[2022] KEHC 10405 (KLR)

In re Estate of Washiali Luvisia also known as Washiali Lubisia (Deceased) (Succession Cause 525 of 2006) [2022] KEHC 10405 (KLR) (13 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10405 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 525 of 2006

WM Musyoka, J

May 13, 2022

Judgment

1. I am working on the basis of a reconstructed court file, following orders that were made herein on February 7, 2019.

2. The application that I am called upon to determine is a summons for revocation of grant, dated November 25, 2011. It is brought at the instance of Philister Were Wekulo, who I shall refer hereafter as the applicant. It seeks that the grant made on January 3, 2007, to David Indimuli Ashiali, who I shall refer to hereafter as the administrator, be revoked. The administrator is accused of having obtained the grant fraudulently, by making false statements or concealing material from the court, by means of untrue allegations of fact essential in point to justify the grant and on the basis of defective proceedings.

3. The affidavit, in support of the application, was sworn by the applicant, on November 25, 2011. She avers that the deceased had died intestate. He had married twice, to Emily Makokha and Fronica Malala Ashiali. The first wife bore him three daughters, being herself, that is Philister Were Wekulo, Margaret Shinali and Alice Omido. The second wife bore him one child, a son, the administrator herein, David Indimuli Ashiali. As at the time the affidavit was being sworn, the two wives of the deceased were still alive. She avers that the survivors of the deceased from the first house had been omitted from the succession proceedings. The deceased was said to have died possessed of Butsotso/Esumeyia/1141, which measures 12 acres. She avers that the administrator initiated the cause secretly, with the sole purpose of disinheriting some of the survivors of the deceased. She asserts that the conduct of the administrator has rendered him unfit to hold office as administrator, for concealing the identifies of all the beneficiaries. Attached to that affidavit are several documents. There is a copy of a search certificate for Butsotso/Esumeyia/1141, which indicates that it was registered in the name of the administrator on July 29, 2009. There is a letter from the Assistant Chief of Esumeyia Sub-Location, dated November 23, 2011, which indicates that the deceased had two wives, and that the administrator had caused estate assets to be transferred to his name without involving the first family. There is a copy of a greencard for Butsotso/Esumeyia/1141, indicating that the said parcel of land had initially been registered in the name of Mulaha Ashiumu, on November 28, 1981, who then transferred it to the deceased on August 15, 1977, and then it was registered on May 3, 2007 in the name of the administrator in his capacity as such, and then on July 29, 2009 it was transmitted to the name of the administrator, and a title deed was issued to him on August 24, 2009.

4. The administrator responded to the application, vide his affidavit, sworn on September 16, 2019. He denies obtaining the grant fraudulently. He describes the applicant as a stepsister, while the deceased was his biological father, and his mother was Veronica Malala Shiali. He states that the deceased was the registered owner of Butsotso/Esumeyia/1141, which was a property that was bought by his maternal uncle, Otiangala Nyende, for his mother, who had been evicted from Mumias, and that the land was only registered in the name of the deceased because his mother did not have a national identity card. He states that the applicant had been summoned by the local Chief, for confirmation of her identity, for the purpose of these succession proceedings, but she refused to heed the call. She accuses the applicant of being uncooperative throughout, and he expresses surprise that she filed for revocation of the grant after she had failed to cooperate. He asserts that the applicant was married, and had never stayed on the land, and never had any interest on the said land.

5. Directions were given on November 28, 2019, for disposal of the said application by way of viva voce evidence. That oral hearing happened on February 25, 2020

6. Ernest Lubisia Makokha followed. He was a village elder and a relative of the deceased. He confirmed that the deceased had married two wives, being Emily Makokha Washiali and Fronicah Malala. He said that the first wife was dead, but had had three daughters, who he named as Philister Were Wekulo, Margaret Shinali and Alice Omido. The second wife, who he said was still alive, had five children, who he named as Repha Ashiali, David Indimuli, Chitechi, Lubisia and Eshikumo. He testified that the dispute between the two sides began in 2004, when the applicant began to claim the share of the estate due to her side of the family. He stated that the matter began at home, but the administrator refused to give her a share. It was then escalated to the village elder, the Assistant Chief, the Chief and the District Officer. He said that the administrator obtained the letter to initiate the succession cause from the Assistant Chief of another Sub-Location. He explained that Butsotso/Esumeyia/1141 was ancestral land, which the deceased bought after government compensated him for moving him out of a parcel of land Number 469 in East Wanga. He stated that each house should get its share of the land. During cross-examination, he stated that the administrator had not been born when the family moved out of East Wanga. He said that he knew all the daughters of the deceased. He said he was not aware when the Mumias land was sold, but was aware of the sale.

7. Ernest Sakwa Ofisi followed. He was a relative of the deceased. He said that the deceased had married two wives, who bore him several children. He said that the first wife had three daughters, who included the applicant; while the second wife had five children, who included the administrator. He said that he wanted the court to assist each of the houses of the deceased to get their share of the land. He explained that Butsotso/Esumeyia/1141 was bought after the government had acquired the family land at Mumias. He said that the administrator should have acted fairly, and should have involved the children of the first wife in the distribution.

8. The case for the administrator opened on March 24, 2021. He stated that he got to know the applicant after her mother came home. He stated that her mother had been married elsewhere and came home when he was 14 years old. He said that his parents were chased from Mumias, and his maternal uncle decided to accommodate his mother, and undertook to buy land for her and the deceased, and he bought Butsotso/Esumeyia/1141. He said that since his mother did not have a national identity card, she said that the land be registered in the name of her husband, the deceased herein. He stated that when the mother of the applicant came home, his mother accommodated her in a kitchen. He asserted that Butsotso/Esumeyia/1141 was not ancestral land. During cross-examination, he stated that his maternal uncle gave the money for the purchase of the land to his mother, according to the sale agreement. He conceded that the applicant was the first born child of the deceased, but added that she had left with her mother. He said that his mother had told her that the deceased had another wife. He said that when the mother of the applicant died, the applicant did not come for her body, and they decided to bury her remains on the land. He said that he did not know where the applicant was born. He said that he recognized the applicant at the time her mother came back, but he did not know whether she was a child of the deceased.

9. Sumeyo Osendo Mulefe testified next. He described himself as the Chairman of the Abahuyi Nucleus Association, and as a cousin of the deceased. He stated that the applicant was a child of James Mulaha, and not a daughter of the deceased. He said that the deceased had only one wife, the mother of the administrator, who had five children, one son and four daughters, whose names he said he could not recall after they got married. He said that the deceased came from Mumias with the mother of the administrator. They were not paid compensation, and so they had approached relatives for assistance. A maternal uncle of the administrator bought Butsotso/Esumeyia/1141 for them. The land was registered in the name of the deceased as the wife did not have a national identity card. He identified the mother of the applicant as Emily Makokha, and described her as the first wife of the deceased. He said that she came to the family with a child, the applicant. He asserted that it was mother of the administrator who was entitled to the land. During cross-examination, he explained that he was born at the time when the deceased moved from Mumias and bought land at Esumeyia. He said that he had a document which showed that the deceased did not have money to buy the land, hence the maternal uncle of the administrator brought the money. When shown the greencard for Butsotso/Esumeyia/1141, he stated that the name of the maternal uncle of the administrator, Otiangala, was not in the card. He asserted that the deceased did not have two wives, and that the applicant was not a daughter of the deceased. He further stated that the dowry for the applicant was not utilized to pay dowry for the second wife of the deceased. He stated that the mother of the applicant was buried on Butsotso/Esumeyia/1141, and that was because there was nowhere else to bury her remains. He stated that the administrator buried her remains on Butsotso/Esumeyia/1141 out of his charitable heart. He said that it was the mother of the second wife who accommodated the mother of the applicant in one of the houses in her compound as she had no relatives. He said that she was not buried on the land in her capacity as widow of the deceased. He said that the mother of the applicant came to Butsotso/Esumeyia/1141 after the deceased had died. He said that he had no documents to show that the mother of the applicant was divorced or separated from the deceased. He asserted that the land in dispute belonged to the maternal uncle of the administrator, Otiangala Nyende. He said that the deceased was buried on land belonging to one Ashuma Omulama. He said that a sister of the applicant was on Butsotso/Esumeyia/1141 courtesy of the cause, and once the same is determined both of them should go back to where they came from. He said that they did not object to the mother of the applicant being buried on Butsotso/Esumeyia/1141 because there was nowhere else to take her remains.

10. Fronica Malala Ashiali testified next. She was the widow of the deceased, and the mother of the administrator. She said that the deceased had one son and five daughters. She said that she did not know the applicant. She said that the deceased had told her that he had another wife, who he had told to return her child to her parents. She left and never came back. She said that she was told the name of the wife was Emily Makokha. She said that after she went away, Emily Makokha was living with James Mulaha as his wife. She said that when the government moved them from Mumias, they were not paid compensation, and were forced to live under a tree. She approached her brother, Otiangala Nyende, for help, and he gave her some money, and they bought land from a Mulama. She said that since she did not have a national identity card, the land was registered in the name of the deceased. She said it was just her and the administrator who were in occupation of the land. She said that Emily Makokha was buried on the land. She stated that the land belonging to the deceased was in Mumias, and that Butsotso/Esumeyia/1141 was bought for them by her brother, and the applicant had no claim to it. During cross-examination, she stated that the land at Mumias belonging to the deceased was available, but Butsotso/Esumeyia/1141 belonged to her brother. She said that the mother of the applicant came to Butsotso/Esumeyia/1141 as someone who was lost, and she took pity on her and accommodated her, after she said that she was wife of the deceased. When she died, the applicant did not come for her body, and they got permission to bury her on Butsotso/Esumeyia/1141. She said that the applicant and her sister lived on the land because their mother was buried there, and that she was waiting for the case to end to have them evicted, and the body exhumed. She said that she was not aware that her dowry was paid with the cattle given as dowry for the applicant.

11. At the close of the oral hearing, the parties were given time to file written submissions, but none of them have done so.

12. The application for determination is premised on section 76 of the Law of Succession Act, Cap 160, Laws of Kenya. The said provision states 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 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.”

13. Under section 76, a court may revoke a grant so long as the case is brought within the grounds listed above, 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. In the first place, it would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation were not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant of 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 lied that he was a survivor when he was 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, unqualified to hold any office of trust.

14. In the instant case, the applicant anchors her case on the first general ground, that there were issues with the manner the grant was obtained. She has raised arguments about the process of obtaining the grant having had challenges. She states that the administrator had not disclosed all the survivors of the deceased and beneficiaries of the estate.

15. The framework for applications for grants of representation is set out in section 51 of the Law of Succession Act. The most relevant portions, for the purpose of this application, are in subsection (2) (g), which state as follows:“Application for Grant(1)…(2)Every application shall include information as to—(a)…(b)…(c)…(d)…(e)…(f)…(g)in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased;(h)...”

16. My understanding of section 51(2) (g) is that the petitioner is required to disclose all the surviving spouses and children of the deceased, and any grandchild of the deceased whose own parent is dead. The provision is in mandatory terms.

17. In the petition filed herein, the administrator disclosed the widow of the deceased and himself as son. The applicant claims that the deceased had two wives, both of whom had children. Her case is that the other family was not disclosed, and that the administrator did not disclose his siblings, his four sisters. In his reply to the application, the administrator does acknowledge the applicant as stepsister, and appears to say that he did not involve her in the proceedings as she was uncooperative, and had gotten married, was not on the land and was not interested with the land. It is only later, at the oral hearing, that he asserted that the applicant was not a child of the deceased and was not entitled to the land. From a sum of the oral evidence, it is plain that the mother of the applicant was the first wife of the deceased. The second wife even conceded to that. One side of the family asserts that the mother of the applicant had three daughters with the deceased; while the other asserts that she had no children with the deceased. One thing is clear to me, the mother of the applicant was married to the deceased, and lived on the subject land and was buried there. I am disinclined, from the totality of the oral and written evidence, to find that she moved out of the land, or was separated from the deceased, and moved back only after the deceased died, and that she was accommodated on the land out of charity. I find that she was a spouse of the deceased, and that her children were children of the deceased. The administrator should have disclosed them, as well as the daughters from his mother’s side of the family. An impression was created that all these persons did not exist, which is a lie a misrepresentation.

18. The second issue relates to the property available for distribution. The position by the administrator is that said property actually did not belong to the deceased, for it was bought for his mother by his maternal uncle, and was registered in the name of the deceased only because his mother did not have a national identity card. According to his mother, Fronica Malala Lubisia, the said property did not belong to the deceased, but her brother, Otiangala Nyende. That would mean that the said property was held by the deceased in trust for the mother of the applicant or her brother, Otiangala Nyende, depending on which version one goes by. The starting point on this is that the property in question was registered in the name of the deceased in 1977, according to the greencard on record. The deceased then died in 1978. Representation to his estate was sought in 2006, and obtained in 2007, and the grant was confirmed in 2009. If the property in question did not belong to the deceased in the first place, for he only held a trust over it in favour of the mother of the administrator, or for Otiangala Nyende for that matter, then representation should not have been sought over it. The property available for distribution in intestate succession should be that which belongs to the deceased as at the date of his death. What the administrator or his mother or both of them ought to have done, upon the demise of the deceased, was to move the High Court, or any other court with jurisdiction, for a determination of the trust, so that the ownership of the land moved from the trustee to its actual owner, the mother of the administrator or Otiangala Nyende. That would not have required that the property be taken through succession, because once the trust was determined, it meant that the deceased would have no estate for distribution through succession. If the administrator were to be serious in his claim that there was a trust, then he should not have moved with alacrity, to distribute a property, in this cause, purporting it to belong to the deceased, when he in fact knew that it did not. If he believed that it was trust property, and not estate property, then he should have done what I have indicated above. Even after he had mounted the succession cause, he could still have proceeded under rule 41(3) of the Probate and Administration Rules, and have the issue of the ownership of that property determined as between the estate of the deceased herein and his mother, Fronica Malala Ashiali in separate proceedings. See In re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR (Gikonyo J), In re Estate of Muthiani Mutule (Deceased) [2017] eKLR (C. Kariuki J) and In re Estate of Njagi Njeru (Deceased) [2018] eKLR (Muchemi J). I am inclined to find that the argument, that the said property was being held in trust, is an afterthought, designed to lockout the applicant and her sisters from benefiting from the estate. The issue of a trust, over property placed before the probate court as an asset in the estate, cannot be determined in succession proceedings. It has to be determined in separate proceedings. See In re Estate of Kimani Kinuthia [2008] eKLR (Ibrahim J) and In re Estate of Mwangi Gikonyo (Deceased) [2017] eKLR (Waweru J).

19. I could go on and on, but so far I am persuaded that a proper case has been made out for revocation of the grant that was made herein on December 6, 2006, and confirmed on July 8, 2009. The final orders that I shall make, in the circumstances, are as follows:a.That I hereby allow the application, dated November 25, 2011, and revoke the grant herein, set aside the confirmation orders of July 8, 2008 and cancel the certificate of confirmation of grant dated July 27, 2009;b.That as a consequence of (a) above, I direct the Land Registrar, responsible for Kakamega County, to cancel the transmission of Butsotso/Esumeyia/1141 in the name of the administrator based on the cancelled certificate of confirmation of grant, and to revert the property to the name of the deceased;c.That I appoint David Indimuli Ashiali and Philister Were Wekulo, administrators of the estate of the deceased herein, and a grant of letters of administration intestate shall issue to them accordingly;d.That the new administrators shall, within the next ninety-days, whether jointly or severally, apply for confirmation of their grant in proceedings that shall include Fronica Malala Ashiali, Philister Were Wekulo, Margaret Shinali, Alice Omido, Repha Ashiali, David Indimuli, Chitechi, Lubisia and Eshikumo;e.That should the administrator, who will not have filed a summons for confirmation of grant, be unhappy with the proposals made by the applicant, who will have filed the application, and any of the others survivors of the deceased, and any other persons with a beneficial interest in the property, he or she or they shall have liberty to file an affidavit or affidavits of protest to that application in terms of rule 40(6) of the Probate and Administration Rules;f.That the matter shall be mentioned on a date, that I shall allocate at the delivery of this judgment, for mention for compliance;g.That each party shall bear their own costs; andh.That any party aggrieved by any of the orders made above has leave of twenty-eight days to move the Court of Appeal appropriately.

20. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 13th DAY OF May 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Ms. Andia, instructed by Andia & Co, Advocates, for the administrator.Philister Were Wekulo, applicant, in person.