[2022] KEHC 11848 (KLR)

In re Estate of the Late Kipkoech arap Tallam (Deceased) (Succession Cause 9 of 2020) [2022] KEHC 11848 (KLR) (9 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11848 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause 9 of 2020

TM Matheka, J

May 9, 2022

Between

Jane Kobilo Tallam

1st Petitioner

Faith Jepsongol

2nd Petitioner

and

Josephine Chepkoech Sang

1st Applicant

Sharon Jebet Chelimo

2nd Applicant

Ruling

1. The Applicants vide summons dated 7th October 2021 brought under Article 159 of the Constitution of Kenya 2010, Sections 47 and 76 of the Law of Succession Act, Cap 160, Laws of Kenya and Rule 73 of Probate and Administrations Rules seek for orders: -(1)Spent;(2)THAT the letters of Administration made jointly to Jane Kobilo Tallam and Faith Jepsongol, being a mother and her daughter respectively, on the 16th November, 2020, be revoked and a fresh one issued to Josephine Chepkoech Sang, the 1st Applicant;(3)In the alternative this Honourable Court be pleased to substitute the name of Faith Jepsongol (2nd Respondent and daughter to 1st Respondent) with the name of Josephine Chepkoech Sang, the 1st Applicant.(4)THAT this Honourable Court be pleased to add more administratrixes to the estate of the deceased herein;(5)THAT the administratrixes so appointed by the court under prayer No.2, 3 and 4 supra be given fourteen (14) days to apply for confirmation of grant issued; &(6)The cost of the Application be provided for.

2. The Summons is on the grounds set out in the application and supported by an Affidavit of Josephine Chepkoech Sang, sworn on 7th October 2021. She deponed that she is the 1st widow of the deceased and that the deceased passed on at Mediheal Hospital on 29th June 2019 and his body interred on Land Parcel number Njoro/Ngata Block 2/227 within Nakuru County.

3. That the deceased married her in 1992 and they established a matrimonial home on Njoro/Ngata Block 2/227 and that in the year 1994 and 1995 the deceased also married the 1st respondent/petitioner and the 2nd Applicant respectively.

4. That the petitioners/respondents concealed from this court that the following were the deceased’s dependants from the three(3) households:FIRST HOUSE(i)Josephine Chepkoech Sang - Widow(ii)John Kiplangat Tallam - son - 20 years old(iii)Juliet Chebet - daughter - 20 years old(iv)JC - daughter - 16 years oldSECOND HOUSE(i)Jane Kobilo - Widow(ii)Faith Jepsongol – daughter – 24 years old(iii)Emmanuela Jemator - daughter- 20 years old(iv)Samuel Cherutich – son - 18years oldTHIRD HOUSE(i)Sharon Jebet Jelimo - Widow(ii)Alex Kiprotich Tallam - son- 25 years old(iii)Charity Chepchumba - daughter-21years old(iv)VJ - daughter-17years old(v)BC - daughter-5years old.

5. She further averred that the petitioners did not disclose to this court that the deceased left properties duly registered in his name namely;(i)NJORO/NGATA BLOCK 2/227;(ii)PLOT NUMBER 38 at SOBEA;(iii)Money held by KETRACO for purchase of 3 acres which were excised from land parcel number NJORO/NGATA BLOCK 2/227;&(iv)Money held at EQUITY BANK ACCOUNT NUMBER 031019511868

6. That the Petitioners/Respondents fraudulently omitted her household interests and those of the 2nd Applicant from their petition for letters of Administration Intestate and similarly failed to collect all the estate’s assets. That the chief’s letter dated 7th October, 2019 is inherently defective in substance and goes to the very root of the joint grant made to the petitioners on the 16th November 2019 for the reasons that; it was written by an Assistant Chief of Kamungei Sub-Location directed at the Chief of Menengai Loaction and not to the Nakuru High Court for purposes of commencement of this Succession Cause, the relationship if any between the listed heirs and the deceased is not disclosed and or abundantly clear, is tainted with non-disclosure of material facts, is shrouded in willful recklessness in its information and the impugned letter is too pedestrian and cannot assist this court to dispose this Succession Cause to the satisfaction of the beneficiaries.

7. She accused the Petitioners/Respondents for failing to apply for Confirmation of Grant within the requisite period and for failing to diligently administer the estate of the deceased and prayed that the grant should be revoked ex debito justitiae.

8. The application is opposed by the respondents through a Replying Affidavit sworn by the 1st respondent on 25th October 2021. She deponed that she got married to the deceased on 30th April 1994 under African Christian Marriage and Divorce Act, Cap 151 Laws of Kenya and their marriage was celebrated at African Inland Church – Kabarak within Nakuru District and a Marriage Certificate was issued.

9. That she cohabited with the deceased as a husband and wife at their matrimonial home in Ngata situated at parcel number Njoro/Ngata Block 2/227 and they were blessed with three issues namely; 1. Faith Jepsongol 2. Emmanuela Jamator 3. Samuel Cherutich.

10. That the deceased died on 29th June 2019 and announcements concerning his death, burial date of 20th July, 2019 and place of burial at their above home were made in the newspapers and radio and that subsequently the newspaper advert and eulogy indicating his spouse and children were published.

11. That the applicants herein were not listed in the eulogy and newspaper advert as dependants of the deceased and they did not raise any issue on the same at the time despite the wide publication and announcement of the deceased’s demise yet that was an appropriate time for them to raise such claims and demand for the inclusion of their names and those of their children and participation in the burial arrangements of the deceased.

12. That the applicants were not present during the burial of the deceased and that the Applicants together with their children omitted in the petition were not introduced or mentioned at the burial.

13. That after the burial, the applicants served her with Nakuru Citation Cause No.21 of 2021 and as a result of the said Citation and despite being too soon after the demise of her husband she petitioned this Honourable court for Grant of Letters of Administration intestate and together with the 2nd Respondent they were issued with a temporary grant on the 16th November 2020 and thus all the legal steps and procedures towards issuance of the grant were duly followed as there was no concealment of the deceased’s assets and beneficiaries as alleged by the applicants.

14. She disputed that the Applicants were married to the deceased and that the deceased established a home for the 1st Applicant at their matrimonial land at Ngata or at any given time the 1st applicant ever lived or stayed in their matrimonial land in Ngata. She however, confirmed that the deceased got two children with the 1st applicant namely; John Kiplangat Tallam and Juliet Chebet and one child with the 2nd Applicant one Alex Kiprotich Tallam whom the deceased informed her prior to his demise the reason why they were listed in the eulogy, the newspaper advert and the chief’s letter.

15. She deposed that the consent form with listed beneficiaries of the deceased’s estate as reflected in the petition and in the chief’s letter was signed by the 1st applicant’s son John Kiplangat and 2nd Applicant’s son Alex Kiprotich and sent back to their advocate and at that time, the applicants did not raise any issue on their omission or that of the other purported dependents namely; JC, VJ & Bobelyn Chelagat now introduced in this application and that the contention by the applicants that they were omitted together with their children in the petition is an afterthought.

16. She stated that there is no evidence to prove that the applicants were wives to the deceased and that the purported children namely; JC, VJ & Bobelyn Chelagat were either children or dependents of the deceased.

17. She averred that her marriage to the deceased did not permit polygamy and the allegations of fraud against her or her co-administrator are mere statements without value.

18. She stated that since the applicants pushed through citation to petition for letters of administration while she was still mourning she was unable to get all assets of the deceased and documents in support. That in the petition for letters of administration she listed matrimonial property at Ngata known as Njoro/Ngata Block 2/227 in the P & A at paragraph 5 but could not trace the original title deed for the same as it was in custody of the 1st applicant who must have taken possession of the same un-procedurally and unlawfully.

19. That Plot Number 38 in Sobea was omitted from the petition for grant because it is not registered in the name of the deceased and ownership issue is yet to be fully determined. With regard to the money held by KETRACO for purchase of 3 acres excised from land parcel number Njoro/Ngata Block 2/227, she stated that compensation of Kshs.5,674,280. 85/= will be released to the estate once the original title deed is released to KETRACO for purposes of registration of the way leave as a caveat therein. That the said original title deed is in possession of the 1st applicant who has declined to release the same.

20. In regard to the money held at Equity Bank Account Number 031019511868, she averred that such account has sum not exceeding Kshs.100,000/= which money is intact and safe with the bank and that she will secure a statement of the said account and submit it to court during summons for confirmation of grant.

21. She contended that her role as an administrator of the deceased estate has been hampered by the unlawful conduct of the 1st applicant who has refused to release to them the original title deed of their matrimonial land parcel Number Njoro/Ngata Block 2/227, as without the original title deed they are unable to collect and preserve the estate with KETRACO.

22. That the 1st applicant cannot state that she is in violation of her duty to court while she herself is guilty of malfeasance and should be called to order by this Honorable Court for the course of justice to take its path.

23. She averred that is still in the process of collecting the assets of the estate of the deceased and it is therefore premature for the applicants to allege that she has not disclosed to court all the deceased’s assets. That her duty to disclose all the assets is yet to come and she shall do so at the appropriate moment.

24. She averred that the assistant chief is well versed with who are the family members of the deceased and therefore the information provided by the chief in his letter is accurate. That if there is any delay in making Summons for Confirmation of Grant then the same is highly attributable to the applicants who are strangers in the cause and who have frustrated the administrators’ efforts of collecting the assets before confirmation of grant and distribution.

25. She stated that Summons herein is baseless, speculative and an abuse of the court process and that it ought to be dismissed with costs.

26. The 1st Applicant Josephine Chepkoech Sang filed a Supplementary Affidavit on 16th November 2021. She deponed that the respondents’ Replying Affidavit fell short of responding to the pertinent question as to why this court should not proceed to revoke the joint grant issued to them on the 16th November 2020 for failure to apply for its confirmation within six (6) months as required by the Law.

27. She reiterated that she is the widow to the deceased having had uninterrupted and continuous lawful marriage with him from the year 1992 through to 29th June 2019 when the cruel hands of death snatched him from her. She stated that the deceased recognized her and the 2nd applicant as his wives and entrusted them as custodians of his personal effects and that prior to his untimely demise the deceased surrendered to her his original national identity card and title deed for land parcel number Njoro/Ngata Block 2/227 with directions to divide it equally between the 2nd applicant and herself.

28. That the 1st respondent deserted the deceased when he started ailing until his death in 2019 when she resurfaced during his funeral waving a certificate of marriage issued to her on 30th April 1994 and evicted her from her house situated on the land parcel number Njoro/Ngata Block 2/227.

29. She deposed that it is within the 1st respondent’s knowledge that the deceased married her under Kalenjin Customary Marriage as she hosted elders from her clan at Milimani Estate who were to join the elders of the deceased’s clan to negotiate and pay dowry to her parents at Club 95 at Nakuru showground in the year 1996.

30. She confirmed the 1st respondent got married to the deceased in the year 1994 under the repealed African Christian Marriage and Divorce Act, Cap 151 however stated that the said marriage was conducted irregularly and in secrecy as no banns inviting objection to the intended marriage ceremony were ever published by then Presiding Reverend prior to the wedding. That if that was done she would have mounted a stiff competition thereto.

31. She stated that the eulogy and obituary notices in the newspaper advertisement were maliciously prepared by the 1st respondent after she resurfaced during the funeral day with intent to outsmart her and the 2nd applicant and in contemplation in filing this cause in court so as to block them from inheriting the estate of the deceased.

32. That it is morally wrong for the 1st respondent to profile and discriminate the children of the 2nd applicant namely; JC, VJ & BC whom the deceased accepted, recognized and maintained by assuming parental responsibility upon them till his death.

33. Parties filed written submissions through their respective counsel

34. The applicants filed their submissions on 17th December 2021. They submitted on the following issues;

A. Whether the application meets the threshold for revocation of grant 35. With regard to this issue, the applicants argued in the affirmative. They stated that no conceivable reason for the delay in applying for confirmation of the grant made to the respondents has been advanced.

B. Whether the 1st respondent is fit and suitable person to diligently administer the estate of the deceased 36. The applicants submitted that the 1st respondent is unfit to administer the estate of the deceased since her marriage to the deceased irretrievably broke down in the year 2013 when she deserted matrimonial home and that the respondents are disinterested in this matter.

37. They averred that they are suitable to be appointed the administratrixes of the estate of the deceased since the deceased spent his last days with them prior to his death and surrendered his original title deed and national identification card to them and other personal effects.

C. Whether this court can fetter its discretion 38. The applicants urged this court to revoke the grant under Section 76 of the Law of Succession Act. That a grant issued to administrator who has failed to confirm the temporary grant or where he lacks diligence in its administration can be revoked as it was held in the case of Re Estate of Agwang Wasiro (Deceased) [2020] eKLR.

39. The Petitioners/ Respondents Submitted on the following:

A. Whether there was concealment/ommission of true dependents/children of the deceased in the succession cause 40. They petitioners/respondents reiterated the averments contained in their replying affidavit; that the applicants were aware of the entire process leading to issuance of letters of administration intestate as they were the ones who had cited the 1st respondent to file for this cause vide Nakuru Citation Cause Number 21 of 2019;

41. They further submitted that there were no birth certificates availed by the Applicants to prove that the children omitted in the petition for letters of administration belonged to the deceased

B. Whether the 1st and 2nd petitioners did not disclose the exact properties registered in the name of the deceased 42. It was the respondents’ submissions that it is undisputed property known as Njoro/Ngata Block 2/227 is registered in the name of the deceased hence forming part of the estate.

43. With regard to plot number 38 at Sobea, monies held at KETRACO and equity bank by the deceased, the respondents reiterated the averments contained in their replying affidavit

C. Whether the 1st & 2nd applicants are beneficiaries of the deceased estate by virtue of being mothers to some of the children/dependents of the deceased 44. On this issue, the respondents submitted that being the mother of a beneficiary of the deceased’s estate does not qualify one to be considered as a beneficiary and that the existence of marriage between the applicants and the deceased is a factual issue which must be proved by cogent evidence either in form of documents or eye witnesses. That no document has been tendered before this court to prove marriage and neither have the applicants called or availed eye witness evidence to prove their marriage with the deceased; that the Applicants failed to prove that they participated in any way towards acquisition of any of the properties owned by the deceased. 45. They reiterated that the 1st petitioner was married under the African Christian Marriage and Divorce Act Cap 151 Laws of Kenya which did not permit polygamy. In support of this position the respondents relied on the case of Re Estate Ndongu Kabugua (Deceased)[2019]eKLR.

D. Whether the chief’s letter used to initiate the cause was defective. 46. The respondents argued that the chief’s letter is not a legal requirement under the Succession Law, however practice has made it a requirement to shun away fraudsters from disinheriting the rightful hears of the deceased and that defective form of the said letter is not a ground for revocation of grant. They submitted that the assistant chief’s letter listed the rightful heirs of the deceased in this case and that true contents supersedes form & what is important is the information on the actual heirs of the deceased.

E. Whether the 1st & 2nd petitioners lacksdiligence in the admninistration of the estate through failure to collect and get in all the assets and failure to apply for confirmation of grant upon lapse of 6 months statutory period 47. The respondents submitted that the applicants have not tendered any proof of lack of diligence on their part in the administration of the deceased’s estate and that the grant under section 76 (d) (i) can only be revoked after due notice has been served upon the administrator(s);that in the instant case no such notice has been served upon. They relied on the case of Re Estate Of Agwang Wasiro (Deceased) (2020) eKLR where the court held inter alia that failure to apply for confirmation of grant generally, without notice having been issued to the administrator would not suffice as a ground to revoke a grant.

48. They urged the court to dismiss the instant application with costs.

ISSUES FOR DETERMINATION 49. The issues which fall for determination in this matter are:- Whether the grant of letters of administration made on the 16/11/2020 should be revoked.

What orders may the court grant?

Whether the grant of letters of administration made on the 16/11/2020 should be revoked. 50. 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.”

51. Section 76 was clearly expounded on by the court In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR where it was 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.”

52. The applicants seek for revocation of grant on grounds that:-1. The respondents have failed to apply for confirmation of grant within the 6 months statutory period;2. The respondents concealed material facts to the court by omitting some of the beneficiaries and deceased’s properties from the affidavit in support of the petition of letters of administration intestate.3. The respondents have failed to render full and accurate inventory of the assets and liabilities of the deceased’s estate.4. The respondents have failed to proceed diligently with the administration of the estate.

53. Confirmation of grants is provided for in section 71 of the Law of Succession Act, the relevant portion says as follows:“Confirmation of Grants71. Confirmation of grants(1) After the expiration of a period of six months, or such shorter period as the court may direct under subsection (3), from the date of any grant of representation, the holder thereof shall apply to the court for confirmation of the grant in order to empower the distribution of any capital assets.”

54. The Grant of Letters of Administration intestate was issued on 16th November 2020. The respondents were supposed to apply for its confirmation within six (6) months that is on or before the 16th of July 2020. The Applicants have never filed a Summons for Confirmation of their Grant to date. However, the Grant cannot be revoked on this ground since no notice was served upon the administrators/respondents prior lodging of this Application.

55. Under section 76 (b) of the Law of Succession Act, a grant can be revoked if a party concealed material information from the court. The applicants herein have accused the respondents for failing to disclose all beneficiaries and estate’s asserts to the court.

56. The 1st respondent has demonstrated that she was the wife of the deceased as at the time of his death. This is supported by the Certificate of marriage. All the allegations about the marriage of the deceased and the 1st respondent remain unproven allegations.

57. With respect to the applicants they are expected to prove their alleged marriages to the deceased. In Njoki vs Mathara and Others Civil Appeal No. 71 of 1989 (UR), Kneller J. A held that:“(i) The onus of proving a customary marriage is on the party who claims it.(ii) The standard of proof is the usual one for civil action, balance of probabilities.(iii) Evidence as to the formalities required for a customary law marriage must be proved to the above standard.”

58. Hence as per Section 66 of the Law of Succession Act, the 1st respondent was the 1st in priority to obtain the grant of letters of administration.

59. With regard to the alleged concealment of beneficiaries, the applicants have not established that they are wives of the deceased. Neither have they established that the children who were omitted are children of the deceased. The respondents have demonstrated why some of the children of the applicants were included and why the others were omitted. Section 51(2) (g) of the Law of Succession Act requires the petitioner to disclose all the surviving spouses and children of the deceased. The provision is in mandatory terms. The administrators herein prima facie disclosed all the rightful beneficiaries in compliance with section 51(2) (g), until the disputed heirs are established

60. The applicants accused the respondents for failing to disclose the matrimonial home Njoro/Ngata Block 2/227, Plot number 38 situated at Sobea, money held by KETRACO and Money at equity bank account number 031019511868 all registered in the deceased name.

61. A perusal of the Affidavit in support of the petition confirms that the Matrimonial Property Njoro/Ngata Block 2/227 was listed as deceased’s asset.

62. With regard to Plot 38 at Sobea, money held by KETRACO, there is a reasonable explanation. The respondents did not dispute that the deceased held an account at Equity Bank.

63. On the issue of rendering accounts on the administration of this issue is premature since the grant is yet to be confirmed. Under Section 83 of the Law of Succession Act the personal representatives are under a duty to give full and accurate inventory of the completed administration of the estate within six (6) months from the date of confirmation of the grant.

64. On the last issue of failure by the respondents to proceed diligently with the administration of the estate, the respondenst gave reasonable explanation why that has not happened. The Applicants ought to surrender the title deeds and any other documents that belong to the deceased to the administrator of the estate otherwise they are in violation of s. 45(1) of the Law of Succession Act which states Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.

What orders may the court grant? 65. Notably, 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:-“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.”

66. I am in agreement. I find no reason to revoke the grant. The application for revocation has no merit and is dismissed.

67. The applicants to surrender any of the deceased’s properties/documents to the administrators within fourteen (14) days hereof.

68. The administrators to complete the collection of the deceased’s estate and file Summons for Confirmation of Grant within sixty (60) days hereof.

69. Each party should bear their own costs.

Dated, Signed and Delivered virtually this 9th May 2022. Mumbua T MathekaJudgeIn the presence of;CA EdnaKipkoech Terer for applicantsKiptoon for respondents