[2023] KEHC 25382 (KLR)

In re Estate of William Kipsagui Chepkok (Deceased) (Succession Cause 269 of 2013) [2023] KEHC 25382 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25382 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 269 of 2013

JRA Wananda, J

November 17, 2023

Between

Mathew Kiptoo Chepkok

Applicant

and

Jackson Kipchumba

1st Petitioner

Kenneth Kipngetich

2nd Petitioner

Ruling

1. The Application herein seeks revocation of a Grant.

2. The background of the matter is that the deceased, William Kipsagui Chepkok died intestate on 4/06/2010 at the age of 78 years. He was a polygamous man with 3 wives and was survived by 1 widow and about 18 children, both adults and minors. The deceased also left behind some parcels of land.

3. On 11/9/2013, the Petitioners in their capacity as sons, applied for Grant of Letters of Administration Intestate in respect of the estate. Such Grant was then issued by the Court on 25/02/2014, was subsequently confirmed on 29/11/2021 and the estate distributed.

4. Now before Court for determination is the Application brought by way of the Summons dated 11/04/2022 and filed by the Objector, through Messrs Rioba Omboto & Co. Advocates. The prayers sought are as follows:i.[………] Spent.ii.That the Grant of Letters of Administration intestate issued on the 25th February 2014 and confirmed on the 29th November 2021 be revoked and/or annulled.iii.That the Applicant herein be made a beneficiary of the estate of William Kipsugut Chepkok and/or the Grant be rectified to include the Objector/Applicant as a beneficiary in respect of that parcel of land namely Sergoit Koiwop Tao Block 7(Segoit Rock/2).iv.That an order to issue restraining and/or stopping the Petitioners and their agents, assignees and/or servants from intermeddling, subdividing or dealing in any way with the estate of the deceased person, more particularly L.R. No. Sergoit Koiwop Tao Block 7/ (Segoit Rock/2) measuring 30 acres pending the hearing and determination of this Application inter partes and thereafter the hearing of the main cause.v.Costs of this Application be provided for.

5. The Application is stated be brought under Section 47 and 76(e) of the Law of Succession Act, Section 44(1) and Rule 73 of the Probate and Administration Rules and “all other enabling provisions of the law”. It is premised on the grounds stated on the face thereon and is supported by the Affidavit sworn by the Objector.

6. In the Affidavit, the Objector deponed that the he is a grandson of the deceased hence one of the rightful and lawful dependents and beneficiaries of the estate, the Petitioners filed this Cause secretly and without his knowledge or consent and left him out knowing very well that he was raised by the deceased, his consent was not obtained, the Petitioners who are his uncles did not include him and his siblings as beneficiaries, the deceased had taken care of them since childhood and prior to his death, gave the Objector 3 acres to cultivate for his subsistence and livelihood, the 3 acres were from L.R. No. Sergoit Koiwop Tao Block 7/ (Segoit Rock/2) (hereinafter referred to as “the property”) which forms part of the estate, he has resided on the property and built his homestead, even the area Chief has confirmed the same, they had family meetings after the death of the deceased, the Petitioners have been promising to distribute the 3 acres to him and that in Petition, the Petitioners also excluded his grandmother (widow to the deceased).

7. He then made an illustration to demonstrate that the deceased had 3 wives including the Objector’s grandmother (Taplelei Kipsugut) who gave birth to the Objector’s mother (Rose Chepkok) who never got married but gave birth to the Objector (son) and 2 daughters.

8. In conclusion, the Objector deponed that the Petitioners sold part of the estate to one Betra Jemaiyo Cheboi who is now claiming 5 acres which forms part of the portion of land that the Objector has been occupying since childhood.

Response to the Application 9. The Summons is opposed vide the Replying Affidavit sworn by the 1st Petitioner, and filed on 25/07/2022 through Messrs Mburu Maina & Co. Advocates. He deponed that the Objector was not included in the mode of distribution for reason that he is not a beneficiary of the estate, they filed the Petition on the basis of consent signed by all the beneficiaries and the Court issued the Grant based on the consent, the area Chief wrote a letter listing all the beneficiaries and the Applicant was not included, the Objector did not express any intention of being included, and that the Application is an afterthought made in bad faith as the Objector has always been aware of the proceedings.

Hearing of the Application 10. The Application was canvassed by way of written Submissions. Pursuant to directions given, the Objector filed his Submissions on 25/01/2023 while the Petitioners filed on 30/03/2023.

Objector’s Submissions 11. Counsel for the Objector submitted that the Objector is a grandchild of the deceased and is entitled to the estate by virtue of Section 41 of the Law of Succession Act. He cited the case of In Re Estate of Imoli Luhatse Paul (deceased) [2021] eKLR which, he submitted, restated the pronouncement made in the case of In Re Estate of Florence Mukami Kinyua (deceased) [2018] eKLR, despite the Petitioners being alive to the fact that the Objector is a beneficiary to the same degree of consanguinity, they petitioned the Court without including the Objector, the Objector has annexed a letter from the Chief which confirms that the Objector is a grandchild to the deceased, a family meeting was held after the demise of the deceased where all family members, including the Petitioners, were present and all acknowledged that the Objector had a share in the estate, this was also due to the fact that prior to his death, the deceased had taken care of the Objector and his siblings upon the death of their mother, the actions of the Petitioners of material non-disclosure and concealment of facts are meant to disinherit the Objector which this Court should not condone.

12. On whether the Objector has met the threshold for revocation of the Grant, Counsel cited the cases of In Re Estate of Prisca Ongayo Nande (deceased) and Albert Inyangala Kisigwa, Succession Cause No. 158 of 2000 and added that under Rule 26 of the Probate and Administration Rules, Letters of Administration should not be granted to any Applicant without notice to every person entitled in the same degree. He then cited the case of In Re estate of Wahome Mwenje Ngonoro (2016) eKLR and added that the Objector was bequeathed 3 acres curved from the property, the Petitioners sold part of the property to a third party (Betra Jemaiyo Cheboi) who is now claiming 5 acres which forms part of the property, the said purchase was done without any legal basis, and that if the Objector is not allowed to claim his rightful share, a great loss will be occasioned as the piece of land is a source of his livelihood.

Petitioners’ Submissions 13. On the principles guiding the Court when deciding applications for revocation of a grant, Counsel cited the case of Jamleck Maina Njoroge v Mary Wanjiru Mwangi [2015] eKLR and submitted that at the time of filing the Petition, the Petitioners complied with the requirements, the Chief’s letter listed the beneficiaries and who appended their signatures on Form 38 giving their consent to making of the Grant, the name of the Objector was not listed among the beneficiaries, the gazettement was published on 6/12/2013, there was the statutory 6 months period given to any interested party to raise their objection which the Objector failed to do, the beneficiaries equally appended their signatures on the consent in support of the mode of distribution, the assertions that the Grant was obtained secretly by concealment from Court of the existence of the true beneficiaries and dependents is unfounded, the same was not defective, and that there was no omission of any essential information.

14. Counsel cited Section 112 of the Evidence Act on burden of proof and also Order 19 Rule 3(1) of the Civil Procedure Rules on the requirement that Affidavits should be confined to such facts as the deponent is able of his own knowledge to prove. He cited the case of Kitale HCCA No. 28 of 2005-Barclays Bank of Kenya Limited v Jeremiah O. Samba t/a Samba & Co. Advocates. He then added that the Application has been made late in the day and is an afterthought, the Objector surrendered his opportunity and should not be given a second bite at the cherry as this would offend the overriding objective which was solely meant to ensure expeditious disposal of business of the Court

15. On whether the Objector has the locus standi to file the present Application, Counsel cited the case of Law Society of Kenya vs Commissioner of Lands & Others, High Court Civil Case No. 464 2000 and also Section 2 of the Civil Procedure Rules on the definition of a “legal representative”. He then submitted that there is no evidence whatsoever that the Objector was nominated by the Court or the family he claims to represent to act on their behalf, no death certificate or proof of death of the relationship he claims to have with the deceased has been placed before the Court. He cited the cases of Otieno v Ougo [1986-1989] and Rajesh Pranjvan Chudasama vs Saliesh Pranjivan Chudasama [2014] eKLR. He also cited the case of Julian Adoyo Ogunga & Another v Francis Kiberenge Bondeva, Civil Appeal No. 119 of 2005, in which, he submitted, the Court affirmed Section 54 and 55 of the Law of Succession Act.

16. Counsel submitted further that litigation must come to an end, the deceased did not leave a Will, the Objector is therefore precluded from raising any claim on basis of the alleged gift, no evidence has been put forth to substantiate the allegation of gift, in terms of priority under Section 29 of the Law of Succession Act, the Petitioners, widows, sons and daughters of the deceased rank higher that the Objector. He cited the case of In Re Estate of M’Muthania Mwendwa (deceased) [2016] and added that the Objector has not demonstrated that he is a dependent, the family members made a provision for the Objector in an alternative parcel of land after a meeting that was held on 25/01/2022, the Objector lacks the locus standi to contest the agreement, the Objector has annexed a letter from the Chief to support his claim, the letter is worthless, a Chief cannot purport to decide the matter.

17. In conclusion, Counsel submitted that since the Objector seeks to only revoke the Grant, the Application is incompetent, a Grant is merely a form of representation, it does not confer any property to anyone, only a Certificate of Confirmation does, and that revoking the Grant will therefore serve no purpose.

Analysis and Determination 18. Although the revocation sought in the Application is only revocation of the Grant, it is clear from the body and nature thereof that the Objector also, by extension, seeks revocation of the confirmed Grant in general. I therefore do not share the Petitioners’ contention that the Application is incompetent.

19. In the circumstances, upon examination of the Application, the pleadings filed, including the Affidavits and respective parties’ Submissions, I find the issue that arises for determination to be “whether the Grant issued herein and subsequently confirmed should be revoked.

20. Section 76 of the Law of Succession Act provides as follows:“Revocation or annulment of grantA 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—SUBPARA (a)that the proceedings to obtain the grant were defective in substance;SUBPARA (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;SUBPARA (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;SUBPARA (d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either—SUBPARA (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; orSUBPARA (ii)to proceed diligently with the administration of the estate; orSUBPARA (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.”

21. It is clear that the Objector has come under sub-Sections (a), (b) and (c) cited above.

22. On the issue of inheritance by grandchildren, my first port of call will be Section 41 of the Law of Succession Act, which provides as follows:“41. Property devolving upon child to be held in trustWhere reference is made in this Act to the "net intestate estate", or the residue thereof, devolving upon a child or children, the property comprised therein shall be held in trust, in equal shares in the case of more than one child, for all or any of the children of the intestate who attain the age of eighteen years or who, being female, marry under that age, and for all or any of the issue of any child of the intestate who predecease him and who attain that age or so marry, in which case the issue shall take through degrees, in equal shares, the share which their parent would have taken had he not predeceased the intestate.”

23. In short therefore, Section 41 provides that where one of the children of the deceased is himself/herself deceased, and such deceased child is survived by a child or children of his/her own, then the share due to him/her ought to devolve upon his/her said child, and where more than one, the children would take equally.

24. The question of whether grandchildren can inherit from their grandfather’s estate was addressed in the case of Re Estate of Wahome Njoki Wakagoto (2013) eKLR where it was held as follows:“Under Part V, grandchildren have no right to inherit their grandparents who die intestate after 1st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.”

25. Further, the Court of Appeal in Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others [2014] eKLR held as follows:“Although Section 35 and 38 of the Law of Succession Act is silent on the fate of surviving grand children whose parents predeceased the deceased, the rate of substitution of a grandchild for his/her parent in all cases of intestate known as the principle of representation is applicable. The Law is section 41. If a child of the intestate has pre- deceased, the intestate then that child’s issue alive or in centre as mere on that date of the intestate’s death will take in equal shares per stirpes contingent on attaining the age of majority. Per stirpes means that the issue of a deceased child of the intestate take between them the share their parents would have taken had the parent been alive at the intestate’s death”.

26. On the issue of revocation of Grants, Section 76 was expounded upon by Hon. Justice W. Musyoka in the case of Re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR where he stated as follows:“Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, 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. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or 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 lies that he is a survivor when he is 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, becomes unqualified to hold any office of trust.”

27. The Petitioners’ Counsel has challenged the Application on the ground that not being a legal representative of the estate of her deceased mother, the Objector lacks the locus standi to bring the present Application. I am aware of several authorities which advance the principle that a grandchild can only claim the share in his/her grandparent’s estate if he/she holds a grant of representation over his own late parent’s estate. I am aware for instance, to the case of Cleopa Amutala Namayi vs. Judith Were Succession Cause 457 of 2005 [2015] eKLR where Mrima, J observed as follows:“Be that as it may, under Part V of the Act grandchildren have no automatic right to inherit their grandparents (sic) who died intestate after 01/07/1981 when the Act came into operation. The argument behind this position is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents (sic) indirectly through their own parents, the children of their grandparents. The children to the grandparents inherit first and thereafter the grandchildren inherit from their parents. The only time where the grandchildren can inherit directly from their grandparents is when the grandchildren’s own parents are dead. Those grandchildren can now step into the shoes of their parents and take directly the share that ought to have gone to the said parents. Needless to say, such grandchildren must hold appropriate representation on behalf of their parents.” (emphasis mine)

28. In my view, having described himself as a grandson of the deceased and having alleged that, before his demise, the deceased was taking care of him since his childhood, and having also alleged that the deceased is the one who put him on occupation of the 3 acres of the land, I find that the Objector’s pleadings disclose a legally recognized interest, at least as a dependent, even if not as a beneficiary. None of these claims is dependent on one being a legal representative and, in any case, nowhere has the Objector stated that he is making the claim for or on behalf of the estate of her mother. The only burden that the Objector must discharge is to prove his said allegations made in his Application.

29. On this view, I find company in the decision of H.K. Chemitei J in In re Estate of Hellen Wangari Wathiai (Deceased) [2021] eKLR in which, in declining to shut out a grandchild from claiming a share in his grandfather’s estate on the alleged ground of not holding a grant of representation over his parent’s estate, stated as follows:“52. The evidence on record suggest that the Applicant herein brought these proceedings on behalf of his father; Abdi Ibrahim Hassan (deceased) who was the beneficiary to his father’s estate. The Applicant’s interest emanates from the fact that his father was a beneficiary to the suit property, thus the Applicant being dependent to his father Abdi Ibrahim Ibrahim’s estate within the provisions of Section 29 of the Law of succession Act, he acquires an interest in his grandfather’s estate; the suit property by virtue of his father’s share. Therefore, in the court’s view, the instant Application is properly before this court.53. In my humble view, therefore, it is clear that the applicant had the locus standi and he was rightfully before the court to fight for the interests of the estate of his late father with regard to the deceased grandmother’s estate. The fact that he was a grandchild of the deceased taken care of by his deceased grandmother prior to her death and a dependant of his father’s estate has not been disputed.54. This therefore supports the fact that he and his sister acquired interest over the deceased’s grandmother’s estate and thus he had the necessary locus standi. ….”

30. There is also the case of In re Estate of Imoli Luhatse Paul (Deceased) [2021] eKLR, where Musyoka J stated as follows:“3. In the instant case, the applicant, in the summons for revocation of grant, is a child of a dead son of the deceased herein. The applicant is claiming directly by dint of In re Estate of Veronica Njoki Wakagoto (Deceased) [2013] eKLR (Musyoka J) and In re Estate of Florence Mukami Kinyua (Deceased) [2018] eKLR (T. Matheka J), and does not require to take out letters of administration to intervene in the estate of her late grandfather, where her own parents are dead. Secondly, apart from case law, the provisions of the Law of Succession Act cover these situations. Section 39 of the Law of Succession Act makes grandchildren heirs in intestacy, where their own parents, who are biological children of the deceased, are dead. Section 41 of the Law of Succession Act is the provision that enables grandchildren to step into the shoes, of their own parents, and to step into those shoes they need not take out letters of administration.”

31. Turning to the merits of this matter, I have carefully perused the Petitioners’ Replying Affidavit and established that they have not denied, and even to some extent have confirmed, that the Objector is a grandson of the deceased, that the Objector’s late mother is a daughter of the deceased, that the Petitioners are therefore the Objector’s uncles, that the Objector’s mother never got married but gave birth to 3 children (2 daughters and the Objector), that the 3 children, including the Objector, grew up in the home of the deceased, that the deceased is the one who took care of the children and brought them up since childhood, that it is the deceased who put the Objector into occupation of the 3 acres portion of the property L.R. No. Sergoit Koiwop Tao Block 7/(Segoit Rock/2) and that the Objector even built his homestead thereon.

32. Although in his Submissions, Counsel for the Petitioners has sought to contest or contradict some of the above facts and also raised some new factual matters, he cannot do so at this stage. Any denial, challenge or contestation of facts or introduction of new facts could only have been validly done by the Petitioners in their Replying Affidavit, not in the subsequent Submissions by Counsel. I therefore take the above facts stated by the Objector as reflecting the correct and true position.

33. Flowing from the above, I find that the Objector’s late mother having been a daughter of the deceased, just like the Petitioners, she too was entitled to a share of the estate of the deceased and was therefore a “beneficiary”. However, having died before distribution and having left behind children, such children therefore “stepped into her shoes” and are entitled to claim their mother’s share. However, since amongst the 3 children, only the Objector has approached this Court, I will only deal with his claim.

34. Further, having been brought up in the in the home of the deceased, having been put into occupation by the deceased and having built his homestead within the property as L.R. No. Sergoit Koiwop Tao Block 7/(Segoit Rock/2) without evidence of any protest from the Petitioners or anyone else, I find that the Objector, apart from having the right to claim her mother’s share, is also a “dependent” of the estate. He was therefore entitled to be included in the whole process of Succession and his consent sought.

35. However, not being a direct beneficiary as a son or daughter of the deceased, it may not be fair to accuse the Petitioners of deliberate concealment of facts or fraud.

36. Regarding the family meeting alleged by the Objector to have been held on 11/01/2022 and whose minutes the Objector has exhibited, the Petitioners have not denied that it took place and that the minutes are authentic. A perusal of the minutes reveals that it was agreed as follows:“(1)Mr. Mathew Kiptoo to continue to stay at his farm (house)”

37. In the absence of denial and/or evidence to the contrary, although the Objector may not have established fraud or defect in substance to warrant revocation of the Grant under Section 76 of the Law of Succession Act, I find that he has established a case to justify rectification of the Certificate of Confirmation to provide for his share.

Final orders 38. In the premises, the Summons dated 11/04/2022 filed by the Objector partially succeeds in the following terms:i.A declaration is hereby made that the Objector is entitled to retain, occupy and/or possess the 3 acres that he has at all material times been occupying within the property known as L.R. No.Sergoit Koiwop Tao Block 7/(Segoit Rock/2).ii.Consequently, the property L.R. No.Sergoit Koiwop Tao Block 7/(Segoit Rock/2), being 12. 79 hectares, the remaining 9. 79 hectares is what will now be available for distribution amongst the initial 6 beneficiaries listed in the Certificate of Confirmation given on 29/11/2021. iii.To factor in the 3 acres now awarded to the Objector out of the property L.R. No.Sergoit Koiwop Tao Block 7/(Segoit Rock/2), the 6 beneficiaries who initially shared out the property as per the Certificate of Confirmation given on 29/11/2021 shall each cede an equal proportion of acreage to make up a total of the 3 acres now awarded to the Objector.iv.The parties are at liberty to discuss, negotiate or agree on any other alternative mode of distribution to achieve the declaration made in (i) above and accordingly move the Court to adopt it. Until then, order (iii) above shall remain in place.v.To give the parties time to discuss, negotiate or agree on an alternative formula for achieving order (i) above, the Rectified or Amended Certificate of Confirmation of Grant shall only be liable to be signed and issued by this Court after lapse of ninety (90) days from the date hereof.vi.During such ninety (90) days referred to above, there shall be no sale, transfer, subdivision or conveyance of any kind over the said property L.R. No.Sergoit Koiwop Tao Block 7/(Segoit Rock/2), and the Objector’s occupation and possession of the 3 acres portion thereof as awarded to the Objector hereinabove shall not be interfered with by any person in any manner.vii.Regarding one Betra Jemaiyo Cheboi who has been alleged to have purchased 5 acres portion of the said property L.R. No.Sergoit Koiwop Tao Block 7/(Segoit Rock/2), if at all she did so purchase, then she will be at liberty to seek a refund for the proportionate acreage that will now be reduced from the portion that she purchased, from the person who sold the same to her.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 17TH DAY OF NOVEMBER, 2023. WANANDA J. R. ANUROJUDGE