[2023] KEHC 20909 (KLR)

In re Estate of Taprandich Suswo (Deceased) (Miscellaneous Succession Application 17 of 2019) [2023] KEHC 20909 (KLR) (19 July 2023) (Judgment)

Neutral citation: [2023] KEHC 20909 (KLR)

Republic of Kenya

In the High Court at Kericho

Miscellaneous Succession Application 17 of 2019

JK Sergon, J

July 19, 2023

Between

Joseph Kosgei Mochu

Appellant

and

Nelson Koske

1st Applicant

Ruto Vincent Kipngeno

2nd Applicant

and

Benard Kiprono Koskei

1st Respondent

Nicholas Kibiwott Koskei

2nd Respondent

John Kapterer Koskei

3rd Respondent

Judgment

1. The Applicants filed Summons for Revocation or Annulment of Grant dated 22nd February, 2019 under certificate supported by the grounds laid out on its face and the facts stated in the affidavit of Ruto Vincent Kipngeno, the 3rd Applicant herein, on his behalf and on behalf of the other two Applicants seeking for the following orders:1. Spent.2. That the confirmed grant issued in Kericho CMCC Succession Cause No. 187 of 2016 and dated 18th July, 2017 and all subsequent orders including the resultant title number L.R NO Kericho/kapkatet/3489, L.R NO Kericho/kapkatet/3490, L.R NO Kericho/kapkatet/3491, and L.R NO. Kericho/kapkatet/3482 be revoked.3. That the Respondents be ordered to pay the cost of this application.

2. The Applicants avers that the grant of letters of administration issued to the Respondents herein be revoked as it was obtained fraudulently by the Respondents who made false representation on oath by:i.Selectively stating and listing survivors or dependants of the late Taprandich Suswo in form P & A 5 and in their affidavit in support of the petition for grant without giving an all inclusive and accurate list of dependants.ii.Falsely indicating that the deceased had two households only and proceeding to list themselves in full details while lamping the other dependants under the first household with intent to hoodwink the court.iii.Indicating in the support of an application for confirmation of grant a skewed list of beneficiaries and their shares in an attempt to disinherit some of the beneficiaries including the applicant.iv.Failing to involve all the survivors of the deceased and failing to have them consent to the making of grant and distribution of the estate.

3. The applicant avers that the deceased herein, died on 20th August, 1975, leaving a son one William Kipkosgei Mochu (deceased) who had two houses that is, Teresia Mocho (deceased) being the 1st wife who had 5 children and Cecilia Chepkemoi Mocho the 2nd wife who had 10 children.

4. The Applicants in acknowledging that the said grant has been confirmed, stated that the Respondents gave the court a fraudulent mode of distribution without their knowledge, with the sole intention of dispossessing them hence the 3rd Applicant and his eight (8) siblings have been given a meagre 0. 5 acres.

5. It is averred by the applicants that the Respondent forged the 1st and the 2nd Applicants’ signatures as they were not aware of the succession proceedings and that the Respondent caused the land parcel Kericho/kapkatet/499 which forms part of the deceased estate to be distributed and the resultant parcels registered under their names as the sole proprietors thus vesting the said property to the Respondents and their children to the exclusion of the other grandsons and their children.

6. The Applicants further avers that as some of the deceased’s grandsons, they seek an order for revocation of the grant issued to the Respondents by virtue of the said Respondents obtaining the same fraudulently hence prejudicing other supporters and that the land parcel Kericho/kapkatet/499 which the Respondents disclosed in the schedule of assets in P & A 5 was and is still being occupied by the Applicants and all the other dependants of the deceased except the Respondents , hence manifesting the Respondents’ intentions of rendering the applicants destitute.

7. The applicants avers that they are apprehensive that the respondents have ulterior motives including sale of the properties as they do not live on these properties as they have another parcel that was purchased for them by the deceased in Kapkoi Kitale and the said Respondents concealed all the aforesaid material facts from the court with intention to deprive the lawful beneficiaries of the deceased estate their rightful share of the deceased property.

8. In retort, the Respondents filed a replying affidavit dated 21st March 2019 sworn by Benard Kiprono Koskei, the 1st Respondent herein, on behalf of all the other Respondents in which they aver that it is not true that they were fraudulent or that they concealed some important and material facts from the court.

9. The Respondents further aver that the deceased was survived by her son Kipkoske Arap Mocho (deceased) who was the sole beneficiary of the estate and who died before taking out the Letters of Administration to the deceased’s estate hence although the proceedings relate to the estate of the deceased herein, the facts points to the same being in relation to the estate of Kipkoske Arap Mocho (deceased) who had two wives, with the first wife Teresia Chemitai (deceased) having 5 children and the second wife Sicilia Chepkemoi having 10 children.

10. The Respondents aver that upon their father’s demise, it is the widows and their children who had the right to participate in the succession proceedings, that at the commencement of the instant succession, the applicants were cooperative, both the 1st and the 2nd Applicant appended their signature to the consent form and all beneficiaries of the deceased were involved in the succession process which is evident from the confirmed grant that the Applicants’ interests have been well taken care of hence the Applicants’ allegations that the Respondents did not involve them is not true and the 3rd Applicant being a great-grandson to the deceased herein, he cannot claim to be a dependant of the deceased at all.

11. The respondents contend that before filling the succession proceedings they deliberated on the matter at a family level and involved all the beneficiaries prior to filling the succession proceedings.

12. In a rejoinder, the Applicants filed a Further Affidavit dated 10th April 2019 sworn by Rutoh Vincent Kipngeno, the 3rd Applicant herein, on behalf of all the other Applicants in which he avers that the material non-disclosure and concealment of material facts existed at the time of the succession proceedings in the lower court and still persist because the respondents failed to include the survivors of the 3rd and 2nd sons (both deceased) of the late William Kipkemboi Mocho instead of holding the said deceased sons share without informing the deceased sons survivors, holding in trust the shares of Joseph Koskei Mocho and Nelson Koskei without consulting them yet they are still alive and that the succession proceedings were conducted secretly, that signatures of Nelson Koskei and Joseph Koskei Mocho were forged, that the deceased herein had purchased 6 acres of land in Kitale, where the late William Kipkemboi Mocho settled the second wife, Cecilia Chepkemoi Mocho and her children while the 1st wife, Teresia Mocho (deceased) was settled in the land parcel under the succession proceedings herein hence the 2nd household and Joseph Kipterer Koskei secretly undertook succession proceedings herein in order to avoid objection proceedings during the course of succession.

13. The Applicants aver that the Respondent’s ill intent further manifest itself in the mode of distribution as per the certificate of confirmation of grant wherein one of the administrators, Nicholus Kibiwott Koskei purports to hold 2. 8 acres in trust for Joseph Koskei and Nelson Koskei without their consent yet they are alive.

14. The Applicants further contends that it is a requirement in law that all dependants attend court during confirmation of grant, but the Applicant and all the beneficiaries of the 1st household of William Kipkoskei Mocho (deceased) were not notified and did not attend the confirmation and that they listed the great grandchildren of the deceased in order to bring all the facts to the court.

15. The Applicant aver that there has never been any consultative meeting of the family as alleged by the Respondent and that the minutes and any reflected attendances are a creation of the Respondents to attempt to remedy the illegality already committed, that since the 3rd Applicant’s parents are deceased, there is no law that bars him from participating in and getting his father’s share on behalf of his siblings, hence the claim that he misapprehended the succession is unsustainable and that in order to give all beneficiaries an equal platform to participate in and be heard on the process of succession in the deceased estate hence the grant of letters of administration issued and confirmed on 1st July, 2017 in the lower court succession cause number 187 of 2016 be revoked.

16. The Respondent in retort through their Further Replying Affidavit dated 16th April, 2019 sworn by Benard Kiprono Koskei, the 1st Respondent herein reiterated that there was no material non-disclosure in their petition to warrant revocation of grant, that the 1st and the 2nd Applicants appended their signatures to the succession forms and contrary to the 3rd Applicant’s averment, the deceased herein never purchased any land in Kitale for their late father or at all.

17. The Respondents re-affirmed that their late father purchased 0. 1 (nought decimal one) of an acre at Kobos farm in Kitale and that is where the 1st and 2nd Respondents live to date and it is in consideration of the 0. 1 acres that they have in Kitale that the clan elders made a decision that the Applicants who all belong to the 1st house of their deceased father to inherit 3. 5 acres while the 2nd house inherits 2. 0 acres hence the Applicants allegations that the Respondents did not involve all survivors of the deceased for purposes of securing their consent is not true.

18. The Respondents reiterated that the 3rd Applicant being a great grand-son to the deceased, the extent of the entitlement of his family to the estate of the deceased would be the entitlement of his father to the Respondent’s father’s property hence the said 3rd Applicant cannot claim to be a dependant of the deceased at all and that it is evident from the confirmed Grant that the interest of the Applicants are properly catered for hence at no time has the 1st and 2nd Respondents harbored ill intentions to snatch their stem brothers land.

19. The instant Summons was canvased by way of Written Submission.

20. The Applicants vide their Written Submissions dated 5th June, 2023 framed two issues for determination by the court as follows:i.Whether the application dated 22nd February, 2019 meets the threshold for revocation of grant within the meaning of section 76 of the Law of Succession Actii.Who should cater for the cost of the application?

21. On the first issue, the Applicant citing the provisions of Section 76 of the Law of Succession Act submitted that there was material non-disclosure and concealment of material facts during the succession proceedings rendering the present application as merited, the Respondents provided skewed list of survivors/dependants of the deceased herein in their P & A Form 5 in support of the petition for grant without giving an all inclusive and accurate list and that succession has to be done in consultation with all the beneficiaries and in the instant case, the Applicants have demonstrated clearly that the Respondents undertook succession and indicated shares of deceased beneficiaries to be held in trust for their children but without involving and informing the children that their shares have been held in trust for them.

22. It was the Applicants further submissions that the Respondents failed to disclose that the deceased has other dependants, that one John Kipterer Koskei has been allocated a paltry 0. 5 acres to hold in trust for the family of James Koskei (deceased) who has survivors who have attained the age of majority and that the Respondents in their schedule/mode of distribution indicated that Nicholas Kibiwott Koske is to hold 2. 6 acres in trust for the families of Fabian Koskei, Joseph Koskei and Nelson Koskei despite the said Joseph Koskei and Nelson Koskei being alive and capable of managing their affairs and that Fabian Koskei on the other hand is survived by his beneficiaries who have attained the age of majority and who are capable of being personal representatives to his estate.

23. It was the Applicants further submissions that the Respondents not only concealed material facts but went further and misrepresented facts to the Court in order to defraud the Applicants of their rightful shares in the estate and that the land in question, that is Kericho/kapkatet/499 listed by the respondents in the schedule of Assets in Probate and Administration Form 5 was and is still in occupation of the Applicants and other beneficiaries to the estate, thus the concealment of material fact and their non-involvement in the succession proceedings point to a grave concern, that the respondents intend to disinherit them and render them destitute.

24. The Applicants relied on the case of In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR where the court opined as follows:

25. “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…”

26. The Applicants further placed reliance in the case of In the Matter of the Estate of L A K – (Deceased) [2014] eKLR where the court held that:“Revocation of grants in governed by Section 76 of the Law of Succession Act. The relevant portions of Section 76 are paragraphs (a), (b) and (c) since the issues raised relate to the process of the making of a grant. A grant may be revoked where the proceedings leading up to its making were defective, or were attended by fraud and concealment of important matter, or was obtained by an untrue allegation of a fact essential to the point.”

27. The Applicants submitted that they have proved their case of fraud and concealment of material information since they were not aware of the succession proceedings, that the said Applicants never consented to the mode of distribution presented by the respondents neither did they sign the requisite consent forms thus the signatures appended on the statutory forms amounts to forgeries and that the Applicants only came to know of the succession proceedings when the 2nd Respondent attempted to collect the original title certificate to the land parcel L.R NO. Kericho/kapkatet/499 with the intention of processing new titles

28. In citing the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] eKLR, in which Mwita J stated that power to revoke a grant is a discretionary power that must be exercised judiciously, the Applicants urged the court to exercise its discretionary power taking interest of all the beneficiaries in order to facilitate equity and fairness.

29. On who should bear the cost of the application, the Applicant submitted that the Respondents should cater for the costs since it is their action of concealment of material facts and information and the fraudulent distribution of the deceased’s estate that led to the filing of the instant application.

30. The Respondents on the other hand through their Written Submissions dated 9th May, 2019 reiterated the contents of their Replying Affidavit and submitted that the consent was signed by all the deceased’s surviving beneficiaries, including the 1st and 2nd Applicants and that the Respondents in the Affidavit in Support of Petition for Letters of Administration Intestate listed all the beneficiaries of the deceased and truthfully gave a full inventory of all the assets and liabilities of the deceased at the date of her death and that the deceased only asset was that parcel of land known as L.R NO. Kericho/kapkatet/499.

31. The respondent in referring to section 76 of the Law of succession Act that provides for Revocation of Grant relied in the case of Matheka and Another vs Matheka [2005] 2KLR 455, cited In re Estate of Wahome Mwenje Ngonoro Deceased [2016] eKLR, where the Court of Appeal laid down the following principles:i.A grant may be revoked either by application by an interested party or by the court on its own motion.ii.Even when revocation is by the court upon its own motion, there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by the making of a false statement or by concealment of something material to the case or that the grant was obtained by means of untrue allegation of facts essential in point of law or that the person named in the grant has failed to apply for confirmation or to proceed diligently with the administration of the estate.

32. The Respondents submitted that the Applicants have not adduced evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of a false statement or by concealment of something material to the case or that the grant was obtained by means of untrue allegation of facts essential in point of law.

33. The Respondent in submitting that they did comply with the requirements under Rule 26 of the Probate and Administration Rules relied on the court’s decision inIn re Estate of Wahome Mwenje Ngonoro Deceased [2016] eKLR where the court stated that:“The evidently deliberate failure by the Respondent to involve the applicants at the time of filing these proceedings, failing to list them among the beneficiaries or seek their consent or renunciation was in view in bad faith and amounts to concealment of material facts…No consent was obtained from the applicants at the time of filing the petition. To me the petition was filed contrary to Rule 26 of the Probate & Administration Rules…This is a proper case for the court to revoke the grant on its own motion under the foregoing section on account of the fact that the proceedings leading to the issuance of the grant were defective in substance. The petition ought to have been accompanied by a consent as provided under Rule 26 of the Probate and Administration Rules signed by all the beneficiaries of the appropriate renunciation or in the alternative a renunciation duly signed as required.

34. Concerning the 3rd Applicant’s claim that he is a dependant of the deceased, the Respondents submitted that the 3rd Respondent being a great grandson to the deceased, he cannot claim to be the deceased’s defendant at all. They cited Section 29 and section 66 of the Law of Succession Act in submitting that the 3rd Respondent does not fall under any categories provided in the aforementioned sections and can therefore not claim to be the deceased’s dependant.

35. With regards to how the property was distributed, the Respondents contended that although Kipkoske Arap Mocho’s second house, represented by the Respondents was blessed with 10 children, while his first house, represented by the Applicants was blessed with 5 children, the second house agreed to inherit a lesser share of the estate while the first house inherited a bigger share than they would have been entitled to had section 40(1) of the Law of succession Act been followed strictly.

36. Consequently, the Respondents submitted that the Applicants have not proven that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by the making of a false statement or by concealment of something material to the case or that the grant was obtained by means of untrue allegation of facts essential in point of law and that the Respondents have been more than fair to the Applicants and their deceased father’s first house at large hence the instant Summons should be dismissed with costs.

37. I have considered the grounds laid out on the body of the Summons; the facts deponed in the affidavits supporting the Summons, the Replying Affidavit and the Rival Written Submissions. The issue for determination herein is whether the Applicants’ application meets the threshold for the revocation of a grant within the meaning of Section 76 of the Law of Succession Act.

38. Section 76 of the Law of Succession Act states as follows:“76. Revocation or annulment of grantA 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.”

39. In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR, the court expounding on section 76 of the Law of Succession Act stated that:“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.”

40. It should also be noted that the power to revoke or uphold a grant is a discretionary one. This principle was enunciated in the persuasive decision in Albert Imbuga Kisigwa vs Recho Kavai Kisigwa Succession Cause No. 158 of 2000 where Mwita J stated as follows: -“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.”

41. In this case, it is not in dispute that a confirmed Grant of Letters of Administration dated 18th July, 2017 was issued to the Respondents. The Applicants submitted that there was material non-disclosure and concealment of material facts during the succession as the Respondents provided skewed list of survivors/dependants of the deceased herein in their P & A Form 5 in support of the petition for grant without giving an all-inclusive list and that the Respondents undertook succession and indicated shares of deceased beneficiaries to be held in trust for their children without involving and informing the children that their shares have been held in trust for them and additionally some of the beneficiaries whose shares were to be held in trust are alive and capable of managing their own affairs.

42. The Applicants further submitted that they were not aware of the succession proceedings, that the said Applicants never consented to the mode of distribution presented by the respondents neither did they sign the requisite consent forms thus the signatures appended on the statutory forms amounts to forgeries and that the Applicants only came to know of the succession proceedings when the 2nd Respondent attempted to collect the original title certificate to the land parcel L.R NO. Kericho/kapkatet/499 with the intention of processing new titles

43. The Respondents on the other hand submitted that the consent was signed by all the deceased’s surviving beneficiaries, including the 1st and 2nd Applicants and that the Respondents in the Affidavit in Support of Petition for Letters of Administration Intestate listed all the beneficiaries of the deceased and truthfully gave a full inventory of all the assets and liabilities of the deceased at the date of her death and that the deceased only asset was that parcel of land known as L.R NO. Kericho/kapkatet/499.

44. The Respondent further submitted that they did comply with the requirements under Rule 26 of the Probate and Administration Rules by accompanying their Application for issue of grant by a consent signed by all persons entitled in the share in the same estate and that although Kipkoske Arap Mocho’s second house, represented by the Respondents was blessed with 10 children, while his first house, represented by the Applicants was blessed with 5 children, the second house agreed to inherit a lesser share of the estate while the first house inherited a bigger share than they would have been entitled to had section 40(1) of the Law of succession Act been followed strictly.

45. The Respondents have attached minutes of the family consultative meeting as to how the land parcel Kericho/kapkatet/499 should be divided among the two houses signed by all the beneficiaries including the 1st and 2nd Applicant. It is not in dispute that the consent attached to the Application for Grant was signed by all the beneficiaries only that the applicants stated that the 1st and the 2nd Applicant’s signatures were forged. It is worth noting that the Applicants have not provided any prove or documentation to show that indeed their signatures were forged, they have not even provided their correct signatures to be compared to the alleged forged signatures. It is therefore evident that the applicants were aware of the succession proceedings all this while despite testifying that they came to know of this cause when the 2nd Respondent attempted to collect the original title certificate to the land parcel L.R NO. Kericho/kapkatet/499 with the intention of processing new titles

46. Further more upon my perusal of the documents attached to both the Supporting Affidavit and the Replying Affidavit, I find that the Respondents have backed all their allegation with documentary evidence while the Applicants herein just alleges the facts without any concrete evidence. For instance, the Applicants in their Supporting Affidavit have alleged that the deceased herein bought a 6-acre parcel of land in Kitale where the 2nd house was settled and that the Respondents herein concealed that fact from the court in order to evade objection proceedings. There is no any land documentation attached to support that allegation. On the other hand, the Respondents have indicated that their father the late William Kipkoske Mochu bought 0. 1 acres of land in Kitale where the 1st and the 2nd Respondents are currently residing and that the same was taken into consideration in the distribution of Kericho/kapkatet/499, the Respondents have attached the Land Sale Agreement of the same.

47. I have also looked at the Affidavit and Further Affidavit file in support of the Summons for Revocation of Grant dated 22nd February 2019 and 10th April 2019 Respectively. These Affidavits were filed after the grant was confirmed on 18th July, 2017. It took the Applicants almost 1 year and 6months after the confirmation of the grant to file their Summons for Revocation despite having been aware of the succession cause. As if that was not enough, the Respondents filed both their Replying affidavit and their written submissions by 9th May, 2019 while it took the Applicants almost 5 years from the time, they filed their summons of revocation to file their Written Submissions despite the instant application being their case in which they were to actively prosecute.

48. I am in agreement with the Respondents that they have been more than fair to the Applicants and their deceased father’s first house at large since the second house agreed to inherit a lesser share of the estate despite having 10 children while the first house with 5 children inherited a bigger share than they would have been entitled to had section 40(1) of the Law of succession Act been followed strictly.

49. I am therefore not persuaded by the applicants’ arguments that the respondent concealed material facts and thus the grant was obtained fraudulently. I find that pursuant to Section 76 of the Law of Succession Act, the applicants have not satisfied the court or made a case to warrant the revocation of the grant. In this regard, the application dated 22nd February 2019 must fail.

50. Consequently, I hereby dismiss the application dated 22nd February, 2019

51. Each Party to bear their own costs.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 19TH DAY OF JULY, 2023. ………….…………….J.K. SERGONJUDGEIn the presence of:C/Assistant - RutohSang holding brief for Koech for RespondentKirui for the Applicant