[2022] KEHC 11986 (KLR)

In re the Estate of the late Muhindi Chacha (Deceased) (Succession Cause 551 of 2014) [2022] KEHC 11986 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11986 (KLR)

Republic of Kenya

In the High Court at Migori

Succession Cause 551 of 2014

RPV Wendoh, J

May 12, 2022

IN THE MATTER OF THE ESTATE OF THE LATE MUHINDI CHACHA (DECEASED) JOHNSON CHACHA MARWA MATIKO MUHINDI CHACHA...............................APPLICANTS -AND- SIMON GISIRI MUHINDI.....................................RESPONDENT

Judgment

1. The application I am tasked with determining is the one dated March 20, 2020. The dispute relates to the Estate of the late Muhindi Chacha who died intestate on October 25, 1984 at Taranga Nya Sub Location. A Certificate of Confirmation of Grant dated April 9, 2015 in the said estate, was issued by this court to the Respondent.

2. The applicants seek the following orders: -1. the grant of letters of administration issued to the respondent by the Senior Resident Magistrate at Kehancha vide Succession no 26 of 2011 issued on the July 13, 2011 and confirmation on April 9, 2015 to the above-mentioned person be revoked and annulled.2. The registration of the titles LR Bukira/Bwisaboka/268 and subsequent titles as a result of the subdivision thereof in the names of the respondent be revoked upon granting prayer no 1 above.3. There be an order of injunction restraining the respondent herein from intermeddling in any manner whatsoever, whether by sale, lease, mortgage, charge or in any manner of instrumental or adverse interest of the applicant’s herein pending the hearing and determination of the application herein.

3. The application is supported by the affidavit of Johnson Chacha Marwa 1st applicant, who has the authority of his co-applicant Matiko Muhindi Chacha to swear the affidavit on his behalf. The supporting affidavit does not seem to be complete and the deponent has not signed it. The grounds thereof which should ideally come before the supporting affidavit, are at the tail end of the application. In addition, the firm of Advocates on record state that they appear for the respondent when in fact, they are on record on behalf of the applicants.

4. All the same, the principal grounds upon which the application is hinged are that the applicants are the brothers to the deceased hence they are beneficiaries to his estate; that the respondent filed Kehancha Succession No 26 of 2011 and colluded with the chief to exclude their interest in the succession; that the proceedings by the respondent to obtain the grant in Kehancha Law Courts and subsequent confirmation thereof were void ab initio viz Migori High Court Succession No 55 of 2014.

5. It is contended that the distribution was questionable since the surveyor did not come to the ground and the grant was obtained fraudulently with the intent to defraud the beneficiaries of the estate of the deceased hence denying them their rightful shares.

6. In opposing the application, the respondent filed a replying affidavit dated June 3, 2021. His position was that the applicants were well aware of the succession proceedings and their names were included in the chief’s letter dated April 18, 2011 which they were never opposed to; that the applicants consented to the mode of distribution even before appearing before this court on April 9, 2015 for the confirmation of the grant. The applicants’ share on LR Bukira/Bwisaboka/268 is well captured hence the applicants are misleading the court. The respondent prayed that the application dated March 20, 2020 be dismissed as it is made in bad faith.

7. Directions were taken and the application be canvassed by way of written submissions. Both parties complied.

8. The respondent filed submissions dated July 21, 2021. It was submitted that the respondent was still alive and the administrator of the estate of the deceased. On whether the respondent gave authority to swear the supporting affidavit on his behalf, he submitted it was the applicants who mounted this application. Therefore, it was not possible for him to authorize the applicants to swear an affidavit on his behalf.

9. On whether the applicants’ names were included in the application, it was submitted that the applicants appeared before Majanja J on April 9, 2015 and consented to the distribution of the estate and a certificate of confirmation was subsequently issued. The deceased was survived by three sons namely Simion Gisiri Muhindi - 1st born, Matiko Muhindi - 2nd born and Johnson Chacha Maroa - 3rd born. Their shares in the estate were 4. 55 Ha each for the 1st and 2nd born and 3. 64 Ha for the 3rd born. The respondent submitted that there was no doubt that the applicants were included in the succession proceedings.

10. The applicants filed their submissions dated November 4, 2021 on November 10, 2021. On whether the confirmation complied with the provisions of Section 71 of the Law of Succession Act, it was submitted that the respondent did not comply with the aforementioned provision. The purported consent to confirmation of grant in general form dated February 24, 2015 in Migori which has the thumb prints of the applicants is fake and therefore the entire process is a fraud. There was no power of authority bestowed upon the respondent to swear the affidavit on behalf of the beneficiaries. Further, the purported affidavit supporting the consent to distribution dated February 6, 2015 was only signed by the respondent.

11. The applicants asked this court to take judicial notice of Order No 4 in the orders dated June 24, 2020 by Mrima J which read thus: -“That the Applicant be and is hereby granted restriction against the parcel of Land known as Bukira/Bwisabuk/268 however the respondent have so far subdivided the parcel whereof pray the irregular subdivision if any to rebut to the original parcel Bukira/Bwisabuka/268 to allow for filing of a fresh grant.”

12. I have carefully considered the application, the annexures thereto, the replying affidavit, further affidavit and the rival submissions.

13. The application has been brought under the provisions of Section 76 of the Law of Succession Act. The law states: -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; or(ii)to proceed diligently with the administration of the estate; or(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.

14. The main reason given by the applicants for seeking this order is that the whole process was marred with fraud as they were excluded therefrom. In particular, that in the general consent form dated February 24, 2015, the thumb prints of the applicants are fake and do not belong to them. This is well captured in ground (b) of Section 76 of the Law of Succession Act where the court can annul and/or revoke a grant which is obtained fraudulently by making of false statement or by concealment from court of something material to the case.

15. Before proceeding, with confirmation of grant, the court is expected to identity and be satisfied as to the identities and shares of the beneficiaries; and when confirmed, such grant shall specify all such persons and their respective shares. This is the law in Section 71 of the Law of Succession Act.

16. The succession proceedings were first filed in the Kehancha Law Courts via Succession Cause No. 26 of 2011. The application for summons of confirmation of grant is the one dated February 24, 2015. The applicant was Simion Gisiri Muhindi (the respondent). The distribution schedule clearly indicated the respective shares of the beneficiaries who include the applicants. The consent to confirmation of grant was signed by all the beneficiaries. The applicants and the respondent each impressed against their names the left thumb print. There is also a letter from the chief dated April 18, 2011. It shows that the respondent and 2nd applicant are the eldest sons of the deceased while the 1st applicant is the second born. The parties herein are siblings, a fact which has not been challenged.

17. The first time the summons for confirmation proceedings came up was on March 2, 2015. The court adjourned the summons to April 9, 2015 to enable the deceased’s beneficiaries attend court. On April 9, 2015, the court’s coram shows that only the respondent was present. There is no indication that all the beneficiaries were present. The court proceeded to allow the Summons for Confirmation of Grant as prayed. In as much as it cannot be deciphered now whether all the beneficiaries attended court, the law under Section 71 of the Law of Succession Act states that in case of intestacy, where the court is satisfied on the respective identities and shares of all persons beneficially entitled, it can proceed to confirm the grant.

18. Rule 40 of the Probate and Administration Rulesprovides for application for confirmation of grants. Sub - rule 8 states: -“Where no affidavit of protest has been filed the summons and affidavit shall without delay be placed by the registrar before the court by which the grant was issued which may, on receipt of the consent in writing in Form 37 of all dependants or other persons who may be beneficially entitled, allow the application without the attendance of any person; but where an affidavit of protest has been filed or any of the persons beneficially entitled has not consented in writing the court shall order that the matter be set down as soon as may be for directions in chambers on notice in Form 74 to the applicant, the protester and to such other persons as the court thinks fit.”

19. My understanding of the above provisions is that as long as there are consents by all persons beneficially entitled to the estate, there is nothing to stop the court from confirming the grant even without their physical attendance. In the case before me, there is a consent to confirmation of grant which was signed by all the beneficiaries. There was no affidavit of protest that was ever filed. Even in the absence of the beneficiaries, provided there is a signed consent to confirmation of grant, the court was right in proceeding to confirm the grant.

20. The applicants have not proved that they have initiated a criminal report for the police to investigate the alleged fake thumbprints. This court, not being an expert in identifying thumbprints, is left with little to do. It is trite law that he who alleges must prove. This fact has not been proven.

21. RA The applicants stated that there was no surveyor who came to the ground prior to the succession proceedings. I have perused the lower court file. There is a map which shows that there are already existing boundaries put in place on the land comprising the estate of the deceased. Besides, the deceased died in the year 1984. Succession proceedings commenced 27 years later in 2011. I do not think that in the 27 years there has been any dispute in regard to the boundaries on the suit land.

22. It seems that all the beneficiaries took their respective portions on the land and they have been enjoying peaceful co-existence. The applicants are beneficially entitled to the estate and they were duly considered. Being the sons of the deceased, they took the largest chunk of land. There is no plausible explanation given why the confirmed grant should be revoked. Mwita J in Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No 158 of 2000 (2016) eKLR made remarks on the guiding principles for the revocation of a grant. He stated;“Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And 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.”

23. Applying the test of the law in Sections 71 and 76 of the Law of Succession Act, I find that there is no basis for revoking the grant.

24. I wish to address two issues. One, the applicants asked this court to take judicial notice of the orders made by Mrima J on June 24, 2020. The said Order is nothing close to what was submitted by the applicants. Order No 4 stated: -“That the applicant be and is hereby granted a restriction against the Parcel of Land known as Bukira/Bwisaboka/268 in case the same is still in existence.

25. On the second issue, this court expressed itself on the manner in which the application was brought to this court. The applicants are represented by Counsel. Save for the fact that in succession proceedings applications are not strictly conformed to the guidelines set out in the Civil Procedure Rules, it would have been an application ripe for striking out. The application did not have a proper supporting affidavit for the applicants to present their evidence and it was not signed by the deponent. It is even more worrying as it was pointed out by the respondent that the authority to swear an affidavit was done on his behalf when in fact, he is not the mover of the application before this court.

26. This brings me to the remarks made by Kiage J on shoddy pleadings if I must say so, filed in court by Counsel. In National Land Commission v Johnson Okiro Misiga[2021] eKLR he stated: -“These omissions and defaults, which one could turn a blind eye on to singly, present a worrying state of affairs when taken together. They speak to a malaise of dereliction or inattention to detail that we ignore at our peril. I say no more.”

27. I hope that this will be food for thought for Counsel in future before hurriedly filing pleadings in court.

28. In the end I make the following orders: -1. The application dated March 20, 2020 lacks merit and the same is dismissed.2. The Grant of Letters of Administration issued to the Respondent dated July 13, 2011 and confirmed on April 9, 2015 remain confirmed.3. There shall be no orders as to costs.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 12TH DAY OF MAY, 2022. R. WENDOHJUDGEJudgement delivered in the presence ofMr. Ojala holding brief Mr. Agure for the Applicants.Mr. Nyangi holding brief Mr. Muniko for the Respondent.Evelyn Nyauke Court Assistant.