[2022] KEHC 9954 (KLR)

In re Matter of Kipkoros Tuikong (Deceased) (Succession Cause 47 of 1995) [2022] KEHC 9954 (KLR) (5 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9954 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 47 of 1995

RN Nyakundi, J

July 5, 2022

IN THE MATTER OF THE ESTATE OF THE LATE KIPKOROS TUIKONG

Between

Kipruto Arap Kibosia

Petitioner

and

Richard Stanley Kipketer

Objector

Ruling

1. The objector approached this court vide a summons for revocation dated April 19, 2002. The objectors sought to have the grant of letters of administration confirmed on May 3, 2001revoked. The petitioner had filed the present cause in order to be included as a creditor to the estate as 2. 3 acres of his land was erroneously curved out and added to the estate of the deceased when the land was subdivided in 1984 after he purchased it together with 12 others including the deceased.

2. I note that on counsel’s recommendations the objector became the administrator in the proceedings as at 9th June 2014.

Petitioner’s Case 3. The Petitioner’s case is that he and 12 others purchased a piece of land known as Arbabuch farm LR No. 8341/1 measuring approximately 856 acres which was to be shared equally among the members. Each member was to get 58 acres and the chairman was to get 60 acres with the 42 remaining to be reserved for public utilities. The deceased took possession of parcel number 13 while the objector took parcel 14. The members applied for a survey and subdivision on 1984 and as a result the surveyors erroneously carved out 2. 3 acres from the objector’s piece of land and allocated it to the deceased. the objector lodged a complaint with the land registrar of the then Uasin Gishu district who found in his favour. The deceased had already passed on when the execution process began and therefore the same could only be done against the estate. the objector took out letters of administration as the petitioner had failed or ignored to take up succession proceedings.

4. The objector ought to be considered a creditor to the estate as the registrar had already found in his favour therefore there is no dispute as to the ownership of the 2. 3 acres of land. he cited section 70 of the law of succession act and rule 4091) of the probate and administration rules in support of his submission that any party with interest in the estate of the deceased can bring an objection proceeding. He also relied on the case of In Re Estate of Solomon Mwangi Waweru (Deceased)(2018) eKLR among other relevant authorities to support this submission. He reiterated that the claim had already been adjudicated and therefore the land did not form part of the estate of the deceased.

Objector’s Case 5. The petitioner’s case is that the current cause deals with the subject matter of ownership and whether the petitioner has established any rights of the suit land. The petitioner’s claim fails on the basis that the succession court only deals with distribution of the estate and not ownership. He cited the case of Samuel Kamau Macharia vs KCB & 2 others, Civil Application No.2 of 2011 in support of his submission on jurisdiction. Further, that if he had interests in the suit land he would have had it determined in Eldoret Succession Cause 139 of 1991.

6. The objector submitted that the petitioner would not be entitled to a grant in the event the objector and his siblings renounced their rights. This was in relation to whether the citation was ever issued.

7. The objector cited sections 24 and 25 of the Land Act and submitted that the petitioner has not demonstrated anything as required vide the above sections. Further, that he had utterly failed to establish his claim as a bonafide creditor to the estate. He has not shown that the registrar heard the petitioner nor objector and his siblings’ side of the story which would amount to a grave injustice where one is condemned unheard. He cited Republic vs District Land Registrar; Susan Mutiso & 2 others Ex Parte Michael Kamande Gachukia(2019) eKLR. His allegations were never substantiated and no documentary evidence was adduced to prove his claims with regards to the correspondences to the objector and the siblings.

8. The petitioner illegally instituted the current proceedings as there were already succession proceedings in Eldoret Succession Cause 139 of 1991. He did not notify the objector or his siblings of the present cause and never served the citation on them. The petitioner has failed to establish that he is a creditor to the estate and therefore his case should be dismissed with costs.

Issues For Determination1. Whether the petitioner has locus standi

2. Whether the petitioner is a creditor of the estate

3. Timelines for revocation or annulment of grant Whether the petitioner has locus standi 9. The Petitioner’s claim is that he is a creditor to the estate by virtue of 2. 3 acres of the suit land having been erroneously hived off and added to the estate of the deceased. it is by virtue of this interest that he claims he is well within the law by seeking a grant of letters of administration for the estate.

10. Section 66 of the Law of Succession Act provides;When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference:(a)surviving spouse or spouses, with or without association of other beneficiaries;(b)other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;(c)the Public Trustee; and(d)creditors:Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.

11. In order to determine if the petitioner had locus as a creditor the court will interrogate his claims that the land registrar found in his favour with regards to the erroneous survey that resulted in 2. 3 acres of his land allegedly being hived off. It is trite law that he who alleges must prove.

12. Upon perusal of the pleadings, I noted that in the annexures to the affidavit in support of the summons for revocation of grant dated April 19, 2002, there is a court order dated May 3, 2001 directing that 4. 3 acres be excised from the deceased’s estate to the petitioner herein. Further, the court issued enforcement orders on January 16, 2002on the same issue.

13. The objectors have not addressed the issue of this court order by Justice Nambuye. While there is no proof of the adjudication process that the petitioner refers to, there exists an order of the court determining the issue of ownership of land. I am particularly drawn to the fact that the objector’s have gleaned over the presence of this order. They have not addressed the issue of its origin or whether it is impugned in any shape or form. I find that the issue of ownership was settled by virtue of the existence of the court order directing the excision of 4. 3 acres of the estate.

14. I also note that the objector raised the issue of the citation not being served upon them and not knowing about the proceedings. Given the age of the matter the court is not in a position to cross examine the process servers but the mere presence of the objectors in this cause is proof that eventually they were able to find out that the matter exists and participate in the same.

15. The petitioner has locus standi as he is a creditor to the estate by virtue of the fact that the court ordered that part of the estate be excised and it is yet to be excised. Both the issues of locus standi and whether he is a creditor to the estate have been settled.

16. Whereas there were succession proceedings commenced vide succession cause 139 of 1991, it is clear that the same was unprosecuted as the widow to the deceased passed on.

17. The objector has not appealed against the order of the court issued on May 3, 2001and the enforcement orders issued on January 16, 2002either. These were not orders concerning confirmation of the grant and I find that they are still binding and thus the petitioners’ claim to a portion of the estate is valid. However, there is the discrepancy between the acreage in the order and the acreage presently claimed. The same arose as a result of the acreage that was to be used to settle costs. I find that the 2. 3 acres sought be excised and transferred to the applicant.

Timelines for revocation or annullment of grant 18. There is a pertinent issue that needs to be addressed with regards to the summons for revocation that was the genesis of the litigation in this succession cause. The succession act is clear in its provisions regarding the provisions on distribution of the estate of a person who died intestate. Sections 33 to 42 of the act contain the rules of intestacy. In order for the estate of the deceased to be distributed, there has to be a petition filed by persons under section 66 of the act. Where the petitioners’ rights are inferior to that of other parties entitled to apply for the same consent is obtained from them in form of renunciation to the right of administration. If those with preference do not apply, a party with interest in the estate is at liberty to issue them with citations to compel them to take out letters of administration. In the present suit, the petitioner did just that. However, the part of the process that requires guidance from the court is the objection proceedings. Section 67 of the Law of Succession Act provides;(1)No grant of representation, other than a limited grant for collection and preservation of assets, shall be made until there has been published notice of the application for such grant, inviting objections thereto to be made known to the court within a specified period of not less than thirty days from the date of publication, and the period so specified has expired.Section 68 further provides;(1)Notice of any objection to an application for a grant of representation shall be lodged with the court, in such form as may be prescribed, within the period specified by such notice as aforesaid, or such longer period as the court may allow.(2)Where notice of objection has been lodged under subsection (1), the court shall give notice to the objector to file an answer to the application and a cross application within a specified period.Section 71 provides;(1)After the expiration of a period of six months, or such shorter period as the court may direct under subsection (3), from the date of any grant of representation, the holder thereof shall apply to the court for confirmation of the grant in order to empower the distribution of any capital assets.

19. Of emphasis is the timelines provided by the act with regards to administration of the estate. It is also important to point out that there are duties of personal representatives, one of the most important being the provision of section 83(e) which states;Personal representatives shall have the following duties—(e)within six months from the date of the grant, to produce to the court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;

20. The challenge then arises from the provision of section 76 which starts of 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 of its own motion….

21. What is to be done where a party comes to court after the personal representative has begun distributing the estate? If the party comes to court ten years after the estate, does the court automatically begin to entertain the objection proceedings and open up the confirmed decree? It is my view that there must be an end to litigation.

22. Once a grant is confirmed, it is, in essence, an order of the court. Substantively speaking the remedy of revocation is quite similar to that for review. It is not lost on this court that under Rule 63, the provisions of order 45 regarding review are applicable to succession proceedings. However, that does not relate to the provisions of revocation which is a remedy specific to the issue of confirmation of grants.

23. However, from the basis of the order being granted to the issues to be considered, the spirit of the provisions are similar. In order to restore sanity to the litigation of the cause of action under the succession act I find it plausible that section 83(g) be mandatorily enforced by the courts. Why do I say so? It is the underlying litigation policy which espouses the doctrine of res-judicata provided in Section 7 of the Civil Procedure Act. This is to protect courts from having to adjudicate more than once on issues arising from the same subject matter. I take judicial notice as things stand now there is no finality to litigation in succession matters. At one point I keep on wondering where do these new claimants resurrect from at infinitum period. The discovery of new factual material as a basis of review is sometimes never founded on reasonable diligence to warrant leave of the court to reopen the proceedings. I think it is not competent for the court to litigate the question arising in the same intestate or probate estate unless the applicant demonstrates existence of compelling evidence. The species of re-litigation between the parties is often grounded on notice, lack of participation in the proceedings issued against the estate or a defect or omission under Section 29 (a) & (b) of the Succession Act. The material question would be where were all these new claimants when the issue on the estate of the deceased was determined. Guided by the formal orders upon death of the deceased person there is usually on record an announcement of his or her demise. The surrounding circumstances also involve family and community burial rituals thereby raising the death of the deceased to a public notoriety issue. I find it imperative for me to say at this juncture that I am fortified in my view by customary and cultural law within the African communities on burials and interment of the deceased. It is against this background and the reasons illuminated above that I dismiss the application for revocation of grant for want of merit. I make no orders as to costs.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 5thDAY OF JULY, 2022. ............................R. NYAKUNDIJUDGEIn the presence of:-1. Mr Kiboi for the objector(kitiwaadvocates@gmail.com, info@kitiwaadvocates.co.ke)