[2023] KEHC 24914 (KLR)

In re Estate of Nickson Kimani Macharia (Deceased) (Succession Cause 145 of 2002) [2023] KEHC 24914 (KLR) (1 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24914 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause 145 of 2002

HM Nyaga, J

November 1, 2023

IN THE MATTER OF THE ESTATE OF THE LATE NICKSON KIMANI MACHARIA

Between

Lucy Wanjiru Kimani

1st Applicant

Margaret Wairimu Kimani

2nd Applicant

James Mburu Kimani

3rd Applicant

Nelly Nyambura

4th Applicant

and

Peter Njoroge Kimani

Objector

Ruling

1. Before me is a Summons for Revocation of Grant dated 20th June, 2018, expressed to be brought under Section 76 of the Law of Succession Act and Rules 44 (1) of the Probate and Administration Rules.

2. The significant orders being sought in the application are:a.That the grant of Letters of Administration issued to Peter Njoroge Kimani on 11th November 2002 and confirmed on 30th September 2005 be revoked.b.That the costs of this Application be provided for.

3. The major reasons for applying for the revocation of the grant are:a.That the Respondent has failed to diligently administer the estate of the deceased.b.That the girl child was denied any benefit from the deceased estate.c.That the applicant has been threatened with eviction from her parent’s home and being unmarried she has nowhere to go.d.That the respondent has failed and or refused to produce to the court a complete and accurate account in respect to the estate of the deceased since issuance and subsequent confirmation of the grant administration.e.That the respondent deliberately failed to disclose that the mode of distribution had not been agreed upon by all beneficiaries especially the girl children who are also entitled to the estate.

4. The Application is supported by an affidavit of Lucy Wanjiru Kimani sworn on her behalf and on behalf of other Applicants herein on the even date. She avers that she and her co-applicants are the children of the deceased herein and that they were excluded as beneficiaries of the deceased.

5. She asserts that the grant of letters of administration of the deceased’s estate to the respondent was erroneous and against the provisions of the Law of Succession Act and the Constitution as all the children of the deceased have equal rights to the estate.

6. She urged the court to revoke the grant.

7. The Respondent swore a replying affidavit on 14th October, 2020. He avers that the distribution of the deceased estate was made as per their entire family consent which was recorded at the offices of S.L.M.H Muhia Advocate on 25th September, 2005.

8. He avers that following the said consensus on distribution and signing of the said consent, the grant of letters of administration was duly confirmed as evidenced by the affidavit dated 29th June, 2005.

9. He further deposes that following the confirmation of the grant, all the properties of the estate were distributed as per the mode set out in the confirmed grant and that the various properties that were held jointly between the siblings were duly subsequently transferred into their joint names on various dates.

10. It is his averment that the applicants who are his sisters cannot be allowed to set aside the grant herein which they were party to vide the signed consent dated 29th September, 2005 and the court attendance for confirmation.

11. He also deposes that the estate’s titles have already been transferred as per the confirmed grant and thus would be a great loss and disruption to the estate if the said grant is revoked.

12. He avers that it is too late to seek revocation of the grant, 15 years later.

13. The Applicant swore a further affidavit to the aforestated replying affidavit on 30th November, 2020. She avers that she and her co applicants never signed any consent in support of the confirmation of grant and the signatures therein are forgeries.

14. She contends that they appeared in court when their mother was alive and after she passed away the respondent who was the co-administrator pursued the succession without their knowledge.

15. It is her averment that her siblings were not aware of any properties being registered in their favour and hence pray that the titles be cancelled and distribution be done afresh.

16. She further deposes that the properties of the deceased are still intact so no prejudice will be occasioned.

17. The application was canvassed through viva voice evidence.

Applicant’s case 18. PW1 was Lucy Wanjiru Kimani. She adopted her affidavits sworn on 20th June, 2018 and 30th November, 20202 as her evidence in chief.

19. She testified that she has made the application on her behalf and on behalf of her siblings. Namely; Margaret Wairimu; James Mburu Kimani;Patrick Mwaura; John Muriuki;John Ngige; Mary Nyambura; Simon Kamau;Michael Muriuki; & Stephen Mwangi.

20. She said Eldoret Municipality Block 15(west Farmers/1059) is still registered in the deceased’s name. She stated that none of those of who inherited have been given title. She stated that she lives in her mother’s house at Elburgon Turi Farmers, which is 5 acres and that is where she and her brothers, Patrick and Peter Njoroge plough.

21. In cross examination, she testified that they are 4 applicants in this application who have signed the same. She said she had not gone to any advocate to sign the consent for confirmation of grant. It was her testimony that she cultivates deceased’s land in Elburgon Aremi Dishi Block 3/69 and lives in Block 3/37. She said the deceased had many Matatus which were sold in the year 2013 and the monies divided amongst all beneficiaries.

22. It was her testimony that Block 3/37 has been transferred to the respondent, Simon Kamau and Patrick Mwaura jointly; Block 4/265 was registered in 2007 in the names of Michael Kariuki,Mburu Kimani and John Ngige Kimani; Land Parcel Nakuru Municipality Block 3/609 registered in the name of Peter Njoroge Kimani and Stephen Mwangi Kimani.; and that Land Parcel Elburgon Aremi Dishwa Block 3/69 was registered in the names of Peter Njoroge ,Patrick Mwaura,Simon Kamau ,Mburu Kimani and Michael Kariuki in trust for 2 others in 2007.

23. She confirmed that the titles were issued pursuant to letters of administration issued by the court.

24. In re-examination, she said Plot Block 3/269 has no development and though she is cultivates it; the same has not been registered in her name.

25. PW2 was Michael Kariuki Kimani. He testified that the grant was obtained fraudulently and that titles issued thereto ought to be cancelled. He said he has never used his father’s land and stated that daughters also have to be given a Share.

26. In cross examination, he stated that the letters of administration were properly given to the respondent but he has not administered the estate well. He said he has never signed any consent on distribution of the estate but only signed agreements to sell Vehicle and PLOT IN Elburgon Aremi Block 3/71. He stated that the proceeds of the said sales were Shared amongst the beneficiaries. He also said that the Nyandarua plot was sold and proceeds Shared even though his Share of Ksh.9, 000/= was taken from him. He prayed that the land be subdivided on the ground.

27. PW3 was Margaret Wairimu Njuguna. She supported the revocation of grant. She said the respondent has wasted the properties and that she never signed consent on distribution and never attended court for confirmation. She stated that Land Parcels Elburgon/Arimi/Ndoshwa Block3/65 & Elburgon/Arimi/Ndoshwa Block 3/71 was sold. It was her testimony that the respondent ought to render account on the proceeds given to him by Kenya Power as compensation for the way leaves. She accused the respondent for selling the deceased’s Motor Vehicles without their consent. She said PW1 was staying with their late mother and being unmarried she ought to be given a Share.

28. PW4 John Ngigi Kimani, stated that no estate has been distributed and that PW1 has been chased away from their mother’s place. He similarly stated that he never signed any consent on distribution.

Respondent’s case 29. DW1 was the respondent herein. He reiterated that he and the Applicants went to Advocate Muhia’s office and signed consent on the distribution of the estate. It was his testimony that all the parcels of land have been transferred to the beneficiaries as per the annextures way back in 2007. He said Block 3/69, 3/65 and 3/71 were sold and proceeds distributed. He said Eldoret Plot 1509 was given to 7 sons and that Ketraco paid for way leave and proceeds were distributed to all.

30. He said save for Eldoret property all other properties have been transferred.

31. In cross examination, he stated that the consent signed does not have a schedule. He said he did not have sale agreements to prove that some of the parcels of land have already been sold.

32. DW2 was the Advocate Sylvester Mwangi Muhia. He testified that all the beneficiaries except Mburu Kimani signed the consent on distribution of estate in his office and that it is malicious to deny the same. He produced that consent as exhibit and stated that there are no good reasons for setting the same aside.

33. He couldn’t recall if the parties appeared before court during confirmation. He stated that consent does not have the beneficiaries’ ID numbers. He couldn’t tell why the dates on the consent and affidavit differed. It was his testimony that beneficiaries knew what they signed.

Submissions Applicant’s Submissions 34. The Applicants urged this court to revoke the grant for reasons that; The administrator has never rendered any account

The beneficiaries never appeared before the court on the date of confirmation.

The affidavit in support of confirmation was sworn on 29th July,2005 and the alleged consent was signed on 29th September 2005.

The schedule of distribution was not attached to the consent.

The applicants never consented to the mode of distribution.

The applicants were omitted from the distribution of the estate yet according to the affidavit sworn by DW2 under paragraph 7 the properties were to be distributed to all her children.

Under section 71(2) of the Law of Succession Act, in cases of intestacy the law provides that the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and Shares of all persons beneficially entitled and when confirmed ,the grant shall specify all such persons and their respective Shares.

35. To buttress their submissions, the applicants relied on Section 76 of the Law of Succession Act and the cases of In re Estate of Prisca Ong'ayo Nande (Deceased) [2020]eKLR where the court expounded on circumstances under which a grant can be revoked as provided for under section 76; Jamleck Maina Njoroge –vs- Mary Wanjiru Mwangi (2015) eKLR where the court discussed circumstances when a grant can be revoked grant; & Albert Imbuga Kisigwa –vs- Recho Kavai Kisigwa Succession Cause No.158 of 2000 where the court held that there must be evidence of wrongdoing for the court to invoke section 76 and revoke or annul a grant.

36. On costs, the Applicants submitted they can bear their own costs considering this is a family matter.

Respondent’s Submissions 37. The respondent submitted that the Applicants have not fulfilled the conditions for revocation of grant provided under Section 76 of the Law of Succession Act because; They have failed to show any irregularities he perpetrated during the process of obtaining grant.

They appeared before the senior advocate and signed the consent for confirmation dated 29th September, 2005.

There has been inordinate delay in bringing this application of 17 years and no explanation has been advanced for the same.

Analysis & Determination 38. I have carefully considered this application, the evidence on record and the rival submissions by the parties. The application is essentially one for revocation and or annulment of grant under Section 76 of the Law of Succession Act CAP 160 of the Laws of Kenya.

39. Section 76 of the Act stipulates as follows:“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 order or allow; 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.

40. Upon consideration of all the facts of the case, the affidavit, oral and documentary evidence as well as submissions, I consider the following four major issues emerge for determination;a.Whether the Applicants’ and their siblings’ signatures were forged and whether the Grant herein was obtained fraudulently.b.Whether the Respondent has proceeded diligently with the administration of the deceased’s estate.c.Whether the Respondent has failed to provide a full and accurate statement of account to date as required by law.d.What orders should this court issue?

Whether The Applicants’ And Their Siblings’ Signatures Were Forged And Whether The Grant Herein Was Obtained Fraudulently. 41. The Applicants’ case is that the grant in issue was obtained fraudulently and irregularly as they never consented to the mode of distribution. The applicants vehemently denied visiting the office of S.L.M.H Muhia advocate to sign the consent on distribution of the estate.

42. The respondent on his part contended that he and the applicants signed the consent on the mode of distribution before Advocate S.L. Muhia. The said advocate swore an affidavit and testified in support of this position. He strongly asserted that the beneficiaries, save for one Mburu Kimani appeared before him in his office and signed the consent on distribution of the assets of the deceased estate and their contrary contention is malicious.

43. I have perused the record and I note that the Respondent vide an application dated 19th July, 2005 applied for a certificate of confirmation of grant issued jointly to him and Teresiah Wangari Kimani be withdrawn and another one issued in his name and for the property comprising the estate to be distributed to the beneficiaries as set out in paragraph 6 of the affidavit he swore on 29th June, 2005. That affidavit is annexed to the Application. In support of the application, the respondent filed a consent to confirmation of grant dated 29th September,2005 in which the applicants herein and other beneficiaries of the estate save for one Mburu Kimani appended their signatures consenting to the mode of distribution set out in the aforesaid affidavit dated 29th June,2005. Subsequently, the court confirmed a certificate of confirmation of grant to the Respondent on 30th September, 2005.

44. The first principle is that an allegation of fraud must be specifically pleaded and proved. In Vijay Morjaria vs Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA (as he then was) stated as follows:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently.It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from facts.”

45. In R.G Patel vs Lalji Makanji [1957] EA 314 the former Court of Appeal for East Africa stated as follows:“Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.”

46. The second principle is that the burden of proof of an allegation of fraud is on the person alleging. In Ndolo -V-Ndolo [2008] 1KLR (G &F) 742 the court stated that:“We start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him…...In cases where fraud is alleged, it is not enough to simply infer fraud from the facts.”

47. In Christopher Ndaru Kagina vs Esther Mbandi Kagina & Another [2016] eKLR the court pronounced itself as follows:“It is trite law that he who alleges fraud must prove fraud. Allegations of fraud must strictly be proved. Great care must be taken in pleading allegations of fraud or dishonesty. In particular, the pleader needs to be sure that there is sufficient evidence to justify the allegations……”

48. In the case of Urmila w/o Mahendra Shah vs Barclays Bank International Ltd & Another [1979] eKLR, the Court of Appeal took the view that the onus to prove fraud in a matter is on the party who alleges it.

49. In Moses Parantai & Peris Wanjiku Mukuru suing as the legal representatives of the estate of SosPeter Mukuru Mbeere (deceased) vs Stephen Njoroge Macharia [2020] eKLR, the Court of Appeal observed as follows:“In the instant case, the appellants needed to not only plead and particularize the fraud, but also lay a basis by way of credible evidence upon which the Court would make a finding that indeed there was fraud in the transaction leading to the transfer and registration of the suit land in the name of Janet all the way to the respondent……...”

50. The third principle is that the burden of proof of allegation of fraud is higher than that required in civil cases that of proof on a balance of probabilities; and lower than that required in criminal case that is beyond reasonable doubt. In Ndolo vs Ndolo [2008] 1KLR (G &F) 742 the Court stated that:“………Since the Respondent was making serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in criminal cases…….”

51. In Central Bank of Kenya Limited vs Trust bank Limited & 4 Others [1996] eKLR, the court rendered itself as follows:“The Appellant has made vague and very general allegations of fraud against the Respondent. Fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof was much heavier on the Appellant in this case than in an ordinary civil case. “

52. In Moses Parantai & Peris Wanjiku Mukuru suing as the legal representatives of the estate of SosPeter Mukuru Mbeere (deceased) vs Stephen Njoroge Macharia [2020] eKLR, the Court of Appeal observed as follows:“……. Fraud is a quasi-criminal charge which must, as already stated, not only be specifically pleaded but also proved on a standard though below beyond reasonable double doubt, but above balance of probabilities……” In R.G Patel -V-Lalji Makanji [1957] EA 314 the former Court of Appeal for East Africa stated as follows:“Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.”

53. The Applicants are therefore under an obligation to discharge their burden in regard to their allegations pertaining to forgery. However, they have not made out a case in support of their allegations in regard to forgery of the signatures. No material has been placed before court, for instance expert testimony of handwriting experts in support of the allegations of forgery. The consent in question is thus deemed as having been signed regularly.

54. The Applicants have also challenged the validity of the grant on grounds that they were not present during its confirmation of the grant. Rule 40(8) of the Probate and Administration provide as follows;“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”.

55. In view of the above section, it is my position that the attendance of the beneficiaries during confirmation of grant was not mandatory as there was a duly signed consent on record and no affidavit of protest filed.

56. The Applicants further questioned the validity of the consent in issue due to variance of dates on the affidavit in support of confirmation of grant and on consent to confirmation of grant. It is indeed true that there is such variance as the said affidavit is dated 29th June,2005 whereas the consent is dated 29th September,2005. That variance however in my view is not proof of fraud. What is clear is that the consent was duly filed on 29th September 2005 before the grant was confirmed on 30th September 2005.

57. In the premises, I find the allegation of fraud unproved and I disregard those assertions in their enterity.

Whether The Respondent Has Proceeded Diligently With The Administration Of The Deceased’s Estate. 58. As per the Certificate of confirmation of grant confirmed to the Respondent on 30th September,2005, the subject estate was to be distributed as follows:Land Parcel Beneficiary Share

Elburgon/Arimi Ndoshwa Block 3/37(Turi Farmers Stephen Mwangi Kimani 2 acres

Simon Kamau Kimani 1 acre

Patrick Mwaura 1 acre

Peter NJOROGE 1 acre

Elburgon/Arimi Ndoshwa Block 4/265(Nyakiambi) Michael kariuki kimani 1 acre

John Ngigi Kimani 1 acre

Mburu Kimani 1acre

Elburgon/Arimi Ndoshwa Block3/69 Turi FarmersElburgon/Arimi Ndoshwa Block 3/65 Stephen Mwangi KimaniPeter Njoroge KimaniPatrick mwaura kimaniSimon Kamau KimaniMburu KimaniMichael Kariuki KimaniJohn Ngigi Kimani Jointly

Njuguna Mwangi- Whole Share

Elburgon/Arimi Ndoshwa Block 3/71 Stephen Mwangi KimaniMburu KimaniPeter Njoroge KimaniPatrick Mwaura KimaniSimon Kamau KimaniMichael Kariuki KimaniJohn Ngigi Kimani Jointly

Nyandarua/Oljororok Salient/5384 Stephen Mwangi KimaniMburu KimaniPeter Njoroge KimaniPatrick Mwaura KimaniSimon Kamau KimaniMichael Kariuki KimaniJohn Ngigi Kimani Jointly

Nakuru Municipality Block 3/609 Peter Njoroge ½

Stephen Mwangi Kimani ½

Eldoret Municipality Block 15/1059 Stephen Mwangi KimaniMburu KimaniPeter Njoroge KimaniPatrick Mwaura KimaniSimon Kamau KimaniJohn Ngigi KimaniMichael Kariuki Kimani Jointly

Motor Vehicle KUM 632 Nissan Sunny Peter Njoroge Kimani

59. The Respondents contended that all the parcels of land have been distributed save for Eldoret Municipality Block 15/109. The title deeds were produced as exhibits.

60. Title deed for Elburgon/Arimi Ndoshwa Block 3/37(Turi Farmers) was registered in the names of Peter Njoroge Kimani,Simon Kamau Kimani |& Patrick Mwaura Kimani in 2007; Elburgon/Arimi Ndoshwa Block 4/265(Nyakiambi) was registered in the names of Michael Kariuki Kimani (PW2 in the application)and Mburu Maina as trustees of John Ngigi Kimani (PW4 in the application) in 2007; Nakuru Municipality Block 3/609 was registered in the names of Peter Njoroge and Stephen Mwangi Kimani in 2016; Elburgon/Arimi Ndoshwa Block 3/69(Turi Farmers) was registered in the names of Peter Njoroge Kimani &Michael Kariuki Kimani as trustees of 2 others in 2007; & Eldoret Municipality Block 15/1059 is still registered in the name of the deceased.

61. During hearing the parties testified that Elburgon Arimi Ndoshwa Block 3/71, Nyandarua Oljorok Salient 5384 and deceased’s Motor Vehicles were sold and proceeds Shared among all beneficiaries. These properties are no longer available for distribution.

62. The Respondent told court that Plot known as Elburgon Arimi Ndoshwa Block 3/65 has also been sold. However, no evidence was adduced to prove the same.

63. There were no reasons advanced why parcel of land known as Eldoret Municipality Block 15/1059 has not been distributed and no evidence was adduced to show that Land Parcel No. Elburgon Arimi Ndoshwa Block 3/65 has been distributed as per the Certificate of Confirmation of a Grant.

64. Therefore, there is clear evidence that the respondent proceeded diligently in distributing the properties save for Eldoret Municipality Block 15/1059 & Elburgon Arimi Ndoshwa Block 3/65. Most of the properties were transferred to the beneficiaries named in the confirmation, including PW2 and PW4. The two cannot be heard to now state that they were not given land.Whether the Respondent has provided a full and accurate statement of account to date as required by law

65. My answer to this issue is in the negative.

66. Section 83 of the Law of Succession Act imposes a statutory duty on the Respondent herein as the personal representative of the subject estate to render accounts at two stages. According to Musyoka J. in In re Estate of Julius Mimano (Deceased) [2018] eKLR;“The first instance is in the first six months of the administration. It is at this stage that they ought to account as to whether the spent any funds from the estate for the purpose of disposing the remains of the deceased and, if so, how much. State whether they got in or gathered or collected or brought together all the assets that make up the estate. The getting in of the estate is critical; it should precede settlement of debts and liabilities and distribution of the assets. Indeed, these duties can only be discharged if there are assets sufficient to settle debts leaving a surplus for distribution. It would also be from the assets collected that the estate would have a pool of resources for administration expenses. Section 83(e) commands the personal representatives to produce in court a full and accurate inventory of the assets and liabilities, no doubt generated from the exercise of getting in the assets and ascertaining the debts of the estate. There is also an obligation to render an account of all their dealings with the assets and liabilities up to the point of the account. The second occasion for rendering accounts is at the completion of administration. The duty is stated in section 83(g) of the Act. The object of the second and final account is to give opportunity to the personal representative to demonstrate that they have complied with the duty in section 83(f) of distribution of the estate to the beneficiaries.”

67. The duty to render accounts on the two stated stages is imposed by statute and it is so critical that default to do so is listed in Section 76(d) (iii) of the Act as one of the grounds upon which the court may consider revoking a grant. The said section provides as follows:“76. 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)…(b)…(c)…(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either—(i)…(ii)…(iii)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…”

68. In accordance with the law, the Respondent is bound to render accounts for the period that he has been in office as the executor of the subject estate. The Applicants have accused the Respondent of running down the estate. At the same time the applicant and her witnesses acknowledged that they received some payments after the sale of some of the properties. The court notes that during the hearing of the application, the Respondent did not proffer a detailed breakdown of what was sold and for how much and what each beneficiary received.

69. I also note that the Applicants did not prove that they served notice upon the respondent requiring him to render accounts in compliance with Section 76 (d)(iii) above and as such it cannot be said that he has refused to render accounts.

70. I am of the view that the respondent, now that he is aware of the complains over the estate, ought to proceed to render the detailed accounts of each property. Failure to do so is a ground for revocation of grant under Section 76 (d) (ii) &(iii) of the Law of Succession Act.

71. One other complaint raised was the fact that the girl child was disinherited and that they got no Share of their father’s estate.

72. From the respondent’s case, it is clear that all the land was distributed amongst the boy child, so to speak. This is in itself, in the absence of acquiescence by every girl child, discriminatory against them. However, there is evidence that all the girl children signed the consent in question.

73. The problem appears to be the fact that some of the girls have come back home only to find all the land already distributed to the male children. They are literally at the mercy of their male siblings. This would not have occurred had the parties made provisions for any such eventuality, which did not happen.

74. There is evidence that the property in Eldoret namely Eldoret Municipality Block 15/1059 is still in the name of the deceased. The proposal was to dispose of the same and Share out the proceeds amongst the beneficiaries. Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules enjoins the court to exercise inherent jurisdiction to make orders as are necessary to meet the ends of justice.

75. Therefore, this court has inherent powers to do what is just and fair. In my view that property ought to be reserved for the girl child in the family, since they never got any land from the estate. If that is not palatable to the parties, especially the male children, then the court may have to revisit every property of the deceased and make appropriate provisions for the girls. Even though the land has since been transferred to other beneficiaries, nothing would prevent this court from righting a ‘wrong’ committed in the process of confirmation of the grant. I will leave to the parties to heed my advice and do what is just and fair to their female siblings.

What Orders Should This Court Issue 76. Having considered the matter, I am of the view that revoking the grant will be too drastic an action as the same has the effect of unsettling the parties herein and taking the beneficiaries back to the drawing board yet the matter has been pending since 2002. Patently, revocation will result in a delayed process.

77. The court therefore has a discretion whether or not to order for revocation of the grant.

78. I find the situation herein can be ameliorated by directing the Respondent to proceed diligently in administrating the pending assets in line with my advice above and to render detailed accounts.

79. I also note that some of the beneficiaries PW2 and PW4 told court that they have not been given any land, yet they are registered proprietors of some of the properties herein. I think that the problem may have arisen when it comes to actual occupation on their respective portions of their land. Therefore, there is need for a surveyor to visit the land with a view to subdividing it in accordance to their respective Shares. The parties should agree on the surveyor to do the job.

80. In light of the foregoing, I hereby proceed to issue the following orders: -i.The Respondent to file a full and accurate inventory of the assets and liabilities of the estate and an account of his handling of the estate of the deceased in keeping with Section 83 of the Law of Succession Act within 60 days from the date hereof. The same to be filed in court and be served upon all the beneficiaries.ii.Parties to agree on the surveyor who will carry out the subdivision of the land available on the ground and amicably distribute it to the beneficiaries in accordance with the confirmed grant .iii.The cost of the survey shall be borne by the beneficiaries who will be settling on the respective properties.iv.The administrator in consultation with all the beneficiaries, to make provision for the girl child as regards the property in Eldoret namely Eldoret Municipality Block 15/1059 in line with my finding above.v.Prior to the survey and the provisions for the girl child, the status quo on the ground to remain in force.vi.The parties are reminded that the court may revoke the entire grant if no adequate provisions ae made for the female beneficiaries of the Estate.vii.The matter will be mentioned in 90 days to confirm compliance and further orders.viii.I make no orders as to costs.

81. Orders accordingly.

DATED, SIGNED AND DELIVERED AT NAKURU THIS DAY OF 1ST DAY OF NOVEMBER, 2023. H. M. NYAGAJUDGEIn the presence of;Ms Gatheca for ApplicantMr. Githiru for Respondent