[2022] KEHC 13346 (KLR)

In Re estate of Sigore Wagaina Nyamaronge (Deceased) (Succession Cause 106 of 2015) [2022] KEHC 13346 (KLR) (4 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13346 (KLR)

Republic of Kenya

In the High Court at Migori

Succession Cause 106 of 2015

RPV Wendoh, J

October 4, 2022

IN THE MATTER OF THE ESTATE OF SIGORE WAGAINA NYAMARONGE (DECEASED)

Between

Joseph Ngaina Sigore

1st Objector

Antony Chacha

2nd Objector

and

Charles Mwita Sigore

Respondent

Judgment

1. This cause relates to the estate of Sigore Ngaina Nyamaronge (deceased) who died intestate on March 20, 2009. This judgement is in respect to the the objection proceedings dated August 13, 2018 filed by Joseph Ngaina Sigore and by Antony Chacha Sarara dated March 21, 2019. The petitioner Charles Mwita Sigore had filed summons for confirmation dated July 2, 2018 to which objection was filled. The deceased estate is comprised of Land Parcel No Nyabasi/Busonga/355, (suit land).

2. The objection proceeded by way of viva voce evidence. Directions on the hearing were taken befor J Mrima that the objectors were to be the plaintiffs and the petitioner the respondent. The plaintiffs acted in person. The respondent was represented by Learned Counsel Mr Abisai. For the purposes of this judgement, Joseph Ngaina Sigore and Antony Chacha Sarara shall be the 1st and 2nd objectors/ plaintiffs respectively.

3. Joseph Ngaina Sigore testified as PW1. He testified that he hails from Remanyangi Village and the deceased herein was his father. He stated that the deceased had three wives who are all deceased namely: -a.Nchagwa Tuguro.b.Mugore Marwa.c.Margaret O Sigore.

4. It was his testimony that the first wife had 3 sons and 2 daughters but one of them passed on. He is the son of the first wife. The second wife had 5 sons out of which 2 are deceased and 4 daughters who are alive; that the petitioner is the son of the second wife; that the third wife had 6 sons and 1 daughter.PW1 testified that he objected to the confirmation of the grant because in the application for confirmation of grant the Petitioner / defendant wants the whole parcel which comprises the estate to be registered in the name of the petitioner alone; that the family had not sat down and agreed on the distribution. PW1 further testified that they have tried to resolve the matter through a meeting held on September 16, 2000 but they did not agree courtesy of the petitioner. PW1 asked the court to find that the suit land ought to be sub divided equally into three portions and each house takes its portion and the children of each house will then file summons separately.

5. On cross - examination, PW1 testified that he was not listed as one of the beneficiaries of the estate herein although his name appears in the chief’s letter dated August 26, 2014; that he lives on his father’s land which is defined and nobody has attempted to evict him; therefrom that he sold a portion of his land to one Mateti Marwa Charles.PW1 further testified that the petitioner had not called or involved the deceased family in the proceedings and he has under dealings and he prayed to be made an administrator instead.

6. PW2 is Mwita Nyabate Sigore. He testified that he is the first born in the family of the deceased herein; that he lives in Tanzania currently; that the land was distributed to his father by way of inheritance; that his parents were buried on the land; that the land has to be divided equally into three portions and each house to administer its own share; that the petitioner did not involve the rest of the family when filing the petition. He testified that as the first born, he is the right person to administer the estate.

7. On cross - examination, he testified that he left Kenya in 1974; that although he was born in Kenya, he is now a Tanzanian citizen; that he has not registered as a Kenyan citizen; that he has not applied for grant of letters of administration because they had not yet agreed.

8. PW3 is Nyairabu Sigore Ngaina. He testified that he is the deceased’s son from the first house; that he proposes the land be distributed into three equal portions of each house. On cross - examination, he testified that the petitioner is out to disinherit others and no one agreed to his proposal to become an administrator; that he has settled in his portion of 2 acres; that his father was alive in 1993 and he did not distribute the land because the petitioner would not allow him to do so. He stated that the administrators ought to be 3, one from each house.

9. PW4 is Antony Chacha Sigore. He testified that the deceased herein is a brother to his deceased father; that the suit land was sub divided between the deceased and their other brother one Chacha Mwita Nyamaronge; that the deceased and Chacha Mwita colluded and disinherited his father who was mentally challenged; that Chacha Mwita gave his father a small portions after complaints but later on the children of Chacha Mwita repossessed the small piece of land and the three brothers died before the matter was resolved. PW4 prayed for a portion of the land which belonged to his father which is 1/3 of the suit land.

10. On cross examination, he admitted that the deceased was not his father but an elder brother to his deceased father; that he has not filed any succession proceedings in his grandfather’s estate and father; that Chacha Mwita Nyamaronge’s land is Nyabasi/Busonga/375 measuring 12. 0 hectares; that he does not live on plot 355 but on plot 375 where he occupies 2 hectares; that his deceased father was buried on plot 375 in 2014. He further testified that he is not aware that his father filed a case in Kisii High Court Civil Suit No 94 of 1996 against the deceased herein which was dismissed. PW4 testified that his father was buried in Tanzania in 1986. He further stated that he has not lodged a dispute on plot no. 355 or 375.

11. PW5 is Daniel Mwita Maru. He testified that the deceased was his clansman; that he knows Joseph Ngaina who was mentally challenged; that the clan decided to call for a meeting and sub divide the subject land into 3 portions for the 3 sons of Ngaina who are all deceased being Sarara Ngaina and Antony Chacha on behalf of his father who was then dead; that the deceased herein refused to co-operate and called police officers and they all ran away.

12. On cross - examination, he testified that the father of Antony Chacha was mentally challenged; that Charles Mwita Sigore who is a son to the deceased is the problem; that he filed a suit in the Migori’sCM Court No 880 of 1991 against Charles Mwita but it is not true that he lost; that the issue was different from the present one; that Nyamoronge Chacha was a brother to Sarara and Sigore and all occupy their father’s land; that the land is plot 364 which he was given during the adjudication system; that the father of Antony Chacha was buried on plot no. 355.

13. DW1 is Charles Mwita Sigore the petitioner/ defendant. He testified that he is the 2nd born to the deceased; that the objectors are part of the family; that they sat and discussed on the issues and they attended court; that the father of Antony Chacha is his uncle, the younger brother to his father; that the land in issue did not belong to the father of Antony; that the land is Nyabasi/Busonga/355 and the official search shows that it was registered in the name of the deceased in August 1, 1973; that the father of Antony one Sarara Ngaina had land in Tanzania and he died there; that Antony had filed a case against his father in Kisii but it was dismissed; that Antony is not a beneficiary to the deceased’s estate.

14. He further testified that the case Kisii High Court No 94 of 1996 was dismissed for want of prosecution; that Joseph Ngaina is his brother and he appears as No 3 in the succession documents; that their father demarcated the land on April 23, 1990; that he took an active role in the process and he moved to his portion and since then, they all have been living in their respective portions and they have been fully developed; that Joseph sold his portion to Mateti Charles Marwa on April 23, 2014; that on their sister’s shares no one has ever claimed as they all respect how their father demarcated the land and they have been aware of these proceedings since its inception.

15. DW1 stated that plotNo 375 is in the name of Chacha Mwita Nyamaronge who is his uncle; that he was a co-defendant in the Kisii suit; that Antony has not sued the estate so far. DW1 prayed that Antony’s case be dismissed because he is not a beneficiary; that Joseph ought to be content with the share allocated to by their father since they are all well settled on the ground.

16. On cross examination, by the 1st objector, DW1 testified that they sat as a family and agreed that he follows up with succession in the year 2011 when his father died in the year 2009; that the minutes of that day were with the advocate; that there are 7 sons in Sigore’s house; that the first house has 3 sons, the second house 5 sons and the third house was not in existence when they were given the land. He testified that his father also had land in Tanzania which he bought in 1966 after selling his land in Kenya; that Charles Ngaina has been living in Tanzania since his childhood; that each son of Sigore has about 2 acres of land; that their land is 16 hectares to be divided between 8 sons; that the oldest wife had land in Tanzania whilst the second wife had land in Kenya.

17. It was his further testimony that when the first wife died, she was buried in Kenya on their father’s land; that their father distributed land and left land for the 3rd wife in 1994; that when a lady is unmarried she can get land but not those who are married; that the 6 sons the 3rd house have land which their father distributed to them and left to him 5 acres; that the children of the 3rd house belong to his father.DW1 stated that it is the 1st objector who is interfering with the distribution process after they sat and agreed.

18. On cross - examination by the 2nd objector,DW1 testified that his father is called Sigore Wanga’ina Nyamaronge, his grandfather Ngaina Nyamaronge. His grandparents had three sons namely Sigore Ngaina, Saara Ngaina and Chacha Mwita Ngaina and they were all brought up in 381 and they went to Tanzania; that one of the wives of his grandfather left for Tanzania; that the descendants of the three sons each live on their own land; that his grandfather had not distributed any land to the children of his sons; that the land which their grandparents occupied was disowned and other people took it. His grandfather had no land. It was his further testimony that land 355 and 375 belonged to Sigore was not inherited.

19. DW1 testified that the father of the 2nd objector was buried in plot 355 but he never cultivated any part of it; that plot 375 belonged to Chacha Mwita and it has not been distributed; that it is only the children of Sigore who should inherit 355 and 375; that the case in Kisii involved plot numbers 353 and 175; that the suit land has been distributed.

20. On re-examination, DW1 testified that the suit land is in the name of Sigore Ngaina; that Sigore Ngaina is not a father to Antony Chacha; that plot 375 is not the subject of succession as it belongs to Chacha Nyamaronge. He further stated that Antony has no right to inherit the deceased’s land.

21. DW2 is Cecelia Wankuru. She adopted her witness statement dated April 26, 2019. She testified that she is a daughter to Sigore Ngaina; that Joseph Sigore is a brother from the eldest wife; that when her father was alive, he distributed his land in 1992; that she did not wish to inherit a portion of her father’s land since she is married and will inherit where she is married; that there is no other sister of hers who wants a portion of their father’s land; that Mwita Nyabeta and Nyamaronge Sigore are her brothers; that Mwita is in Tanzania; Nyamaronge already has a part of the land. DW1 stated that she is aggrieved by the proposed distribution done by Charles.

22. On cross-examination by the 1st objector, she testified that the 1st wife gave birth to 3 sons and 2 girls and they were born in Kenya; that her father got another land in Tanzania where Mwita lives to date; that her father left 2 pieces of land in Tanzania and Kenya; that in Kenya, the land was distributed to each of the sons and they planted trees; that the son in Tanzania chased Joseph; that Joseph refused land when he was given but she could not tell who was there during the distribution.

23. On cross- examination by the 2nd objector, DW2 testified that the three sons of Ng’aina are entitled to the land equally; that she does not know how her father acquired the land he lived on; that her father was buried in his land.

24. On re-examination, she stated that the land that is to be inherited by Charles Mwita belonged to Sigore Ngaina; that Sigore is not the father to Chacha Mterere. The father of the 2nd objector is Mterere Ngaina who used to live in Tanzania.

25. DW3 is Protus Marwa. He testified that the deceased was his father; that Chacha Mwita filed succession cause in respect of Nyabasi/Busonga/355 where he lives; that Chacha Mwita Sigore is his elder brother from the 2nd wife; that his father distributed the land and left his own land and he married a 3rd wife where they stay and cultivate; that the 1st objector is his brother from the first house and he had a share of his land which he sold one acre; that there are boundaries fixed by his father to separate the land.

26. On cross - examination by 1st plaintiff, he stated that he was born in 1996 and finished school in 2016; that the 1st house has three sons - Mwita Sigore Ngaina, the 2nd house has 5 boys - Mwita Sigore, Nyamoronge, Marwa David Sigore and Supu Sigore and the 3rd house has six boys - Mwita Sigore, Marwa, Emmanuel, Thomas, Samson, Bernard Sigore; that there was no consensus that petitioner was to be the administrator; that each son was to get 200 by 200 feet, but he cannot tell what each son got; that it was not true the land was used by the 2nd house.

27. On cross examination by the 2nd objector, DW3 testified that the 2nd objector is a son to his younger uncle; that their land belongs to all the six sons; that his father involved the elders in the distribution of land; that there are trees on plot 375 and it belongs to everybody.

28. On re-examination, he testified that he was not aware that the 2nd objector sued his father over land; that he has not shown whether the father was mentally ill and his father took advantage of him; that the 2nd objector should inherit from his father’s land; that plot No 375 belongs to Chacha Mwita Nyamoronge which the 2nd objector should inherit from.

29. DW4 is Mogosi Nyamohanga Muniko. She adopted her statement dated April 26, 2019. She testified that Chacha Mwita Sigore is her brother; that Joseph Ngaina 1st Plaintiff is her brother from the same mother; that her father distributed the land before he died and gave each son his land; that as daughters, they were not given land neither have they demanded for their share.

30. On cross examination, by the 1st objector, she testified that her father was married to 3 wives namely, Nyangaina Sigore, Mugore Sigore and Oteigo Sigore. DW4 further outlined the children in each house. She testified that it is the 1st objector who left for Tanzania; that their father also had land in Tanzania in Migumu; that the 2nd objector lived there but he had differences with his brother in Tanzania and came back; that their father had already distributed the Tanzania land to the 1st objector but he sold and came back; thatDW4 was present when the subdivision was taking place.

31. On cross examination by the 2nd objector, she testified that their grandfather had not distributed the land by the time he died; that Sarara was in Tanzania and the two brothers in Kenya shared the land; that all the sons of Sigore were given land and there are boundaries; that the 2nd objector asked for land in plot 355 to plough but after he entered, he refused to leave; that the place which the 2nd objector is now claiming was set aside for grazing.

32. Parties filed their respective submissions. Mr Abisai submitted on one issue on behalf of the petitioners. It was submitted that the estate was registered in the name of the deceased and no evidence was presented before the court to impeach the deceased’s title to the suit estate. It was the petitioner’s further submission that section 29 of the Law of Succession Act gives the meaning of dependants; that the 2nd objector is neither a beneficiary nor a dependent of the suit estate; that the 2nd objector is the son of David Sarara Ngaina whom he admitted to have his own land available for administration among his beneficiaries; that on cross - examination, the 2nd objector admitted that he does not stay on the suit estate and has never established any structure thereon and he has never occupied the same. The 2nd objector lives on land parcel No Nyabasi/Busonga/375 where his late father live and was buried.

33. As regards the 1st objector, it was submitted that he is the son of the deceased and should be a beneficiary to the estate; that he admitted and confirmed that he was given part of the suit estate by the deceased during his lifetime; that he went on to further confirm that he sold part thereof to one Mateti Marwa who farms on the same to date. It was also submitted that the distribution of the estate was done by the deceased as confirmed by both the petitioner and the 1st objector.

34. Further to the foregoing, it was submitted that the suit estate was already distributed and the petitioner only seeks to give effect to the wishes of the deceased; that the 1st objector’s allegations are mere afterthought and he is disgruntled having sold his portion thus on transfer he is to get a smaller portion than his other brothers. The petitioner submitted that this case was filed in 2015, 5 years after the deceased died and the 1st objector was not opposed to the status quo until the petitioner filed for letters. The various people mentioned by the 1st objector do not meet the threshold for who is a dependant and they did not appear before court to prove dependancy on the suit estate.

35. The 1st objector filed his submissions dated May 27, 2022. He submitted that the succession proceedings are intended to leave the rest of the family with nothing; that the Kuria traditions dictate that a polygamous man will divide his land equally among his wives who will then divide amongst their sons; that in the event the man dies before subdivision like in the instant case, the brothers of the deceased with the help of the provincial administration will subdivide among the wives. It was further submitted that when the petitioner claims that the land was subdivided in 1992, it is not true because his father’s late brothers were alive and the area chief was equally not present, therefore, there is no evidence to support the claim.

36. The 1st objector posed the question where the land of his brothers from the younger mother and the land of the eldest brother is and to whom the land where the animals are grazing will belong to. The 1st objector submitted that the children of the 1st wife and 2nd wife have been left out of their father’s land and asked the court to subdivide the land amongst his father’s wives.

37. The 2nd objector filed his submissions dated June 17, 2022. He submitted that he is the grandchild to the late Ng’aina Nyamaronge and Maroa Rotai and the son to David Sarara Ngaina; that the sons to his late grandparents being David Sarara Ngaina, Sigore Ngaina and Chacha Mwita Nyamaronge inherited land from his grandparents who died before dividing the land between his sons; that in the Kuria Culture, Sigore Ngaina being the eldest, was to divide the land amongst the other brothers but he colluded with Chacha Mwita Nyamaronge and cheated on their other brother David Sarara Ngaina and registered the land in their names. It was his submission that Sigore Ng’aina the eldest brother registered the plot being Nyabasi/Bosonga/355 while the other brother Chacha Mwita registered his plot being Nyabasi/Bosonga/375.

38. He further submitted that since all the brothers have died without dividing the plot equally, then they have been left to suffer; that when he was growing up, he could see his father go to Tanzania and come back to Kenya to visit yet nobody deprived them the right of owning their inherited land; that all the three brothers were born in the plot, given birth there and it is the land they are still living on. The 2nd objector posed several questions in his submissions among others where the small piece of land allocated to his father went to.

39. I have carefully considered the application for confirmation of grant dated July 2, 2018, the 1st and 2nd objectors’ affidavits, viva voce evidence, the documents produced in evidence and the respective rival written submissions. The main issues for determination are: -i.Who are the dependents of the estate of the deceased.ii.Whether the suit land belonged to the deceased alone.iii.Whether the deceased had distributed his estate.iv.Whether all the beneficiaries to the estate of the deceased were adequately provided for.v.Whether the grounds for revocation of grant under section 76 of the Succession Act exist.

40. From the pleadings and the testimonies, it is well settled that the deceased had three houses and the suit land is 16. 5 Ha. The following are the dependants of the estate of the deceased: -i.The deceased herein, Sigore Ng’aina had three houses as follows:-1. Nchagwa Tuguro - 1st wife – deceased.2. Mugore Marwa - 2nd wife – deceased.3. Margaret O Sigore - 3rd wife – deceased.ii.The children of the 1st House are: -1. Mwita Nyabete Sigore - son.2. Nyairabu Sigore (Deceased) - son.3. Joseph Ng’aina Sigore - son4. Mogosi Sigore - daughter.5. Mubusi Sigore - daughter.iii.The children of the 2nd House are: -1. Charles Mwita Sigore - son.2. Johnes Maroa Sigore - (Deceased) – son.3. Daniel Nyamaronge Sigore - son.4. David Gibaka Sigore - son.5. Zacharia Suguta Sigore (Deceased) - son.6. Muruga Sigore - daughter.7. Boke Sigore - daughter.8. Wankuru Sigore - daughter.9. Gati Sigore - daughter.iv.The children of the 3rd House are: -1. Mwita Sigore - son.2. Marwa Sigore - son.3. Kigumbe Sigore - son.4. Nchangwa Sigore - son.Nyangi Sigore - son.Mogaya Sigore - son.Boke Sigore - daughter.

41. Section 29 (a) of the Law of Succession Act defines dependants as: -“The wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death.”

42. The deceased had 21 dependents; 14 sons and 7 daughters. Out of the dependants, 3 sons are deceased. In FormP&A 5, the petitioner cherry picked and listed only 4 dependants as being the sons of the deceased, 2 daughters in law and a widow. According to section 29 of the Law of Succession Act, dependents are all the children of the deceased. The first issue is settled on who are the beneficiaries of the deceased’s estate.

43. It is also not in dispute that the deceased had two other brothers who are also deceased namely David Sarara Ng’aina and Antony Chacha Mwita Nyamaronge. The 2nd objector contended that the suit land belonged to his grandfather which was supposed to be divided between all the three brothers. He submitted that the other 2 brothers deprived his father Antony Chacha of his share. The 2nd objector is the son to David Sarara Ng’aina (deceased).

44. A search in respect of suit land in question is dated October 29, 1990. The search shows that the registered owner of the land is Sigore Ngaina, the deceased herein and the land was registered in his name in the year August 1, 1973. The dispute surrounding the ownership of the land was first litigated before the Kisii High Court in Civil Suit No 94 of 1996. The plaintiff was Sarara Ngaina (deceased) the father of the 2nd objector. A cursory look at the pleadings show that the 2nd objector’s father’s complaint, was that his brothers had chased his family from the ancestral land and they had gone to live in Tanzania. The 2nd objector’s deceased father sought a declaration that his brothers were holding plot numbers 355 and 175 in trust for the whole family. The suit, however, was dismissed for want of prosecution.

45. The petitioner’s position in this succession cause is that the suit land was solely registered in the name of his deceased father. The 2nd objector is not a beneficiary of the deceased’s estate nor a dependent of the estate. Therefore, he cannot claim a share of the suit parcel of land. The 2nd objector’s claim in the deceased’s estate is the alleged 1/3 of his father’s share. On cross - examination, the 2nd objector admitted that he does not live in the suit land but he lives in plotNo 375 where he occupies 2 hectares. On the place where his father was buried, the 2nd objector first testified that his father was buried in plot 375 in 2014 where he also lived. He then contradicted himself by stating that his father died in 1986 and was buried in Tanzania.

46. Be that as it may, the issue of whether the suit land was being held in trust by the two deceased brothers on behalf of their other deceased brother, is in dispute. There is a dispute revolving around the ownership of the suit land which was registered in the name of the deceased. In order for this court to establish whether the 2nd objector is entitled to the alleged 1/3 share on behalf of his deceased father on the basis of a declaration of trust, it has to be determined by the Environment and Land Court, in the first. Article 162 (2) (b) of the Constitution established the Environment and Land Court. Section 13 (2) of the Environment and Land Court Act outlines the jurisdiction of the ELC court. It is vested with the jurisdiction to hear and determine issues relating to ownership of land and title.

47. In Migori High Court Succession Cause No 77 of 2015 In the Matter of the Estate of Martinus Okore, Randa Okore and Owino Okore (all deceased) (2019) eKLR Mrima J held as follows: -“On the other hand, the duty of a succession court is principally to protect estates of deceased persons which it has jurisdiction over and to oversee the transmission of those estates to the lawful beneficiaries. The High Court as a succession court is vested with requisite jurisdiction to discharge that mandate. However, if a dispute arises on the ownership of the land subject of the succession proceedings and/or the declaration of trusts over the land in issue, then such a dispute transcends the jurisdiction of a Succession Court courtesy of article 165(5) of the Constitution, section 13 of the Environment and Land Court Act, No 19 of 2011 among other relevant legal provisions. It is a dispute which calls for evidence to establish ownership or the existence of such a trust upon which finding a party may be a beneficiary for purposes of the distribution of the estate property before a Succession Court or not. (See the Court of Appeal in Peter Moturi Ogutu v Elmelda Basweti Matonda & 3 others (2013) eKLR,Muthuita v Muthuita (1982-88) 1 KAR 42 and Chogera v Maria Wanjira Kimani & Others (2005)eKLR).”

48. On the question to whom the suit land belongs to, for the purposes of succession proceedings, the search dated October 29, 1990, shows that the suit land was solely registered in the name of the deceased on August 1, 1973. In the event the 2nd objector wishes to dispute this fact, the Environment and Land Court is the correct forum to impeach the title subject title but not in this cause. The 2nd objector is before the wrong forum for determination of his rights the 2nd objectors application lacks merit and is dismissed.

49. The law of Succession Act gives guidelines on who should be given preference to file succession proceedings under section 66 thereof section 66(a) to (d) provides as follows:-

50. When 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 interest as provided by part v;c)the public trustee; andd)Creditors:

51. Provided that, where there is [atrial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.”

52. Further guidelines on making of grant’s are found in paragraph VII rule 26 (1) and (2) of theP & A Rules. The said Rules provides as follows:Rule 26 (1) letters of administration shall not be granted to any applicant without notice to any other person entitled in the same degree as or in priority of the applicant.2)An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of communication, or written consent in Form 38 or 39, by all persons so entitled in equality or priority be supported by an affidavit of the applicant and such other evidence as the court may require.”

53. From a reading of section 66 of the Act, since the spouses of the intestate is deceased, the next in preference are the children of the intestate. The Petitioner being a son to the deceased, had a right to file the cause but subject to the other beneficiaries of the estate being notified as required by rule 26 of the P & ARules. In the instant case, a part from the petitioner stating that he had permission of the other beneficiaries, there is no evidence of a written consent of minutes or a meeting or evidence of the beneficiaries. It seems the petitioner came to court without notifying the other beneficiaries. The land even if it was distributed by the deceased, and it is still registered in the deceased’s names it is only proper that the beneficiaries are notified so that they can confirm whether their rightful shares have been transmitted to them at the time of confirmation of grant.

54. In Re Estate of Moses Wahome Kimanthi (deceased) Succession Cause No 122 of 2002, (2009) eKLR, the court stated the importance of disclosing all material facts before court of law when seeking letters of administration. The court said:“I am certain that had the applicants been made aware of the application for the confirmation of grant by being served they would have brought to the fore their aforesaid interest in the estate of the deceased and the resultant grant would have taken care of those interests. Further had the respondent been forthright and candid and included the applicants as beneficiaries of a portion of the estate of the deceased as purchasers for value, the court in confirming the grant would have taken into account their interest in the estate of the deceased. As it is therefore the grant was obtained fraudulently by making of a false statement and or concealment from court of something material to the cause. The respondent knew of the applicants’ interest in the estate of the deceased yet she chose to ignore them completely in her petition of letters of administration intestate. She also ignored them completely when she applied for the confirmation of the grant.

55. PW2, PW3 and DW2 all stated that the petitioner did not inform them when filing this cause nor had they consented on the issue of distribution. It does not matter what PW1’s share was. That would be determined at the time of distribution and the share already given to him during the deceased’s life taken into account in terms of section 3.

56. It was his testimony that by the time the house was being demarcated, the 3rd house was not in existence. However, in cross – examination, he stated that the sons of the 3rd house have 5 acres. PW1, the 1st objector did admit that he had his own 2acre of land but he sold 1 acres of one Mateti Marwa Charles. Even if one has been given his land before the death of the deceased, the same is considered during distribution.

57. The pending issue which seems to be vague is on the fate of the children from the 3rd house who, although the petitioner stated that they have their own 5 acres, he did not succinctly explain from which land they derive their 5 acres. Even if the children of the 3rd house are adequately provided for elsewhere, this fact did not come out clearly in these proceedings.

58. On the question whether the deceased had distributed the suit land which forms his estate, the answer is in the affirmative. On the question whether all the beneficiaries were adequately provided for, there is doubt on the same and the petitioner ought to have led further evidence to demonstrate that all the listed beneficiaries were or are well considered and settled in other estates if any.

59. I have perused the application for the confirmation of grant dated July 2, 2018. Rule 40 (1) and (2) of the Law of Succession Act provides for the manner and the procedure which an application for confirmation of grant should be filed. An application for confirmation of grant should be supported by an Affidavit in Form 8 or 9. The affidavits should detail all the beneficiaries whether male or female together with the wife or wives of the deceased man or husband in case of the woman. In addition, there should be a schedule elaborating how the estate should be distributed among the beneficiaries and any other interested persons who should sign consenting on the distribution of the estate. I have taken time to explain this important procedure as the petitioner has filed an incomplete application for confirmation of the grant.

60. Failure to include the beneficiaries and any persons who may have a beneficial interest in the estate of the deceased whether or not they are inheriting, amounts to concealment of facts contrary to section 76 of the Law of Succession Act. In Re: Estate of the Late George Cheriro Chepkosiom (2017) eKLRit was held that anyone who has a stake in the estate, a beneficiary, interested in the estate and is no longer interested, should renounce such interest by way of affidavit or oral evidence. Similarly, the Court of Appeal in Benson Champu Kaperewo v Rebecca Chepkuto Kiperenge (2019) eKLRheld that the exclusion of a beneficiary from succession proceedings amounted to concealment of material facts and the grounds for revocation of grant under section 76 of the Laws of Succession Act are .

61. I reiterate that all the beneficiaries must sign the consent to the distribution of the estate. In the event any of the beneficiaries do not wish to inherit from the estate, they should file affidavits renouncing their shares and right to inherit in the deceased’s estate.

Should the court revoke the grant? 62. The petitioner is said to hail from the 2nd house. The 1st and 3rd houses are not represented. From the prevailing circumstances, it is in the interest of justice that each house appoint its own representative. The petitioner can take care of the 2nd house interests but the court will allow the beneficiaries forty five (45) days to appoint two other representatives to represent each house.

63. The court finds it unnecessary to revoke the grant issued to the petitioner. The court will make the following orders:-1. The estate of Sigore Wagaina Nyamaronge alias Sigore Ngaina (Deceased) is comprised of 16. 5 Acres being Nyabasi/Busonga 355. 2.The beneficiaries of the estate are as follows together with their households;a.The children of the 1st House are: -1. Mwita Nyabete Sigore - son.2. Nyairabu Sigore (Deceased) - son.3. Joseph Ng’aina Sigore - son4. Mogosi Sigore - daughter.5. Mubusi Sigore - daughter.b.The children of the 2nd House are: -6. Charles Mwita Sigore - son.7. Johnes Maroa Sigore - (Deceased) – son.1. Daniel Nyamaronge Sigore - son.2. David Gibaka Sigore - son.3. Zacharia Suguta Sigore (Deceased) - son.4. Muruga Sigore - daughter.5. Boke Sigore - daughter.6. Wankuru Sigore - daughter.7. Gati Sigore - daughter.c.The children of the 3rd House are: -8. Mwita Sigore - son.9. Marwa Sigore - son.10. Kigumbe Sigore - son.11. Nchangwa Sigore - son.12. Nyangi Sigore - son.13. Mogaya Sigore - son.14. Boke Sigore - daughter.3. That the 1st and 3rd houses do appoint their representatives to be appointed as administrators within forty five (45) days of this order.4. The grant of representation be amended to include the representatives of the 1st and 3rd houses.5. Upon appointment, the administrators should file an application for confirmation of grant together with a schedule of distribution of the estate within the same period.6. If the parties do not agree, then either of them will be at liberty to file an application for confirmation and the others file their respective protests within the same period.7. The parties to file a surveyor’s report on the status of the land and costs of the surveyor be shared equally amongst the three houses.8. Meanwhile Status quo of the land be maintained.9. Mention on December 7, 2022.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 4TH DAY OF OCTOBER, 2022. R. WENDOHJUDGEJudgment delivered in the presence ofJoseph Ng’aina the 1st Objector.Antony Chacha the 2nd Objector.No appearance for the Petitioner.**Nyauke Court Assistant.