[2022] KEHC 15885 (KLR)

In re Estate of Nashon Juma Agango alias Nashon Juma Asango (Succession Cause 423 of 2015) [2022] KEHC 15885 (KLR) (2 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15885 (KLR)

Republic of Kenya

In the High Court at Mombasa

Succession Cause 423 of 2015

JN Onyiego, J

December 2, 2022

IN THE MATTER OF THE ESTATE OF NASHON JUMA AGANGO alias NASHON JUMA ASANGO

Ruling

1. The late Nashon Juma Agango (hereafter the deceased) died intestate on 24th August, 2007. Vide a Petition dated 7th December, 2015 and filed on 11th December, 2015, Lucy Damar Agango and George Ojwang Agango being children to the deceased petitioned the court for a grant of letters of administration intestate.They listed the following as the beneficiaries of the estate of the deceased; Margaret Adhiambo Agango-Wife (Deceased)

George Ojwang Agango-Son

Bernard Ochieng Agango-Son

Samuel Otieno Agango-Son

Lucy Damar Agango-Daughter

Susan Anyango Agango-Daughter

Esther Atieno Agango-Daughter

2. They further listed the following as the assets comprising the estate of the deceased;a.Subdivision No.5815 (Original Number 976/33/7) Section 1 Mainland North.b.Title numberGem/kowuor/kotieno/1087c.Kenya Commercial Bank Limited Shares

3. A grant of letters of administration intestate was made on 31st March, 2016 and issued on 12th April, 2016. The same was confirmed on 24th February, 2020 and a certificate of confirmation issued on 28th February, 2020.

4. Later, one Emmy Andisi Agango (hereafter the applicant) filed Summons dated 10th March,2022 seeking revocation of the grant on the following grounds;a.That in obtaining the said grant, Lucy Damar Agango and George Ojwang Agango misled the court by concealing crucial information.b.That in obtaining the grant, the petitioners failed to inform the court of the existence of Succession Cause 296 Of2012. c.That the proceedings to obtain the grant were instituted as camouflage to the illegally acquired grant filed under Succession Cause 296 of 2012 at the high court at Mombasa involving the same estate.d.The said grant was obtained fraudulently by concealment from this court of material fact that the deceased was married to Emmy Andisi Agango.

5. The application is supported by the affidavit of Emmy Andisi Agango sworn on 10th March 2022 thus stating that she got married to the deceased in the year 2005 under the Christian marriage Ac. That since she got married, she has been taking care of the deceased’s children including Lucy Damar Agango and George Ojwang Agango.

6. She further stated that there exists a grant of letters of administration intestate issued to Lucy Damar Agango and George Ojwang Agango in respect of Mombasa High Court Succession Cause No.296 of 2012. That the grant issued under Succession Cause No.296 of 2012 only indicated two beneficiaries of the estate and /or dependants of the deceased.

7. That the court file in respect of succession case No. no 296 of 2012 which got lost relates to the estate of Khamisi Juma Kiriba. That the same grant was used to transfer the subject land from the deceased to Lucy Damar Agango and George Ojwang Agango, who later sold the same to Khalid Mohamed Ahmed and Ahmed Mohamed Ahmed. She stated further that the said transfer was revoked for having been acquired illegally.

8. She averred that having placed a restriction on the land, the administrators applied for another grant in Mombasa High Court Succession Cause No.423 of 2015. She also claimed that even in the second grant under the new file, the administrators failed to include her as a beneficiary of the estate of the deceased and all the properties of the deceased. That the property illegally transferred through the grant obtained in Succession No.296 of 2012 was not captured in Succession 423 of 2015. That the grant obtained without her consent and that of other beneficiaries was used to transfer the subject land to the two administrators illegally.

9. She deposed that the two grants were subject to investigation by the director of criminal investigations and that the two administrators have distanced themselves from any transactions relating to the deceased’s estate.

10. She therefore sought to have the grant of letters of administration intestate issued to Lucy Damar Agango and George Ojwang Agango together with the Certificate of confirmation of grant confirmed on 24th February,2020 revoked and afresh grant to issue to her as she is the most suitable person to faithfully administer the estate of the deceased in order of priority.

11. In response, the first administrator Lucy Damar Agango filed a replying affidavit sworn on 16th May, 2022. She stated that her father died on 24th August, 2007 leaving behind some property in Nyali registered under Title Number C.R 24470 Sub Division No.5818 (Original No.976 /33/7).That after her father’s death, the family agreed to have her and her brother apply for the letters of administration and thereafter sell the property and share the proceeds amongst the beneficiaries. That it was further agreed that the applicant Emmy Andisi Agango moves to the two bedroomed house which was part of the main premises and rent out the rest at Kshs 60,000 every month.

12. She further stated that the applicant moved to the smaller house and a tenant rented the main house thus paying Kshs 60,000 as rent which was payable to the applicant. That they all agreed to use the said amount to sustain her siblings who were in university at the time. It was averred that the applicant sold two motor vehicles belonging to the deceased and kept the proceeds.

13. She averred that they applied for letters of administration in 2012 under succession file no. 296 of 2012 but the application was faulty as the same was never gazetted. That upon seeking advice from an advocate, they were advised to file a fresh succession cause resulting to the suit herein. That the applicant refused to issue them with her identity card and or cooperate with them in filing the succession cause herein hence the reason for her omission from the list as a beneficiary.

14. She further averred that with the consent of the applicant, they secured a buyer who purchased the Nyali property at Kshs 10,000,000 which proceeds they allegedly shared. That after the payment of the deposit of Kshs 500,000, she paid the applicant Kshs 70,000 via Mpesa. That they were later advanced another payment in United States Dollars which was equivalent to Kshs 2,100,000 out of which the applicant demanded and was paid her share of Kshs 700,000 in cash. That later the applicant received further payment making a total of Kshs 1,070,000.

15. She further stated that the only money received from the applicant out of the rental income of Kshs 60,000 was the money indicated in the applicant’s annextures to the summons for revocation. She denied having knowledge of any pleadings referring to the estate of Khamisi Juma Kiriba. According to her, the grant obtained in this file and thereafter used to transfer the said land to a3rdparty was procedurally done hence nothing irregular nor illegal.

16. That the failure to include the applicant’s name in the petition was due to her incessant arguments which she has repeated in the newspapers, you tube and online platforms. He averred that the applicant has never returned the money she received from them hence a beneficiary of the grant.

17. In her rejoinder, the applicant filed a further affidavit sworn 27th May, 2022. She confirmed the allegations on her moving to part of the house and renting of the other part. She reiterated that she used the rental income to support the administrators’ siblings through their schooling expenditures. That she took care of the family irrespective of her young age.

18. She further stated that the tenant moved out of the main house under the instructions of the 1st administrator yet she had not received rent from the year 2017 to 2020. She deponed that after the onset of Covid-19, she sought another tenant who was paying Kshs 40,000 but the arrangement failed after delivery of a ruling in ELC NO.53 OF 2021 through which she was evicted together with the tenant from the house. That at no point did she refuse to be included in the process of obtaining letters of administration as alleged by the 1st administrator.

19. She further denied ever participating in the sale of the property neither did she benefit from the proceeds of the sale. That Kshs 70,000 sent to her was condolences for the burial of her uncle while Kshs 700,000 deposited to her account was part payment of rent received for the three years. That the land transactions were made on 13th November,2020 while the money deposited to her account was done on 14th march,2019 and thus the allegation on the payment by the 1st administrator is not true.

20. She contended that the allegation by the 1st administrator that they abandoned Succession Cause No.296 of 2012 is not true as a grant and a certificate of confirmation was issued. She also reiterated her position that failure to include her in the petition was meant to hide and or conceal her identity from the court.

21. The application was canvassed by way of written submissions.

22. The applicant through her advocates Shabaan Associates LLP filed her written submissions dated 15th June, 2022 thus submitting on 3 issues namely; whether the grant was properly obtained; whether the grant should be revoked and whether the applicant benefitted from the sale of the suit property.

23. On the first issue, counsel submitted that failure to secure the applicant’s consent being a widow to the deceased was fatal hence aground for revocation of the grant. In support of that argument, counsel relied on Section 51(g) and 66 of the Law of Succession Act and the case of In Re Estate of Magangi Obuki (Deceased) [2020] eKLR .

24. On the second issue, counsel submitted that the administrator’s failure to disclose that the applicant was a beneficiary of the estate being a widow to the deceased was sufficient ground to revoke the grant pursuant to Section 76 of the Law of succession Act. To buttress that ground, the court was referred to the case of In the Matter of the Estate of L A K-(Deceased) [2014] eKLR and Jamleck Maina Njoroge v Mary Wanjiru Mwangi [2015] eKLR where the court revoked a grant on grounds that it was obtained through defective proceedings, fraud and concealment of an important matter or untrue allegation of fact. Counsel further relied on the case of In Re Estate of Moses Wachira Kimotho (Deceased) [2009] eKLR to express the point that the grant was obtained through non-disclosure of material facts.

25. Touching on the third issue, it was submitted that the applicant was not a party to the sale transaction as she made two applications for restriction on the suit property dated 17th September,2019 and 12th May,2021.

26. The 1st administrator through her advocates Nzamsa Sankale & Company Advocates filed her written submissions dated 7th July, 2022. Counsel submitted that the applicant having failed to petition for the grant as a person entitled on priority, the administrators had no choice but to petition for the same. Counsel further submitted that the applicant has failed to establish the grounds set out under Section 76 of the Law of Succession Act for revocation of a grant.

27. According to learned Counsel, Succession Cause No.296 of 2012 is not a subject of these proceedings. That the proceedings in respect of this case (Succession cause No.423 of 2015) were properly filed and litigated hence the grant cannot be revoked on that ground.

28. Further, counsel submitted that the applicant had not discharged the evidentiary burden of proof that was shifted to her to prove that the money she received was not a share of the proceeds out of the property sale. That if the application is allowed and the grant is revoked, it will not serve any purpose as the suit property has already been transferred to a third party. It was contended that the beneficiaries the applicant included had equally shared out proceeds realized out of the sale and therefore none of them was disfranchised.

29. Regarding the ground of fraud, Counsel submitted that the applicant was not defrauded by the administrators and that she had not particularized the grounds of the alleged fraud so as to call upon the court to exercise its discretion in her favour. To express that position, the court was referred to the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa Succession Cause No.158 of 2000. In conclusion, counsel urged the court to dismiss the summons for revocation with costs.

Determination. 30. I have considered the application herein, response thereto and submissions by both counsel. The only issue that crystalizes for determination is whether the applicant has met the grounds for revocation of the grant. The grounds upon which a grant can be revoked are well spelt out under Section 76 of the Law of Succession Act which provides that;“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;d.That 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 has ordered or allowed; 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.That the grant has become useless and inoperative through subsequent circumstances.

31. The grounds for revocation under Section 76 of the Law of Succession Act were expounded on in the case of In re Estate of Prisca Ong’ayo Nande (Deceased)[2020] eKLR as follows;“Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.”

32. The applicant’s case herein is hinged on the ground that the grant issued on 12th April,2016 and confirmed on 24th February,2020 was obtained fraudulently by the making of false statements and concealing material facts from the court. She argued that the administrators herein concealed from court her existence as a beneficiary and the existence of Succession Cause No.296 of 2012. She further sought to have the grant revoked on the ground that the administrators sold one of the properties of the estate without involving her. She also argued that the administrators did not distribute the estate according to the certificate of confirmation.

33. The 1st administrator on the other hand argued that it’s the applicant who refused to participate and or cooperate in the petition for letters of administration and that’s why they didn’t include her in the petition.

34. Was there concealment and non-disclosure of material facts from the court? In the case of In re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR the court observed as follows on non-disclosure of material facts from the court;“Needless to state that, in any judicial proceeding, parties must make full disclosures to the court of all material facts to the case including succession cases. This general rule of law emphasizes utmost good faith (uberimaefidei) from parties who take out or are subject of the court proceedings. The said responsibility is part of justice itself. Accordingly, non-disclosure of material facts undermines justice and introduces festering waters into the pure streams of justice; such must, immediately be subjected to serious reverse osmosis to purify the streams of justice, if society is to be accordingly regulated by law.”

35. It’s not in dispute that the applicant was a wife to the deceased prior to his death and that she was not included in the petition for grant of letters of administration. Further, no evidence has been produced to show that she was cited or notified of these proceedings. On their own admission, the respondents confirmed that the applicant was not informed of the institution of these proceedings nor was her consent sought pursuant to rule 26 (1) of the P and A rules which provides;“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”

36. It is trite law that a grant obtained without a properly executed consent by beneficiaries is null and void hence liable to revocation. See the case of Samuel Wafula Wasike v Hudson Simiyu Wafula CA No. 161 of 1993 and in the matter of Ngari Gatumbi alias James Ngari Gatumbi(deceased Nairobi High court succession cause number 783 of 1993. Further, failure by the petitioner in disclosing all beneficiaries was fatal to the proceedings. In this regard am guided by the holding in the case of in the matter of the estate of Agwang Wasiro alias Achwang Wasino (deceased) Kakamega Succession case number 859 of 2015 where the court held that a court can on its own motion revoke a grant if found that a petitioner had failed to disclose other beneficiaries. On account of non-disclosure that the applicant was a beneficiary, this grant is tainted for want of disclosure and consent of the applicant. On that ground alone, part of the grounds set under Section 76 aforesaid have been met hence the grant herein is liable to revocation.

37. Concerning the person who in priority was entitled to take out a grant of representation, Section 66 of the law of succession is clear. Being a spouse and therefore a widow to the deceased, she was entitled in order of preference to take out a grant of representation first. It would appear like the deceased was a polygamous man hence section 40 of the law of succession comes to play. Obviously, the applicant was disfranchised by being excluded as a beneficiary of the estate to which she was entitled to a share as an automatic beneficiary and dependant pursuant to section 29 and 40 of the law of succession.

38. On the element of distribution of the estate, the 1st administrator did not dispute the fact that they sold property No.5815 (Original No.976 /33/7). However, she stated that the same was sold with the consent of all beneficiaries including the applicant. She further stated that the proceeds of the sale were shared amongst all beneficiaries including the applicant to whom they allegedly transferred Kshs 70,000, kshs 700,000 and other amounts in cash all totaling to Kshs 1,070,000 facts which the applicant has disputed. The burden is upon the respondents to show that the alleged amount was realized from the sale of the subject property and part of the proceeds thereof paid to the applicant. All this can be done and answered upon the administrators submitting an inventory and accurate statement of accounts.

39. Concerning the existence of succession cause no.296 of 2012, the 1st respondent stated that the same was abandoned before gazettement and the position regularized via this suit. It is however curious to note that there are two estates bearing the same succession cause number 296 of 296. The two are; estate of Khamis Juma Kiriba petitioned by Aziza Khamis Juma and Ali Khamis Juma and the second one; the estate of Nashon Juma Agango with a grant issued on 8th may 2013 to Lucy Damar and George Ojwang Agango and confirmed on 20th February 2014.

40. None of the parties was able to explain how the two came to share the same number. Since the court file in respect of succession cause number 296 of 2012 was not availed to this court and the respondent having stated that the grant was revoked and a fresh petition instituted, I have no reason to make any order in respect of that file.

41. Having held as above, I am satisfied that the applicant herein has met the requisite conditions for revocation of the grant herein. Accordingly, the application is allowed with orders that;a.The grant issued on 12th April 2016 and confirmed on 24th February 2020 be and is hereby revoked.b.Afresh grant to issue in the joint names of the applicant and the two respondents.c.The respondents to submit an inventory and accurate statement of accounts of all the assets comprising the estate within 45 daysd.Upon submission of the statement of accounts aforesaid, the three administrators to file an application for confirmation of the grant together with the requisite consents from all beneficiaries.e.This being a family issue, each party to bear own costs.

DATED, SIGNED AND DELIVERED IN MOMBASA THIS 2ND DAY OF DECEMBER, 2022J.N.ONYIEGOJUDGE