person.