[2022] KEHC 11430 (KLR)

In re Estate of Yawaya Shitanda Nyatati (Deceased) (Succession Cause 88 of 2002) [2022] KEHC 11430 (KLR) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11430 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 88 of 2002

WM Musyoka, J

July 8, 2022

Ruling

1. Am tasked with determining an application, dated December 1, 2017, which seeks review of orders made on July 6, 2012 with regards to a certificate of confirmation of grant; cancellation of title number Kakamega/Chemuche/3842, 3843, 3844 and 3845; and reversion of Kakamega/Chemuche/3842, 3843, 3844 and 3845 to Kakamega/Chemuche/670 in the name of the deceased; and the redistribution of Kakamega/Chemuche/670 in accordance with the law.

2. The applicant, Isaac Majoni Shitanda, avers that he is one of administrators of the estate, yet he did not participate in the succession process as he had not been served with any papers. He says that there were errors on the face of the certificate of confirmation of the grant, and that distribution as proposed only favoured his co-administrator, Rasto Nyatati Shitanda. He says he has a proposal on distribution, which the court should consider. He says that the co-administrator was in the process of selling off the land without his knowledge or consent. He avers that the surviving widow of the deceased was ninety years old, did not live on the land and could not take care of the land allocated to her.

3. There is a reply by the co-administrator, in an affidavit he swore on May 15, 2018. I shall refer to him as respondent. He avers that the applicant was at all times involved in the process of administration of the estate. He was given a share of the land, and a title deed had been issued to him. He states that he court became functus officio once it confirmed the grant, and that the estate was no longer in existence. He avers that the share of the widow had since changed hands as it was sold to meet administration expenses. It is asserted that the applicant signed the consent on distribution, and participated in the confirmation proceedings. He further avers that the daughter of the deceased, Anna Khasiala, withdrew her objection after she was allocated her share.

4. The record reflects that the grant herein was confirmed on June 11, 2012, in the presence of Rasto Nyatati, Dorcas Shitanda and Annah Khasiala. The application upon, which the confirmation orders were made, is not indicated, but it is stated that distribution was to follow a consent dated May 28, 2012. It would appear that the orders of June 11, 2012were based on a summons for confirmation of grant, dated March 6, 2012. In that application the survivors of the deceased were indicated as the widow, Dorcas, the two sons, Rasto and Isaac, and the daughter, Annah Khasiala. It was proposed that the property, Kakamega/Chemuche/670, be shared out so that Dorcas got 3 acres, Rasto 2. 5 acres, Isaac 2. 5 acres and Anna 1. 5 acres. The application was filed on March 14, 2012. It was not accompanied by Form 37. The Form 37 was filed on May 28, 2012, bearing an even date, and it proposed distribution along the lines of the proposal in the application dated March 6, 2012. It was signed by Dorcas, Rasto and Annah. The applicant, Isaac, had not signed it. A certificate of confirmation of grant, dated July 6, 2012, was issued, on the orders of June 11, 2012, and the property was devolved as per the proposals in the application, dated March 6, 2012, and the consent of March 14, 2012in Form 37.

5. The starting point should be that the orders, that the applicant asks the court to review, do not exist. The court did not confirm the grant on July 6, 2012, but on June 11, 2012. The applicant is perhaps referring to the date on which the certificate of confirmation of the grant was processed, which is July 6, 2012. The handwritten notes on record do not reflect any court process before the Judge on July 6, 2012. The grant was confirmed on June 11, 2012, and the next activity followed on December 14, 2017, when it was minuted that the application, dated December 1, 2017, was filed. I shall take it that I am being invited to review the orders ofJune 11, 2012.

6. The main complaint by the applicant relates to his not being involved in the confirmation proceedings, leading to the making of the confirmation orders which he did not agree with. The respondent says the applicant was involved, and that he had signed a consent, but which he did not attach to his replying affidavit.

7. So, was the applicant involved in the confirmation application? I do not think so. Firstly, the grant was confirmed on June 11, 2012. The record of that day indicates the persons who attended court. The applicant was not among them. Those who attended are noted to be Rasto Nyatati, Dorcas Shitanda and Annah Khasiala. The name of Isaac Majoni Shitanda is not in the notes or minutes of the Judge who handled the matter on June 11, 2012, which then means that the applicant was not in court. Was he aware that the matter was coming up onJune 11, 2012for confirmation of grant? I do not think so. There is no affidavit of service to show that he was ever served with the said application or of a hearing notice for June 11, 2012. The date for June 11, 2012 was fixed onMarch 14, 2012, and was taken by the firm of Momanyi Manyoni & Company, who the is the Advocates on record for the respondent.

8. Secondly, although the respondent and the applicant had been appointed on 7th Mary 2022, as co- administrators of the estate herein, and a grant of letters of administration intestate was issued to them, dated May 21, 2002, the summons for the confirmation of that grant, dated March 6, 2012, which I suppose is the one on which the orders of June 11, 2012 were made, was brought at the instance of the respondent. The respondent was the applicant in that application. The name of the applicant herein did not feature in that application. He did not sign affidavit in support, which was sworn on March 6, 2012, by the respondent alone. Clearly, the applicant was not party to the application dated March 6, 2012, which I believe was the basis for the orders of June 11, 2012, expressed in the certificate of confirmation of grant of July 6, 2012.

9. Thirdly, although the respondent, in his replying of May 15, 2018, alleges that the applicant signed a consent to the distribution reflected in the certificate of confirmation of grant, datedJuly 6, 2012, he did not attach any consent to his affidavit, despite having an averment to that effect, at paragraph 12 of his affidavit. The confirmation proceedings of June 11, 2012refer to a consent dated May 28, 2012. What is referred in that order as the consent of May 28, 2012, I believe is the Form 37 on record. It was filed in court onMay 28, 2012, and bears an even date. It lists Dorcas, Rasto, Isaac and Anna as the beneficiaries, and it is signed by Dorcas, Rasto and Anna. Isaac did not sign it.

10. In totality, I agree with the applicant that he did not participate in the confirmation proceedings, and it would appear that he was excluded from the process. He was provided for, alright, but he does not agree with the proposals on distribution that were presented to court, and which gave rise to the orders of June 11, 2012, as reflected in these certificate on July 6, 2012.

11. Confirmation proceedings are governed by section 71 of the Law of Succession Act, cap 160, Laws of Kenya and Rules 40 and 41 of the Probate and Administration Rules. The Rules govern the procedure. Rule 40(6) provides for filing of affidavit of protest by those who do not agree with the distribution proposed in the application for confirmation of grant. The application herein was filed by one of the administrators, the respondent. He should have involved his co-administrator or at least brought to his notice the filing of the application, so that he could file his protest, if he so desired. He could only file an affidavit of protest, under Rule 40(6), if he was aware of the proposals made in the application. The respondent has not proved that he had made the applicant aware of the said application, and I, therefore, conclude that he was denied an opportunity to have his say to the application by way of affidavit of protest.

12. Rule 40(8) is what provides for the filing of the consent in Form 37. That form is signed by the individuals who support the proposals made in the application for confirmation of grant , and where the same is filed the court can even proceed to confirm the distribution proposed without the beneficiaries or survivors attending court. Where is it not signed by all of them, then a chance should be given to those who have not signed to file an affidavit, under Rule 40(6), of protest. The alternative would be for the person who has not signed the consent to attend court, so that the court can hear him orally, as required by rule 41(1). There is no evidence that the Form 37 was given to the applicant to sign. If it was, then he did not sign it. OnJune 11, 2012the court was misled, for the parties are recorded as saying that they had agreed and had signed a consent on distribution, yet the consent on record on distribution, dated May 28, 2012, and which ways what the Judge based his order of June 11, 2012, was no signed by the applicant herein. The parties had not, therefore, unanimously agreed and consented to the distribution proposed in the application. The court was misled, and acted on the misrepresentation to confirm the grant. That reflects an error on the face of the record. The voice of the applicant was not heard, his views on the proposed distribution were not taken into account. The consequence of that exclusion and non-compliance with Rule 40(6), 40(8) and 41(1) is the instant application for review.

13. Where parties have not agreed on a distribution that departs from the provisions of the Law of Succession Act, the court ought to distribute the estate strictly as per the provisions of the Act. See Justus Thiora Kiugu & 4 others v Joyce Nkatha Kiugu & another [2015] eKLR (Visram, Koome & Otieno-Odek JJA), In re Estate of Juma Shiro (Deceased) [2016] eKLR (Mwita J) and In re Estate of MM (Deceased) [2020] eKLR (Gikonyo J). The deceased was survived by a spouse and children. Where that scenario obtains, distribution should follow section 35(1) of the Law of Succession Act, so that the estate devolves to the surviving spouse, during life interest, and thereafter to the children by dint of section 35(5), equally. In this case, the proposal in the application departed from section 35(1) (5) of the Act. It did not provide for life interest in favour of the widow, nor equal distribution amongst the children. In that case, there should have been unanimity, between all the beneficiaries, on the distribution proposed, the departure from section 35(1) (5). That unanimity could only be reflected by a consent in Form 37, signed by all the beneficiaries. The Form 37 on record is not signed by all. There was no unanimity, therefore, and the court could not depart from section 35(1) in the circumstances. If the Judge had been alerted of the lack of unanimity in the distribution proposed, no doubt, the grant would not have been confirmed in the terms proposed.

14. I have seen the proposals made by the applicant. They too depart from section 35(1) of the Act, yet there is no unanimity or consensus amongst the beneficiaries that that is way they should go in the distribution of the estate.

15. I am told that Kakamega/Chemuche/670 was distributed, as transmission was done under the certificate of July 6, 2012, and that the estate has been distributed, and the court is functus officio, and that that distribution cannot be revisited.

16. Let me start with functus officio business. After confirmation of a grant, the certificate of confirmation of grant should be presented to the land registrar for implementation in accordance with the relevant provisions of the Land Registration Act, No. 3 of 2012, and the Land Act, No. 6 of 2012. After transmission is completed, the administrator should then come back to the probate court, by virtue of section 83(g) of the Law of Succession Act, for the purpose of informing the court that the administration of the estate had been completed, so that the court can declare the administration completed, and close its file. That has not happened. An account of the completed administration ought to be filed. None has been filed in this cause, and, therefore, the administration is still alive and incomplete, and the court is not functus officio yet, in the circumstances.

17. The second aspect of it is that the court can still intervene, after confirmation of grant, where the confirmation process is challenged by way of a review application, on grounds of error on the face of the record, or discovery of new facts, or any other sufficient cause, such as where process of confirmation was flawed as in this case. The court cannot shy away from revisiting its confirmation orders, where a case is made out for review. Secondly, the court can also entertain proceedings, after confirmation of grant, where a revocation application is mounted, on any of the grounds in section 76 of the Law of Succession Act. The office of administrator is for life, and a court intervention can be entertained, even where administration is completed and the court file closed under section 83(g) and (i) of the Law of Succession Act.

18. Can titles issued on the basis of the confirmation proceedings, after the issuance of certificate of confirmation of grant, be cancelled? Am alive to the provisions of section 93 of the Act, which offers protection to innocent purchasers of property. However, that protection is not absolute. Where the issuance of titles rides on orders obtained through a defective process, such as in the instant case, the transmission process can be revisited and reversed. See In the Matter of the Estate of Anthony Gichigi Wairire (Deceased) Eldoret HCP&A No. 32 of 1992 (unreported)(Nambuye J), Rebecca Veronica Adela v Prisca Khatambi Kibukosya & another Nairobi HCSC No. 2853 of 2003 (unreported)(Rawal J), In Re Estate of Salim Islam Saadan (Deceased) [2016] eKLR, Fredrick Kivala Nzuki v Josephine Kathathi Muli[2021] eKLR (Limo J) and In re Estate of Simon Njogu Gicheni (Deceased)[2021] eKLR (Mwongo J). In any case, the protection under section 93 is available only in respect of orders made upon revocation of a grant.

19. I believe I have said enough to demonstrate that a case for review, of the confirmation orders of June 11, 2012, has been made. I shall review the said orders, and make consequential orders, as follows:a.That the orders of June 11, 2012, on the application dated March 6, 2012, are hereby reviewed in terms that the estate of the deceased be distributed strictly in accordance with section 35(1)(5) of the Law of Succession Act, so that Kakamega/Chemuche/670 is devolved to the surviving widow, during life interest, and thereafter, upon determination of the life interest, to the children of the deceased in equal shares;b.That a certificate of confirmation of grant shall issue in those terms;c.That, to facilitate (a) and (b) above, the certificate of confirmation of grant of July 6, 2012is hereby cancelled. and the transmission of Kakamega/Chemuche/670, based on the said certificate, is hereby nullified, with the effect that the creation of sub-titles Kakamega/Chemuche/3842, 3843, 3844 and 3845 is hereby rendered invalid, the said sub-titles shall be cancelled and the property shall be reverted to the original Kakamega/Chemuche/670, in the name of the deceased;d.That the Land Registrar responsible for Kakamega County shall give effect to order (c), above;e.That each party shall bear their own costs; andf.That any party aggrieved by these orders has leave of twenty-eight days to move the Court of Appeal appropriately.

It is so ordered.RULING DELIVERED DATED AND SIGNED IN OPEN COURT AT KAKAKMEGA THIS 8TH DAY OF JULY 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Matete, instructed by Matete Mwelese & Company, Advocates for the applicant.Mr. Manyoni, instructed by Momanyi Manyoni & Company, Advocates for the respondent.