[2022] KEHC 1670 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

SUCCESSION CAUSE NO. 209 OF 2007

IN THE MATTER OF THE ESTATE OF VINCENT C. CHEMITEI

PAULINE J. CHEMITEI...............................1ST PETITIONER

TRUPHENA J. CHEMITEI..........................2ND PETITIONER

VERSUS

PIUS KIPTUM YANO......................................1ST OBJECTOR

REUBEN KIPKEMOI KOGO........................2ND OBJECTOR

RULING

1. The application before the court is summons for revocation/annulment ofthe grant of letters of administration dated 11th February 2019. The application seeks the following orders:

a) Spent

b) THAT the Grant of letters of administration of the estate of Vincent Chepkurui Chemitei confirmed on 16th November 2011 be revoked or annulled to remove plots of land known as CHERANGANY/KAPKANYOR/58 & 59 (formerly plot CHERANGANY/KAPKANYOR/40) from the list of assents for distribution in respect of the estate.

c) Costs

2. The application is premised on the ground set out therein and is supported by affidavit of Pius Kiptum Yano sworn on 11th February 2019.

3. The applicant’s case is that the court acted without jurisdiction as the grant that was requested and the one that was granted is materially different from what was finally confirmed. The affidavit in support of the petition for letters of administration intestate filed on 16th July 2007 did not list the disputed property. The petitioners failed to notify the court that the two properties known as CHERANGANY/KAPKANYOR/58 & 59 are subject of a court case being Eldoret Civil Case No. 51 of 1991. The objectors are in possession and occupation of the said properties. The petitioners also failed to notify the court that there was a pending objection dated 28th January 2010 which ought to have been determined before confirmation of grant.

4. The applicants cited section 76 (b) of the Law of Succession Act and relied on Re Estate of Kirumba Mugochi (Deceased) 2017 eKLR where the court revoked the grant on the grounds that the same was obtained fraudulently and asked the court to apply the same reasoning and revoke the grant herein. Further, they contend that they are interested parties for purposes of section 76. They have locus standi in this matter as they are claiming beneficial interest as of right of occupation on the disputed land. They cited Musa Nyaribari Gekone & 2 others vs Peter Miyienda & Another (2015) eKLR in support of this submission.

5. The respondents swore and filed replying affidavits on 24th may 2019 in response to the application. They also filed submissions on 30th September 2021. It is the respondents’ case that the objectors had no locus standi at the time of filing this application. They introduced the limited grant issued on 18th May 2020 without leave of the court in the supplementary affidavit sworn by the 2nd objector on 7th October 2020. The respondents cited Otieno vs Ougo (1989-1090) EALR 468, Rajesh Pranjivan Chdasama vs Sailesh Pranjivan Chudasama (2014) eKLR and Julian Adoyo Ogunga & Anor vs Francis Kiberenge Bondeva Civil Appeal 119 of 2005 in support of this submission.

6. The respondent aver that the 1st objector has never been in occupation of the properties and has never carried out any farming activities on the property. The respondents have continued to be in occupation of the parcels of land. Further, it is only now that they have become aware of Eldoret HCCC No. 51 of 1991. The matter was last in court in 1996 and has abated by law. The respondent avers that the purported sale agreement marked as annexure PKY-2 is a manufactured document and if it existed the objector would have made it into his previous application dated 19th June 2014. Annexure PKY-5 is also not a power of attorney as known in law, and there is no evidence that the 1st objector was nominated to act on behalf of the estate of Kikono Bon.

7. The respondents aver that the members of the Bon family have never been dependants or beneficiaries of the deceased and after following due process the grant was confirmed and certificate of confirmation of grant was issued. Both properties were then transferred into the names of the 1st respondent. The respondents cited R.G Patel Lalji Makanji (1957) EA 314, Vijay Morjaria vs Nansingh Madhusingh Darbar & Another and Ndolo vs Ndolo (2008) 1 KLR (G&F) on the issue of proof of elements of fraud. They also cited Section 109 of the Evidence Act. The objectors have not presented any tangible evidence to substantiate allegations of fraud. The respondents stated that the application is devoid of merit and should be dismissed with costs to the respondents.

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

Whether the Applicants have locus standi

Whether the grant issued on 16th November 2011 should be revoked

Whether the applicants have locus standi

9. The Court of Appeal in Rajesh Pranjivan Chudasama vs Sailesh Pranjivan Chudasama (2014) eKLR, addressed itself on the issue of locus standi in succession matters as follows: -

"... But in our view the position in law as regards locus standi in succession matter is well settled. A litigant is clothed with locus standi upon obtaining a limited grant or a full grant of Letters of Administration in cases of Intestate succession. In Otieno v Ougo (supra) this court differently constituted rendered itself thus;

'.......an administrator is not entitled to bring any action as administrator before he has taken out Letters of Administration. If he does, the action is incompetent as of the date of inception."

10. 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

11. The objectors/applicants claimed they filed the present application as interested parties. However, they are also in pursuit of the objection on the basis of the claim that the disputed properties belong to the deceased. The 1st objector annexed as PKY-5 a stamp duty declaration form as proof of power of attorney that was given to him by Kikono Bon to represent him in the land case no. 51 of 1991. The same was filed on 19th November 2007.

12. According to Black’s Law Dictionary, a power of attorney is defined as

“Aninstrumentauthorizing a person to act as the agent or attorney of the person granting it.”

13. A power of attorney cannot be used to represent a deceased person. The objectors did not take out letters of administration before instituting the application herein. Further, there is no evidence that the objectors have been nominated by the court or family to act on behalf of the deceased. The issues of the sale agreement and the pending transfer of the disputed properties are issues that were to be determined by the Environment and Land Court as it is clothed with the requisite jurisdiction.

14. With regards to being an interested party, they claim occupation of the disputed property but have not provided adequate proof of the same. Their involvement in the Eldoret HCCC No, 51 of 1991 would have been proof of being interested parties. A perusal of the proceedings shows that the matter was last in court n 14th November 1996. Kikono Bon passed away on 24th November 2008. There is no evidence that he was replaced by a legal representative in the suit and as such the suit abated by operation of law.

15. In the premises, the objectors have no locus standi to file the present application as they are not beneficiaries or dependants of the deceased. Further, they have no authority to represent the estate of Kikono Bon, which is one of the parties in Eldoret Civil Case no. 51 of 1991.

Whether the grant issued on 16th November 2011 should be revoked

16. Section 76 (b) of the Law of Succession Act provides;

76 (b) A grant of representation whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by interested party or its own motion: -

(b) That the grant was obtained by the making of a false statement or by concealment from the court of something material to the case.

17. The bone of contention by the objectors is that there was concealment of material facts especially with regards to Eldoret HCCC 51 of 1991. A perusal of the proceedings shows that the matter was last in court on 14th November 1996. The plaintiff in that suit died on 24th November 2008 and the 1st defendant died on 6th may 1994. Order 24 Rule 3 of the Civil Procedure Rules provides;

3. (1) Where one of two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

(2) Where within one year no application is made under sub rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased plaintiff.

18. There is no evidence that the objectors or any legal representative of the deceased was made a party to the suit and proceeded with it. In the premises, it is evident that the suit abated by operation of law and therefore was not material to the succession proceedings.

19. The objectors claim that Citation No. 625 of 2009 was not determined before granting and confirming of the letters of administration. A citation is a document issued by the probate registry, whereby the person issuing the document (the citor) calls upon the person cited (the citee) to provide a reason why a particular step should not be taken. The petition for letters of administration was instituted in 2007 therefore the citation had already been overtaken by events as steps were being taken with regard to succession.

20. On the issue of material disclosure, the claim that the petitioners failed to include the disputed properties is false as a perusal of the affidavit in support of summons for confirmation of grant of administration filed on 9th August 2011 shows that the same are included. The petitioners clearly explained the reasons why the same were included later in the proceedings was that there was an issue with locating the title deeds. I find the explanation sufficient.

21. The upshot is that the Summons herein for Revocation dated 11/2/2019 lack merit and is dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 10TH DAY OF MARCH 2022.

E.K. OGOLA

JUDGE