[2022] KEHC 15417 (KLR)

In re Estate of Ramadhan Wambia Peywa (Deceased) (Succession Cause 253 of 2014) [2022] KEHC 15417 (KLR) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15417 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 253 of 2014

PJO Otieno, J

November 11, 2022

Judgment

1. The four objectors filed the summons for revocation of grant and asserted the grounds to be non-disclosure or concealment of material facts being that some children of the deceased, including the objectors, were not consulted and ultimately excluded in the scheme of distribution. While admitting that his name and others were disclosed in the petition for grant, he faulted that to have been fraudulently done without his consent and by employment of a fraudulent introductory letter from the Chief which Chief had been acting as a chief agent for the sale and disposal of the estate assets. He exhibited green cards of parcels No S/Wanga/Ekero/2217, 2218, 2219, 2239, 2515 and 2516 as the parcels which had been sold by the Petitioner under the brokerage of that Chief after the grant was confirmed. The Petitioner was equally accused of failure to diligently administer the estate and to render accounts of his administration.

2. After the petitioner filed a replying affidavit, the objector additionally filed further affidavits by himself as well as one by Zainabu Wesonga Peywa, a widow to deceased and mother to the objector.

3. In his further affidavit, the objector, respondents to the replying Affidavit by the petitioner and asserts that the petitioner was never appointed by anybody to present the petition and that he failed to seek and obtain the necessary consent from the widow who ranks in priority to him and sought to obtain consents from his own siblings yet he excluded the children of other two widows. He accused the petitioner for failure to account how parcels of land S/Wanga/Ekero/2217, 2218, 2219, 2239, 2515 and 2516 were distributed.

4. The affidavit by, Zainabu Wesonga Peywa, the widow, supported the objectors’ position that she, as widow, and other children of the deceased were excluded from the process and ultimately disinherited from the scheme of distribution and that since obtaining the grant the Petitioner had embarked on selling the estate property indiscriminately and repeated the position of the objector.

5. For the petitioner, there was filed the replying affidavit of 27. 01. 2015, witness statement by one Rajab Peywa Nyarotso. In the Replying Affidavit, the petitioner admits having excluded the other children because, he contended, before death, the deceased had given to the first objector and three (3) other sons their own individual parcels of land as disclosed in the Chief’s letter of introduction which he exhibited as MP.1 and that he was appointed by three people being the beneficiaries of the estate, to present the petition for grant of letters of administration.

6. He added that the 2nd objector, was a beneficiary to the estate, received a share being S Wanga/Ekero/4272 which he later sold and acquired alternative land elsewhere just like Idris Peywa who received a share in S Wanga/Ekero/4273 through his father who then should not make further claims in the estate. He adds that the 3rd objector, Riziki Khatonya, is a grandson to the deceased, whose father had got a piece of land being S Wanga/Ekero/4272.

7. Supporting the opposition to the objection, was the witness statement by one Rajab Peywa Nyarotso, who identified himself as a nephew to the deceased and therefore a Cousin to both petitioner and first objector. He assets that he was called by the deceased in the year 2000 at his home upon parcel of land S Wanga/Ekero/2094, measuring about 4 acres. Also called by the deceased was the area Assistant Chief and Village Elder and the purpose was to demarcate his land to his children.

8. At the meeting, the children of the second wife, Zainabu Wesonga attended but not the children from the other wives. The deceased then demarcated the land into three portions, representing the three households and planted demarcations. There was a Surveyor present who further demarcated the portion due to Zainabu into four portions representing the four sons and titles for those four portions were duly processed into the names of the four sons. He named the four sons of Zainabu as, the 1st objector, Yusuf Ngokha Wambia, Adam Peywa Wambia and Abubakari Shitandi.

9. He proceeded and stated that the 1st objector subdivided his portion into four plots and sold same to third parties who have built and stay thereon. The 1st objector then moved and bought land in Nambale where he lives to date and the witness has visited him there. Yusuf, the witness added, also sold his portion to Makhandia and Masakhwe and moved out from the area. Those two have equally developed houses on the parcel of land. He adds that the portion due to Adam is where the deceased died and was buried and is currently occupied by the widow of the deceased, the two widows of Adam and the 1st objector. The two other portions of land due to the sons of both Fatuma and Rehema remained registered in the name of the deceased till his death and that it was the sons of the deceased with Fatuma and Rehema who commenced the succession process and were duly identified by the Chief as the beneficiaries and excluded the sons of Zainabu on the basis that they had got their gifts inter vivos.

10. It would appear that the court directed that the matter be heard by way of viva voce evidence, there is no express order in the file though, pursuant to which the persons who had filed affidavit and witness statements gave evidence. The objectors evidence was taken before Njagi J, petitioner gave evidence before Farah Amin J, while his witness evidence was taken before me.

11. PW1, the objector, Zacharia Kwenjere Peywa adopted his two affidavits as evidence in chief and was put to cross examination. In the cross examination he admitted that the deceased had children with three women. He says the deceased married two wives and inherited a third. He said first wife had eight (8) children, second wife five children while the third one had two children. He admitted to occupy a piece of land at Lukoye known as S. Wanga/Ekero/2216 which he said was given to him by the deceased and transferred to him in 2000. He acknowledge the Chief’s letter, that the land he occupies presently was given to him by the deceased and that he does not know how much land remained in the name of the deceased. He then conceded that had the deceased given out his land to all children, there would have been no estate to administer.

12. In re-examination he admitted that two of the questioned parcels of land at paragraph 11 of his affidavit were gifted away by the deceased in his lifetime.

13. PW2, Zainabu Wesonga also adopted her affidavit as evidence in chief and stressed the fact that she was not involved but excluded from the succession of the deceased. When cross examined she said that she continue to live on the land and house the deceased lived, that the land belonged to the objector who does not have title to it. He denied that the deceased had shared out his land to the sons in accordance with their mothers houses.

14. For the petitioner case, the petitioner gave evidence as DW1 while his witness, Rajab Peywa Nyarotso gave evidence as DW2. In his evidence, DW1 adopted his Replying Affidavit as evidence in Chief and was put through cross examination. In cross examination, he reiterated that the deceased did gift the children of PW2 with land which were then registered in their respective names before the deceased died. He admitted that the Chief’s letter mentioned that his sibling from PW2 had been given land.

15. DW2, adopted his witness statement as evidence in chief and said that part of the estate has been sold. On being cross examined the witness told the court that he was not aware if the other brothers were involved in the succession and that he would not know if any of the five (5) titles named was given to the objectors or the widow.

16. In re-examination the witness told the court that none of the three widows was given land and that the 1st objector was given land during the life of the deceased.

17. With the four witnesses having testified, production of evidence was closed. Parties were directed to file submissions but by the time of preparing this Judgment, only the objectors’ submissions were in the court file.

18. The court has had the benefit of perusing the documents filed, the evidence led as well as the objectors’ submissions and discern the following issues to isolate themselves from determination by the court:- Whether there has been established a case for revocation of the grant issued to the petitioner?

Whether the objector and his siblings from the 2nd widow, Zainabu Wesonga, were gifted land by the deceased during his lifetime?

If two above be answered in the affirmative, whether after taking that into account, the objector is still entitled to a share in the estate?

Analysis and Determination 19. While the objection was mounted by four people, the 2nd objector died midstream and was not substituted. His claim is thus deemed abated. No evidence was led by the 3rd and 4th objectors, not even an affidavit was filed by them to challenge the replying affidavit by the petitioner that they benefited by getting parcels of land S. Wanga/Ekero/4272 and 4273 respectively. To this court, what is stated on oath and not controverted by other evidence is deemed admitted. The court therefore finds, as a fact, that the 3rd and 4th objectors benefited from the estate after the death of the deceased and cannot be said to have been disinherited or indeed prejudice in the manner the estate was distributed.

20. On the same question, it is admitted by the objector that him and his brother Yusuf Ngokha Wambia did get portions of the original deceased property registered as S Wanga/Ekero/2094 which were registered as S Wanga/Ekero/2215 and 2216. In fact the assertion by DW2, that the deceased demarcated his land, in life, into three, according to his three wives, was not materially challenged nor controverted. That I also hold to be an admission by the objectors that there was gifts inter vivos which by dint of section 41 of the Law of Succession Act must be taken into account.

21. On the question of whether the objectors were children of the deceased and thus entitled to be named as such beneficiaries but were never so disclosed, I do find there being no contest. It is in fact conceded by both the petitioner and his witness DW2 that the 1st objector, the widow and her other three (3) sons were never included in the succession process.

22. Failure to disclose a beneficiary, property or liability of the estate distorts the spirit of the law on succession and leads to possible disinheritance. It thus portends deprivation of property due to a beneficiary and thus a serious matter that disqualifies the administrator who benefits from such concealment. It is therefore one solid reason to revoke and annul the grant issued. It is one of the key reasons many a succession causes over stay in the court system. It is thus a serious matter that is never too far away from penal offences relating to administration of justice under Part XI of the Penal Code.

23. The seriousness with which the court takes concealment or non-disclosure of material facts is to undo what was achieved by such non-disclosure. In Re Estate of Julius Ndubi [2018] eKLR, Gikonyo J, abhorred non-disclosure and said:-“I am aware that this court does not have jurisdiction to determine the validity or enforceability of the said agreement. Environment and Land Court does; it is the court which is constitutionally mandated to determine such matters. But of relevance in these proceedings is that such material facts were never disclosed to this court during confirmation of the grant so as to enable the court make an informed decision on distribution of the estate. Needless to state that, in any judicial proceeding, parties must make full disclosures to the court of all material facts to the case including succession cases. This general rule of law emphasizes utmost good faith (uberimaefidei) from parties who take out or are subject of the court proceedings. The said responsibility is part of justice itself. Accordingly, non-disclosure of material facts undermines justice and introduces festering waters into the pure steams of justice; such must, immediately be subjected to serious reverse osmosis to purify the streams of justice, if society is to be accordingly regulated by law.”

24. With the admission and the excuse that it was out of advice by the Chief, the court finds that there was making of a false statement and concealment from court of a material facts. It is thus a clear case for revocation of the grant issued to the petitioner.

25. However, whenever a court is called upon to undo a determination, and issuance of grant and its confirmation are judicial determinations by the court, the most important question is what interest of justice would be served. Hence where it is in a pure civil proceedings there is always the question of whether there is an arguable point to be urgued after setting aside.

26. Put in the context of this matter, the court has determined that the objector, his mother and siblings were settled by gifts inter vivos. Such gifts, the law mandates, must be taken into account in the scheme of distribution.

27. The court has taken the admitted gifts to the household of Zainabu Wesonga, where the petitioner belongs and find that such when taken into account by the court, are sufficient for their share of the estate.

28. It is therefore the finding by the court, that whereas there was impropriety in prosecuting and presenting the petition without involvement of the objectors and the widow, no interest of justice would be served by revoking the grant for there would be no tinker with the certificate of confirmation of grant which is said to have been substantially implemented. It is therefore the finding of the court that having been given shares of the estate prior to the deceased’s death, the objector is not entitled to any share of the estate and there is therefore no just purpose to be served by revocation.

29. Accordingly, the application is dismissed with an order that each party shall bear own costs.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 11TH DAY OF NOVEMBER, 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:No appearance for the Petitioner/RespondentMr. Mukabwa for Mr. Luchivya for the Objector/ApplicantCourt Assistant: Polycap