[2022] KEHC 15876 (KLR)

In re Estate of the Late Kipkorir Arap Birir (Succession Cause 230 of 2014) [2022] KEHC 15876 (KLR) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15876 (KLR)

Republic of Kenya

In the High Court at Kericho

Succession Cause 230 of 2014

AN Ongeri, J

November 11, 2022

IN THE MATTER OF THE ESTATE OF THE LATE KIPKORIR ARAP BIRIR

Between

Daniel Kipkorir Kirui

Petitioner

and

Caroline Chepngetich Rono

1st Objector

Elizabeth Chelangat Milgo

2nd Objector

Rebecca Chepkoech Koskei

3rd Objector

Esther Chebet Korir

4th Objector

Alice Cherono

5th Objector

Ruling

1. The application coming for consideration in this ruling is the summons for revocation or annulment of grant dated 22/9/2022 seeking the following orders :-i.The instant application be certified urgent and same be heard ex-parte in the first instance.ii.Pending the hearing and determination of the summons herein, the honourable court be pleased to issue a prohibitory order of injunction and/or conservatory order, restraining the Land Registrar, and/or County surveyor Bomet county from implementing the scheme of distribution contained in the certificate of confirmation of grant issued in this cause wherein, the applicants have been excluded as beneficiaries and no shares is given out to the same, touching on LR No’s Kericho/segemik 679 & 707 respectively.iii.Pending the hearing and determination of the summons herein, the honourable court be pleased to issue an order of injunction restraining the respondent from disposing off, alienating, selling or appropriating the assets of Kipkorir Arap Birir (deceased) more particularly LR No’s Kericho/segemik/679 & 707 belonging to and registered in the name of the deceased in any manner whatsoever until further orders of the court are issued.iv.The grant of letters of administration intestate issued to the petitioner 13th day of March, 2015 and confirmed on the 22nd day of June, 2022,vide Kericho High Court Succession Cause No 230 of 2014 be recalled, annulled and/or revoked and the applicants be accordingly be factored in the sharing of the estate of the deceased who is their biological father.v.In the alternative and without prejudice to the foregoing, the register in respect of LR No Kericho/segemik/679 & 707, respectively be nullified and restored to the deceased should the Land Registrar proceed with speed to effect transfers and registration to pre-empt these proceedings.vi.That the petitioner/respondent herein, do tender accounts in respect of the estate of Kipkorir Arap Birir, the deceased person herein, more particularly, the obtaining extent of the administration so far taken.vii.Costs of the application be borne by the petitioner/respondent.viii.Such further and/or other orders be made as this honourable court may deem fit and expedient.

2. The summons for revocation of grant is supported by the affidavit of Caroline Chepngetich Rono dated 22/9/2022.

3. The objector/applicant avers that the petitioner/respondent failed to disclose their existence as daughters and beneficiaries in the distribution scheme to the estate of the deceased thus disinheriting them completely contrary to the provisions of the Constitution.

4. The objector/applicant avers that petitioner/respondent applied for letters of administration intestate in respect of the estate of the deceased without notice and/or participation of the daughters and beneficiaries in parity with the other beneficiaries.

5. The objector/applicant avers that the proceedings relating to the grant of letters administration were pre-mature, defective and illegal and an attempt to defraud and disinherit the objectors/ applicants on account of their gender which was unlawful and unconstitutional.

6. The objector/applicant avers that the Land Registrar has sought to partition the suit properties with a view to effect registration as per the certificate of confirmation of grant obtained by fraud and concealment of material facts.

7. The objector/applicant avers that the imminent transfer, alienation and disposal of parts of the estate of the deceased in favour of the petitioners/respondents was calculated to defeat their lawful interests, inheritance or entitlement in respect of the estate of the deceased.

8. The objector/applicant avers that whereas the petitioners/respondents are obliged to render true accounts of the estate of the deceased, they have not rendered and/or disclosed true accounts to the court.

9. The objector/applicant avers that the proceedings culminating in issuance of grant of letters of administration, confirmation and subsequent distribution were defective and premised on an unlawful and corrupt scheme to defraud them of their lawful entitlement thus offending the provisions of the Law of Succession Act and the Constitution.

10. The objector/applicant avers that the said grant of letters of administration should be vitiated, annulled, recalled and/or be revoked.

11. The objector/applicant avers that it is necessary summons for revocation of grant of letters of administration herein to be granted to protect the rights and interests of the beneficiaries and in the intervening period that the estate of the deceased be preserved pending hearing, determination and disposal of summons for revocation.

12. The parties filed written submissions in the summons for revocation which I have considered.

13. The objectors/applicants contended that the petitioners/respondents applied for grant of letters of administration in respect of the estate of the deceased discreetly and secretly without informing the objector/applicants and to the exclusion of the objector/applicants notwithstanding the fact that they are daughters of the deceased and ranking in the same class with the petitioners/ respondents thus entitled to a share of the deceased’s estate.

14. The objector/applicants contended that they were neither notified nor involved in the succession proceedings culminating into the grant of letters of administration and that the letters of administration intestate were obtained by concealment and/or non-disclosure of material facts.

15. The objector/applicants contended that the petitioners/ respondents obtained the letters of administration intestate without seeking their consent neither did they file any affidavit affirming their disinterest in the property.

16. The objector/applicants are therefore seeking for a prohibitory order of injunction and/or conservatory orders restraining the Land Registrar and/or County surveyor from implementing the scheme of distribution contained in the certificate of confirmation of grant.

17. The petitioners/respondents contended that the objectors/applicants had not proved and/or established their claim that some beneficiaries of the estate were omitted and/or left out. Consequently, the allegations of concealment and/or non-disclosure, had not been proven and/or established.

18. The petitioners/respondents in their submissions reiterated that the confirmation of grant of letters of administration was procedural and lawful and the scheme of distribution that was adopted espoused the principles of equality and equity to the extent that the estate was equitably distributed.

19. The petitioners/respondents contended that the Law of Succession Act, cap 160 laws of Kenya is a self-sufficient statute with its own rules and procedure and whereas rule 63 of the Probate and Administration Rules imports several provisions of the Civil Procedure Rules, the provisions imported do not include those that provide for injunctions.

20. Furthermore, the petitioners/respondents contended that the objectors/applicants had not met the requisite limbs and/or conditions as espoused in Giella V Cassman Brown & Co Ltd [1973] EA 358 to warrant the orders of injunction as sought.

21. The petitioners/respondents contended that the filing of a third summons for revocation of grant was not only an abuse of court process but aimed to obstruct the completion of the administration and particularly the distribution of the estate of the deceased.

22. The issues for determination in this case are as follows:-i.Whether the grant of representation and certificate of confirmation were fraudulently issued.ii.Whether the same should be revoked and/or set aside.iii.Whether prohibitory orders of injunction should issue restraining the implementation of the certificate of confirmation dated 22/6/2022

23. On the issue as to whether the grant should be revoked, there is evidence that a similar application was filed 10/7/2017 and the court gave a ruling dated 31/5/2019 in which all the parties to this suit participated.

24. I find that the said issue is res judicata and the same cannot be raised in the current summons for revocation.

25. Section 7 of the Civil Procedure Act on res judicata, reads as follows: “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

26. In that respect, the Court of Appeal held in TheIndependent Electoral And Boundaries Commission V Maina Kiai & 5 Others, [2017] eKLR), that: “The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the specter of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”

27. On the issue as to whether the grant of letters of administration and the certificate of confirmation should be set aside, I find that the answer is in the negative.

28. On the issue as to whether prohibitory orders of injunction should issue, I find that the applicant have not established the grounds for grant of a prohibitory injunction.

29. In the celebrated case of Giella V Cassman Brown & Co Ltd (1973) EA 358, in an application for a prohibitory injunction the applicant must establish; the existence of aprima facie case with high chances of success, and that he will suffer irreparable loss and/or damage which cannot be adequately compensated by an award of damages if the injunction is not granted, and further that the balance of convenience tilts in his favor.

30. I find that the application dated 22/9/2022 lacks merit and the same is dismissed.

31. Each party to bear its own costs of the application.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 11THDAY OF NOVEMBER, 2022A. N. ONGERIJUDGESUCCESSION CAUSE NO.230 OF 2014 Page 4