[2022] KEHC 11381 (KLR)

In re Estate of Paulina Vicheti Miheso (Deceased) (Succession Cause 596 of 2011) [2022] KEHC 11381 (KLR) (10 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11381 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 596 of 2011

WM Musyoka, J

June 10, 2022

IN THE MATTER OF THE ESTATE OF PAULINA VICHETI MIHESO (DECEASED

Ruling

1. The deceased herein, Paulina Vicheti Miheso, died on January 8, 2010. According to the Chief of Iguhu Location, through a letter dated, July 8, 2011, the deceased was survived by one individual, being Rosemary Amega Vuhya, whose relationship to the deceased was not disclosed. She is described as granddaughter in the petition lodged herein on August 11, 2011. The deceased was said to have died possessed of a property known as Kakamega/Iguhu/1464. That was the information that was placed before the court for the purpose of granting representation in intestacy to Rosemary Amega Vuhya, on June 7, 2006. I shall refer to Rosemary Amega Vuhya hereafter as the administratrix.

2. The grant was presented for confirmation, through an application, dated July 6, 2012. It was proposed that Kakamega/Iguhu/1464 be devolved wholly upon the administratrix, as sole survivor of the deceased. The application was placed before the judge on July 31, 2012. A certificate of confirmation of grant was extracted from the said confirmation orders of July 31, 2012, and was issued, dated October 2, 2012.

3. An application for revocation of grant was lodged at the registry on April 11, 2013, dated April 8, 2013, by Maurice Kikaya Shipaya. The affidavit in support of the application was sworn by Maurice Kikaya Amega, on April 8, 2013. I suppose that Maurice Kikaya Shipaya and Maurice Kikaya Amega refer to the same person, and I shall refer to Maurice Kikaya Shipaya alias Maurice Kikaya Amega as the applicant. He is a brother of the administratrix, and, therefore, a grandchild of the deceased. He avers that the deceased had other grandchildren, who he has named as Emmanuel Sereto Amega, Hudson Muhambe Amega and Margaret Amega. He complains that he and the other grandchildren of the deceased were not disclosed in the petition, and at confirmation. He asserts that he and the other grandchildren are equally entitled to a share in Kakamega/Iguhu/1464.

4. The administratrix responded to the application, by way of a repaying affidavit sworn on September 8, 2014. She confirms that the applicant and Emmanuel Sereto Amega, Hudson Muhambe Amega and Margaret Amega are her siblings, in the sense of all of them being grandchildren of the deceased. She states that they had agreed that she takes over the estate of the deceased, which she was to share it with her sister, Margaret. She further avers that the other siblings are catered for and not in need of the estate. She states that the Ivole Tea Centre had been constructed within the estate, then the Ivole Tea Centre had entered into a sale agreement with the deceased to buy the estate, but later reneged on the agreement. She avers that after she obtained the grant, she initiated litigation, to have the Ivole Tea Centre removed from the estate. She accuses the applicant of being a hired gun for the Ivole Tea Centre in an effort to scuttle the litigation. She asserts that the applicant had no good reasons for the revocation sought. She has attached a copy of the certificate of confirmation of grant dated October 2, 2012 and a document dated October 15, 2010, addressed to the assistant chief of Ivonda Sub-Location, with respect to change of names on payments from the name of the late Colletta Khanyela Amega to the name of Rosemary Vuhya Amega. The document is signed by Rosemary Vuhya, Maurice Kikaya Amega and Margaret Mboga Amega.

5. Directions were given on July 20, 2015, for disposal of the application dated April 8, 2012, by way of written submissions. The administratrix filed her written submissions on February 3, 2016. The applicant has not filed any. The matter was mentioned several times, to allow the applicant comply, but since compliance was not forthcoming by November 11, 2021, I fixed the matter for ruling.

6. The application for determination is premised on section 76 of the Law of Succession Act, Cap 160, Laws of Kenya. The said provision states as follows:“76. Revocation or annulment of grantA 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; or(ii)to proceed diligently with the administration of the estate; or(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; or(e)that the grant has become useless and inoperative through subsequent circumstances.”

7. Under section 76, a court may revoke a grant so long as the case is brought within the grounds listed above, 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. In the first place, it would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation were not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant of 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, unqualified to hold any office of trust.

8. In the instant case, the applicant anchors his case on the first general ground, that there were issues with the manner the grant was obtained. He states that the administratrix had not disclosed all the survivors of the deceased and beneficiaries of the estate.

9. The framework for applications for grants of representation is set out in section 51 of the Law of Succession Act. The most relevant portions, for the purpose of this application, are in subsection (2) (g), which state as follows:“Application for grant 51. (1)…(2)Every application shall include information as to—(a)…(b)…(c)…(d)…(e)…(f)…(g)in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased;(h)...”

10. My understanding of section 51(2) (g) is that the petitioner is required to disclose all the surviving spouses and children of the deceased, and any grandchild of the deceased whose own parent is dead. The provision is in mandatory terms.

11. In this case, the deceased was the grandmother of the applicant and the administratrix. They appear, from the annexture to the replying affidavit, to be the children of the late Colletta Khanyela Amega, who, it would appear, was a daughter of the deceased. None of the two parties have made any averments to disclose further information on their connection with the deceased, as they were content to leave it at the averment that they were her grandchildren. Grandchildren of an intestate are not direct heirs, for the direct heirs ought to be the children of their grandmother. That would explain why, under section41 and 51(2) (g), grandchildren come into contention where their own parents are dead. Where an intestate is survived by grandchildren only, the administrators ought to disclose the children of the deceased person, and state whether the said children were dead of not. If dead, then they should disclose the children of such dead children of the deceased.

12. Access by grandchildren to the estate of their late grandparent is indirect, and through section 41, which provides:“41. Where reference is made in the Act to the “net intestate estate” or the residue thereof devolving upon a child or children, the property comprised therein shall be held in trust , in equal shares in the case of more than one child, for all or any of the children of the intestate who attain the age of eighteen years or who, being female, marry under that age, and for all or any of the issue of any child of the intestate who predeceased him and who attain that age or so marry, in which case the issue shall take through degrees in equal shares, the share which their parent would have taken had he not predeceased the deceased.”

13. The effect of section 41 is that grandchildren should only access the estate of their late grandmother where their own parent, whether father or mother, is dead. In which event, the grandchildren step into the shoes of their dead parent, and take the share that ought to have gone to him or her, equally amongst themselves. The net effect of section 41, to the extent it applies with respect to appointment of administrators, where the children of the intestate are dead, and the immediate survivors are his or her grandchildren, is, for purposes of section 51(2) (g), that all the surviving grandchildren of the deceased ought to be disclosed, as they would ultimately be entitled to a share in the estate under section 41 of the Law of Succession Act. The administratrix herein should, therefore, have disclosed all her siblings in her petition for representation, that is to say the applicant and Emmanuel Sereto Amega, Hudson Muhambe Amega and Margaret Amega.

14. In her replying affidavit, she has asserted that she had a good reason for excluding them, because they had consented to have the estate shared out between her and Margaret Amega. She has pointed to one of her annexures as proof of that. One, the document dated October 15, 2010, makes no reference whatsoever to the property which makes up the estate of the deceased herein, that is to say Kakamega/Iguhu/1464. Two, the said document is not signed by all the grandchildren of the deceased mentioned in the affidavit of the applicant, that is to say the administratrix, the applicant and Emmanuel Sereto Amega, Hudson Muhambe Amega and Margaret Amega. It only bears the signatures of the administratrix, the applicant and Margaret Amega. Three, the said document is not in the nature of a consent giving out Kakamega/Iguhu/1464 to the administratrix and Margaret Amega, but it is expressed to be a notice of change of name with respect to who was to receive some undisclosed payment. Four, the estate of a dead person, particularly where it comprises of land, cannot be distributed by way of a consent recorded outside of the court process, for any such consent could only be binding if it was filed in a succession cause.

15. The process of administration and succession to the intestate estate of a person dying after July 1, 1981 is strictly governed by the Law of Succession Act and the rules made under it, that is to say the Probate and Administration Rules. Under the Act and the Rules, it is envisaged that all those entitled to a share in the estate be disclosed both at the stage of applying for representation and at confirmation of the grant. There is no provision in the Act and the Rules which states that the names of any of the persons beneficially entitled could be concealed from the court or suppressed for whatever reason, including consent by them. The Rules do provide for consents, but those consents are to be filed in court. There are consents envisaged at the stage of applying for grant and at its confirmation. Those at the first stage relate to waiver of right or entitlement to apply for administration. They have nothing to do with any person beneficially entitled being excluded from the process. Their names are disclosed in the petition, but they file consents to say that although they are entitled to apply for representation, because they have a right equal or superior to that of the petitioner, they are nevertheless, ceding that right to the petitioner. That is what Rules 7(7) and 26 are about. At confirmation, the consent is envisaged at Rule 40(8), and it is by the persons beneficially entitled executing a document showing that they support the proposals on distribution made by the administrator. That presupposes that they have been listed in the application as persons beneficially entitled, whether or not they are given a share in the proposed distribution, and they execute the consent to express their support for the proposed distribution, regardless of whether it provides for them or not.

16. I have looked at the petition filed herein on August 11, 2011, in it the administratrix did not disclose her siblings. The petition was not filed simultaneously with any consents duly executed by the said siblings. That would mean that the administratrix was creating an impression to the court that she was the sole survivor of the deceased, and that there were no other survivors, and, therefore, the applicant and Emmanuel Sereto Amega, Hudson Muhambe Amega and Margaret Amega did not exist. That is what concealing information from court is about. It is also misrepresentation of facts, and it has a tinge of fraud about it. Section 66 puts all the grandchildren of the deceased at par with respect to right or entitlement to be appointed administrators of their intestate grandparent. Consequently, the administratrix ought to have complied with Rules 7(7) and 26 of theProbate and Administration Rules, by obtaining the consents of all those that were not applying for representation. She did not do so, and, therefore, her application for representation was defective and tainted by fraud, misrepresentation and concealment of matter from the court.

17. I have equally looked at the confirmation application, dated July 6, 2012. In it, the administratrix deposed in her supporting affidavit, that she was the sole survivor of the deceased. That lie was transported to open court, when the matter came up for hearing on July 31, 2012, and the Judge was told that the administratrix was the only beneficiary. Although Rule 40(8) requires the filing of consents by other survivors of the deceased or beneficiaries of the estate of the deceased, none were annexed to or filed simultaneously with the application dated July 6, 2012. That was, of course, in tandem with the claim that the administratrix was the sole survivor, and, therefore, the issue of the signing and filing of Form 37 did not arise.

18. I believe that I have said enough to demonstrate that the process of obtaining the grant herein was defective, to the extent that the deceased was survived by at least five individuals, yet the administratrix went to court with the lie that she was the sole survivor. The process of obtaining the grant was also tainted by lies, misinformation, fraud and misrepresentation. The process of confirmation of the tainted grant was itself defective and tainted by the same lies, misinformation, fraud and misrepresentation.

19. The final orders that I shall make in the circumstances are as follows:(a)That I hereby allow the application dated April 8, 2013, and revoke the grant herein, set aside the confirmation orders of July 31, 2012 and cancel the certificate of confirmation of grant dated October 2, 2012;(b)That as a consequence of (a) above, any transactions carried out on the basis of the said grant and certificate of confirmation of grant are hereby rendered null and void, and I direct the Land Registrar responsible for Kakamega County, to cancel the transmission of Kakamega/Iguhu/1464 to the name of the administratrix based on the cancelled certificate of confirmation of grant, and to revert the registration of that property to the previous proprietor, the deceased herein;(c)That I appoint Maurice Kikaya Amega and Margaret Amega administrators of the estate of the deceased herein, and a grant of letters of administration intestate shall issue to them accordingly;(d)That the new administrators shall, within the next ninety-days, whether jointly or severally, apply for confirmation of their grant, in proceedings that shall include all the five grandchildren of the deceased, so far disclosed, that is to say Rosemary Amega Vuhya, Maurice Kikaya Amega, Emmanuel Sereto Amega, Hudson Muhambe Amega and Margaret Amega, and any others who might not have been disclosed so far;(e)That should the administrator, who will not have filed a summons for confirmation of grant, be unhappy with the proposals made by the applicant, who will have filed the application, and any of the others survivors of the deceased, and any other persons with a beneficial interest in the property, he or she, or they, shall have liberty to file an affidavit or affidavits of protest to that application in terms of Rule 40(8) of the Probate and Administration Rules;(f)That the matter shall be mentioned, on a date that I shall allocate at the delivery of this judgment, for mention for compliance;(g)That each party shall bear their own costs; and(h)That any party aggrieved, by any of the orders made above, has leave if twenty-eight days, to move the Court of Appeal, appropriately.

20. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 10th DAY OF June 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Kundu, instructed by KN Wesutsa & Co, Advocates, for the administratrix.Mr. JJ Mukavale, Advocate for the applicant.