[2022] KEHC 10019 (KLR)

In re Estate of Nzembi Musila (Deceased) (Succession Cause 798 of 2008) [2022] KEHC 10019 (KLR) (20 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10019 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 798 of 2008

GV Odunga, J

July 20, 2022

IN THE MATTER OF THE ESTATE OF NZEMBI MUSILA (DECEASED)

Between

Thomas Musila Mutava

1st Petitioner

Agnes Muthini Musila

2nd Petitioner

and

Macharia Chege

Protestor

and

Susan Ndunge Kioko

Applicant

Ruling

1. By summons for revocation of letters of administration dated 14th December 2021 expressed to be brought under Section 76 of the Law of Succession Act, Rule 44 of the Probate and Administration Rules the Applicant herein seeks the following orders:a.Spentb.Spentc.The Certificate of grant of letters of administration intestate issued herein to the Administrators of the estate be annulled or revoked as well as all other orders and proceedings be set aside.d.The court does appoint the Applicant herein as the administrator of the estate herein.e.The costs of the application be in the cause.

2. The application was supported by the affidavit of Susan Ndunge Kioko, the applicant herein dated 14th of December 2021 in which she deposed that she is the daughter of the deceased herein hence on equal priority with the administrators herein. It was her case that the grant issued in this cause was obtained fraudulently obtained through concealment of material facts as she was not informed when the letters of administration were taken out and hence did not consent to the making and /or confirmation of the grant herein. It was averred that was never served with the summons for confirmation of grant otherwise she would have protested. She contended that she has not been given any single portion of the estate despite having a right to it.

3. In response, the Protestor filed a Replying affidavit dated 4th January 2022 in which he averred that the Application merely makes unsupported or unsubstantiated allegations. According to him, the Applicant is working in cohort with the petitioners to steal a match against him by denying him the fruits of the judgment dated 10th November 2021. He identified the following facts as supporting his allegations:a.The Applicant has failed to produce any evidence that she was indeed a daughter of the deceased of the deceased’s estate.b.the applicant has not produced any evidence to prove that indeed the petitioners or the area chief acted in a fraudulent mannerc.The applicant has failed to particularize any particulars of fraud in the absence of which the applicant assertions can only be termed as general, malicious and unfounded.

4. It was contended that while the application is skewed to seek prohibitory orders against any registrations over land parcel Donyo Sabuk/Komarock Block 1/18554 and to set all orders and proceedings herein aside, it is deviously presented before this court as a summons for revocation of grant. He was of the view that the grounds under section 76 of the Law of Succession Act, cap 160 have not been satisfied. To him, had the Applicant been genuine, she would have protested on the mode of distribution and not sought to revoke the grant which necessitates the matter starting a fresh despite the gains made in resolving it over the years.

5. He disclosed that he had already placed a restriction prohibiting dealings on land parcel Donyo Sabuk/Komarock Block 1/18554 until this suit is heard and determined and such the applicant is not prejudiced at all. It was his position that should the Court find that the Applicant is entitled to the deceased’s estate then her share should be from the deceased’s estate after his three (3) hectares have been hived off from land parcel Donyo Sabuk/ Komarock Block 1/18554 as per the judgement of 10th November 2021.

6. It was further averred that should the court be pleased to appoint the Applicant as an administrator, she can be appointed only after the current administrators have complied with the orders of the judgement dated 10th November 2021. It was his view that he ought to e exempted from further litigation as a third-party claimant by implementing the orders of judgement issued on 10th of November 2021.

7. It was therefore his position that the application is filed maliciously and in bad faith and should be dismissed with costs.

8. The Applicant, by a further affidavit dated stated that the allegations and insinuations made by the protestor in his replying affidavit that she is in cohorts with the administrators herein is to deny him the fruits of his hard earned judgement are baseless and malicious. She insisted that she is the biological daughter of the deceased Nzembi Musila and relied on her birth certificate and the chief’s letter dated 7th December 2021.

9. The Applicant asserted that the letters of administration issued to the Respondents were obtained fraudulently by concealment of material facts that she is one of the beneficiaries of the deceased estate. Further, they were taken without her knowledge as she neither revoked her right nor consented to the letters of administration being issued to the administrators herein. She deposed that as a daughter, she ranks equally important as the administrators herein therefore entitled to a share of the deceased’s estate.

10. The Objector filed a Supplementary Affidavit dated 29th March 2022 in which she deposed that the chief’s letter annexed to the further affidavit of 2nd February 2022 did not refer to the estate of the Applicant’s late mother and as the daughter of the deceased, she stands to suffer irreparably if the orders sought in the application are not granted. The Objector maintained that the correct chief’s letter was the one dated 7th December 2021 quoted in the further affidavit.

11. She deposed that the issue of administrators is neither here nor there as the same is a clerical error that does not go to the root of the matter. Further, that the wrongly annexed affidavit is an inadvertent mistake of her advocate’s clerk while preparing and the affidavit for filing which mistake has been corrected.

12. The Protestor/ Respondent filed a replying affidavit to the Supplementary affidavit on 9th of May 2022 in which he deposed that the objector has failed to prove matters of her identity vis a vis her relationship with the deceased Nzembi Musila by not availing to the court a signed, true and certified copies of her national identification card and signed true and certified copies of her birth certificate.

13. It was noted that the correct letter from the chief contains the following omissions and discrepancies;a.the letter does not contain a reference number and is therefore not an official letter but just a mere piece of paper without any back up in any government archives/records.b.the letter does not contain a telephone number either of the chief or of his office.c.the letter does not have any email address.d.the name of the deceased is missing her ID number and physical address this difficult to verify.e.the list of the deceased’s children does not indicate crucial details like age, telephone contacts and physical addresses and this impossible to verify their legal existence.f.The purported chief who is supposed to know the deceased does not know where she died.g.The letter is unsigned and unwitnessed.h.The alleged children did not include the list of properties, including the piece of land which is subject of this matter and is therefore hard to believe that he knew the deceased and her children.i.The letter does not indicate the parcel number of the suit land, Donyo Sabuk/Komarck Block1/8554. j.The letter does not include a certified copy of Nzembi Musila’s death certificate. The chief has no proof that she is dead.k.The letter is not accompanied by true and certified copies of their birth certificates and identification documents and safe to say that the chief acted on hearsay while compiling the letter.

14. It was deposed that the letter from the chief is thus unverifiable, untruthful and unbelievable and urges the court to dismiss the application with costs.

15. The Objector filed submissions dated 31st January 2022 in which she urged that the grant of letters of administration should be revoked for reason that there was concealment of material facts. While relying on Section 76 (b) of the Law of Succession Act, it was submitted that the deceased had 8 children and the objector who is also the biological child of the deceased was not mentioned in the grant yet she is a person of equal priority. It was submitted that she has annexed her birth certificate and a letter from the chief dated 7th December 2021 listing all the biological children.

16. She contended that the Administrators colluded with the chief and left out the Applicant’s name from the list of beneficiaries’ despite being their sister. According to her, the fact that they have not responded to this application proves they do not refute the fact that the Applicant is their biological sister. It was her case that she neither consented nor renounced her rights prior to the issuance of the letters of administration to the Respondent’s herein and only found out that the letters of administration had been taken out when she went to follow up and possibly commence the process of succession of the deceased’s estate. It was therefore her submission that for these reasons, the grant should be revoked. To buttress this point, reliance was placed on the case of Jamlek Maina Njoroge vs Mary Wanjiru Mwangi [2015] eKLR, Tirus Mwaniki Njiru vs Jane Igandu [2021] eKLR and Ibrahim vs Hassan & Charles Kimenti Macharia, interested party [2019] eKLR.

17. The Protestor filed written submissions dated 10th February 2022 and submitted that the administrators are Thomas Mutava Musila and Agnes Muthini Musila and not John Migwi and Mutava Musila as stated in this cause. Therefore, it was submitted that the application was overtaken by events since the latter are no longer administrators of the estate.

18. It was submitted that the application was conveniently brought immediately after the court pronounced itself on 10th November 2021. To the Protestors, prayers 2 and 3 depict the applicant as a person attempting to hoodwink the court into denying the protestor the fruits of the ruling despite having litigated for over a decade now. Further, that the administrators have disobeyed the court order and protestor is yet to obtain vesting orders because his application dated 17th January 2022 is still pending before the court. It was his view that the applicant is working in cohort with the administrators.

19. While not opposed to prayer 3, the Protestor contended that the Applicant has not proved her case because the birth certificate has not been certified by the relevant authorities and thus its authenticity is disputed. It was also noted that the chief’s letter refers to a different estate from the one subject of these proceedings since it refers to the estate of John Kithome in Mks Succession Cause 26 of 2021. The Applicant has therefore failed to prove that she is a beneficiary and cannot be heard to say that she was omitted in the proceedings and that material facts about her being a beneficiary were concealed. It was contended that since the estate is yet to be distributed, the applicant cannot say she has not been given a single portion of the estate.

20. The court was invited to take into consideration the overriding principle that litigation must come to an end and also take into consideration the gains made in resolving this long-protracted matter. While referring to section 76 of the of the Law of Succession Act and the case of R.G Patel vs Lalji Makanji (1957) EA 334 it was submitted that the applicant has not proved nor satisfied any of the grounds set out herein and the application should be dismissed.

21. As regards the estate available for distribution, it was the Protestor’s prayer that the order of 10th November 2021 be effected and the beneficiaries be free to administer their estate which is net of what is owing to him. It was submitted that Section 83 and 86 of the Law of Succession Act provides that such a debt be paid before any legacy. According to the Protestor, a decree against a deceased person, in the absence of a variation, setting aside or otherwise being stayed is a proven liability against the estate of the deceased. Accordingly, the court was urged to dismiss the summons for revocation of grant herein.

22. The Administrators did not file any document in response to this Application.

Determination 23. I have considered the application, the affidavits both in support of and in opposition to the application and the submissions filed.

24. Section 76(a), (b) and (c) of the Law of Succession Act provides as hereunder: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;

25. In this case the applicants’ contention is that though she is a daughter of the deceased herein, her consent was never sought when the petition was being filed by the Petitioners herein.

26. While the Administrators have not responded to the application, the Protestor has responded stating that even if the Applicant is a daughter of the deceased, she can only lay claim to the part of the estate that is due to the Petitioners.

27. In the ruling dated 10th November, 2021, this Court found that the Protestor had succeeded in proving, on a balance of probability, that there was an agreement between him and the deceased. Accordingly, it was directed that in distributing the deceased’s estate, the Protestor’s interest ought to be taken into account. In other words, the Court found that the distribution of the estate of the deceased was subject to the interests of the protestor. According to section 3 of the Law of Succession Act “estate” means “the free property of a deceased person” while “free property”, in relation to a deceased person, means “the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death.” It is therefore clear that the only property that forms part of the estate of the deceased is that property which the deceased herein was legally competent to dispose of during his lifetime and in which by that time his interests had not been terminated. In other words, the deceased’s property which he had disposed of in his lifetime cannot form part of his estate

28. Therefore, in the case of Johnson Muinde Ngunza & Another v Michael Gitau Kiarie & 12 Others (2017) eKLR, the Court stated that:“[T]he Law of Succession Act recognizes the purchaser’s rights and in support of these submissions the said (sic) the Law of Succession defines a “Purchaser”. Purchaser according to the Act means a purchaser for money or money worth.”

29. Similarly, in Mpatinga Ole Kamuye v Meliyo Tipango & 2 Others (2017) eKLR, the learned judge observed that:“This Court's view before distribution of the estate of the deceased under Section 71 of the Law of Succession Act Cap 160; the Court must satisfy itself that the beneficiaries of the estate are the legitimate beneficiaries of the estate; that there are assets that comprise of the deceased's estate and are available for distribution after settling all liabilities and having the net estate for distribution.”

30. In this case the interest of the Protestor is that of a purchaser from the Deceased in respect of portions of the lands forming part of the Deceased’s estate. It is therefore clear that that portion of the deceased’s estate that the deceased sold to the Protestor cannot form part of the deceased’s estate.

31. However, as the Applicant’s contentions are not challenged by the Administrators, I find that the Applicant’s contention that she was never made aware of these proceedings yet she is a daughter of the deceased hence entitled to the estate is un-assailable.

32. It does not however, necessarily follow that in that event the grant and certificate of confirmation must be revoked or annulled. In Re The Estate of the Late Suleman Kusundwa [1965] EA 247, it was held that:“The court is…not obliged to revoke the existing grant, and should only exercise its discretion to do so if useful purpose would be thereby achieved or any right of the applicant safeguarded which could not otherwise be safeguarded. In the present case such rights of inheritance as the applicant possesses, outside the will, are sufficiently safeguarded by the assurance given by the Administrator-General. Therefore I decline to revoke the existing grant, a revocation which would entail needless expense; but it is qualified by declaring that the provisions of the annexed will, in which he purported to leave the whole of his property to his nephew, the second respondent, shall be given effect to only in respect of such portion of the deceased’s property as he was entitled to dispose of by will under the applicable law of inheritance.”

33. As appreciated by Khamoni, J in Re Estate of Gitau (Deceased) [2002] 2 KLR 430:“Distribution of the estate comes during the proceedings to confirm the relevant grant and a party dissatisfied with the distribution may not necessarily be dissatisfied with the grant of letters of administration and vice versa. That being the position, it becomes unreasonable for a person dissatisfied with the distribution of the estate only to proceed to ask for the revocation or annulment of the grant, which has nothing wrong…While section 76 of the Law of Succession Act should therefore be relied upon to revoke or annul a grant it is not proper to use the same section where the objector is challenging the distribution only. There are relevant provisions to be used for that purpose and section 76 is not one of them.”

34. In the premises, since the applicant’s interests will be sufficiently protected by directing that she be considered in the distribution of the estate of the deceased, I decline to revoke the grant issued herein but instead direct that both the interests of the Protestor as declared in the ruling dated 10th November, 2021 and the Applicant’s entitlement as a daughter of the deceased herein be taken into account in distribution of the estate. In other words, the Protestor’s portion arising from the sale agreement be excised from the deceased’s parcel and the remainder be distributed amongst the beneficiaries of the estate of the deceased including the Applicant herein.

35. It is so ordered.

RULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 20TH DAY OF JULY, 2022. G. V. ODUNGAJUDGEIn the presence of:Mr Watuka for Mrs Nzili for the 2nd Protestor/Objector1st Interested Party in person**