[2022] KEHC 14326 (KLR)

In re Estate of Peter Muia Ndunda (Deceased) (Succession Cause 18 of 2019) [2022] KEHC 14326 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14326 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 18 of 2019

MW Muigai, J

October 6, 2022

IN THE MATTER OF THE ESTATE OF PETER MUIA NDUNDA (DECEASED)

Between

Zuena Ngando Kabaru

Objector

and

Lither Peter Muia

1st Petitioner

Rose Peter Muia

2nd Petitioner

Ruling

1. Peter Muia Ndunda, the deceased herein died on May 21, 2004.

2. Lither Peter Muia and Rose Peter Muia, the Petitioners herein petitioned for Letters of Administration Intestate to the deceased’s estate on September 17, 2004 vide Nairobi Succession Cause No HC No 2833 of 2004.

3. On November 24, 2004 the High Court at Nairobi issued a Grant of Letters of Administration to the Petitioners to administer the estate of the deceased.

4. On November 18, 2005, the Petitioners sought confirmation of the Grant vide the Summons for Confirmation of Grant dated November 14, 2005 but Hassan Shaban Peter and Musa Mohamed Peter applied for the revocation of the Grant. Subsequently, the two were substituted with the Objector in the Amended Summons for Revocation of the Grant filed on April 21, 2005. The Objector’s application was premised on the ground that she had not consented to the Petition for letters of administration by the Petitioners nor had she renounced her right to Petition for the said Grant.

5. KH Rawal J (as she then was) heard parties through viva voceevidence. In her Ruling delivered on April 27, 2009, the Judge held that the Objector was not a widow to the deceased and dismissed her claim. The Judge further held that Hassan (PW4) had proved on a balance of probability that he was a dependant to the deceased having been accepted in the family as a son.

6. Aggrieved by the ruling, the Objector appealed to the Court of Appeal vide Civil Appeal No 10 of 2017 Zuena Ngando Kababu vs Lither Peter Muia& Rose Peter Muia. The Court of Appeal reversed the decision of the Trial Judge by finding that the Objector was the deceased’s wife by virtue of long cohabitation that gave rise to the presumption of marriage. By virtue of its finding that the Objector was the deceased’s wife, the Court of Appeal held as follows:“The upshot from the above is that there is merit in this Appeal which we hereby allow. Accordingly, the grant issued to the 1st and 2nd Respondents on October 15, 2004 is hereby revoked. We further direct that this matter be referred back to the High Court for purposes of issuance of Letters of Administration and subsequent distribution of the deceased’s estate to include the appellant and her children”

7. Vide an undated Summons filed on May 29, 2019 before this court, the Objector sought inter alia a substantive order that the Grant of representation to issue and distribution be effected in terms of the Court of Appeal orders, but in the Ruling delivered on September 19, 2019 DK Kemei J while reiterating the Court of Appeal judgment held;“..If this Court were to allow this prayer, it would be blatant disregard to section 51, 67 and 68 of the Law of Succession that provides for the procedure for applying for a Grant…………This then requires the parties herein to proceed and lodge the requisite application for letters of grant as directed……Therefore I decline to grant the said prayer and advise the applicant to make formal application for grant as per the Law of Succession Act.”

8. Kemei J declined to grant the order and directed;a.The family do sit down and agree on the mode of distribution of the estate as well as the persons to be appointed as administrators of the estate.b.The parties after fulfilling (a) above do file a fresh application for grant in respect of the estate of the deceased and indicate all the properties of the deceased.c.If no action is taken by the parties herein within the next sixty (60) days this Court will proceed to appoint the administrators so as to fast track this old matter.

9. On January 20, 2021, the Petitioners herein sought to withdraw the Petition for Letters of Administration with no orders as to costs by filing a Notice of Withdrawal of Petition that is dated on even date but vide Ruling delivered on May 18, 2021, DK Kemei J while finding that the Notice of withdrawal lacks merit, held:“The effect of the revocation was that the names of the Petitioners were removed from the Grant and in effect their Petition was spent; there is nothing to withdraw. The Grant having been revoked stripped the Petitioners of the requisite locus standi to purport to represent the estate of the deceased. The Petitioners and all beneficiaries were literally pushed back to the drawing board as they have been ordered to start the process afresh by filing a fresh application for letters of grant…As the Grant has been revoked, the status of the Petitioners as administrators is no longer in force as the estate of the deceased is now without administrators…The Petitioners and Objector ought to abide by the orders of the Court of Appeal dated December 17, 2017 and this Court’s ruling dated September 19, 2019. ”

10. DK Kemei J further held that the Objector’s application dated January 26, 2021 seeking to be appointed as administrator of the estate of the deceased in light of the Court of Appeal Judgment was in no way near the provisions of Section 51, 67 and 68 of the Law of Succession Act (“the Act”) on application for a grant.

11. The Applicant filed application of June 29, 2021 and sought that Paragraph 7 of Hon DK Kemei’s Ruling of May 18, 2021, be reviewed and set aside to be in conformity with the final orders of the Court of Appeal judgment dated December 20, 2017.

12. On March 17, 2022 this Court directed each party to propose how to implement the Court of Appeal judgment delivered on December 17, 2017. The Objector and the Petitioners filed their submissions on May 11, 2022 and May 20, 2022 respectively.

Objector’s Submissions 13. On behalf of the Objector, it has been submitted that this Cause (formerly Nairobi Succession Cause No 2833 of 2004) still exists. According to the Objector, the Court of Appeal only revoked but did not annul the Grant since the Court gave clear direction as to what was to be done by the High Court with respect to the Petition.

14. According to the Objector, the Petition of probate that was withdrawn before Odunga J on March 6, 2019 was in relation to Machakos Succession Cause No 10 of 2018 not this instant Cause.

15. According to the Objector, nowhere did the Court of Appeal direct that a fresh Petition was to be filed. It has been submitted that the Court of Appeal did not mean that the Petition ceased to exist since it referred it back to the High Court. According to the Objector, the only duty this Court has, is to issue the letters of administration and thereafter proceed to make orders on distribution of the estate.

16. The Objector proposed for the appointment of one administrator from each of three houses of the Succession Cause 18 of 20197 deceased who will then proceed to file the respective proposed Schedule of Distribution.

Petitioners Submissions 17. On behalf of the Objector, it has been submitted that there is no pending petition in this Court based on the Court of Appeal judgment delivered on December 20, 2017 and the two rulings of DK Kemei J he delivered on September 19, 2019 and May 18, 2021.

18. According to the Petitioners, a plain reading of the Court of Appeal decision clearly show that the Petitioners were not only stripped of their capacity to represent the estate in their capacity as administrators through revocation of the Grant, but the letters of administration were equally nullified hence the order to have the matter referred back to the High Court for issuance of fresh letters and as reiterated by this court’s in its ruling delivered on September 19, 2019.

19. It has been submitted that none of the above decisions have been challenged by the Objector either through an appeal or review. According to the Petitioners, there is no Petition pending before this Court.

20. According to the Petitioners, the meaning and modality through which to implement the Court of Appeal judgment has been pronounced in the two rulings of this Court. The Court of Appeal judgments can only be implemented by parties by filing a fresh application for the Grant to the estate.

Determination 21. The Court has carefully considered the proposals and submissions filed on behalf of respective parties.

22. The dispute revolves around the interpretation of the orders of the Court of Appeal in Civil Appeal No 10 of 2017. The Court held as follows:“The upshot from the above is that there is merit in this Appeal which we hereby allow. Accordingly, the grant issued to the 1st and 2nd Respondents on October 15, 2004 is hereby revoked. We further direct that this matter be referred back to the High Court for purposes of issuance of Letters of Administration and subsequent distribution of the deceased’s estate to include the appellant and her children…”

23. It is not in dispute that the Grant which was issued to the 1st and 2nd Petitioners was revoked by the Court of Appeal and there is no Grant to the estate existing as of now. It is not in dispute that Kemei J ordered in his ruling of September 19, 2019, parties to file a fresh application for grant. Further in his Ruling of May 18, 2021, the Judge found that the Notice of Withdrawal of Petition dated January 20, 2021 lacked merit. The Judge dismissed the Notice with no orders as to costs. The court notes that neither the Court of Appeal nor the two rulings of Kemei J have been reviewed or appealed against and remain valid orders of the Court.

24. It follows therefore that the Petition for letters of Administration Intestate still exist since the ruling of Kemei J dismissed the Notice of Withdrawal of the Petition has not been reviewed or appealed against by Petitioners. The assertion by the Petitioners that there is no pending Petition is untenable. As without the Petition, there would be no suit or proceedings for parties to canvass. The Court finds that there is pending Petition herein filed in the estate of the deceased herein despite revocation of the Grant. The Court of appeal did not intend to dismiss the matter that is why the matter was reverted to the High Court for compliance of issuance of a grant in the normal legal process but with inclusion of the Appellant as widow of the deceased.

25. With regard to the meaning and effect of the Court of Appeal judgment, in his twin rulings, Kemei J opined that upon revocation of the Grant, in effect the Petition was spent hence the Objector ought to file a fresh Petition for letters of administration pursuant to Section 51(supra) which provides that an application of Grant ought to be by way of a Petition supported by an affidavit as stipulated under Rule 7(1) of the Probate and Administration Rule.

26. Section 51 of the Act provides;“Application for Grant(1)Every application for a grant of representation shall be made in such form as may be prescribed, signed by the applicant and witnessed in the prescribed manner.(2)Every application shall include information as to—(a)the full names of the deceased;(b)the date and place of his death;(c)his last known place of residence;(d)the relationship (if any) of the applicant to the deceased;(e)whether or not the deceased left a valid will;(f)the present addresses of any executors appointed by any such valid will;(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)a full inventory of all the assets and liabilities of the deceased; and(i)such other matters as may be prescribed.”

27. The provision is in mandatory terms. The Petitioner is required to provide 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 as well as a full inventory of all the assets and liabilities of the deceased.

28. Section 67 of the Law of Succession Act provides;“Notice of application for grant(1)No grant of representation, other than a limited grant for collection and preservation of assets, shall be made until there has been published notice of the application for such grant, inviting objections thereto to be made known to the court within a specified period of not less than thirty days from the date of publication, and the period so specified has expired.(2)A notice under subsection (1) shall be exhibited conspicuously in the courthouse, and also published in such other manner as the court directs.

29. Further Section 68 of the same Act provides;“Objections to application(1)Notice of any objection to an application for a grant of representation shall be lodged with the court, in such form as may be prescribed, within the period specified by such notice as aforesaid, or such longer period as the court may allow.(2)Where notice of objection has been lodged under subsection (1), the court shall give notice to the objector to file an answer to the application and a cross application within a specified period

30. Rule 26(1) of the Probate and Administration Rules provides that:“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.”

31. In the Matter of re the Estate of Ngaii Gatumbi Alias James Ngaii Gatumbi(HC Succession Case No 783 of 1993), the court held that:“A grant will be revoked where a person who is entitled to apply is not notified by the petitioner of his intention to apply and that person’s consent to the petitioner’s application is not sought’ As such the grant to this extent ought to fail as it was defective in substance.”

32. The term ‘Grant’ has been defined in the Probate and Administration Rules, Rule 2, in the following words:“Grant” means a grant of representation, whether a grant of probate or of letters of administration with or without a will annexed, to the estate of a deceased person.”

33. Musyoka J in In re Estate of Julius Mimano (Deceased)[2019] eKLR“…personal representatives administer estates on the strength of legal instruments made to them by the probate court. The vesting of the estate of the deceased on the personal representatives by virtue of section 79 of the Act, flows from the instrumentality of the grant of representation. Upon representation being made, the grant holder then becomes entitled to exercise the statutory powers conferred upon personal representatives by section 82 of the Act and incurs the duties imposed on them by section 83 of the Act…”

34. In its judgment, upon revoking the Grant, the Court of Appeal directed as follows;“….this matter be referred back to the High Court for purposes of issuance of Letters of Administration and subsequent distribution of the deceased’s estate to include the appellant and her children”

35. A reading of the above court directions, after revoking the grant, the Court of Appeal did not go any further as to how a new grant was to be issued. The court finds that neither the Law of Succession Act nor the Probate and Administration Rules has expressly stipulated the next step to be taken upon the Grant being revoked hence leaving it open for court give direction on the next steps to be taken by parties. It follows that the grant letters of administration can only legally issued in compliance with mandatory statutory provisions of the Law of Succession Act that outline the process and content of the Petition and/or amended Petition in compliance with Court of Appeal decision.

36. In Re Estate of Omwega Ayiecha (Deceased)[2021] eKLR, Ndung’u J stated that:“12. It is worthy of note that even during the period the grant had been revoked by the court, there exists no procedure known in law empowering the court to appoint the applicant an administrator through the manner he has approached the court.13. The effect of revocation of the grant would in effect require any person desirous of being an administrator to petition the court afresh and have the matter gazetted so that any other person interested in the estate may object or acquiesce to such appointment as the case may be.”

37. InJohn Karumwa Maina vs Susan Wanjiru Mwangi [2015] eKLR the Court held;“In the case of Florence Okutu Nandwa and Another vs John Atemba Kojwa, Court of Appeal, Civil Appeal in Civil Appeal No 306 of 1998 at Kisumu where it was held that a court should not issue a grant to a person who has not sought for it. The Court stated as follows:-“The issue of substitution of an administrator with another person should not arise. Where the holder of a grant dies, the grant made to him becomes useless and inoperative, and the grant exists for the purpose only of being revoked. Such grant is revocable under section 76 of the Law of Succession Act. Upon its revocation, a fresh application for grant should be made in the usual way, following procedures laid down in the Law of Succession Act and the Probate and Administration (Rules)…”

38. In re the Estate of Martin Tuwei [2007] eKLR, Kaburu Bauni J held as follows;“I have carefully considered the application, affidavits and rival submissions. It is not in dispute that the grant which was issued to the respondent was annulled and there is no grant to the Estate existing as of now. The court after revocation of the grant did not go any further as to how a new grant was to be issued. No new petition has been filed either by the applicant or the Respondent for a fresh grant. I believe it is because of that this application was filed. The law is very clear on the steps a party has to take before a grant is issued. A Petitioner must file the petition with the necessary affidavits and consent. Another party can also cross-petition for a grant in a petition already in court. The applicant in this application did not cross petition but only filed an objection which was heard and determined. I think the matter having progressed this far there is no need of any party in this matter to file either a fresh petition or other affidavits to seek for a grant. the petition had already been filled and gazetted. True the applicant is not a petitioner or cross-petitioner in the cause but he is already a party in it by virtue of the objections he filed. The court has under S.66 of the Law of Succession Act the discretion as to the person or persons to whom grant may be issued. In exercising that discretion, the court has to take into account the best interest of all the beneficiaries. In this matter the court identified the beneficiaries in its judgment over revocation. The respondent is the widow of the deceased and has a first preference for a grant. However, the applicant was found to be a son of another house of the deceased. the respondent had petitioned and got a grant but had omitted the applicant. S 66 provides that a grant can be issued to a spouse or spouses with or without association of other beneficiaries. It would therefore be in the best interest of all beneficiaries to have the grant issued to the application and the respondent. There is no need for the court to demand that they start the process all over again filing petitions, affidavits, consents or even regazzeting the cause. the information already on record is clear and from it the court is able to determine who should be issued with the grant of letter of Administration. The contention by the respondent that the applicant first comply with the law is not tenable in the circumstances.”

39. The Court’s view is that the decision to order for fresh application to be filed pursuant to Section 51 of the Act depends on the circumstances of the case. The court’s give direction on the next step to be taken by any party taking into account the best interest of all the beneficiaries to have the Grant issued. Bauni J (supra) was of the view that the Petition had been filed and gazetted hence there was no need direct any party to file a fresh Petition while Ndungu J(supra) opined that Section 51 of the Act has to adhered to or rather a fresh Petition has to lodged.

40. Section 47 of the Act provides: -The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.

41. Rule 73 of the Probate and Administration Rules provides that: -“73. 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.”

42. The two provision give the High Court wide discretion to do what is necessary to ensure the ends of justice are met. In Floris Piezzo & Another vs Giancarlo Falasconi (2014) eKLR, the Court of Appeal had this to say:“We are in total agreement with this conclusion. We have no doubt at all that the Law of Succession Act gives the Court wide jurisdiction in dealing with testamentary and administration issues of an estate. Indeed Section 47 of the said Act gives the Court jurisdiction to entertain any application and determine any dispute under the Act and to pronounce such decree and orders as may be expedient. It cannot be said that such decrees and orders would exclude injunction orders. In other words, we are of the same view that Section 47 of the Act gives the Court all-embracing powers to make necessary orders, including injunctions where appropriate to safeguard the deceased’s estate. This section must be read together with Rule 73 of the Probate and Administration Rules which further emboldens Court’s jurisdiction to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of Court. We would imagine such orders would also include injunctive orders.”

43. The Court notes that the Petition for Letters of Administration was filed in 2004. It is fairly an old matter that requires to be expeditiously disposed off. The Court of Appeal pronounced itself on issuance of the Letters of Administration 5 years ago. Both the Petitioners and Objector have taken steps which have not borne any fruits in finalizing the administration of the estate of the deceased.

44. The Court of Appeal directed the Objector and her children to be included in the distribution of the estate of the deceased by virtue of the Objector being a wife to the deceased. Section 66 of the Law of Succession Act gives a list of persons to whom a grant in intestacy can be made. The provision states as follows:“66. Preference to be given to certain persons to administer where deceased died intestateWhen 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:

45. The Objector being a wife to the deceased has priority in the list of persons to whom the grant can be made. The purport of Section 66 was expressed by Makau J In re Estate of Gamaliel Otieno Onyiego (Deceased)[2018] eKLR, the court stated:“18. Under Part V referred under Section 66(b), the persons given priority over an intestate are the surviving spouse and children. That where the intestate has unfortunately left no surviving spouse and children, the provisions of Section 39 of the Law of Succession Act stipulate the net intestate shall devolve upto the kindred of the intestate in manner of order of priority.”

46. The Application to review and expunge Paragraph 7 of the Ruling by Hon DK Kemei of 18/5/2021 that reads;"As it stands there is no proper application for letters of administration in compliance with the law and with the Ruling delivered on 19/9/2019. "

47. For the Court to consider a review there must be in compliance with the requirements for a review as prescribed by Order 45 Rule 1 CPR that have not been complied with and/or brought under the Law of Succession Act.

Disposition 48. In the end, the Court directs and appoints administrators in line with Section 66 LSA and in compliance with Court of Appeal decision to issue letters of administration which entail agreement or appointment of administrators in an intestate estate and orders that:a.A fresh grant of letters of administration is issued to Lither Peter Muia, Rose Peter Muia and Zuena Ngando Kababu.b.Upon the issuance of the fresh grant to Lither Peter Muia, Rose Peter Muia and Zuena Ngando Kababu they shall gather and collect assets that comprise of the estate of the deceased.c.The Administrators shall meet discuss and/or agree on the proposed mode of distribution amongst all beneficiaries as outlined by the Court of Appeal decision and obtain consents.d.The Administrators shall file and serve Summons for Confirmation of Grant together with a joint Schedule of Distribution of the assets of the deceased within 6 months from the date hereof.e.Any aggrieved party by the Summons for confirmation may file Protests.f.The parties being family members there shall be no orders as to costs.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT MACHAKOS THIS DAY OF 6TH OCTOBER, 2022. M.W. MUIGAIJUDGE