[2023] KEHC 27201 (KLR)

In re Estate of Pius Mzee Ayeki (Deceased) (Succession Cause 301 of 2012) [2023] KEHC 27201 (KLR) (21 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27201 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 301 of 2012

PJO Otieno, J

December 21, 2023

IN THE MATTER OF THE ESTATE OF PIUS MZEE AYEKI (DECEASED)

Between

Consolata Shilwato Charles

1st Petitioner

Benard Mukanda Amboko

2nd Petitioner

and

Cetrine Nekesa Wafula

Objector

As the personal representative of Anthony Huku Ayagh (Deceased)

Judgment

1. Before this court is the objector’s summons for revocation of a grant application dated 27th November, 2013 brought pursuant to Section 76 of the Law of Succession Act, Rules 44(1),49 and 72 of the Probate & Administration Rules seeking the orders that the grant of letters of administration intestate issued to Consolata Shilwatso Charles & Benard Mukunda Amboko on the 5th day of August, 2013 be revoked and/or annulled and all the subsequent activities done after the issuance of the said grant be declared null and void. It further prays for the costs of this application to be provided for.

2. The application is supported by the affidavit of Antony Huku Hiachi sworn on 27th November 2014 in which he avers that the deceased was his brother and that property known as Kakamega/Shibuname/[particulars withheld] belonged to their late father by the name of Atekha Busula and that land was divided between his two wives namely Hellen and Angelina but the deceased registered himself as the owner in the year 1991.

3. He asserts that the deceased herein was survived by three wives but only the third wife initiated the subject proceedings without the involvement or consent of the other beneficiaries who involve minors in a bid to disinherit them thus amounting to concealment of material facts.

4. Before the application would be disposed of, the objector died on 18. 12. 2018 and, an application was lodged for his substitution by the wife who had obtain a limited grant ad litem for that purpose. That application was allowed by consent on the 5. 3.2020

5. The application is support by three other people who filed witness statements. Agripina Muhembi, in her witness statement dated 22/9/2016 asserts that the deceased was survived by three wives namely herself, Night Atembe, and Consolata and that the 1st petitioner colluded with the 2nd petitioner who is not a beneficiary of the estate of the deceased to file this succession cause.

6. There is a further statement of Roselyne Omuyuka who claims to be the daughter of John Ayekha and thus sister to the deceased. she alleges that the deceased’s father had two wives and that her mother sired three children while her stepmother sired two children namely Antony Huku, the objector and Christopher Ayekha (deceased).

7. In the statement of Josephat Machioni Mukaisi dated 12/11/2021, he claims to be a nephew to the deceased and that his grandfather Busula Shikuma had three sons and three parcels of land. To each of the three sons he gave a parcel of land distinctively and to the deceased objector, the deceased gave the suit property absolutely.

8. The application is opposed by the statements of Consolata Shilwatso Charles and Julius Mati. In the statement of Consolata Shilwatso Charles dated 5th April, 2016, she avers that she was only wife of the deceased and that the deceased had a son named Harrison Ayekha with one Agripina Muhembi but they never got married and that the deceased also had a daughter named Wilkister Khindulu with one Adelaide though they were not married. She asserts that in her marriage with the deceased was blessed with three children aged 13,14 and 15 years as at the date of the affidavit. She asserts that the deceased only had one sister and that she had never met the objector until the year 2013 when she met him while coming from the river in the company of other people. She claims that her late husband purchased the suit property from one Pius Ayekha in the year 1999 and that she has since sold a portion of the suit property and used the proceeds to construct a house for a family since traditionally it was wrong for her to live in her matrimonial home after her late husband committed suicide in it. These are also the same facts deponed in her replying affidavit sworn on 30/10/2015.

9. In the statement of Julius Mati dated 20th June, 2016 he asserts that he knew the deceased and his father and that he had never seen the objector except when they went to perform some rituals at night. He reiterated that the deceased had children with two other women who are since married elsewhere. He refuted the objector’s claim that the suit property was ancestral land and stated that the deceased purchased the suit property from one Atekha Busula. He contends that the sitting chief came to office less than two years ago and does not understand the history of the land.

10. Parties have filed their respective submissions to the application as ordered by the court.

The Objector’s Submissions 11. It is his submission that the proceedings leading to the grant were defective for the reason that the petition was not accompanied by Form P & A 38 which is a mandatory form to prove that all the people beneficially entitled in the estate have been consulted and have consented. He argues that the grant was further obtained by untrue allegations of fact since the chief’s letter indicated that the 2nd petitioner was a brother to the deceased when he was not, it lied that the petitioners were the only beneficiaries of the estate of the deceased and that the only asset of the deceased was LR/Kakamega/Kegoye/[particulars withheld]. He lastly contends that the petitioners failed to disclose material facts on the beneficiaries of the deceased who include the following;i.Harrison Ayekha-Son to Agripina Muhembi (2nd wife)ii.Wilkister Khulundu-Daugheter to Night Atemba (1st wife)iii.Fransisca Achenda-Daughter to Consolata Shilwatso (3rd wife)iv.Imelda Kalara- Daughter to Consolata Shilwatso (3rd wife)v.Marion Mutakale- Daughter to Consolata Shilwatso (3rd wife)

Petitioners’ Submissions 12. It is her submission that she was only wife to the deceased and that in line with section 66 of the Law of Succession Act on the preference to be given to certain persons to administer the estate, she did not require the consent of the deceased administrator who purports to be a brother of the deceased, an allegation she refutes. She claims that the deceased objector is not a heir and the provisions of intestacy under Part V of the Law of Succession Act do not apply to him in the circumstances.

Issues, Analysis and Determination 13. From the subject application, the response thereto and the submissions by the parties, the only issue that arises for determination by this court is whether the application for revocation meets the threshold set under section 76 of the Act. In seeking to answer that question, it is appreciated that it is the duty of the person alleging to prove the allegations and that what is neither proved nor disproved is unproved.

14. Every application for revocation or annulment of grant must be fitted within the confines of Section 76 of the Law of Succession Act to be. An applicant must prove at least one of the four grounds coded under the statute. He must prove substantial defect in the proceeding to obtain the grant, fraud upon the petitioner in making a false statement or concealment of facts material to the case, grounding the cause on untrue allegations of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently or that the grant has become inoperative through subsequent circumstances.

15. The power to revoke a grant is at the discretion of the court and the same ought to be exercised judiciously with cogent evidence of wrong doing in the nature of an improper conduct by the petitioner. In my view, the wrong doing must be in the nature that prejudices the persons entitled in inheritance in a way that cannot be corrected at the point of distribution. Not every transgression need not result in revocation if the court can correct same by making reasonable and due provision to those entitled. In Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No.158 of 2000 the court observed;“Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”

16. In this matter, the objector contends that the petitioners obtained the grant by untrue allegations of fact since the chief’s letter indicated that the 2nd petitioner was a brother to the deceased when he was not; it lied that the petitioners were the only beneficiaries of the estate. He sought to protect his own interests, as a brother to the deceased, and the interests of two ladies, he says, are daughters to the deceased.

17. Beyond the concession by the petitioner over the children of the deceased, the court has perused the record noted that the 1st petitioner was in deed a wife to the deceased while the 2nd petitioner was captured as a brother to the deceased. the other two ladies were admittedly, mothers to the 1st petitioner presently has indicated that the deceased only had one sibling, a sister. The indication that the 2nd petitioner was a brother to the deceased was thus false.

18. The 1st petitioner has equally confirmed that the deceased in fact had children with two other women and that between herself and the deceased they had sired three children. Children of a deceased person are his dependants under section 29 of the Law of Succession Act. This fact though confirmed by the petitioner was not disclosed in the petition leading to the issuance of the grant. To this court, that would be sufficient reason to t revoke the grant

19. The objector has further complained that the petitioners did not disclose the entire estate of the estate and mentioned Kakamega/Kegoye/[partriculars withheld] as such property but without adducing any evidence in proof of such allegation. The court finds that there has not been a discharged the burden of proof under section 107 of the Evidence Act to prove that the property belonged to the deceased.

20. It is the finding by the court that there was material non-disclosure relating to the two children of the deceased and a false statement regarding the relationship between the 2nd petitioner and the deceased that would entitle the court to revoke the grant. However, the court has the discretion on matter revocation whose sole goal is to meet the end of justice. In a succession cause, the end of justice is meet when every beneficiary gets his/her just share of the estate and the administration concluded in a just and expedient manner. It is thus acceptable that even where there is demonstrated none compliance with the dictates of the Act, revocation is not the only resort if the justice of the case can be met by grant of an appropriate alternative order.

21. The court thus finds that while the grant dated was irregularly obtained by the petitioners on account of the disclosed transgressions, the court would still have the tools to afford to all the beneficiaries their just and reasonable provisions in the estate without having to revoke the grant.

22. In coming to that conclusion, the court notes that the second petitioner, not being beneficiary as defined and known in law, cannot participate in the distribution of the estate by getting any share thereof. He must remain a purchaser from the 1st petitioner and must only look unto the 1st petitioner to get her due share then pursue any remedies against her as may be advised.

23. In the same vain, while the objector asserts being a brother to the deceased and claims a portion of the estate land on account that it comprises land that was due to the objectors father, he clearly is not asserting the rights of a heir or beneficiary and certainly falls out of the bracket of beneficiaries as defined by the Act. His claim is in the nature of a resulting or customary trust that ought to be pursued in an appropriate court not a succession court like this. In any event, there is a statement by Julius Mati, a cousin to the deceased, who said that he did not know the objector as a son to John Ayekha and that the said father to objector was given his own land which he abandoned to go and settle in Nandi. On that basis, the objector is adjudged not entitled to any share in the estate of the deceased in this matter.

24. There is also a claim by the objector that the deceased was married to three wives as disclosed in the Chief’s letter. Of those two other wives, only Agripina Muhembi wrote witness statement laying a claim to the estate. The alleged first wife is said to have died hence her daughter, one Roseline Omuyuka, wrote a witness statement and confirmed the stand by the objector that the deceased had two other wives, apart from the 1st petitioner, but who had abandoned him. She adds that the first wife, who was her mother, died. She added that those two other alleged wives had two children each with the deceased. She identified the two children of the alleged 2nd wife but did not disclose the identity of her own sibling.

25. Upon appraisal of the rival positions, the court finds that whether or not there was a valid marriage between the deceased and the two ladies other than the 1st petitioner, the deceased admittedly had children with three different women. In terms of the principal of equal sharing under the Act, the court determines that the deceased left behind children by three different women. The court determines that the estate be distributed equally to all the children of the deceased.

26. Having determined that the estate be shared equally among the three households and it being uncontested that that Agripina does not live on the land, it is directed that the estate be shared equally between the children of the deceased with the widow admitted to be living on the estate land having a life interest over the same. For the reason that the goal in a succession cause is to pass family wealth from one generation to the other, and further that being an administrator vests no additional advantage to the administrator, it is determined that while the second administrator had no right to be such an administrator, the joint grant made to the two administrators is hereby revoked.

27. Having revoked the grant upon which the estate land was subdivided and alienated, such subdivision by and transfer to the petitioners is hereby cancelled and the estate property, Kakamega/Shibuname/[particulars withheld], reverted in the names of the deceased for purposes of distribution in accordance with this judgment.

28. To move the cause forward, it is ordered that: -a.A fresh grant is made to the 1st petitioner only.b.Let a summons for confirmation of grant be lodged and served upon all the children of the deceased within 30 days from today.c.Should any of the beneficiaries be unpleased with the proposed distribution by the administrator, such a beneficiary shall file an affidavit of protest within 14 days after service with the summons for confirmation of grant.d.The application for confirmation of grant shall be heard on the 01. 02. 2024 by way of affidavit evidence.

29. Although this is a family dispute where ordinarily the court orders no costs against the family members, here it is noted that the 2nd administrator had no genuine claim over the estate. For that reason, it is directed that he shall pay the costs of the application to the objector, which is assessed at the moderate sum of Kshs.10,000. Let such costs be paid within 30 days from today and in default, the petitioner shall be entitled to execute.

DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 21ST DAY OF DECEMBER, 2023PATRICK J O OTIENOJUDGE