[2022] KEHC 11731 (KLR)

In Re Estate of the late Kibet Kiptum (Succession Appeal 1 of 2020) [2022] KEHC 11731 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11731 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Appeal 1 of 2020

RN Nyakundi, J

May 19, 2022

IN THE MATTER OF THE ESTATE OF THE LATE KIBET KIPTUM

Between

Dolorace Jeruto Kotut

1st Appellant

Ezron Kibet Kotut

2nd Appellant

and

Brigid Jepkorir Kibet

1st Respondent

Rose Jepkoech Kimaiyo

2nd Respondent

(Being an Appeal from the ruling of Honourable O. Odenyo SPM, delivered on the 17th of January 2020 at Eldoret Succession Cause No. 344 of 2016)

Judgment

1. What is before this court is an appeal in respect to the ruling delivered on 17th of January in Chief Magistrates’ court succession cause no. 344 of 2016. The ruling revoked the certificate of confirmation of grant that was issued on 13th September 2018.

2. The appellant instituted this appeal vide a memorandum of appeal filed on 17th February 2020. The appeal is based on the following grounds;a)The learned magistrate erred in law in his ruling by failing to appreciate that the appellants had satisfied the requirements of section 71, law of Succession Act, before the grant was confirmed.b)The learned magistrate erred in law in and in fact by revoking a grant based on the ground that the applicants were not informed of the confirmation, a ground that does not fall under section 76 of the Law of Succession Act, and which had been addressed in the said court prior to confirmation of grant.c)The learned magistrate erred in law and fact by failing to consider that the applicants had not demonstrated what material facts were concealed during confirmation of grant to warrant a revocation.d)The learned magistrate erred in law and fact by failing to consider that the grant as confirmed was merited and ought to be revoked.e)The learned magistrate erred in law and fact by failing to consider the issues raised by the appellants that the respondent’s application was defective as they sought orders against a non-existent grant.f)The learned magistrate erred in law and fact by holding that the 2nd respondent was found to be a creditor as intimated by the respondent, a fact that was untrue as the said respondent’s claim on the same was dismissed.g)The learned magistrate erred in law and fact by holding that the appellants had a duty to inform the 2nd applicant, who is not a beneficiary of the confirmation proceedings.h)The learned magistrate erred in law and fact by failing to appreciate that the appellant’s submission that if indeed the 2nd applicant was a creditor (which is untrue) the same ought to be pursued in a civil claim.i)The learned magistrate misdirected himself in ignoring the evidence and written submissions presented and filed by the appellant in its entirety.

Appellant’s Case 3. The appellants contended that the grant ought not to have been revoked as the same had been legally and procedurally acquired. The process under section 71 of the Law of Succession Act and Rules 40 and 41 of the Probate and Administration Rules were applied. Further, that section 76 of the Law of Succession Act, the circumstances under which a grant can be revoked and none of the circumstances listed were proved by the respondents.

4. The appellants submitted that failing to inform a debtor is an interested party of the confirmation proceedings is not among the grounds of revocation provided for under section 76 of the act. They cited Maria Irimba Njiru & Another vs Carol Njeru Njiru(2020) eKLR. further, that no proof of fraud or concealment of material facts.

5. On grounds 6 and 7 the trial magistrate erred in holding that the 2nd respondent was found to be a creditor of the estate as the ruling of 25th May 2018 dismissed the application. She is a stranger to the estate. The appellants cited ReEstate of Mukhabi Namonya (Deceased) [2020] eKLR and submitted that the 2nd respondent cannot be deemed a creditor to the estate.

6. The appellant submitted that the court failed to consider the appellant’s pleadings in revoking the grant and had it considered the same it would have arrived at a different position. The court also erred in not considering that the respondents sought for orders against a defective grant. They also sought that costs be awarded to the appellants.

Respondent’s Case 7. The respondent filed submissions on 15th November 2021. They submitted that the 1st respondent is a beneficiary of the estate under section 76 of the Law of Succession Act and their presence for the confirmation of grant was mandatory. Being a minor at the material time, her interests were not addressed hence the application to revoke the grant.

8. The 1st respondent falls under the definition of a dependant under section 20 of the Law of Succession Act and was supposed to be accorded the opportunity to participate in the confirmation proceedings before the grant was confirmed. The relevance in this submission is that such material facts were never disclosed to this court during confirmation of the grant so as to enable the court make an informed decision on distribution of the estate.

9. The proceedings leading up to the issuance of the grant were defective in substance as the petitioners concealed from the court of the fact that they had not obtained the respondents’ consent to the confirmation of grant.

10. The respondent citedMatheka & Another vs Matheka (2005) EA 251 and submitted that the reasons given for revocation were that the respondents had not been notified of the hearing of the confirmation application hence there was no attendance on their part and the hearing proceeded to their detriment.

11. The respondents asked the court to exercise the inherent power under rule 73 of the Probate and Administration Rules and set aside this appeal.

12. Upon reading the pleadings and the submissions herein I have identified the following issues for determination;

a. Whether the trial court erred in revoking the grant. Whether The Trial Court Erred In Revoking The Grant 13. Before proceeding with this determination, I note that the record of appeal is incomplete and the decision appealed against is not contained therein. The pages do not correspond with the indexing either. I find it disturbing that the appellant who seeks redress would furnish the court with an incomplete record which is inaccurately indexed and has blank pages.

14. I also note that the issue of the claim over kshs. 500,000/- was to be dealt with during the confirmation proceedings and thus was properly addressed by the trial court.

15. The main issue arising from the pleadings is whether the trial court erred in revoking the ground. Section 76 of the Law of Succession Act 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 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.”

16. The court in the case of Jamleck Maina Njoroge –VS- Mary Wanjiru Mwangi (2015) eKLR at paragraph 11 of its ruling in revoking a grant reiterated the grounds for revocation by holding as follows: -“11. The circumstances that can lead to the revocation of grant have been set out in Section 76 Law of Succession. For a grant to be revoked either on the Application of an interested party or on the court’s 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 making of false statement, or by concealment of something material to the case, or that the grant was obtained by means of untrue allegations of facts essential in point of law.”

17. The Trial court revoked the grant on the basis that the respondents had not been notified of the hearing of the confirmation application. This, in my opinion, amounts to material non-disclosure as the respondents were beneficiaries and should have been involved. Special emphasis must be laid by the court on the principle of the equality of the parties to a litigation as one of the most important requirements of good administration of justice. The general principles of law and fair trial rights under Article 50 of the constitution embodies the judicial character of the court to require that even in interlocutory, advisory and claims filed the interested parties should each have an opportunity to raise their defence in the matter. This is principally grounded on the doctrine of equality of arms. The trial court took cognisance of this constitutional cannon on right to a fair hearing guaranteed under Article 50 of the Constitution.

18. In re Estate of Joseph Kilonzo Musyoka (Deceased)[2018] eKLR where the petitioner had omitted one of the families of the deceased, his second house, the court held;The parties cannot be given liberty to be selecting the properties and the beneficiaries to include in the exercise of Application for administration of estate matter.

19. I find that the appeal is without merit and uphold the trial court’s decision.

DATED, SIGNED AND DELIVERED AT ELDORET VIA EMAIL THIS 19TH DAY OF MAY, 2022. ............................R. NYAKUNDIJUDGE