[2022] KEHC 1751 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

SUCCESSION CAUSE NO. 591 OF 2007

IN THE MATTER OF THE ESTATE OF THE LATE NJONJO KIHIGA (DECEASED)

BENARD KAMAU NJONJO............BENEFICIARY/APPLICANT

VERSUS

GRACE WANJIRU NJONJO...ADMINSTRATOR/RESPONDENT

RULING

1. The applicant filed summons under Section 83(f)and(g) and Section 76 of the Law of Succession Act, Part VIII Section 44(i) of the Probate and Administration Rulesand sought for orders interlia;

a. THAT this Honourable Court be pleased to order that the Administrator / Respondent completes transmission of that parcel of land known as KABAZI/KABAZIBLOCK 2/374 (JUMATATU) to the Beneficiary / Applicant forthwith and/or within a reasonable period of time failure to which, this Honourable Court be pleased to revoke the grant issued to the Administrator herein for failure to diligently administer the Estate of the deceased herein.

b. THAT costs of this Application be borne by the Administrator/ Respondent.

2. The application is supported by the grounds on the face of it as well as the sworn affidavit of the applicant. He deposed that the Grant of Letters of Administration of the Estate of the deceased herein was confirmed on 11th December, 2018 and since then, the administrator/ respondent has failed, neglected and/or refused to transmit that parcel of land known as KABAZI/KABAZI BLOCK 374 JUMATATU to him. He deposed further that on 13th August, 2019, his advocate on record wrote to the administrator's/respondent’s advocate requesting the Administrator to remove food crops and structures on his share of the estate to enable him utilize his share exclusively. That the administrator/respondent through her advocate on record responded vide a letter dated 20th February 2020 forwarding a copy of the mutation and surveyor bills and asking that he pays Kshs. 35,000/= being his contribution to the surveyor’s fees which he paid.

3. The applicant went on to depose that when his advocate on record followed up with the Surveyor who informed him that his attempts to register the mutation form had proven futile on account of frustration by the administrator/respondent to surrender the original certificate of confirmation of grant.

4. He deposed that this matter came up for mention on diverse dates and the final date was on 10th December, 2020 to confirm compliance on the part of the administrator/respondent. That however, the administrator was yet to comply with execution of the grant in regards to transmission of his share of the estate, yet it’s been over two (2) years since the grant herein was confirmed. He deposed further that it would therefore be in the interest of justice that this Honourable Court intervenes and ensures that the administrator transmits his share of the estate to him, failure to which the Certificate of Grant issued in her favour be revoked.

5. The administrator/respondent in response to the application filed grounds of opposition dated 15th June 2021 stating that the applicant had not availed any transfer forms which she had refused to sign. That the applicant had taken over the survey work and opted to deal with the surveyor directly independent of the administrator respondent. She stated further that the applicant was being vexatious for no reason.

6. The court directed that the application be disposed by way of written submissions which only the applicant complied.

Applicant’s Submissions

7. The applicant in his submissions identified two issues for determination namely whether he was entitled to the relief sought and who should bear the costs.

8. On whether he was entitled to the reliefs sought, the applicant submitted that Section 83 (g) of the Law of Succession Act Cap 160 Laws of Kenya provided that an administrator’s duty was to diligently administer the estate of the deceased person which entails the transmission of all of the deceased person's property to the respective beneficiaries. That therefore, administrator/respondent herein was in breach of the duties bestowed upon her by the law by failing, neglecting and/or refusing to transmit that parcel of land known as KABAZI BLOCK 3744 MATATU to the beneficiary / applicant within six months from the date of confirmation of grant noting that the grant of letters of administration herein was confirmed almost three years ago on 11th December, 2018.

9. The applicant submitted further that the court had equally granted forty-five days to the respondent to transmit the applicant’s parcel of land in vain. It was his further submission that the administrator/respondent had not tendered any reasonable explanation why she had failed, neglected and/or refused to transmit the subject parcel of land in favour of the Beneficiary / Applicant herein. The applicant went on to submit that for the said reasons, the grant of letters of administration issued to the respondent and confirmed on 11th December 2018 was ripe for revocation. He draws the courts attention to the case of Estateof Mbaabu M’abutu (Deceased) [2020] eKLR.

10. Lastly, on who should bear the costs, the applicant submitted that the award of costs was discretionary and ordinarily follow event under Rule 69 of the Probate and Administration Rules. He urged the court that he be awarded the same.

Analysis and Determination

11. I have looked at the application and the grounds thereof, the supporting affidavit, the grounds of opposition by the respondent and the submissions by the applicant. In my view the issue for determination is whether the grant of letters of administration issue to the administrator/respondent and confirmed on 11th December 2018 should be revoked.

12. The Court has power to revoke a grant in the circumstances set out in section 76 of the Law of Succession Act, as follows: -

“Revocation or annulment of grant

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 causeeither—

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.”

13. Having perused the court’s records, I note that this court issued an order on 30th June 2021 that the administrator/respondent to ensure transmission of that parcel of land known as KABAZI/KABAZIBLOCK 2/374 (JUMATATU) to the beneficiary / applicant within 45 days from the date of the said order. As it stands the said orders have not been complied with by the administrator/respondent and the grounds of opposition she has raised does not aid her case as to why she had not been able to fulfil her duties as the duly appointed administrator of the estate of the deceased herein. This court under Section 76 (1) (d)(ii) as cited above allows this court to revoke grant of letters of administration in the event the administrator has failed after due notice and without reasonable cause to proceed diligently with the administration of the estate.

14. In view of the above, the administrator cannot hold the estate at ransom. There is sufficient paper trail attached to the supporting affidavit of the applicant to indicate that he has tried all he can to ensure that the respondent transmit his rights to him. It is in fact apparent that the applicant had even paid his share of the survey fees yet the respondent for reasons known to herself has failed to effect the transfer.

15. This is pure misuse of the powers and authority bestowed upon an administrator. It was not a favour advanced or donated to her by this court. It was a solemn responsibility on behalf of the deceased estate herein which she ought to follow to the end. The 45 days’ window earlier granted to her was a waste of judicial time.

16. In the premises, the application is hereby allowed. The grant issued to the respondent and confirmed on 11th December 2018 is hereby revoked and any of the beneficiaries is hereby allowed to apply for the same.

17. The applicant shall have the costs of this application.

DATED SIGNED AND DELIVERED VIA VIDEO LINK THIS 10TH DAY OF MARCH, 2022

H K CHEMITEI

JUDGE