[2022] KEHC 10046 (KLR)

In re Estate of Stephen Kiriwei Kapundos (Deceased) (Citation Cause E001 of 2022) [2022] KEHC 10046 (KLR) (13 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10046 (KLR)

Republic of Kenya

In the High Court at Kapenguria

Citation Cause E001 of 2022

WK Korir, J

July 13, 2022

Between

Solomon Yeko Lolima

1st Citor

Rose Chesang Lolima

2nd Citor

Mary Chenangat Lolima

3rd Citor

Benjamin Pseret Lolima

4th Citor

Susan Chepkopus Lolima

5th Citor

Emily Chepkemei

6th Citor

Consolata Cheptoo Lolima

7th Citor

and

Sophia Chepokweo Stephen

1st Citee

Philip Kibet Lolima

2nd Citee

Harrison Kamama Lolima

3rd Citee

Agnes Relin Lolima

4th Citee

Samwel Lolima Kapatei

5th Citee

Dennis Kibet Lolima

6th Citee

Jackline Cheyech Lolima

7th Citee

Ruling

1. Before this Court is a citation application relating to the estate of Stephen Kiriwei Kapundos alias Stephen Kirweo Kapundos (deceased) who died on 12th August, 2013. It is dated 11th February, 2022 and brought by the respective 1st to 7th citors namely Solomon Yeko Lolima, Rose Chesang Lolima, Mary Chenangat Lolima, Benjamin Pseret Lolima, Susan Chepkopus Lolima, Emily Chepkemei and Consolata Cheptoo Lolima, and directed to the 1st to 7th citees being Sophia Chepokweo Stephen, Philip Kibet Lolima, Harrison Kamama Lolima, Agnes Relin Lolima, Samwel Lolima Kapatei, Dennis Kibet Lolima and Jackline Cheyech Lolima. The citation is supported by an affidavit sworn by the 1st Citor on 10th February, 2022.

2. In the affidavit in support of the citation, it is averred that the citors as well as the 2nd to 7th citees are the children of the deceased. The 1st Citee is the only surviving widow to the deceased and the mother of the 2nd to the 7th citees. It is further deposed that the deceased was married to three wives. The first wife, Chepokamoi Stephen, separated with the deceased and has since been remarried. The second wife was Cheporo Stephen who is the mother of the seven citors and is now deceased. The 3rd wife is the 1st Citee. According to the citors, the deceased died intestate on 12th August, 2013 leaving them and the 1st to 7th citees as the surviving dependants.

3. The citors aver that the deceased left behind land parcels West Pokot/Chepareria/1395, West Pokot/Chepareria/795 and West Pokot/Chepareria/718. It is also their case that the 1st to 7th citees have refused, failed or neglected to take out letters of administration for the estate of the deceased either jointly or individually. Further, that several meetings held in an attempt to agree on the filing of succession proceedings in respect to the estate of their deceased father have borne no fruits. The citors have therefore put forward the 1st Citor as a suitable administrator for the estate of the deceased.

4. Despite being served, the citees did not file any response to the citation. There is an affidavit of service sworn on 9th March, 2022 by one Samwel Nyang’au Getonto confirming that the citees were indeed served.

5. The question is whether this Court should proceed to cite the 1st to 7th citees as urged by the citors. Rule 22(1) of the Probate and Administration Rules provides that:“A citation may be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his right thereto.”

6. In Re Estate of Philip Nthenge Mukonyo (Deceased)[2018] eKLR, the Court cited with approval the case of Kiboko v Assistant Land Registrar & others [1973] EA 290 where it was held that:“Citations need not be ordered to issue to all persons shown as heirs in the petition of the deceased for a grant of letters of administration of the estate. They need not be ordered as a matter of course to issue for heirs shown in the petition to have an equal right. They should go forth to anyone shown to have a superior right to take up the grant or for any other special reason.”

7. The Court also cited the case of Maamun Bin Rashid Bin Salim El-Ruhmy v Haider Mohamed Bin Rashid El-Basamy [1963] EA 438 where it was stated that:“Where a person claiming to be an heir (or the heir of an heir) of a deceased person applies for a grant of administration, citations should not be issued to other heirs whose existence is disclosed in the petition having an equal right as a matter of course but only when for some special reason the court sees fit to make such an order. The object of a non-contentious citation is to call upon a person who has a superior right to a grant to take the grant. Thus any person who is interested in having an estate administered may apply for a grant of representation, but if there are persons who have a superior right to obtain the grant, he must cite such persons calling upon them to apply for the grant. If the person cited fails to apply for a grant or renounce their right to it, the grant may, subject to the usual conditions, be given to the citor. It follows that, save in cases where the court thinks it necessary to do so; non-contentious citations should not be issued unless the petition discloses that the person seeking the grant has a lesser right than some other person who has failed to take the necessary steps to obtain it.”

8. From the cited case law, a citation can only issue where the citor is a person entitled to the grant and the citee has superior right to take out the grant. The relevant part of Section 66 of the Law of Succession Act provides the order to be followed in assessing the rights of the beneficiaries to a grant as follows:“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 interests as provided by Part V;”

9. In the matter before this Court, the 1st to 7th citors and the 2nd to 7th citees are children of the deceased. The 1st Citee is the only surviving spouse of the deceased. From the cited provision, the 1st Citee has a superior right to the grant. However, the 1st to 7th citors as well as the 2nd to 7th citees being children of the deceased have equal rights to petition for a grant of representation. A citation would then be necessary when dealing with the 1st Citee. In so far as the 2nd to 7th citees are concerned, citation would not be necessary so long as they are named in the petition for the grant of letters of administration as beneficiaries of the deceased.

10. This Court having found that it was indeed a requirement that the 1st Citee should be cited, the application is allowed. Orders will issue as follows:a. That the 1st Citee, Sophia Chepokweo Stephen, together with the 1st Citor, Solomon Yeko Lolima, do petition the court for the grant of letters of administration intestate to the estate of Stephen Kiriwei Kapundos alias Stephen Kirweo Kapundos (deceased) within sixty days from the date of this ruling.b. In the event that the 1st Citee fails to comply with the order in (a) above, then the 1st Citor shall upon expiry of sixty days from the date of service of the orders herein upon the 1st Citee, be at liberty to petition for the grant of letters of administration in accordance with the law and the relevant rules; andc. Considering the nature of the application, I direct that there will be no orders as to costs.

DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 13TH DAY OF JULY, 2022. W. Korir,Judge of the High Court