[2022] KEHC 13293 (KLR)

In re Estate of Tapkesos W/O Kipsoi Arap Mangeria alias Martha Cheruto Mangaeria (Miscellaneous Application 40 of 2018) [2022] KEHC 13293 (KLR) (4 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13293 (KLR)

Republic of Kenya

In the High Court at Bomet

Miscellaneous Application 40 of 2018

RL Korir, J

October 4, 2022

Between

Shadrack Ruto Kiptanui

Plaintiff

and

Juliana Chepngetich Soi

Applicant

and

Joseph Kipngeno Sigira

Protestor

Joseph Kimutai Soi

Protestor

Alfred Kibet Soi

Protestor

John Kiprono Soy

Protestor

Ruling

1. The applicants/protestors herein, Juliana Chepngetich Soi, Joseph Kipngeno Sigira, Joseph Kimutai Soy, Alfred Kibet Soi and John Kiprono Soy filed summons for revocation of grant dated June 6, 2018. The same was brought under section 76 of the Laws of Succession Act chapter 160, rule 44 (1) and 73 of the Probate and Administration Rules and all other enabling provisions of the law.

2. The application sought the revocation of the grant dated September 14, 2016 and confirmed on November 15, 2017.

The Applicants Case and Submissions. 3. The application was supported by the sworn affidavit of Juliana Chepngetich Soi who swore on behalf of the other applicants and stated that the subject parcel of land i.e. Kericho/Tumoi/XXX was jointly owned by the following deceased persons in equal undivided shares:-I. Marusoi Arap NaeniII. Tapkigen W/O Kipsoi MangeriaIII. Tapkesos W/O Kipsoi MangeriaIV. Tapsabei W/O Kipsoi MangeriaV. Tapletgoi W/O Kipsoi Mangeria

4. The applicants filed additional statements where they stated that they were dependants of the aforementioned people. That Juliana Chepngetich Soi was the daughter in law in the family of Tapkesos W/O Kipsoi Mangaeria, Joseph Kipngeno Sigira was a son to Marusoi Arap Naeni, Joseph Kimutai Soi was the son of Tapkigen W/O Kipsoi Mangearia, Alfred Soi was the son of Tapletgoi W/O Kipsoi Mangeriaand John Kiprono Soi was the son of Marusoi Arap Naeni.

5. The applicants stated that the petitioner neither informed nor obtained the consents of the other dependants before filing the Succession Cause No 21 of 2016 at Kericho Chief Magistrate’s Court.

6. It was the applicants case that the respondent fraudulently obtained the grant of letters by relying on citation cause No 18 of 2012 which was in respect of the estate of Tapkigen W/O Kipsoi Arap Mangeriaand Tapletgoi W/O Arap Mangeria. That the citation cause had been struck out by the court on March 4, 2014. It was their further case that the court directed that succession causes be filed in respect of each estate.

7. The applicants’ submitted that the petitioner failed to disclose to the court that at the time of filing the succession cause in 2016, Tapkigen W/O Kispoi Arap Mangeria and Tapletgoi W/O Kipsoi Arap Mangeria had already died.

8. It was the applicants case that the petitioner filed Succession Cause No 21 of 2016 only in respect of the estate of Tapkesos W/O Kipsoi Arap Mangeria. That he concealed from the court the fact that the subject parcel of land was owned in common and further failed to disclose that there were other dependants. It was the applicants further case that the petitioner falsely claimed to be the only survivor of the estate thereby obtaining the grant by fraud and thereafter transferred the entire parcel of the subject land to himself.

9. The applicants submitted that the petitioner filed Succession Cause No 21 of 2016 naming himself as the petitioner knowing fully well that he was not a beneficiary in the estate of the deceased. That the petitioner confirmed that he was not a beneficiary when he stated that he was a purchaser.

10. It was the applicants submission that the right and lawful procedure of dividing the subject land Kericho/Tumoi/XXX would have been to file a separate succession cause in respect of each estate. It was their further submission that the procedure used by the petitioner to obtain the grant was defective.

11. The applicants submitted that the title deed issued on December 29, 2017 to the petitioner be cancelled as the procedure to obtain it was fraudulent.

The Respondent/Petitioner’s Case. 12. The respondent stated that he filed a Citation Number 18 of 2012 on May 18, 2012 and on November 29, 2012, in the presence of the citees’ advocates, they were ordered to take out letters of administration within 30 days and in default he was at liberty to take them out. That he filed the Succession Cause on March 29, 2012.

13. It was the respondent’s case that the deceased, Tapkigen and Tapletgoi W/O Kipsoi Arap Mangeriahad sold to him 0. 34 acres of Kericho/Tumoi/XXX in the year 1985. That the applicants were all aware of the sale. It was his further case that he took possession of the 0. 34 acres by fencing and planting eucalyptus trees and grass on the land.

14. The respondent opined the applicants were represented by an advocate in the Citation Case Number 18 of 2012 and that they ought to have complied with the court’s directions. That they waited for four years until he filed his Succession Cause on March 29, 2016.

15. It was the respondent’s case that he was aware that the subject land was commonly owned in 5 equal shares and that he needed his share of 0. 34 acres which would equal the 0. 7 acres when multiplied by the share of 5.

16. It was the respondent’s case that he obtained a letter of consent from the Land Control Board after which subdivision was done in 5 equal shares of 0. 34 acres each as per the mutation form dated May 16, 2018.

17. The respondent stated that he was issued with a title deed on May 30, 2018 measuring 0. 7 hectares and that he had already subdivided the subject land into 5 equal shares of 0. 34 acres each. That the applicants should have requested him to transfer the remaining shares to them leaving him with the 0. 34 acres that he had bought in 1985. It was his further case that if he was not truthful, he would not have included the names of the deceased on the mutation form.

18. The respondent opined that the 3rd and 4th applicants were sons of the citees and that the 1st, 2nd and 5th applicants were not beneficial owners of the estate of the deceased i.e. Tapkesos W/O Kipsoi Arap Marengeria alias Martha Cheruto Marengeria. That the aforementioned deceased was a registered co-owner of the subject land Kericho/Tumoi/XXX and that the 4 remaining co-registered owners had title deeds known as Kericho/Tumoi/XXX.

The Respondent’s Submissions. 19. The respondent submitted that this application was not properly before this court as the value of the subject land Kericho/Tumoi/XXX that measured 0. 7 acres did not exceed twenty million shillings. That the application ought to be heard before the Chief Magistrate’s Court.

20. It was the respondent’s submission that he cited the beneficiaries of the estate being Juliana Chepngetich Soi, Gabriel Kipkemoi Rotich and John Kipkemoi Rotich. That the applicants herein were not the beneficiaries of the estate of the deceased. It was his further submission that he was a creditor to the estate of the deceased to the extent of 0. 34 acres that was aptly captured in the title deed for Kericho/Tumoi/XXX and not Kericho/Tumoi/XXX as alleged by the applicants.

21. It was the respondent’s submission that the title deed was obtained by following the correct procedure and not through fraud, untrue allegations or through concealment of facts.

22. I have perused and considered the summons for revocation dated June 6, 2018, the replying affidavit dated July 9, 2018, the applicants written statements all dated November 29, 2018, the respondent’s written statement dated December 10, 2018, the applicants written submissions dated May 16, 2022, the respondents written statement date July 18, 2022 and the two issues for determination are:I.Whether the court has jurisdiction to entertain the applicationII.Whether the application meets the threshold for the revocation of grant within the meaning of section 76 of the Law of Succession Act.

23. The respondent brought up the issue as to whether this court had jurisdiction to grant the orders sought. The respondent submitted that the value of Kericho/Tumoi/XXX was not more than 20 million Kenyan shillings and as such the proper court to determine the application was the Chief Magistrate’s Court. It was his further submission that the Chief Magistrate’s Court was under the Magistrate’s Act no 26 of 2015 mandated to hear and determine applications for revocation of grants.

24. It is trite that jurisdiction is at the core of exercise of any power by a court. Where there is no jurisdiction the court cannot exercise its power without violating the principles of rule of law and legality. In the case of Phoenix of EA Assurance Company Limited v S M Thiga T/A Newspaper Service (2019) eKLR, the Court of Appeal stated that:-“It is a truism jurisdiction is everything and is what gives a court or a tribunal the power, authority and legitimacy to entertain any matter before it. What is jurisdiction?In common English parlance, ‘Jurisdiction’ denotes the authority or power to hear and determine judicial disputes, or to even take cognizance of the same. This definition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. If a court therefore proceeds to hear a dispute without jurisdiction, then the result will be a nullity ab initio and any determination made by such court will be amenable to being set aside ex debito justitiae”.(See also The Owners of the Motor Vessel “Lillian S” Vs Caltex Oil (Kenya) Ltd (1989) KLR 1. )

25. Section 47 of the Law of Succession Act confers jurisdiction on the High Court in succession matters as follows:-(47)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…

26. Similarly, 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.

27. This matter was originally in Kericho Chief Magistrate’s Court as Succession Cause 21 of 2016 – In the matter of the estate of Tapkesos w/o Kipsoi Arap Mangeria alias Martha Cheruto Mangeria. There was also a Miscellaneous Application No 40 of 2018 in Bomet – Shadrack Ruto Kiptanui v Juliana Chepngetich Soi and 4 others. On July 12, 2018, Muya J ordered that the Kericho matter be transferred to Bomet High Court for the purpose of hearing and determination of the application for revocation of the grant. It is therefore clear from the record that the matter was transferred to this court through an order of the court issued by Muya J on July 12, 2018. The application was made by Mr Kenduiwo for the objectors, Mrs Kirui who was holding brief for Mr Koske for the petitioner is on record as not having objected.

28. It is also clear that this court is clothed with the requisite jurisdiction to determine this application. Section 47 of the act clearly confers the said jurisdiction. The respondents’ argument that the matter is wrongly before this court must only be understood along the monetary jurisdictional limit conferred on the Principal Magistrates Court which in no way precludes the High Court from exercising jurisdiction.

29. The threshold for revocation of grant is governed by section 76 of the Law of Succession Act which states that:-76. A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion-(a)that the proceedings to obtain the grant were defective in substance;(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either-(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or(ii)to proceed diligently with the administration of the estate; or(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(e)That the grant has become useless and inoperative through subsequent circumstances.

30. In Re Estate of Prisca Ong’ayo Nande (Deceased) (2020) eKLR Musyoka J expounded the interpretation of section 76 thus:-“Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.”

31. I am persuaded by the above exposition of the application of section 76 of the LSA. I am further persuaded by the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa (2016) eKLR, where Mwita J stated with respect to the exercise of the power donated by section 76 thus:-“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.”

32. In this case the respondent through Citation Number 18 of 2012 in the High Court at Kericho cited Tapkigen W/O Kipsoi Arap Maregeriaand Tapletgoi W/OKipsoi Arap Maregeriato take out Letters of Administration in the estate of Marusoi Arap Naneni, Tapkesos W/O Kipsoi Arap Maregeriaand Tapsabei W/O Kipsoi Arap Maregeria. The court (Mutende J) on November 29, 2012, directed the citees to take out the letters within 30 days of November 29, 2011 failure to which the citor now (respondent) was at liberty to do so. They must have failed to act for the respondent subsequently applied for the grant.

33. The applicants stated that the aforementioned Citation 18 of 2012 was struck out by the court on May 4, 2014. I have perused the lower court file trying to locate the court order striking out the citation in vain. The applicants have also failed to attach any evidence on the same. I am therefore unable to make a determination on the applicants averments.

34. Walter Kiprono Kosgei swore affidavits of service on various dates indicating that he had served Juliana Chepngetich Soi, Gabriel Kipkemoi Rotich and John Kipkemoi Rotich summons that required their attendance in court for the confirmation of the grant. The affidavits of service revealed that Juliana Chepngetich Soi and John Kipkemoi Rotich were both served on August 23, 2017 and November 8, 2017 and that Gabriel Kipkemoi Rotich was served on November 8, 2017. However, Juliana Chepngetich Soi, Gabriel Kipkemoi Rotich and John Kipkemoi Rotich stated that they had not been served with the summons to attend court.

35. The filed affidavits of service indicated that the aforementioned beneficiaries were served on more than one occasion. The affidavits of service are clear proof that indeed service was effected. The same were not subjected to cross examination by the applicants to determine their veracity. It is therefore my finding that the applicants were properly served and were aware of the confirmation proceedings.

36. The grant of letters of administration was issued to the respondent on September 14, 2016. The grant was made in respect of the estate of Tapkesos W/O Kipsoi Arap Mangeria alias Martha Cheruto Mangeria which was Kericho/Tumoi/XXX.

37. In his application for the confirmation of the grant, the respondent stated that the deceased Tapkesos W/O Kipsoi Arap Mangeriaalias Martha Cheruto Mangeriahad no children who survived her. He went further ahead and filed a consent which indicated that he was the only one who was beneficially entitled to the estate of the deceased. It is salient to note that the consent was only signed by the respondent.

38. It was uncontested that the estate of Tapkesos W/O Kipsoi Arap Mangeria also known as Martha Cheruto Mangeria had three beneficiaries i.e. Juliana Chepngetich Soi, Gabriel Kipkemoi Rotichand John Kipkemoi Rotich.

39. The respondent by his own admission stated that Tapkesos W/O Kipsoi Arap Mangeria alias Martha Cheruto Mangeriahad three surviving dependants. He however chose to apply for the grant of letters of administration by misrepresenting and/or misleading that the deceased had no dependant. There cannot be a more clear case of material non-disclosure of facts than the actions of the respondent in this regard.

40. The applicants stated that the respondent was not a beneficiary to the estate of Tapkesos W/O Kipsoi Arap Mangeria alias Martha Cheruto Mangeria. The respondent on the other hand submitted that he had purchased 0. 34 hectares from Tapkigen W/O Kipsoi Arap Mangeria and Tapletgoi W/O Kipsoi Arap Mangeria and that made him a creditor in the aforementioned estate.

41. The category of people who are entitled to administer the estate of a deceased are provided in section 66 of the Law of Succession Act as:66. 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;(c)the Public Trustee; and(d)creditors:

42. The Black’s Law Dictionary defines a creditor as one to whom a debt is owed. The respondent did not avail any evidence to show that he indeed purchased the 0. 34 hectares. It is therefore premature at this stage to determine whether the respondent was a beneficiary of the estate of Tapkesos W/O Kipsoi Arap Mangeria alias Martha Cheruto Mangeria.

43. It is also salient to note that the respondent claimed to have been sold 0. 34 hectares of the subject land by Tapkigen W/O Kipsoi Arap Mangeria and Tapletgoi W/O Kipsoi Arap Mangeria yet he went ahead to petition for letters of administration intestate of the estate of Tapkesos W/O Kipsoi Arap Mangeria claiming the same share of 0. 34 hectares.

44. It was uncontested that Kericho/Tumoi/XXX had five (5) registered owners i.e. Marusoi Arap Naeni, Tapkigen W/O Kipsoi Mangeria, Tapkesos W/O Kipsoi Marengeria, Tapsabei W/O Kipsoi Mangeria and Tapletgoi W/O Kipsoi Mangeria. The certificate of search dated March 23, 2016 indicated as much. It also indicated that the 5 owners held equal undivided shares.

45. The search indicated that 4 out of the 5 owners as at March 23, 2016 were deceased. For any dependants to have claims as beneficiaries, succession proceedings ought to have been carried out so that each family could get an equal share of approximately 0. 14 Hectares.

46. When the respondent applied for letters of administration intestate for the estate of Tapkesos W/O Kipsoi Arap Mangeria, it created a rebuttable presumption that succession proceedings had been undertaken on the whole Kericho/Tumoi/XXX to mean that the family of the aforementioned deceased got an equal share with the other co-registered owners. There is no evidence on record to indicate that such proceedings were undertaken.

47. The respondent indicated that Tapkigen W/O Kipsoi Arap Mangeria and Tapletgoi W/O Kipsoi Arap Mangeria had sold him 0. 34 hectares of Kericho/Tumoi/XXX in 1985. The beneficiaries of the aforementioned deceased have denied this assertion. They deny that the respondent had taken possession of the portion and state that they all lived in the same land when it was allegedly sold to the respondent.

48. It is clear from the evidence that the respondent was granted letters of administration intestate in respect of the estate of Tapkesos W/O Kipsoi Arap Mangeria alias Martha Cheruto Mangeria but by his own admission, he went ahead and subdivided the whole Kericho/Tumoi/XXX into 5 equal shares without the involvement of the other beneficiaries. The respondent thereafter claimed to be willing to transfer the remaining portions to the respective beneficiaries.

49. It is my finding that the whole process of acquiring the grant issued on September 14, 2016 was unprocedural and defective. That further the respondent concealed material facts by claiming that he was the only beneficiary to the estate of Tapkesos W/O Kipsoi Arap Marengeria alias Martha Cheruto Mangeria. When clearly, and as already demonstrated above, there were other beneficiaries.

50. Guided by section 47 of the Law of Succession Act and rule 73 of the Probate Administration Rules, this court has inherent power to make orders necessary for the exercise of justice. Kericho/Tumoi/XXX was created out of the impugned grant. It cannot be allowed to stand as to do so would cause hardship and work injustice to other beneficiaries. In the case of Santuzzabilioti Alias Mei Santuzza (Deceased) v Giancarlo Felasconi (2014) eKLR, the court stated:“This cannot be the case as the succession court has powers to order a title deed to revert to the names of a deceased person. This in effect amounts to cancelation of the title deed. Further, a succession court can order a cancelation of title deed if a deceased’s property is being fraudulently taken away by non-beneficiaries such as where the property is being sold before a grant is confirmed.”(See alsoMaroko Nyamweya v Benard Magara Maroko & Another (2016) eKLR and In re Estate of Leah Wanguii Nding'uri (Deceased) (2020) eKLR)

51. In the final analysis, I have found that there was material non-disclosure of facts by the respondent and that the process of acquiring the grant was unprocedural and fell foul of section 76 (a) and (b) of the Law of Succession Act. Consequently, the grant of administration intestate issued on September 14, 2016 and confirmed on November 15, 2017 is hereby revoked.

52. The title deed dated May 30, 2018 that was issued to Shadrack Ruto Kiptanui (respondent) in respect of LR No Kericho/Tumoi/XXX is hereby cancelled. It is hereby ordered that the sub-divisions revert to the original title from where the beneficial share of each beneficiary will be ascertained.Orders accordingly.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 4TH DAY OF OCTOBER, 2022. ..........................R LAGAT-KORIRJUDGERuling delivered in the presence of Mr Kenduiwo for the Objectors and also holding brief for Mr Koske for the Petitioners and Kiprotich (Court Assistant).