[2022] KEHC 12707 (KLR)

In re Estate of Thomas Khongo Wasigully (Deceased) (Succession Cause 23 of 1999) [2022] KEHC 12707 (KLR) (16 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12707 (KLR)

Republic of Kenya

In the High Court at Busia

Succession Cause 23 of 1999

JR Karanja, J

June 16, 2022

IN THE MATTER OF THE ESTATE OF THE LATE THOMAS KHONGO WASIGULLY (DECEASED) AND IN THE MATTER OF PETITION BY FLORENCE NABWIRE OMBITO...PETITIONER (DECEASED)

Between

Dickson Wafula Abayo

Applicant

and

Gladys Auma Mugeni

Respondent

Ruling

1. This is a matter which has lingered for far too long in the court.The original grant respecting the estate of the late Thomas Khongo Alias Wasigully was issued to the late Florence Nabwire Ombito on the February 3, 2000. Thereafter, Dickson Wafula Abonyo in the year 2015, applied to be substituted as the new petitioner and for confirmation of the grant to facilitate distribution of the estate property being land parcel No Samia/Bujwanga/1721. The court record is hazy on what became of that application. However on April 24, 2015, Gladys Auma Mugeni made a second petition for grant of letters of administration respecting the same estate. This resulted in the issuance of a new grant on September 29, 2015, and on April 5, 2016, an application was made for confirmation of the grant vide the summons for confirmation of grant dated January 20, 2016. Eventually, on May 26, 2016, the grant was confirmed in favour of the petitioner, Gladys Auma Mugeni and the necessary certificate of confirmation of grant was issued on the same date.

2. But, on the September 30, 2016, Dickson Wafula Abayo filed an application dated September 20, 2016, for revocation of the second grant and consolidation of this matter with Busia Succession Cause No 23 of 1999. The prayer for consolidation was allowed by consent on the November 28, 2018 and the matter proceeded to inter parties hearing with regard to the remainder of the prayers. This resulted in the court ruling of the December 4, 2019, which in substance revoked the grants in existence herein and order for issuance of a fresh grant with Dickson Wafula Abayo (objector) being the first administrator and Gladys Auma Mugeni (respondent) being the second administrator. The two effectively became the co-administrators of the estate of the deceased vide the fresh or amended grant of letters of administration issued on September 7, 2021.

3. Thereafter Dickson (first administrator/petitioner) took out summons for confirmation of grant dated October 21, 2021. The second/administrator/petitioner, Gladys, followed with her own application dated November 25, 2021 which contained an affidavit of protest to the first application. The protest is also dated November 25, 2021.

8. The presence of the applications for confirmation by each of the two co-administrators was a pointer to their disagreement on the mode of distribution thereby shattering the legitimate expectation of the other beneficiaries that they shall properly and equitability distribute the estate for the benefit of all.Be that as it may, the second administrator’s application for confirmation was unnecessary, misconceived and incompetent regard being given to the prior existence of the first application by the first administrator and its opposition thereto by the second administrator’s affidavit of protest dated November 25, 2021, which was argued inter parties by oral and written submissions.

4. This court gave due consideration to the summons for confirmation of grant dated October 21, 2021, the protest thereto and the rival submissions and noted that the point of departure between the two administrators was anchored on a judgment of the court entered by consent of the parties therein on June 25, 1997 in Kakamega High Court Case No 461 of 1993. Whereas, the second administrator seeks to have the estate property distributed in accordance with the said judgment, the first administrators seeks to have the property distributed outside the ambit of the judgment which according to him is no longer applicable by dint of s 4 of the Limitation of Actions Act, which provides that:-“An action may not be brought upon a judgment after the end of twelve years from the date on which the judgement was delivered or (where the judgement or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurrent periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgement debt may be recovered after the expiration of six years from the date on which the interest became due.”

5. In the present circumstances, the other key provision of the Limitation Act would be s 7 which provides that:-“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims to that person.”This provision as well as s 4 (4) of the Act, are not in mandatory terms. In any event, the Limitation Act as per its preamble relate to limitation period for actions and arbitrations which are essentially founded on contract, torts, recovery of land and rent, recovery of money etc. Such are ordinary civil proceedings which do not extend to special proceedings such as those under the Law of Succession Act. Indeed, the Limitation Act as was held in Re-estate of Josephine Magdalena Motion (deceased) [2016] eKLR, envisage ordinary civil suits brought within the framework of the Civil Procedure Act and Rules and not special proceedings such as succession proceedings governed by the Law of Succession Act.

6. For all the foregoing reasons, these proceedings inasmuch as they fall within the Law of Succession Act would not be affected by the law of Limitation Act for purposes of distribution of the estate property. However, given that the judgment of the Kakamega Court with regard to the estate property was never executed and remains unexecuted to the extent that the estate property remains in the name of the deceased, it would be equitable for the entire property to be treated as part of the deceased’s property available for distribution and be distributed proportionally among all the surviving beneficiaries of the actual and true beneficiaries of the estate being brothers and sisters of the deceased. In sum, the protest by the second administrator is dismissed for want of merit and the summons for confirmation of grant by the first administrator is allowed but only to the extent that the entire estate property be distributed proportionally among the six (6) beneficiaries specified in paragraph eleven (11) of the supporting affidavit dated October 21, 2021. The parties shall bear own costs of the application.Ordered accordingly.

DATED & DELIVERED THIS 16TH DAY OF JUNE 2022JR KARANJAHJ U D G E