[2022] KEHC 14058 (KLR)

In re Estate of Washington Aggrey Jalango Okumu (Deceased) (Succession Cause E19 of 2021) [2022] KEHC 14058 (KLR) (17 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14058 (KLR)

Republic of Kenya

In the High Court at Kisumu

Succession Cause E19 of 2021

RE Aburili, J

October 17, 2022

Between

Peter Odiwour Ngoge t/a O.P. Ngoge & Associates Advocates

Applicant

and

Martha Ruth Amondi Oshomuvye

1st Respondent

David Jairus Ochieng Okumu

2nd Respondent

Ruling

1. The applicant vide chamber summons dated January 7, 2022 sought the following orders:a.That the grant of letters of administration intestate made to the respondents on the August 17, 2021 and scheduled to be confirmed on the February 17, 2022 be revoked and /or annulled.b.That further and/or in the alternative, the respondents be compelled to pay forthwith the applicant’s debts, legal fees, decrees, costs of proceedings and interest thereon plus VAT arising from the following cases from the estate of the deceased person herein in line with sections 81, 82, and 83 of the Law of Succession Act before this matter can proceed for confirmation of the grant on the February 17, 2022. i.The decree and legal fees which was taxed by consent of the parties in Naiobi Milimani HC MISC Civil Application No 260 of 2007 plus costs of the suit and accrued interests thereon.ii.The decree and legal fees which was taxed by consent of the parties in Naiobi Milimani HC Misc Civil Application No 259 of 2007 plus costs of the suit and accrued interest thereon.iii.The applicant’s party & party costs as were decreed in Naiobi Court of Appeal Civil Application No NAI 22 of 2008 either to be agreed upon or taxed.iv.The applicant’s party & party costs as was decreed in Naiobi Court of Appeal Civil Application No NAI 23 of 2008 either to be agreed upon or taxed.v.The applicant’s party & party costs as was decreed in Naiobi Court of Appeal Civil No 233 of 2010 either to be agreed upon or to be taxed.vi.The applicant’s legal fees and VAT arising from legal services rendered to the deceased person herein in Naiobi Court of Appeal Civil Appeal No 10 of 2006 either to be agreed upon or taxed.c.That costs of this application be borne by the estate of the deceased person herein.

2. It was the applicant’s case that there existed a retainer relationship between himself and the deceased for which the legal fees for the legal services rendered as well as the corresponding VAT had not been settled and as such it was the responsibility of the administrators of the deceased’s estate to settle the same upon listing the applicant as creditor of the deceased’s estate and further for the respondent’s to apply to be substituted as judgement debtors in cases brought against the deceased and which were handled by the applicant specifically Naiobi HC MISC Appli. No 260 of 2007, Naiobi Court of Appeal Civil Appeal No 233 of 2010 and in Naiobi Court of Appeal Civil Appeal No 10 of 2006 as provided by sections 81, 82 and 83 of the Law of Succession Act.

3. It was the applicant’s assertion deposition in his affidavit sworn on the August 19, 2022 and filed in court on the August 26, 2022 that after the Court of Appeal allowed his appeal No 233 of 2010, he immediately commenced execution proceedings against the deceased but the same were subsequently blocked on the 25th September 2012 on account of the deceased’s then poor health and to the applicant’s detriment and thus all he sought from the court was that his bills be settled prior to confirmation of the grant.

4. In rejoinder, the 1st respondent filed a replying affidavit sworn on the February 28, 2022 in which she deposed that she was the administrator of the deceased’s estate and further that the claim for legal services rendered in Naiobi Hc Misc Appl No 259 of 2007, Naiobi Hc Misc Appl No 260 of 2007, Naiobi Court of Appeal Civil Application No 22 7 23 of 2008, Naiobi Court of Appeal Civil Appeal No 233 of 2010 and in Naiobi Court of Appeal Civil Appeal No 10 of 2006 were unproven as debts and liabilities of the deceased’s estate.

5. The 1st respondent further deposed that the grant of letters of administration were validly issued and that the proceedings to obtain the grant were neither defective in substance nor fraudulent and that there was no concealment of material facts. It was further deposed that the grant was not obtained based on an untrue allegation of fact considering that a notice was issued vide the Kenya Gazette to enable any creditors to bring forth their claims but none was availed.

6. It was the 1st respondent’s case that the Law of Succession provided that no omission of any information in an application could affect the power of the court to entertain the application for grant. It was further deposed by the 1st respondent that the applicant had other mechanisms of instituting his claim against the deceased’s estate.

7. The application was canvassed by way of written submissions.

The applicant’s submissions 8. The applicant submitted that the taxed legal fees plus VAT and interest as well as his fee notes arising from the legal services rendered to the deceased person were a valid liability to the deceased’s estate that must be fully settled prior to confirmation of the grant.

9. It was further submitted that the applicant had attempted to execute decrees of the court against the deceased prior to his passing but the same was stopped via a stay of execution on the 25th September 2012 on account of the deceased’s then poor health.

The 1st & 2nd respondents’ submissions 10. It was submitted that respondents in this matter had no notice of the debts raised by the applicant and further that the said debts had not been proven as what was provided by the applicant were uncertified certificate of taxation. The respondents further submitted that the same could not be deemed as debts as there was no civil action from a court of competent jurisdiction to compel the deceased’s estate to settle the alleged debts.

11. The respondents relied on the case of Stephens & Another v Stephens & Another [1987] KLR 125 where Apaloo JA stated inter alia that a personal representative of the deceased owes a duty to pay all debts accrued by the deceased’s estate and equally owe a duty to all beneficiaries and the court to account to them.

12. It was submitted that the applicant obtained the certificate of taxation on the August 8, 2007 and sat on the same for 9 years as the deceased died on the 2nd November 2016 and cannot therefore purport to stop confirmation of grant without an order compelling the deceased’s estate to satisfy the debt. It was further submitted that the applicant had failed to exhaust all the mechanisms provided in law to have his debts satisfied as provided in Order 37 (1) of the Civil Procedure Act.

13. The respondents submitted that the applicant had time to object or raise notice to the proposed legal representative of the deceased’s estate but failed to do so and so the respondents remained unaware of the said legal costs incurred by the deceased.

14. It was submitted that the applicant had failed to substantiate any of the reasons provided under section 76 of the Law of Succession Act to annul/revoke the grant and it would be injurious to the beneficiaries to have the grant revoked. Reliance was placed on the case ofIn re Estate of Magangi Obuki (Deceased) [2020] eKLR where the court set out the guiding principles for revocation of a grant.

Analysis & determination 15. Having considered the application herein, the responses thereof and rival submissions by counsel for both parties, the issues that arise for determination are:a.Whether the grant of letters of administration made on the August 17, 2021 should be revoked.

16. The applicable law for revocation of grants is the Law of Succession Act section 76 which provides that:“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; orii.to proceed diligently with the administration of the estate; oriii.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; ore.That the grant has become useless and inoperative through subsequent circumstances.”

17. In the case of In re Estate of Mukhobi Namonya (Deceased) [2020] eKLR it was stated that:“Under section 76 of the Act, a grant of representation is liable to revocation on three general grounds. The first ground would be where the process of obtaining the grant was attended by glaring difficulties, such as where the same was defective, say because the person who obtained representation was not qualified to be appointed as personal representative, or the procedural requirements were not met for some reason or other. It could also be because the petitioner used fraud or misrepresentation or concealed important information in order to obtain the grant. The second general ground is where the grant is obtained procedurally, but the administrator subsequently runs into difficulties during the process of administration of the estate. Such difficulties include his failure or omission to apply for confirmation of his grant within the period allowed in law, or where he fails to exercise diligence in administration of the estate, such as where he omits to collect or get in an asset, or where he fails to render accounts as and when he is required to do so by the law. The third general ground is where the grant has become inoperative or useless on account of subsequent circumstances, such as where the sole administrator died or loses the soundness of his mind or is adjudged bankrupt.

18. In In re Estate of Magangi Obuki (Deceased) [2020] eKLR, it was held inter alia that the power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds and that when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.

19. The applicant further submitted that the letters of administration were procured contrary to the provisions of the law in that the administrators failed to include liabilities incurred by the deceased in the form of legal services rendered to the deceased by the applicant as well as costs of proceedings, interest and VAT due and payable by the estate contrary to Section 76 of the Law of Succession Act.

20. The respondents on the other hand contended that they were not aware of the liabilities raised by the applicant at the time they petitioned for the grant and therefore their application was devoid of any concealment of material facts or fraud and that the applicant had failed to substantiate any of the grounds set out in section 76 of the Law of Succession Act to annul/revoke the grant

21. It was further submitted that the applicant had not followed the correct procedure as envisaged under Section 37 of the Civil Procedure Act. Section 37 of the Civil Procedure Act provides that:“(1)Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the court which passed it to execute the same against the legal representative of such deceased, or against any person who has intermeddled with the estate of such deceased.(2)where the decree is executed against such legal representative, or against any person as aforesaid, he shall be liable only to the extent of the property of the deceased which has come to his hands and not been duly disposed of; and, for the purpose of ascertaining such liability the court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.”

22. I have perused the court record and note that there are two certificates of taxation presented by the applicant namely:i.One dated August 8, 2007 stating the applicant’s costs against the deceased in Misc Civil Application No 260 of 2007 were taxed at Kshs 1,568,479 andii.One dated August 8, 2007 stating the applicant’s costs against the deceased in Misc Civil Application No 259 of 2007 were taxed at Kshs 1,297,939.

23. There were also execution proceedings to recover the said costs but the deceased became of poor health hence he could not be arrested and taken to court to show cause why he could not be committed to civil jail.

24. on the other hand, there is no evidence presented by the applicant in rebuttal to the respondents’ assertion that they were not aware of the said certificates of taxation during the filing of the petition for grant.

25. The power to revoke a grant are clearly provided for under section 76 of the Law of Succession as set out herein above.

26. In In re Estate of Mukhobi Namonya (Deceased) [2020] eKLR the Court stated that:“The omission of persons who claim to be claimants from or creditors of the estate is not a ground for revoking a grant.”

27. In the circumstances, I find that the applicant herein has failed to satisfy the grounds set out in section 76 of the Law of Succession Act to warrant revocation of the grant issued to the respondents on the August 17, 2021.

28. That being the case, the question is what orders can this court make in the circumstances of this case? rule 73 of the Probate and Administration Rules vests this court with the power to make such orders as may be necessary for the ends of justice.

29. There is no doubt that there are two certificates of Taxation against the deceased, issued in the year 2007. There was also execution proceedings commenced against the deceased whose estate is subject of these succession proceedings.

30. Case law interpreting section 37 of the Civil Procedure has shown that a decree as envisaged under section 37 of the Civil Procedure Act is one that can be brought before a succession court for inclusion into the liabilities of the deceased and which must be settled before distribution of the estate is done between and among beneficiaries. It is immaterial that the administrators or beneficiaries were not aware of the decree as they, in the first place, were not parties to those suits/proceedings where decrees were issued against the deceased.

31. However, where there is no judgment or decree, the applicant would be expected to enjoin the administrators to those proceedings as substitutes before proceeding against the estate of the deceased.

32. In the case of Mukhobi Namonya supra, the court considered what constitutes a liability to the deceased’s estate and stated that:“Who exactly is the creditor of the estate or what ought to be treated as a liability of the estate. The most obvious candidates are individuals or entities that transacted with the deceased during his lifetime. Debts that the deceased left unsettled are a burden that the administrators of his estate ought to take care of. Transactions that he left incomplete, such as for sale of land by him or to him, should be completed by the administrators. The administrators are able to do so through the powers conferred upon them by section 82 of the Law of Succession Act, being mindful of section 79, which vests the assets of the estate in the administrator. Section 83 imposes a duty on administrators to settle such debts before distributing the estate…One of the duties of administrators, set out in section 83(d) of the Law of Succession Act, is to ascertain and pay out of the estate all the debts of the deceased. Ascertainment of the debts of the estate is about identifying them, in terms of finding who the creditors were, how the debts were incurred, what documentation is available, before pay out can be done.”

33. In Jackson Kamau Nthiga v Humprey Kirimi Mbuba & another [2016] eKLR Mabeya J stated that:“…The probate court's sphere of inquiry is limited to ascertaining what assets are available to the estate, who the beneficiaries are and the mode of distribution of the estate. Ascertaining what the assets are must of necessity involve the gathering of the net sum of assets and net sum of liabilities, to arrive at the net estate…”

34. I say so because a decree against a deceased person, in the absence of a variation, setting aside or otherwise being stayed is therefore a proven liability against the estate of the deceased. It does not require any further proof unless it is disputed by the administrators of the estate. That decree must be included in the list of liabilities in Form 5 provided in the First Schedule to the Probate and Administration Rules. Such a debt shall, as provided for in Section 86 of the Law of Succession Act, be paid before any legacy. For emphasis, that section 86 provides that:“Section 86: Debts of every description enforceable at Law and owed by or out of an estate shall be paid before any legacy”

35. Section 83 (b) and (d) of the Law of Succession Act on the other hand sets out the duty of a personal representative to get in all free property of the deceased, including debts owing to him and moneys payable to his personal representatives by reason of his death; (d) to ascertain and pay, out of the estate of the deceased, all his debt.

36. From sub-section (b) above, it is quite clear that the duties of personal representatives would include getting in all free property of the deceased including debts owing to him and moneys payable to his personal representative by reason of his death and in the same vein under Sub-section (d), to ascertain and pay out of the estate of the deceased, all his debts.

37. Whereas it is correct as stated by the respondents that execution of a decree against a personal representative should follow the procedure under Section 37(1) of the Civil Procedure Act, in my view, section 37 of the Civil Procedure Act must be read together with sections 83 and 86 of the Law of Succession Act. Thus, a personal representative who knows of the existence of a decree left behind by the deceased must, when petitioning for a grant, list that decree as a liability (if the decree was issued prior to the demise of the deceased and was conclusive to the extent that it is not challenged), and paying out such a decree as a debt within the meaning of Section 83(d) of the Law of Succession Act.

38. In this case, the applicant litigated his claim against the deceased up to the Court of appeal and all along, he was awarded costs of his litigation as well as the advocate client costs of legal representation. He put in motion the process of recovery of those costs prior to the demise of the deceased judgment debtor. In my view, the applicant cannot be taken round the circles to recover his legal fees and costs yet the estate of the deceased is available and there are administrators to the said estate.

39. Article 159 of the Constitutionis clear that justice shall be administered without undue regard to procedural technicalities. Thus, where there is a valid decree against the deceased prior to his demise, which decree was even subjected to unsuccessful execution proceedings as was in the instant case, where the judgment debtor became very ill during the execution process, by asking a decree holder to start the process of suing the personal representative of the estate of the deceased against whom the decree holder had a decree of the court means that he has to start the process of suing afresh, engage in the costly litigation of proving a decree which is not challenged against the estate of the deceased, and at the expense of the estate of the deceased being wasted further.

40. I reiterate that in the instant case, it is clear that the deceased’s legal representatives were not aware of the applicant’s claim against the deceased at the time of petitioning for the grant and became aware of the same in the course of these proceedings. The decree has however been brought to their attention before the confirmation of grant and therefore before the distribution of the estate, as no estate can be distributed without a certificate of confirmation being issued. In the premises, the administrators cannot be allowed to distribute the estate of the deceased unless and until they pay out to the applicant judgment creditor herein his dues as per the decree or decrees of the court.

41. To that extent, the administrators are expected to, during the process of applying for confirmation of the grant, prepare a schedule of distribution of the estate not only listing the assets and identifying the beneficiaries and assigning portions of the estate to each beneficiary, but also listing the liabilities and creditors among them, the applicant advocate herein, indicating the amount of money owed to him as per the proven decree/s of the court and therefore the estate of the deceased shall not be distributed to the rest of the beneficiaries until the applicant’s debt is fully settled.

42. In re Estate of Stone Kathuli Muinde (Deceased) [2016] e KLR it was stated as follows and I concur that:“…If a decree is obtained in such suit in favour of the claimant then such decree should be presented to the probate court in the succession cause so that that court can give effect to it.”

43. For the above reasons, I am not satisfied that the grant issued to the respondents deserves to be revoked. I decline that part of the orders sought in the application and dismiss it.

44. I however order that the applicant is entitled to the orders that he is entitled to bring into these proceedings the valid decrees obtained against the deceased Washington Aggrey Jalango Okumu for this court to give effect to them during distribution of the estate of the deceased.

45. Accordingly, I order that the administrators shall in their Summons for confirmation of the grant involve the applicant and prepare a schedule of distribution of the estate listing the assets and identifying the beneficiaries thereof and their respective shares in the estate as well as listing the liabilities and creditors among them, the applicant advocate herein, indicating the amount of money owed to him as per the proven decree/s of the court for settlement and the estate of the deceased shall not be distributed to the rest of the beneficiaries until the applicant’s debt is fully settled.

46. However, where there is no decree capable of being executed at this stage, but there is a genuine via a valid certificate of taxation which has not been adopted as judgment of the court, I hereby order that during distribution of the estate of the deceased, the administrators shall pack or appropriate and set aside the property or portion thereof amounting to the amounts claimed in the certificates of Taxation for determination under Section 37 of the Civil Procedure Act and as espoused under Rule 41(3) of the Probate and Administration Ruleswhich provides that:“Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under order xxxvi, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71 (2) of the Act, proceed to confirm the grant.”

47. Each party to bear their own costs of this application. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 17TH DAY OF OCTOBER, 2022R.E ABURILIJUDGE