[2022] KEHC 15186 (KLR)

In re Estate of William Saitoti Sekento (Deceased) (Succession Cause E068 of 2021) [2022] KEHC 15186 (KLR) (6 July 2022) (Judgment)

Neutral citation: [2022] KEHC 15186 (KLR)

Republic of Kenya

In the High Court at Kajiado

Succession Cause E068 of 2021

SN Mutuku, J

July 6, 2022

Between

Caroline Wanjira Waweru

Applicant

and

Rahab Mumbi Sekento

1st Respondent

Alex Saitoti

2nd Respondent

Judgment

Introduction 1. The deceased in this case died intestate. The grant was issued to the respondents Rahab Mumbi Sekento (wife to the deceased) and Alex Saitoti (son to the deceased) on March 23, 2003. The applicant being the daughter in- law to the deceased brought this Application under section 68 and section 76 of the Law of Succession Act and Rules 44 and 73 of the Probate and Administration Rules seeking the following orders:i.That the Grant of Letters of Administration Intestate issued to the Respondents Rahab Mumbi Sekento and Alex Saitoti on the March 23, 2003and subsequently confirmed be revoked.ii.That the Respondents herein be ordered to produce a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings of the deceased estate up to the day of the ruling of the court on this issue and to render the account in such time as the court shall stipulate.iii.That the Respondents herein be restrained from subdividing, transferring, selling and or in any manner dealing with the estate of the Late William Saitoti Sekento(deceased) and Edward Barnoti Ole Sekento(deceased) either by themselves or by their agents pending the hearing and determination of this application.iv.That the costs of this application be provided for.

2. The Applicant swore a supporting affidavit on the same date stating that she is the wife of the late Edward Kasaine Sekento (deceased) who was the son to the deceased herein; that she is therefore an interested party and beneficiary together with her children; that following the deceased’s death the Respondents petitioned for letters of administration and listed her late husband as one of the beneficiaries.

3. The claims that the administratrix did not list the entire estate of the deceased; that the certificate of confirmation of grant of the late Edward Barnoti Ole Sekento who was the father to the deceased expressly stated that Rahab Mumbi Sekento was holding the share in trust for beneficiaries of the estate of the deceased herein; that the consent filed in court expressly provided that the estate of Edward Barnoti Ole Sekento was to be re-distributed to the respective beneficiaries as per column 1 of the annexed consent marked CWW -8; that the administrators of the estate have failed to administer the estate of Edward Barnoti Ole Sekento in Succession Cause 1203 of 2012 and that further they have failed to distribute the estate of the deceased herein fairly and equitably.

4. The Applicant further claimed that the Original Title Kajiado/Kipeto/xxxx registered in the name of Rahab Mumbi Sekento was further subdivided into 5 parcels; that parcel No. Ngong/Ngong/xxxx is also registered in the 1st Respondent’s name and she fears that the same maybe alienated; that she has been in occupation of that parcel together with her late husband as the parcel was allocated to her late husband by his grandfather. She claimed that she was left out of the two estates: the father-in-law’s estate and that of his late father. She contends that that the proceedings for confirmation of grant for both the estates were irregular as her share together with that of her children were not recognized.

5. The Application is opposed. The respondents filed Grounds of Opposition and stated that the Application is defective; that there is no evidence that the respondents were administrators in HCC Succession Cause No. 1203 of 2012; that theapplicant is not a beneficiary of the estate of William Saitoti Sekento; that the applicant does not have capacity to bring this application; that the applicant has not listed any property allegedly left out of the estate and that the application is time barred.

6. In addition to the Grounds of Opposition, the 1st respondent filed her Replying Affidavit on 13th October, 2021 in which she has stated that she is the co-administratrix of the estate of William Saitoti Sekento who died on March 13, 1999; that the grant was issued on March 23, 2003 and was only made to facilitate payments of shares from TSC; that the deceased had nine children among them Edgar Kasaine Sekento who died on August 22, 2009; that nobody has taken out letters of administration in respect to his estate; that she was not listed as a beneficiary on behalf of Edgar Kasaine Sekento as alleged; that it is not true that they have failed to administer the estate of Edward Barnoti Ole Sekento in HC. Succession No.1203 of 2012 since she was not an administratrix in the said case and that the Applicant resides on Ngong/Ngong/xxxx which land is intact.

7. She further stated that the applicant is not a dependent of the deceased and therefore has no locus to challenge the grant; that the application by the applicant is time barred as the applicant is trying to recover land in total violation of the Limitations of Actions Act and that theapplicant is not a dependant to benefit from the estate of Edward Barnoti Ole Sekento.

8. It is the respondent’s case that the applicant has applied to revoke grant issued in this matter but the facts relied on are in respect to Succession Cause No.1203 of 2012 and that she should have moved the court in that matter.

9. The applicant responded to the grounds of opposition in which she stated that the 1st respondent was a beneficiary in Succession Cause No. 1203 of 2012 where she was allocated properties in trust for the estate of William Saitoti Sekendo, the deceased herein. She has listed the properties that the 1st respondent held in trust for the deceased estate and argued that the law requires disclosure of all surviving spouses; that the 1st respondent was required to distribute property to the estate of Edgar Kasaine Sekento and that the 1st respondent has distributed property to all her children and left out the spouse and children of the late Edgar Kasaine Sekento.

Submissions 10. This matter was canvassed by way of written submissions.the applicant through her submissions dated May 4, 2022, raised 5 issues for determination discussed herebelow.

11. On the first issue of whether the applicant has locus standi to initiate this application, it is argued that preliminary objections are on points of law and that this issue is not on a point of law as there are facts which need to be ascertained hence should fail on that ground. It is her case that the applicant, being a daughter in law and an interested party to the estate of the deceased, has locus standi to bring the suit and the court has jurisdiction on the matter.

12. On the second issue on whether the applicant is a beneficiary to the estate of the deceased and by extension Estate of Edward Barnoti Ole Sekento, the applicant argued that the Respondents being administrators of the estate of the deceased herein petitioned for letters of administration and among the beneficiaries listed was Edgar Kasaine son of the deceased and husband to the applicant; that the late William Saitoti Sekento died on March 13, 1999 and he was entitled to inherit from his late father Edward Barnoti Sekento, where the respondent was a beneficiary in trust for the estate of the deceased herein.

13. She submitted that she resides on Ngong/Ngong/xxxx which was allocated to her and her late husband by Edward Barnoti Sekento. She claims that it is from the two estates where she is claiming property on behalf of her children being the legal wife of the Edgar Kasaine Sekento. It is her case that the Respondent concealed material facts and misrepresented themselves when they failed to administer the estate of the deceased. She argued that the Respondents have not tendered any evidence whatsoever to show that the properties are not part of the estate.

14. On whether the respondent contravened the provisions of section 76 of the Law of Succession Act cap 160, she relied on section 76 of the Law of succession and relied on Re-Estate of Festo Akwera Kusebe (deceased) 2019 eKLR and argued that the conduct of the administratrix, from the inception of the matter to its conclusion points to the fact that she does not merit that position, which is one of trust as she has proved herself untrustworthy.

15. On whether the respondents should be compelled to furnish a full and accurate account of all dealings of the deceased estate, she submitted that therespondents filed the instant suit but failed to list all properties belonging to the deceased herein. That even after Edward Barinoti Sekento died the respondents did not apply for the Rectification of Grant to include the property that had been left out and chose to conceal that fact with the sole aim of disinheriting the applicant.

16. The respondents filed their submissions dated March 21, 2022. It is their submission that the Applicant is a daughter in law to the 1st defendant and a sister in law to the 2nd defendant and that section 29 of the Law of succession Act does not include the daughter-in-law as one of the dependants. That as a result the applicant does not have capacity to challenge the grant issued as she lacks locus.

17. Further that the applicant has not proved the ingredients under section 76 of the Law of succession Act. That her allegations that the grant was fraudulently obtained has not been backed by evidence. That the applicant has not shown which property has been misapplied to warrant production of an inventory.

18. Therespondents have argued that the Applicant alleges that her claim is for inherited land in Succession Cause No. 1203 of 2012 in which the administrators are George Sekento and Priscilla Gitangu and not the respondents. That the grounds relied upon by the applicant relate to the above cause not the current cause which is under consideration. Further that theapplicant has not shown the estate that is being held by the 2nd respondent in trust for her children nor mentioned the child that has been left out.

Determination. 19. From the outset, it is clear to me that the issues being raised in this Cause relate to two estates. The estate of William Saitoti Sekento is the subject matter in Kajiado Succession Cause No. E068 of 2021, formerly Nairobi Succession Cause No. 91 of 2003. There is also Succession Cause No. 1203 of 2012 relating to the estate of Edward Barnoti ole Sekento.

20. The issue of locus standi of the applicant has also been raised in this matter. Locus Standi’ is a legal term which means place of standing. It refers to the rights of a party to be heard by the court. Where a party has no ‘Locus standi’ then notwithstanding the merits of their case they cannot be heard by the court.In Alfred Njau & othersvCity Council of Nairobi[1982] KAR 229 it was stated that:-“The term locus standi means right to appear in court and conversely to say that a person has no locus standi means that he has no right to appear or be heard in such and such proceedings.”In Dayko Plantations LimitedvNational Bank of Kenya Limited & 2 others[2019] eKLR it was held-“…it is therefore evident that locus standi is the right to appear and be heard in court or other proceedings and literally, it means ‘a place of standing’. Therefore if a party is found to have no locus standi, then it means he/she cannot be heard even on whether or not he has a case worth listening to. It is further evident that if this court was to find that the Applicant has no locus standi, then the Applicant cannot be heard and that point alone may dispose of the suit.”

21. Section 29 of the Law of Succession Act defines dependants to mean the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death; such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death, and where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

22. The applicant is claiming through Edgar Kasaine, deceased, whom she claims was her husband. In Succession Cause No.34/2013 in Re-Estate of Karauri Magu (deceased) 2016 eKLR cited by the applicant, the court recognized a daughter- in- law as a child of the deceased by virtue of being married to a son of the deceased.

23. The problem I am having here is that there is a mix-up of two succession causes and this does not bring out, clearly, the claim by the applicant. I have carefully read the court file records in Kajiado Succession Cause No. E068 of 2021. The petitioners in this matter, which was formerly Nairobi Succession Cause No. 91 of2003, are the two Respondents. The only asset listed in the affidavit in support of the Petition is Death Gratuity and Benefits from Teachers Service Commission with an estimated value of Kshs 250,000. The Grant in this Petition was issued on March 26, 2003. I did not see a Certificate of Confirmed Grant.

24. The Certificate of Confirmation of Grant attached to this Application is dated March 5, 2018. It does not relate to this Succession Cause but to Succession Cause No. 1203 of 2012, estate of Edward Barnoti Ole Sekento. The Administrators of that estate are indicated to be George Sekento and Priscilla Namwatuni Gitangu. On paragraphs 12 and 13of the Affidavit in support of the Summons for Revocation under consideration states that:12. That the Certificate of Confirmation of grant of the late Edward Barnati Ole Sekento who was the father to my father-in-law expressly stated that Rahab Mumbi Sekento was holding the share in trust for the beneficiaries of the estate of William Saitoti Sekento.13. That the consent that was filed in court expressly provided that the estate of the late Edward Barnoti Ole Sekento (deceased) was to be re-distributed to the respective beneficiaries as was attached and in this case according to column 1 (annexed herewith and marked “CWW8” is a copy of the consent filed in court on December 19, 2016).

25. I have quoted the two paragraphs to emphasize the fact that the Applicant is litigating the wrong succession cause in this matter. She has said nothing about this estate whose estate is the death gratuity and benefits from TSC. That is not the grant she wants revoked. It is clear to this court that the grant she is contesting is the one relating to the estate of the late Edwared Barnoti Ole Sekento, father to her father in law.

26. Section 76 of the Law of Succession Act is clear on what grounds support revocation of grants. It provides as follows: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 on 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 periods 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 paragraph € and (g) of Section83 or has produced such inventory or account which is false in any material particular; ore.the grant has become useless and inoperative through subsequent circumstances.

27. The applicant has not adduced any evidence to prove any of the above reasons for revocation of the grant. This is because the grant she is referring to is in respect of Succession Cause No. 1203 of 2012 whose administrators are not the respondents herein.

28. It is clear from her documents that the applicant’s claim is that the grant of letters of administration was fraudulently obtained by making false statement and by concealment from court of something material. Her claim is that the father to the deceased herein one Edward Barnoti Ole Sekento died and that his estate was confirmed on March 5, 2018 and that in that succession cause the 1st respondent herein was holding a share in trust for the beneficiaries of the estate of William Saitoti Sekento (deceased herein).

29. The beneficiaries of the estate of Edward Barnoti Ole Sekento under succession cause 1203 of 2012 filed a consent dated December 14, 2016 on the distribution of property. The grant was confirmed and the distribution was done accordingly. The administrators to that estate are George Sekento and Priscilla Namwatuni Gitangu. From the distribution list the 1st respondent was a beneficiary to the following properties:i.Kajiado/Kipeto/xxxxii.Kajiado/Ntashart/xxxxiii.Ngong/Ngong/xxxxiv.Proceeds from the Way leave agreement over Kajiado/Kipeto/58 from the agreement of December 20, 2013 between George Senketo and Kipeto Energy Limited for a term of 99years.v.Proceeds from standard chartered bank Account number xxxx and xxxx.

32. The applicant states that the 1st respondent was holding the property in trust for the estate of the deceased herein. Looking at the consent the same does not stipulate as such. The applicant claims that the 1st respondent has distributed property to all her children and left her and her children out. The Applicant has not furnished the court with evidence to proof this allegation.

33. As I have stated above, the applicant is litigating her claim in the wrong succession cause. Whether her claim is merited or not, it is not for this court to decide. She needs to move to the right forum. As far as the grant in Succession Cause No. E068 of 2021 is concerned, it is my considered view that the applicant has failed to establish the grounds in support of her application to revoke the grant. She has not met the threshold for the simple reason that her claims fall under a different succession cause and not the one before the court. She has failed to demonstrate why this court should revoke the grant in the estate of William Saitoti Sekento.

34. For the above reasons, I decline to grant the prayers sought in the Summons for Revocation of Grant dated September 21, 2020. Consequently, the said Summons is hereby dismissed. This being a family matter, I order that each party to bear own costs.

35. It is so ordered.

DATED, SIGNED AND DELIVERED THIS 6TH JULY, 2022. S. N. MUTUKUJUDGE