[2023] KEHC 26469 (KLR)

In re Estate of Peter Makale Kisili (Deceased) (Succession Cause 272 of 2014) [2023] KEHC 26469 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26469 (KLR)

Republic of Kenya

In the High Court at Kitale

Succession Cause 272 of 2014

AC Mrima, J

December 14, 2023

IN THE MATTER OF THE ESTATE OF PETER MAKALE KISILI (DECEASED)

Between

Enock Chemiati Makale

Objector

and

Jotham Riku Makale

Administrator

Ruling

1. The instant ruling relates to the application by way of Summons for Revocation of Grant dated March 30, 2020. The application was filed by Enock Chemiati Makale, one of the children and beneficiaries of the Estate of the Late Peter Makale Kisili, the deceased in this cause. The said Enock Chemiati Makale appears as the Objector/Applicant herein.

2. The application was supported by several other beneficiaries and was vehemently opposed by the Administrator/Respondent herein, Jotham Riku Makale.

3. This ruling is aimed at resolving the impasse in the distribution and transfer of the property making up the deceased’s estate.

The Summons: 4. The application sought the following orders: -1. That the Application be certified as urgent for hearing and service thereof be dispensed with in the first instance.

2. That pending the hearing and determination of the application inter partes, there be stay of implementation and /or execution of the grant confirmed on February 17, 2019.

3. That this honourable court be pleased to issue an order maintaining the status quo in respect to Land Title Number Trans-Nzoia/Kipsoen/48 which forms the estate of the deceased.

4. That the grant of letters of administration confirmed on February 17, 2019 be revoked.

5. That a new grant be issued to Enock Chemiati Makale and/or with any other person That this honourable court deems fit.

6. Costs be in cause.

5. It was supported by the Applicant’s Affidavit sworn on March 30, 2021. Among the grounds in support of the application included failure of the distribution to embrace the agreement reached among the beneficiaries, failure by the Administrator to lawfully obtain some of the beneficiaries’ consents on the proposed distribution of the estate property, failure by the Administrator to take steps towards finalization of the administration of the estate, among others.

6. The Administrator opposed the application by way of a Replying Affidavit he swore on April 30, 2021.

7. On directions of this Court [Hon. Kimaru, J (as he then was] issued on April 22, 2021, the application was to be heard by way of viva voce evidence and it was specifically to determine whether the survey undertaken over the estate property was in consonance with the Certificate of Confirmation of Grant dated February 7, 2019.

8. The Applicant testified as PW1 and called two witnesses namely Diana Chemiati Makale (PW2) and Mark Makale Palapala (PW3). The Administrator testified as DW1. On hearing the parties, the Court summoned the Surveyor who undertook the survey exercise to testify. He was one Protus Muindi who testified as DW2. Several exhibits were produced by both parties.

9. On closure of the respective cases, parties filed their respective submissions, hence, this ruling.

Analysis: 10. This Court has carefully considered the Summons, the response, the evidence adduced, the written submissions and the decisions referred to in support of the rival parties’ positions.

11. One of the undisputed issues which arose during the survey exercise was the difference between the size of the estate property (Trans-Nzoia/Kipsoen/48) on the ground, on one side, and the size as captured in the title deed and subsequently in the Certificate of Confirmation of Grant, on the other side.

12. The size of the property in the title deed and the Certificate of Confirmation of Grant was 16. 5 hectares which translated to 40. 7715 acres whereas on the ground, the size was less by 1. 37 acres.

13. With such a variance, the distribution of the property had to be relooked at and the Certificate of Confirmation of Grant duly corrected so as to enable the furtherance of the transfer processes. Therefore, the Administrator could not be reasonably expected to proceed on with the further administration of the estate without first reconciling the said difference.

14. Be That as it may, the instant application calls for the revocation of the Grant issued to the incumbent Administrator. The appointment of the Administrator seems to have been wholly agreed upon by the beneficiaries in a meeting held on September 19, 2015.

15. As stated above, the respondent’s administration of the estate seems to now have lost favour among the rest of the beneficiaries. In such a scenario, even if there are no valid grounds pursuant to Section 76 of the Law of Succession Act for revoking the Grant, it is obvious That there would be no harmonious further dealings over the estate in view of the state of affairs.

16. Such instances are reconciled by the invocation of rule 73 of the Probate and Administration Rules, 1980 which accords a Court the following powers: -73. Saving of inherent powers of court:Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

17. Returning to the matter at hand, this Court has considered the grounds upon which the application was made. There seems to be no evidence in support of the said grounds. Maybe That was the reason why the Court [Hon. Kimaru, J. (as he then was] restricted the hearing to only one issue.

18. Whereas this Court is alive to the scope of the directions given and the parameters which guided the viva-voce hearing, it is the position as found earlier, That the survey was not in consonance with the Certificate of Confirmation. As such, the distribution of the estate must be revisited. That is where now the issue of the grant comes on board with a view to create an enabling environment for the necessary processes to take place.

19. In this matter, given the rift between the administrator and the rest of the beneficiaries, a middle ground ought to be attained. On one hand, if the administrator is totally removed from the administration of the estate, his interests will be prejudiced since the rest of the beneficiaries are against him. On the other hand, if none of the other beneficiaries have a hand in the administration of the estate, their interests will also be prejudiced.

20. Looking at the number of the beneficiaries involved, this Court is of the considered view, and so finds and hold, That there be three Administrators of the estate. The incumbent administrator will remain as one of them. Another one will be the applicant herein, Enock Chemiati Makale.

21. Next is how the re-distribution of the estate will be undertaken. The Surveyor confirmed in re-examination That the property has a river running through and as such there is a riparian section. That, an allowance of 6 metres on either side of the river must be reserved as riparian land. Further, the size on the ground was smaller than what was captured in the Certificate of Confirmation.

22. In consideration of the foregoing and with a view to resolve this matter earliest possible, this Court hereby makes the following orders: -a.There shall be three Administrators in respect of the Estate of Peter Makale Kisili herein.b.Jotham Riku Makale and Enock Chemiati Makale shall be the first two Administrators. The rest of the beneficiaries will appoint one of them to be the third Administrator. In the event the third Administrator is not, for whatever reason, appointed within 14 days of this order, the now two Administrators shall forthwith administer the estate.c.The Grant issued to Peter Riku Makale on January 24, 2017 and confirmed on February 7, 2019 shall stand revoked on the 14th day of this ruling and a Fresh Grant shall be issued in the joint names of the three or two Administrators herein, as the case may be.d.The Certificate of Confirmation of Grant dated February 7, 2019 is hereby revoked forthwith.e.The administrators shall appoint a Surveyor who will guide the beneficiaries on the available land up for distribution on the ground. The beneficiaries will, thereafter, come up with an agreed distribution of the estate within 30 days with the approval of the Surveyor.f.In the event of failure to agree in (e) above, the following shall follow: -i.The parties shall file their respective proposals on the distribution within 14 days thereof, and;ii.The Surveyor shall also file his/her proposed distribution within 14 days thereof.g.The portion of 2 acres of the estate property which was allocated to the daughters of the deceased, and which portion has already been disposed of to a third party under an agreement, shall not be interfered with in any of the agreement or proposals contemplated above.h.The matter shall be fixed on a date to issue to ascertain compliance and for further orders.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT KITALE THIS 14TH DAY OF DECEMBER, 2023. A. C. MRIMAJUDGE