[2022] KEHC 13348 (KLR)

In re Estate of Osweda Kisinya (Deceased) (Succession Cause 301 of 2015) [2022] KEHC 13348 (KLR) (4 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13348 (KLR)

Republic of Kenya

In the High Court at Migori

Succession Cause 301 of 2015

RPV Wendoh, J

October 4, 2022

IN THE MATTER OF THE ESTATE OF OSWEDA KISINYA (DECEASED) AND IN THE MATTER OF AN APPLICATION FOR LETTERS OF ADMINISTRATION BY

IBRAHIM OGINGO OSWEDA........................PETITIONER/RESPONDENT BETWEEN BEATRICE MMBONE ATONGA...................OBJECTOR/APPLICANT AND CLEOPA NGUNGA............................OBJECTOR/CROSS APPLICANT

Judgment

1. This cause relates to the Estate of Osweda Kisinya (deceased) who died intestate on May 25, 1998. The letters of administration were issued to Ibrahim Ogingo Osweda (petitioner) on May 10, 2016. The estate of the deceased comprises LR Suna East/Manyatta/637 (suit land).

2. Beatrice Mmbone Atonga whom I will refer to as (the 1st objector) filed objection proceedings dated August 5,2019. The objection is premised on the grounds found on its face and the supporting affidavit of the 1st objector. The 1st objector contended that she is the lawful administrix of the Estate of the Late Peterlis Ogolla Odila alias Pitalis Atonga Odila by virtue of being his widow; that her late husband purchased 2 acres of the suit land from the deceased herein; that the petitioner failed to include her husband as a beneficiary of the deceased’s estate as a purchaser. The 1st objector deponed that it is fit that she be included in this cause as one of the beneficiaries of the deceased’s estate and that two (2) acres of land be transferred to her out of the suit land LR Suna East/Manyatta/637 otherwise the estate of her late husband stands to suffer irreparable loss and damage.

3. The petitioner did not oppose the objector’s application.

4. Cleopa Ngunga also (cross-applicant) filed an objection and cross petitioned for grant of letters of administration intestate. It is dated September 20, 2021 and will be referred to as the 2nd objector. The applications are both supported by the affidavits of the 2nd objector. The grounds thereof are replicated in the affidavits. The 2nd objector deponed that he is the son of the deceased; that the petitioner failed, refused and/or neglected to apply for confirmation of the grant issued to him on May 10. 2016; that the estate of the deceased is being wasted for lack of proper and prompt administration by the petitioner; that the petitioner failed to disclose all material facts pertaining to the estate of the deceased. The 2nd objector listed the following as the beneficiaries of the deceased;i.Temina Agisa - Widow.ii.Cleopa Nguga - Son.iii.Ibrahim Ogingo Osweda - Son.iv.Bainito Opiyo - Son.v.Joshua Egunza Okaka - Son.vi.Samwel Ayanga - Son (Deceased).vii.Abisalum Lihanda - Son (Deceased).viii.Solomon Okanga - Son (Deceased).ix.Esther Mbone Okaga - Daughter in Law.x.Jesca Mboga Okaga - Daughter in Law.

5. The 2nd objector further listed the following as the inventory of all the assets and liabilities of the deceased at the date of his death as follows: -a)AssetsLR Suna East/Manyatta/637b)Liabilities: -Pentecostal Assemblies of God Kenya T/A Mutave PAG Church - purchaser of 1 ½ acres.Peterlis Ogolla Odila - purchaser.Hesbon Ogada - purchaser.Nicholas Ndeyi - purchaser.Kodilla Primary School - purchaser.

6. The petitioner opposed the 2nd objection. He filed a reply dated November 20, 2021. He deposed that the deceased had two separate homesteads one at Kajulu - Kanyamkago within Uriri Sub - County and one at Suna East Sub - County where the suit property stands; that prior to his death, the deceased distributed his estate between him and his brother, the co - applicant; that his brother inherited the property at Kajulu while he was bequeathed the suit property; that contrary to the wishes of his father, the 2nd objector is putting a claim of inheritance on his share while the other siblings have already distributed the estate in Kajulu amongst themselves which he did not challenge. It was further deponed that the suit herein is res - judicata as the same was heard and determined at Migori vide Civil Suit No 94 of 2019 which was determined in his favour.

7. Both parties filed submissions. The 2nd objector filed his submissions dated January 21, 2022 on two issues. On the non - disclosure of material facts, he submitted that the suit land is approximately 5. 2 Ha; that the deceased had sold off portions of the estate to various purchasers before his death; that the petitioner failed to recognize the said purchasers and he left out some beneficiaries. The 2nd objector asked this court to consider the findings in the cases of Re:In the Matter of the Estate of LAK (Deceased) (2014) eKLR and Re: Estate of Tabitha Waithera Kamau (Deceased)(2019) eKLR where courts held that grants may be revoked where the process leading to making of the grant was defective; fraudulent, or material facts were concealed.

8. On failure to have the grant confirmed, the 2nd objector submitted that the grant was issued to the petitioner on May 10, 2016 and the petitioner has failed to have the grant confirmed to date; that the estate remains unadministered and the beneficiaries have been prejudiced for the past five years. The 2nd objector relied on the case of Re: Estate of Chirigu Kangerue (Deceased)2021 in asking the court to do justice to the beneficiaries who have been prejudiced due to the delay in confirming the grant.

9. The petitioner filed his submissions dated May 16, 2022. He stated that the deceased bequeathed each beneficiary his property. It was also submitted that the claim herein is res judicate as it was decided in Migori ELC Case No 94 of 2019. On the delay to file an application for confirmation, it was submitted that the same was delayed by the 2nd objector who filed objection proceedings and the proceedings in the succession cause were stayed pending the outcome of the Migori ELC case whose judgement was delivered on July 27, 2021. The petitioner also submitted that the 2nd objector’s application is an avenue the 2nd objector is using to appeal the ELC case.

10. I have carefully considered both the objectors’ applications and cross petition, and the submissions by each party. The issues for determination are;a)Whether the petitioner failed to disclose material facts;b)Whether the petitioner delayed or ignored administering the estate;c)Whether this application is res judicata.

11. The objectors’ position is that there has been concealment of material facts. The 1st objector’s case is that she is a widow of Peterlis Ogolla Odila who purchased 2 acres from the deceased in his lifetime from the suit land. This position has been echoed by the 2nd objector who listed Peterlis Ogolla Odila (Deceased) as a purchaser together with other individuals. The 2nd objector also contended that some of the beneficiaries have been left out. The petitioner’s position is that during the lifetime of the deceased, he already bequeathed him the suit parcel of land while the 2nd objector was given Kajulu - Kanyamkago within Uriri Sub - County.

12. As to whether the objection proceedings are res judicata; this court is guided by section 7 of the Civil Procedure Act which defines res judicata as follows:-“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them can claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

13. The rationale of the doctrine of res judicata was explained by the Court of Appeal inIEBC v Maina Kiai & others(2017) eKLR when it said the“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and common-sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”

14. Rule 63 ofP & A Rules specifically refers to application of the Civil Procedure Rules andProbate and Administration Rules in succession proceedings: It does not refer to Civil Procedure Act. The preamble to the Civil Procedure Act states that this is an act of parliament to make provision for procedures in civil courts. Section 2 of the act provides that the Civil Procedures Act applies to proceeding in the High court. There is therefore no bar to raising any issues based on the Civil Procedure Act in Succession matters. Civil Procedure Rules are subsidiary legislation and the Law of Succession Act has its own elaborate Rules. So, res judicata does apply to Succession maters because it is provided under the Civil Procedure Act and may be raised by parties for determination by the court depending on the circumstances of the case. In the case of Emmah Wangithi Maina v Mary Wanjiku Wanjohi Succession cause number 33 “B” of 2013 the court dealt with the application of the Civil Procedure Act to succession matters when it said;“The applicant has submitted that section -7- of the Civil Procedure Act does not apply in succession proceedings. This submission is not correct. Rule 63Probate and Administration Rulesspecifically refers to application of Civil Procedure Rules and High Court (Practice and Procedure Rules). It does not refer to the Civil Procedure Act. The preamble to the Civil Procedure Act states that it is in act of parliament to make provision for procedure in Civil courts under section -2- of the act it is provided that the act applies in proceedings in the High Court. There is therefore no bar to raising any issue based on the Civil Procedure Act in succession matters. Civil Procedure Rulesare subsidiary legislation and the Law of Succession Act has its own elaborate Rules. That explains why only the specified Civil Procedure Rules are applicable as they are relevant under the Probate and Administration Rules. The doctrine ofres judicata is provided under the Civil Procedure Act. It applies in succession matters may be raised by a party for determination by the court depending on the circumstances of the case.

15. In this case, only one of the purchasers sued the petitioner in ELC 94 of 2019. The other purchasers have not and the judgment therein relates to only one of the beneficiaries but not all. The issue of joinder of the objectors as beneficiaries of the deceased’s estate did not arise in ELC 94 of 2019. These objection proceedings are therefore not res judicata.

16. I have carefully perused the petition for letters of administration. The deceased’s estate available for distribution is LR No Suna East/Manyatta/637 measuring approximately 5. 2 Ha. The beneficiaries to the estate listed are: -i.Temina Agisa - Widow (deceased)i.Ibrahim Ogingo Osweda - Son.iii.Bainito Opiyo - Son.iv.Cleopa Mhunga - Son.v.Joshua Egunza Okanga - Son.

17. I have also seen the consent dated July 30, 2018. The persons listed as beneficiaries are: -i.Abisalum Lihanda Osweda.ii.Solomon Okaga Osweda.iii.Ibrahim Ogingo Osweda.iv.Samwel Ayanga Osweda.v.Bainito Opiyo Osweda.vi.Cleopa Ngunga Osweda.

18. The other beneficiaries listed in the consent are:-i.Peterlis Ogolla Odida a purchaser to be given the share of Abisalum Lihanda Osweda.ii.Hesbon Ogada a purchaser to be given half share of Esther Mbone Okaga the first wife of Solomon Okaga.iii.esca Mboga Okaga to be given the other half of Solomon Okaga’s share.iv.Nicholas Ndenyi a purchaser to receive the share of Samwel Ayanga Osweda.v.Mutave PAG Assemble and Kodila Primary School to receive the shares of Bainito Opiyo Osweda and Cleopa Ngunga Osweda respectively.

19. It is noteworthy that the above consent was made at a meeting of July 30, 2015 which was not attended by the petitioner. Those in attendance are listed as Joshua Egunza Okego, Bainito Opiyo Osweda, Cleophas Ngunga and Charles Kibu Ngendo.

20. I have also considered the list of beneficiaries and the purchasers listed by the 2nd objector. The beneficiaries who have been omitted by the petitioner in his consent form is the widow of the deceased, a son by the name Joshua Egunza Okanga - and the two daughter in laws of the deceased, that is Esther Mbone Okanga and Jesca Mboga Okanga who are the wives of Solomon Okanga Osweda (Deceased).

21. Section 29 of the Law of Succession Act defines dependants of a deceased to include wives of the deceased. Section 39 of the Law of Succession Act considers relatives upto the sixth degree of consanguinity as beneficiaries. In the case of Re: Estate of Karauri Magu (Deceased) (2016) eKLR the court recognized a daughter in law as a child of the deceased by virtue of being married to a son of the deceased. A daughter in law by virtue of being married to the son of the deceased becomes a beneficiary of the estate of the deceased if the husband predeceases her. The beneficiaries of the estate of the deceased’s estate are thus:-i.Temina Agisa - Widow.ii.Cleopa Nguga - Son.iii.Ibrahim Ogingo Osweda - Son.iv.Bainito Opiyo - Son.v.Joshua Egunza Okaga - Son.vi.Samwel Ayanga - Son (Deceased).vii.Abisalum Lihanda - Son (Deceased).viii.Esther Mbone Okaga and Jesca Mboga Okaga - as the wives of Solomon Okanga - Son (Deceased).

22. The listed purchasers are:-i.Pentecostal Assemblies of God Kenya T/A Mutave PAG Church - Purchaser of 1 ½ acres.ii.Peterlis Ogolla Odila - purchaser.iii.Hesbon Ogada - purchaser.iv.Nicholas Ndeyi - purchaser.v.Kodilla Primary School - purchaser.

23. From the consent, the agreement was that the deceased’s estate should be distributed as was originally distributed and demarcated by the deceased. The said purchasers were also well accounted for and taken into consideration in the estate. The 2nd objector and one of his brothers Bainito Opiyo signed the consent which he has not objected or disputed.

24. On the part of the purchasers, the 1st objector’s deceased husband Peterlis Ogolla Odida was to get a share of Abisalum Lihanda Osweda (Deceased). The half share of the first wife, Esther Mbone Okaga was to be given to Hesbon Ogada. The share of Samwel Ayanga (Deceased) was to be given to Nicholas Ndenyi. The share of Bainito Opiyo and Cleopa Ngunga was to be given to Mutave PAG Assemble and Kodila Primary School respectively.

25. I have noted that the share of Samwel Ayanga and Abisalum Lihanda (deceased) being the sons of the deceased herein, were to be given to some of the purchasers. The petitioner did not disclose whether his deceased brothers have wives or children before their share could be allocated to other purchasers. The 2nd objector and one of his brothers Bainito Opiyo’s share was to be given to other purchasers.

26. At the inception of filing letters of administration, the law requires that the petitioner should inform all the beneficiaries and other persons who may have a beneficial interest in the estate of the deceased. Section 66 of the Law of Succession Act provides that preference has to be given to certain persons to administer a deceased’s estate where there the deceased died intestate. Section 66 (a) - (d) provides as follows: -“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference-(a)surviving spouse or spouses, with or without association of other beneficiaries;(b)other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by part v;(c)the public trustee; and(d)creditors:Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.”

27. Further guidelines on making of grants are found in part vii rule 26 (1) and 2 of the Probate and Administration Rules provides as follows: -“(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.”

28. From a reading of section 66 of the Law of Succession Act, the persons given priority over an intestate estate, is the surviving spouse and children. In addition, part vii rule 26 (1) and (2) of the Probate and Administration Rules provides that before issuance of the letters of administration, every person entitled in the same degree as or in priority of the applicant should be informed of the intention to take out the letters.

29. In this case, the petitioner failed to inform the other beneficiaries and the alleged purchasers of his intention to take out letters of administration intestate; thus he erred in law.

30. A petition for confirmation of grant, should be in Form 108 and a supporting affidavit in forms 8 and 9. The affidavit should detail all the beneficiaries of the deceased together with the wife or wives of the deceased man or husband in case of a deceased woman. In addition to the aforementioned, there should also be a schedule showing how the estate of the deceased should be distributed among the beneficiaries and the share each beneficiary should get. All the beneficiaries and the interested persons should sign a consent on the distribution. The petitioner has not done in his application for confirmation.

31. Failure to include all the beneficiaries and any persons who may have a beneficial interest in the estate of the deceased whether or not they are inheriting, amounts to concealment of material facts contrary to section 76 of the Law of Succession Act. In Re: Estate of the Late George Cheriro Chepkosiom (2017) eKLR it was held that anyone who has a stake in the estate, a beneficiary, interested in the estate and is no longer interested, should renounce such interest by way of affidavit or oral evidence. Similarly, the Court of Appeal in Benson Champu Kaperewo v Rebecca Chepkuto Kiperenge (2019) eKLR held that the exclusion of a beneficiary from succession proceedings amounts to concealment of material facts. It is the finding of this court that the petitioner did not disclose all the beneficiaries of the deceased’s estate which amounts to concealment of material fact.

32. The petitioner submitted that the deceased did not leave any liabilities in his estate. He further stated that the issue is res judicata by virtue of the decision in ELC Case No 94 of 2019. To the contrary it is the 2nd objector’s submission that there are liabilities in the estate of the deceased which comprise purchasers. In as much as the petitioner has now taken the position that there are no liabilities in the estate of the deceased, he has not renounced the consent dated July 30, 2018 on the purchasers getting a portion of the suit land and/or he has not opposed the 1st objector’s application which she claims purchaser’s interest on behalf of her deceased husband. There seems to be no consensus on the liabilities of the estate of the deceased; but there is no doubt that there have been purchasers who bought portions of the suit land. I say this because among the listed purchasers are a school and a church. It is trite law that a purchaser’s interest is to be considered and taken into account during the distribution of the estate of the deceased. In the event there is a dispute on the validity of a sale which was made during the lifetime of the deceased, such a dispute can only be solved by the Environmental and Land Court.

33. The petitioner also submitted that during his life the deceased, distributed his estate and allocated each beneficiary his portion. There is no evidence if or oral or otherwise showing that there was distribution of the deceased’s estate as the petitioner alleges. If the deceased had bequeathed some land to the 2nd objector, the petitioner should have included the land in the deceased’ assets and the 2nd objector as a beneficiary. The estate therefore shall be distributed as an intestate estate.

34. On the delay to file the application for confirmation of grant, grant of representation was issued on May 10, 2016. The petitioner filed the application for confirmation, of grant on March 9, 2017. It was to be heard on November 24, 2017. From then it was adjourned for various reasons including the issue of the children’s claim which was stayed on May 28 2019. The proceedings in this cause were stayed on May 28, 2019 pending the outcome of the proceedings in the ELC Court. The judgement in the ELC suit was delivered on July 27, 2021 and this objections were filed on October 5, 2021 only two months after the judgment. I find that there has not been inordinate delay in prosecuting the application for confirmation of grant by the petitioner under the circumstances. The delay was only two months and therefore the delay in applying for confirmation cannot be attributed to the petitioner.

35. From the foregone, I find that the objections have merit. Consequently, I make the following orders: -1. The 2nd objector be included as the second administrator of the deceased’s estate.2. The grant of representation be amended accordingly to include the name of the 2nd objector3. The petitioner or 2nd objector file summons for confirmation together with a schedule for distribution within 30 days.4. If they do not agree on distribution, either party be at liberty to file and the other one file his protest within 10 days thereof.5. The application for summons for confirmation of grant should be served upon all the beneficiaries and any other persons who have beneficial interests in the estate of the deceased including the purchasers.6. The county land surveyor, Migori to visit the suit of land parcel no Suna East/Manyatta/637 and file a report on the status of the land within 30 days of this judgement.7. The petitioner to extract this order and serve it upon the county land surveyor.8. The costs of the survey if any should be borne equally between the petitioner and the 2nd objector.9. Status quo on Land Parcel No Suna East/Manyatta/637 be maintained.10. The 1st objector be included amongst the beneficiaries of the deceased’s estate.11. Each party to bear their own costs.12. Mention on December 7, 2022 to confirm compliance.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 4TH DAY OF OCTOBER, 2022. R. WENDOHJUDGEJudgment delivered in the presence of;Ibrahim Ogingo Osweda for the Petitioner.Mr. Singei Advocate for the Objector.No appearance for the 2nd Objector.Nyauke Court Assistant.