[2022] KEHC 15877 (KLR)

In re Estate of Teresia Kimonges Kimengichi (Succession Cause 104 of 2013) [2022] KEHC 15877 (KLR) (2 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15877 (KLR)

Republic of Kenya

In the High Court at Mombasa

Succession Cause 104 of 2013

JN Onyiego, J

December 2, 2022

Between

Sisiliya Lawai Chemusta

1st Objector

Tom Esera Salimo

2nd Objector

Charles Ndiwa James

3rd Objector

and

Michael Cheptai Robert

Respondent

Ruling

1. The late Teresia Kimonges Kimengichi died intestate on 23rd December, 2004. On 3rd April 2013, Michael Cheptai Robert claiming to be the only child and therefore survivor to the deceased petitioned for a grant of letters of administration intestate. The same was made in his favour on 5th August, 2013 and issued on 7th August, 2013. It was then confirmed on 25th October, 2013 and a Certificate of Confirmation issued on 28th October, 2013.

2. Subsequently, on 14th August 2019, the objectors herein filed a summons seeking an order that the grant of letters of administration issued to Michael Cheptai Robert and confirmed by this honourable court be revoked and or annulled, recalled and/or revised and the applicant forced to return all the documents issued to him by this honourable court. The application is premised on the grounds therein and the supporting affidavit of the objectors filed on 14th August, 2019.

3. The objectors stated that; the grant made on 5th August 2013 was obtained fraudulently by omitting the names of the applicants therein as the legitimate beneficiaries of the estate; they were not involved in the making nor confirmation of the grant neither was their consent sought; the grant was issued fraudulently by deliberately manipulating material facts yet the deceased had left a will dated 7th December, 2003 indicating the true heirs and or dependants of her property known as kilifi/Mtwapa/872 measuring 5. 9 hectares and; the grant was obtained through concealment and non-disclosure of material information hence their exclusion was purely illegal.

4. They averred that upon discovery that a grant had been made to the respondent, the 1st objector promptly lodged a complaint to the D.C.I.O Kilifi on 8th April, 2016. That they were not involved in the administration process and sale of the estate of the deceased in which they have legitimate beneficial interest. They urged the court to; revoke the grant herein or amend the same to include them as beneficiaries and or issue a new grant to them and the sale of the subject property be declared illegal.

5. In response, the respondent filed a replying affidavit sworn on 29th March, 2021 and filed on the same day. He averred that he was the only child of the deceased as per the Assistant Chief’s Kijipwa Sub –Location letter dated 21st February, 2013. He dismissed the allegation that Salimo Tom Esera (2nd objector) was his brother. According to him, the objectors are not entitled to any property in respect of the estate of his mother to which he was the sole heir and beneficiary.

6. He further stated that he lawfully and legally obtained the grant of letters of administration intestate which empowered him to sell the property in question to a 3rd party. That prior to the issuance of the grant, the matter was gazetted on 21st June, 2013 in the Kenya gazette and no valid objection was filed except an objection letter dated 16th August, 2013 filed by busy bodies unknown to him whom he later learnt were acting on the instigation of the current applicants. That the objectors were only interested in grabbing his late mother’s estate. He claimed that the objectors who did not attend his mother’s burial were imposters.

7. He further averred that his mother did not leave any valid will and the document dated 7th December, 2003 was only created for purposes of this matter with the mere intention of having the court revoke the grant herein.

8. He deposed that there has been inordinate delay without any explanation why the objectors/applicants did not file any application for revocation since 2016 to date. Further, that the objectors have not laid any legal and or lawful basis to warrant issuance of the orders sought.

9. The matter was canvassed by way viva voce evidence.

10. PW1 was the 1st objector who told the court that the deceased herein was her sister. That they were four siblings but she was the only one surviving. That the deceased was not married but had one child namely Michael Robert. It was her evidence that the deceased was staying in Kikambala where she died and got buried.

11. She further stated that she attended her sister’s burial but the respondent was violent and uncooperative. She went further to claim that she was the one in possession of the title deed to the subject land which was registered in her father’s name and that of the deceased but the respondent sold the land without involving the rest of the beneficiaries. It was her evidence that the land in question should revert back to the actual original owner

12. In cross examination, she told the court that; the deceased used to give her financial support during her life time; the deceased had one child whom they were not staying together with; after the deceased’s burial, she went back to Uganda; that she got injured on her left hand resulting to her inability to pursue her claim on the estate; the respondent should have considered her interest before petitioning for the grant and that the respondent was supposed to seek her consent and that of her other siblings.

13. In re-examination, she stated that the deceased was taking care of her son Charles and Esera since they were young. That she was given the title deed for safe custody but the respondent went ahead to obtain another one without her knowledge.

14. PW2 (2nd objector) told the court that the deceased was his aunt having been a sister to his mother and mother to the respondent. He basically corroborated his mother’s testimony. That his mother was the only one surviving out of the four siblings. He confirmed that the deceased had a piece of land in kikambala where she was buried after her death. It was his evidence that when his other aunt Jennifer died, she left a son known as Esera whom the deceased took care of.

15. It was his further evidence that the deceased herein had built a residential house for herself at her 5. 9 kikambala land. That the deceased herein had executed a written will which was read during her burial ceremony thus providing for the objectors.

16. In Cross examination, he told the court that the respondent was the only child of the deceased. That he stayed with the deceased during his tender age and by the time of her death he was staying in Mt.Elgon and the 3rd objector in Uganda while his mother was in Mombasa taking care of the deceased herein before her death.

17. Upon closure of the objectors’ case, the respondent gave his evidence as RW1. He told the court that he was adopting his replying affidavit and witness statement plus list of documents dated 23rd July, 2021 as his evidence. It was his testimony that he was the sole beneficiary to the estate and that he had sold the suit property after the confirmation of grant. He went further to state that Esera and Charles (objectors) were his cousins staying in Uganda hence his mother could not have maintained them.

18. In cross examination, he told the court that after selling the suit property at kshs 36 million he built rental rooms. Regarding the will, he told the court that the handwriting and signature therein was not that of the deceased hence a forgery. It was his position that during Covid -19 Pandemic the objectors took him to Mt. Elgon where they wanted to kill him but he ran away.

19. After the closure of case, parties agreed to file written submissions.

Objectors’ submissions 20. The objectors through their advocates Angeline Omollo & Associates Advocates filed their written submissions dated 8th July, 2022. Counsel submitted on five issues namely;a.Whether Charles Ndiwa James, Tom Esera Salimo and Sisiliya Lawai Chemusta are dependants.b.Whether the will dated 7th December, 2013 is valid.c.Whether the grant issued on 5th August, 2013 should be revoked (or annulled), recalled and/or revised and the applicant forced to return all the documents issued to him by this honourable court to enable the objectors to be listed as legitimate beneficiaries.d.Whether the sale of the estate should be declared illegal since the grant was obtained fraudulently and did not include all beneficiaries.e.Costs be provided for by this honourable court.

21. On the first issue, counsel submitted that the deceased left a will dated 20th December,2003 which indicated the true heirs and or dependants of her property which she held in trust since it was ancestral land.

22. Counsel cited Section 29 of the law of succession thus submitting that the objectors do qualify to be dependants of the estate of the deceased in the manner envisaged under that section.

23. On the authenticity of the will dated 20th December, 2013, counsel submitted that the same had been disputed/contested but no criminal complaint on the same had been made by the respondent thus the said will was valid as there was no alternative will.

24. On the third issue, counsel submitted that the respondent obtained the grant herein falsely after misleading the court that he was the only heir and or dependant of the estate of the deceased which was manifestly untrue. Counsel contended that, the respondent lied to the police by obtaining a police abstract and to the lands office by obtaining provisional certificates of title deed by falsely stating that the original title deed was lost information which he knew was misleading as he was aware that the aunt had the custody of the original title deed which was handed to her by the deceased after reading out her will.

25. Counsel further submitted that the allegation that the objectors were Ugandan foreigners who cannot inherit or own property in Kenya is baseless as the deceased was a Ugandan and the said title deed registered in her name as the sole proprietor who could bequeath her property to any person under her will upon her demise.

26. Counsel relied on Section 76 of the Law of Succession Act and Rule 44 of the Probate and Administration Rules to express the point that the grant herein was obtained through false information and concealment of material facts. She also relied on the holding in the case of Jamleck Maina Njoroge v Mary Wanjiru Mwangi (2015) eKLR and Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] eKLR where the court emphasized on proof of the grounds for revocation as set out under section 76.

27. Counsel further referred the court to the case of re estate of Julius Ndubi Javan (Deceased)[2018] eKLR and In re state of Moses Wachira Kimotho (Deceased)[2009] eKLR to buttress the point that a grant can be revoked on account of non-disclosure of material facts.

Respondent’s /petitioner’s submissions 28. On the other hand, the respondent through his advocates Mogaka Omwenga &Mabeya Advocates relied on his written submissions dated 20th June, 2022 and filed on 21st June, 2022. Counsel submitted that the will referred to by the objectors dated 20th October 2003 did not meet the mandatory provisions of Section 11(b) of the Law of Succession Act as it was not attested by two or more competent witnesses. In that regard the court was referred to the case of Rahab Nyakangu Waithanji vsFredrick Thuku Waithanjie succession case number 587 of 2012 Nairobi and In the matter of the estate of David keya(deceased) kakamega succession case number 480 of 2010. Counsel urged the court to find that the alleged will was not a valid will to warrant revocation and or annulment of the grant and confirmation issued to the respondent.

29. Learned counsel contended that under section 38 of thelaw of succession, the respondent being the only surviving child is entitled to the entire estate. That in compliance with succession 66 of the LSA, he was entitled in priority to petition for the grant hence not under obligation to seek consent from anybody.

30. Counsel further submitted that the objectors had failed to prove the grounds listed under section 76 of the law of succession Act for revocation of a grant to warrant issuance of the orders sought. To buttress that fact, the court was referred to the case of in the re estate of Elisha Okea Ogola(deceased)(2020) e KLR succession cause no.95 of 2015. In conclusion counsel urged the court to dismiss the application with costs.

Analysis and determination 31. I have considered the summons herein, the response thereof and rival submissions by both counsel. Issues that emerge for determination are:a.Whether the alleged will dated 20th October, 2003 is valid.b.Whether the objectors are dependants/beneficiaries of the estate of the deceased.c.Whether the grant herein should be revoked.

32. On whether the purported will dated 20th October,2003 is valid, the applicants were duty bound to prove that the document was compliant with the conditions set out under Section 11 of the Law of Succession Act: For avoidance of doubt, I wish to reproduce Section 11 which provides that;“No written will shall be valid unless—a.the testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator;b.the signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will;c.the will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

33. The respondent submitted that the said will did not meet the mandatory provisions of Section 11(b) of the Law of Succession Act as it was not attested by two or more competent witnesses.

34. I have considered the said will and what is notable is that the same was only witnessed by one witness namely; Towet Peter Tom Chemonges who is not a party to this application neither was he called as a witness to testify on the same. See in re estate of Lusila Wairu Waweru(deceased)(2020)e KLR where the court emphasized that a will which is not executed in the presence of two witnesses is invalid in law. Accordingly, it’s my finding that the will dated 20th October, 2003 does not meet the requirements of Section 11 of the Law of Succession Act as it was not signed in the presence of two witnesses.

35. The respondent further argued that the handwriting and signature on the will was not that of his mother and that the same was forged. The court in the case of In ReEstate Of Samuel Ngugi Mbugua (deceased)[2017]e KLR had this to say;‘The allegation that the said signature was not that of the deceased amounts to a claim that the signature was forged or that fraud was exercised in the procurement of the alleged will. That is to say that someone other than the deceased had affixed that mark on the will with the intent of passing the same as the signature of the deceased. Forgery is a criminal offence. The applicant is in fact imputing criminal conduct on either the person propounding the will or those who were involved in the operation that is purported to have been its execution. The burden of proving forgery lies with the person alleging it. In Elizabeth Kamene Ndolo vs George Matata Ndolo Nairobi Court of Appeal civil appeal number 128 of 1995 it was stated that the charge of forgery or fraud is a serious one, and the standard of proof required of the alleger is higher than that required in ordinary civil cases.’The allegation of forgery placed a heavy burden upon the applicant to prove beyond reasonable doubt, or at least beyond balance of probability, that indeed the signatures were forged. He led no evidence on the alleged forgery. It is clear, therefore, that he failed to discharge the burden of proof and thus his allegation of forgery cannot succeed. It was said in Karanja and another vs. Karanja(supra) that where a will is regular on its face with an attesting clause and the signature of the testator, a rebuttable presumption of due execution or omnia esse riteatta arises. In the context of the instant case, I am satisfied that the will before me was regular on the face of it and the presumption applied to it, but the applicant did not rebut the presumption through concrete evidence.’

36. In this case the burden of proof lay with the applicant who alleged forgery on the handwriting and signature of the deceased in the will.The applicant did not call/produce any report by a document examiner or produce any concrete evidence to prove his allegation of forgery and therefore that allegation fails.

37. On the mental capacity of the deceased, the respondent argued that his mother (the deceased herein) was an inpatient at coast general hospital for the better part of 2003 and 2004 thus the said will was not hers and if it is it was not valid. I must note that what is referred to as the will of the deceased herein are minutes of a meeting with the title “clan meeting concerning the estate of Teresia Kimonges Kimengichi” thus cannot be said to be a will as the critical element of attestation by at least two witnesses is missing.

38. It is trite law that before executing a valid will, a testator must have been of sound mind pursuant to the conditions set out under Section 5 of the Law of Succession Act which provides that;1. Subject to the provisions of this Part and Part III, every person who is of sound mind and not a minor may dispose of all or any of his free property by will, and may thereby make any disposition by reference to any secular or religious law that he chooses.2. A female person, whether married or unmarried, has the same capacity to make a will as does a male person.3. Any person making or purporting to make a will shall be deemed to be of sound mind for the purpose of this section unless he is at the time of executing the will, in such a state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he is doing.4. The burden of proof that a testator was, at the time he made any will, not of sound mind, shall be upon the person who so alleges.

39. The court in the case of In Re Estateof Krishna Kumari Bhatti (deceased) [2018] eKLR held as follows;“The law on capacity is stated in section 5 of the Law of Succession Act. The maker ought to be a person of sound mind, who is not a minor. The provision goes on to state that the soundness of mind of the maker shall be presumed unless at the time of executing the will he was not in a state of mind as not to know what he was doing, on account of either mental or physical illness, or drunkenness, or any other cause. The burden of proving lack of capacity on account of lack of a sound mind is cast on the person alleging that the deceased lacked such capacity. Related to that is the provision in section 7 of the said Act, with regard to wills caused by fraud or coercion or importunity or mistake. Such wills are stated to be void.”

40. The respondent has not produced any documentary evidence and or any sufficient evidence to prove that the deceased herein did not have mental capacity to make the will.

41. Having found that the will does not meet the requirements of section 11 of the law of succession act, it’s my finding that the deceased did not leave any valid will that would warrant revocation of the grant made herein. I wish however to comment on another purported will dated 7th December 2003. A perusal of this document which is in form of minutes of a family meeting does not legally revoke or act as a codicil to the earlier document of 20th October 2003 hence we cannot talk of a second will before revocation of the earlier will.

42. On whether the objectors are dependants /beneficiaries of the estate of the deceased, Section 29 of the Law of Succession Act provides:For the purposes of this Part, “dependant” means—a.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;b.such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; andc.Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

43. The objectors herein argued that they were beneficiaries of the estate of the deceased due to the fact that the deceased was taking care of them and by virtue of the will dated 20th October, 2003. The first objector is a sister to the deceased while the 2nd and 3rd objectors are nephews of the deceased. Prior to the demise of the deceased, the 3rd objector was living in Mt.Elgon, while the 2nd objector was staying in Uganda. There is purely no proof of dependency.

44. It is not in dispute that the respondent was the only child of the deceased and thus the sole beneficiary of the estate of the deceased who under section 66 of the law of succession Act had the right in priority to petition for a grant of representation.

45. As for the objectors, they have to proof that they were being maintained by the deceased immediately prior to her death pursuant to Section 29(b) of the Law of Succession Act. Faced with a similar case, the court in the case ofIn re Estate of Virginia Wanjiku Githuka (Deceased) [2021] eKLR held as follows;“The section however qualifies who becomes a dependant for purposes of inheritance: one who was being maintained by the deceased immediately prior to his death.What would this mean? Plainly in my view it means that as at the time of the demise of the deceased the applicant was being maintained by the deceased.”

46. The court in the case of In re Estate of Virginia Wanjiku Githuka (Deceased) (supra) also stated thus;“Raising of children by relatives when their parents pass away or are unable to parent is a very normal phenomenon in many Kenyan communities. We are mostly patriarchal. So that even where the child, especially the male child, is raised by the maternal relatives his roots with his father are never uprooted. There is that unspoken belief that it is difficult for a step mother to take good care of another woman’s children. This is reproduced in all the horrid tales that exist about cruel step mothers. While it is not always the case and while the narrative may be changing, the raising up of the children by maternal relatives did not automatically make them heirs. In some communities, where it was felt that the nephew needed to be settled it would be land outside the ancestral land of his maternal relatives.Be that as it may not all the raising of such children gives them rights to inherit from the deceased relative unless as provided by the law they can demonstrate dependence. It is not tenable that by merely fostering a child the child acquires rights to inherit. This would create problems and create a challenge for people who just want to assist children in need.”

47. Equally, in the case of In Re the Estate of Joshua Orwa Ojodehh-(deceased)(2014)e KLR the court had this to say;“Going by the above provision, where a deceased person is survived by spouse and child or children, the other relatives are not entitled to a share in the intestate estate of such person. The spouse and child are entitled to the estate to the exclusion of all the other relatives. The excluded relatives include the parents of the deceased. Parents are only entitled where there is no surviving spouse or child…’’

48. The objectors herein have not established their claim that they were being maintained by the deceased prior to her demise and thus it’s my finding that they are not dependants under Section 29 of the Law of Succession Act.

49. Regarding ownership of the property, it is clear from the evidence tendered by both parties that the suit property was registered in the name of the deceased herein and not in the name of their father as alleged by the 1st objector. Accordingly, it was the only property constituting the estate of the deceased.

50. On revocation of the grant, the objectors have argued that the same should be revoked on the ground that; it was obtained fraudulently by omitting their names as the legitimate beneficiaries of the estate of the deceased; they were not involved in the making and confirmation of the grant; the grant was issued fraudulently by deliberately manipulating material facts while the deceased on her will indicated the true heirs and or dependants of her estate and that they were not involved in the administration process.

51. For a grant to be revoked, the applicant must prove the salient elements set out under section 76 of the law of succession Act which provides;““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 has ordered or allowed; orii.To proceed diligently with the administration of the estate; oriii.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; ore.That the grant has become useless and inoperative through subsequent circumstances’’.

52. It is incumbent upon the person seeking the court to exercise its discretion in his or her favour to prove the ingredients set out under Section 76 aforesaid. In the case of In re Estate of Magangi Obuki (Deceased) [2020] eKLRwhile dealing with the issue of revocation, the court had this to say;“In the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No.158 OF 2000, Mwita J. made remarks on the guiding principles for the revocation of a grant. He stated;“[13] 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.”

53. In the instant case, the applicant merely claimed that the respondent did not notify her and the relatives all whom were either a sister or nephews before petitioning for the grant. Under section 38 of the law of succession Act, where an intestate has left a surviving child or children but no spouse, the intestate estate shall, subject to the provisions of section 41 and 42 devolve upon the surviving child, if there be only one child, or shall be equally divided among the surviving children. For purposes of this case, the deceased was survived by one child the respondent herein hence the only beneficiary entitled to inherit the estate of his mother absolutely. He was not under obligation under section 66 of the law of succession Act to seek consent from anybody before petitioning for the impugned grant as the person entitled in priority.

54. In view of the above finding, the respondent (administrator) cannot be accused of concealment from the court of any relevant material fact nor was there any fraud or non-disclosure of something material to the court. The applicants are mere relatives who in the African social lifestyle may have been hosted by a sister or an aunt as visitors but that gesture did not translate to conferring a right to inherit her estate. The applicants have their independent homes hence cannot be allowed to encroach to the respondent’s inheritance.

55. Having held as above, it is my finding that the summons for revocation or annulment of grant filed on 14th August, 2019 lacks merit and is consequently dismissed with no order as to costs.

DATED, SIGNED AND DELIVERED IN MOMBASA THIS 2NDDAY OF DECEMBER 2022J.N.ONYIEGOJUDGE