[2023] KEHC 25269 (KLR)

In re Estate of Muyaya Muchibi (Deceased) (Succession Appeal E018 of 2022) [2023] KEHC 25269 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25269 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Appeal E018 of 2022

PJO Otieno, J

November 10, 2023

IN THE MATTER OF THE ESTATE OF MUYAYA MUCHIBI (DECEASED)

Between

Humprey Muchibi Muyaya

Appellant

and

Evance Otieno Muyaya

Respondent

(Being an appeal from the Ruling of Hon. T. A. Obutu (SPM) in Mumias Succession Cause No. E184 of 2021)

Ruling

1. Following the death of Muyaya Muchibi (“deceased”) on the 10th day of November, 1972, the appellant petitioned the trial court for the issuance of a grant for the administration of the estate of the deceased which comprised of property known as land parcel no. S/Wanga/Musanda/553 measuring 7 acres.

2. In the petition, the appellant indicated that the deceased was survived by two sons that is himself and the respondent and he further stated that he was unable to obtain the consent of the respondent as he was being un co-operative. Under paragraph 6 of the affidavit in support of petition for letters of administration of the estate of the deceased, the appellant specified that the estate of the deceased was occupied by the deceased’s late brother by the name of Jackson Habil Opwoko and that the true owners of S/Wanga/Musanda/553 were Elizabeth Chale Muchibi, Beatrice Anyango Mumia, Leonida Awino Otieno, Francis Arthur Were Opwoko, Grace Matete Abuti, Wycliffe Shisia and ACK St. Peters’ Church Buriya.

3. By way of summons dated 5th August, 2022, the respondent sought for the revocation of grant of letters of administration issued to the appellant on the ground that the input of the rightful beneficiaries was not sought and that Jackson Habil Opwoko was the registered owner of parcel of land known as S/Wanga/Musanda/554 and not S/Wanga/Musanda/553.

4. In a ruling of the trial court delivered on 10th November, 2022, it was a finding of the court that the summons for revocation was merited since the respondent was merely mentioned but was never involved in the distribution of the estate of the deceased and that the chief’s letter mentioned persons that were not beneficiaries of the estate and could thus not consent on distribution.

5. Aggrieved by the ruling of the trial court, the appellant had lodged this appeal which is premised on the following grounds;a.The learned trial magistrate erred in fact and law by failing to fully analyze and evaluate the evidence presented by the appellant as required by law.b.The learned trial magistrate erred in fact and law by revoking the grant and thereby failing to appreciate the provisions of section 66 of the Law of Succession Act.c.The learned trial magistrate erred in fact and law by misconceiving the facts before him.d.The learned trial magistrate erred in fact and law by rendering the estate of a deceased person un-administered and therefore susceptible to waste.e.The learned trial magistrate erred in fact and law by making a pronouncement on distribution on ‘real’ beneficiaries when the sole issue for determination was administration.

6. The appeal has been canvassed by way of written submissions.

Appellant’s Submission 7. It is his submission that he did not flout the provisions of section 76 of the Law of Succession Act and that he included the respondent in both the chief’s letter and the petition and that the chief’s letter only expounded on the occupation of the estate to avoid misleading the court. He argues that the respondent was nowhere to be consulted after he demolished his house at home and relocated to an unknown place.

Respondent’s Submissions 8. It is his submission that the deceased left behind two sons himself and the appellant and that he ranks higher in the list of consanguinity under section 66 of the Law of Succession Act above all other beneficiaries that were listed in the succession cause especially when it comes to distribution and involvement in the succession exercise.

Issues, Analysis and Determination 9. I have looked at the Memorandum of appeal, the proceedings taken before the trial court, the judgment and the submissions offered in this appeal and identify the sole issue for determination to be whether the trial court erred in revoking the grant issued on 19/1/2022.

10. The application for revocation of grant was premised on the ground that the input of the applicant, as a son to the deceased, was not sought and that persons who are not beneficiaries by reasons of being dependants were named as such beneficiaries.

11. A perusal of the file show that the Respondent was indeed acknowledged as a son to the deceased in both the petition and the letter of introduction by the area chief. That the chief is related to a person named as beneficiary does not deprive him the authority and legitimacy to author the letter in his capacity as the chief.

12. It is also the finding of the court that in disclosing the persons in actual occupation of the deceased’s estate to the court, the petitioner was not misleading the court but disclosing all facts that could emerge in the course of the cause. That act cannot be viewed as a concealment of material facts but indeed a full disclosure. In fact, the 7 persons are not listed in the petition as beneficiaries but rather as persons occupying the land and could have a claim thereon. The court finds that there was no nondisclosure of any material facts as to invite the annulment of the grant.

13. However, having been acknowledged by the petitioner to be a son to the deceased, he stood in pari passu with the petitioner, his consent was indispensable with. To the extent that the no consent was obtained from the respondent, the procedure by which the grant was obtained was defective in substance and in contravention of section 66 as read with rules 7 and 26 of the probate and administration Rules hence the grant could not stand but called for revocation as the trial court did.

14. For the above reasons, the trial court cannot be faulted on the decision to revoke the grant.

15. However, following the revocation, the trial court was obligated to issue directions on how to proceed with the cause. It failed to do so.

16. It is the courts learning that once a grant has been issued, wherever it is faulted and revoked or annulled at the instance of a person interested in the estate, every effort needs to be made to ensure that there is not created a lacuna in the office of the administrator.

17. In this matter it was clear to all that the immediate heirs to the estate were the two disputants. The administrator had acknowledged the objector as a brother. It was desirable and necessary that the administration be concluded rather than stalled.

18. Considering the fact that the respondent is a person entitled to reasonable provisions, being a son to the deceased, the appropriate order should have been to revoke the grant and appoint the two feuding brothers as joint administrators.

19. It is on that basis that the court finds that while the trial court was apt and beyond fault for revoking the grant, it fell into error in leaving the estate unattended. For that error, this court being a first appellate court, proceeding by way of a retrial, makes the following orders:a.The order revoking the grant is upheld but the Court appoints Humphrey Muchibi Muyaya and Evance Otieno Muyaya as joint administrators.b.The two are directed to file fresh summons for confirmation of grant, either jointly or severally, within 30 days from today.c.The Respondent is declared a beneficiary to the estate entitled to participate in the distribution of the estate and to get his due shares.d.This being a dispute between brothers, there shall be no order as to costs.e.Let the trial court file be remitted back to that court within 7 days from today to enable the ordered proceedings be undertaken expeditiously.

20. The question on why and how the persons named in paragraph 6 of the Affidavit in support of Petition for Grant of Letters of Administration, sworn by the appellant, if not already determined elsewhere, may be determined by the trial court, if the same falls within its jurisdiction.

DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 10TH DAY OF NOVEMBER, 2023. PATRICK J. O. OTIENOJUDGEIn the presence of:Mrs. Omar for the AppellantNo appearance for the RespondentCourt Assistant: Polycap Mukabwa