[2022] KEHC 15031 (KLR)

In the re Estate of Annah Nenchungei Koikai (Deceased) (Succession Cause 4 of 2017) [2022] KEHC 15031 (KLR) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15031 (KLR)

Republic of Kenya

In the High Court at Narok

Succession Cause 4 of 2017

F Gikonyo, J

November 3, 2022

(Formerly Nakuru High Court Succession Cause No 457 of 2012) IN THE MATTER OF ANNAH NENCHUNGEI KOIKAI (DECEASED)

Between

Maureen Soila Paswa

1st Applicant

Catherine Sapiato Koonyo

2nd Applicant

Veronicah Nasei Parmuat

3rd Applicant

Franco Naurori Koikai

4th Applicant

Michael Koileken Koikai

5th Applicant

Lucia Nantoti Koikai

6th Applicant

and

Sirere Ole Koikai

Respondent

Ruling

1. The applicants have filed a Summons for Revocation of Grant dated April 25, 2022 expressed to be brought under section 47,73,76, 79 and 83 of the Law of Succession Act, Rule 44 of the Probate and Administration Rules seeking the following orders that;a.Spentb.Pending the hearing and determination of these summons, a temporary injunction be and is hereby issued restraining the respondent from handling, transacting, leasing, disposing and / or in any other manner dealing with the assets making up the estate of the late Annah Nenchungei Koikai.c.This honourable court be pleased to revoke the grant of letters of administration made on the December 14, 2021 to Sirere Koikai, Veronica Nasei Parmuat, Catherine Sapiata Koonyo and Maureen Soila Paswa.d.This honourable court be pleased to issue a grant of letters of administration intestate to Veronica Nasei Parmuat, Catherine Sapiata Koonyo and Maureen Soila Paswa.e.Costs of this application be provided for and be borne by the respondent.

2. The application is supported by the affidavit of Maureen Soila Paswa sworn on April 25, 2022.

3. The grounds in support of the prayers sought were that the administrator/respondent has failed to proceed diligently with the administration of the estate of the deceased herein. The administrator/respondent has intermeddled with the assets making up the estate of the deceased by arbitrarily cutting down trees for firewood, charcoal, conducting quarrying activities and leased out land belonging to the deceased thus has breached his duties as an administrator. That the respondent’s conduct has been evasive and willfully failed to cooperate with other administrators and beneficiaries to discharge his duties as an administrator. The administrator/respondent has failed without reasonable cause to commence distribution of the estate in accordance with the grant issued on December 14, 2021. The administrator /respondent has thus become a hindrance to the administration of the estate of the late Annah Nenchungei Koikai and is thus unfit to continue holding the position. That this summons is brought in good faith and in the greater interest of justice.

4. The administrator/ respondent opposed the application vide a replying affidavit sworn on June 13, 2022. He deponed that the alleged consent by the 1st applicant to swear affidavit on behalf of the 2nd applicant is doubtful since the 2nd applicant is out of the country. The signature alleged to be hers in the consent to file summons is fraudulent and should be struck out. He averred that the 2nd applicant has been out of the county for over 6 months hence frustrating the process of distribution and has instructed her advocate Mr. Andama not to share her contact details with the respondent. He argued that the delay was further occasioned by a fresh suit Elc No 036 of 2022 wherein the administrators have been sued by Ngenda Location Ranching company limited claiming purchaser’s interest in parcel no Cis Mara/ Ololulunga/181. He averred that it is the applicants who have frustrated the administration of the estate; the 2nd applicant has been unavailable and the 1st and 3rd applicants have not heed to his calls for meetings.

5. The respondent deponed that he has diligently executed his obligations as a co- administrator to the best of his capability and as obligated by this honourable court.

6. The respondent deponed that the trees in CIS Mara/ololulunga/3486 fell by natural cause sometime in 2020 on the onset of heavy rains.one fell on is mabati car park and two more on the compound. The trees are still laying untouched on the compound since 2020. He averred that the tractor KAZ 097L ferrying blocks belongs to the 5th applicant.

7. The respondent deponed that the cultivation is being done to raise funds to settle advocate’s fees and related costs. He also involved the office of the district agricultural office in assessing and projecting the overall cost of cultivating the parcel for the benefit of the estate. He averred that al monies to be collected from the cultivation will be accounted for as per the report and to the benefit of the estate.

8. The respondent stated that he has attended without fail all meetings and caucus called by their lawyers.

9. The respondent stated that he was unable to contribute monies to prepare and / or execute conveyance forms due to his financial incapability at that time and the same was brought to the attention of the advocate.

10. The respondent averred that the application for revocation is calculate to occasion delay and interruption of the distribution of the estate.

Analysis and Determination 11. I have considered the summons, the affidavit in support and replying affidavit. The key issue for the Court's determination is whether the application meets the threshold for revocation or annulment of grant under Section 76 of the Law of Succession Act.

12. Section 76 of the Law of Succession Act gives the court the powers to revoke a grant provided the conditions stipulated therein have been met. It states that: -"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."

13. It is upon any party seeking the revocation or annulment of a grant to demonstrate the existence of any, some, or all of the grounds set out in Section 76 as outlined above.

14. In this case, it is not in dispute that the administrator/respondent was appointed as an administrator by an order of this court issued on December 14, 2021. In a ruling delivered on October 26, 2021 the beneficiaries herein were directed to propose two names of persons eligible for appointment as administrators. The administrator /respondent was in the list proposed on November 10, 2021. The court in confirming the grant, took into account the beneficiaries’ interests in the estate of the deceased.

15. Whilst I consider the application is brought Under section 76 of the Law of Succession Act for revocation of grant, it should be noted that, it is not every situation that transgressions or failings by the administrator, will lead to revocation of grant. I should think that where there are two or more administrators, and one or more of them are recalcitrant or an impediment to the administration of the estate, the proper course to take is to remove such administrator, leaving the compliant administrator or administrators to exercise full powers of administration of the estate so as to ensure the estate is administered accordingly and promptly. Except, this is subject to the circumstances of the case or requirement of the law; and where so demanded, the court should appoint replacement thereto. Therefore, in an application for revocation of grant, the court still retains the power to make orders as are fit to meet the ends of justice. See the superb suggestion by Muigai, J inMary Wangari Kihika vs John Gichuhi Kinuthia & 2 Others [2015] eKLR, that in exercising its discretion the Court ought to take into account the effect of either revoking the grant or relieving all the administrators of their duties and where more injustice would be caused by such action to instead opt for an alternative that would ensure that the estate is properly administered.

16. I say these in full consciousness that some unscrupulous persons- beneficiaries as well as third parties- may intend to use or have used revocation of grant as a tool to achieve selfish and demented desires; undo all that has been done in a succession cause, and temporize such cause for as long as they want to avoid settlement of the substantive issues. In my view, revocation of the grant does not necessarily rout the orders of distribution of the estate and courts should always strive towards prompt and proper administration of the estate.

17. The applicants appear to anchor their case on the general ground that the administrators have failed to diligently administer the estate.

18. The administrators are pointing fingers at each other for the delay in the process of distribution of the estate of the deceased. The applicants lay blame on the administrator /respondent for not attending meetings. However, I note the administrator/respondent has produced minutes of meetings in which he attended and made a contribution to the discussions therein. The administrator/respondent has alleged that it is the 2nd applicant who has been out of the county and unavailable. He also blames the other two administrators of not heeding to his convening of meetings. This blame-game is not good in the administration of the estate of the deceased.

19. I do note also that the respondent seems to blame the delay in completing administration to a fresh suit being ELC No 036 of 2022 wherein he claims that the administrators have been sued by Ngenda Location Ranching company limited claiming purchaser’s interest in parcel no CIS Mara/ Ololulunga/181. Nothing was placed before the court to show existence of this suit. Even if it exists, there is no court order stopping administration of the estate. This is merely an excuse.

20. The applicants have alleged that the respondent has intermeddled in the estate property. The respondent has explained the trees fell as a result of natural causes and the same are still lying on the ground. The only thing that is clear is that were trees felled-by whom or what felled them is not clear.

21. Nevertheless, one thing starks out; that the respondent has leased and cultivated part of the estate property without the consent of the other beneficiaries or the authority of the court. Evidence also show that he acted alone and in an arbitrary manner in so leasing and cultivating the estate property. The explanations given by the respondent that he has cultivated a part of the estate property to raise money for administration of the estate- advocates as well as conveyancing fees-, and that he will account for the proceeds thereof do not absolve his wrongdoing. Whereas an administrator may not be treated under section 45 for intermeddling, he may, nonetheless, commit and be charged with offences outlined in the Law of Succession Act. The unilateral acts by the respondent puts a visible blot on his face as an administrator.

22. I do note also that the applicants have accused the respondent for illegal quarry activities taking place upon the estate lands. In his defence, the respondent stated that the tractor that is ferrying the stones belong to the 5th applicant. Despite the different versions as to who is doing it, no doubt that, there are quarry activities going on in the estate property. These are unlawful activities upon, and will dissipate the estate property- a sacrilege on the estate property.

23. I was not convinced by the explanations provided by the respondent because if he is aware and knew the person carrying out illegal quarry activities is the 5th applicant, what action did he take as an administrator to stop the desecration and wasting of the estate property? All these matters put together depict the respondent as the impediment in the administration of this estate. The scale tilts towards removing him as an administrator.

24. Accordingly, I remove the respondent from being one of the administrators of the estate of the deceased. The grant will be accordingly amended to remove his name as an administrator of the estate. The power and obligations of the administration of the estate of the deceased shall now vest in the remaining three administrators who shall administer the estate of the deceased and complete administration in accordance with the distribution ordered by the court and expressed in the Certificate of Confirmation within 6 months of today.

25. Meanwhile, the respondent shall file an account in court of all monies received by him on account of the estate within 30 days of today. He shall also, within 30 days, deposit the funds which have come into his hands by virtue of use or as proceeds derived from the estate property into an estate account to be opened by the three administrators- the estate account be opened immediately. In addition, the respondent, his agents or servants or any other person is stopped from leasing or disposing or entering into any transactions on or carrying out any quarry or stone mining in, or doing anything that is injurious to the estate of the deceased. The respondent is warned that any disobedience with the court order may attract penal sanctions.

26. Each party shall bear their own costs.

DATED, SIGNED AND DELIVERED AT NAROK THROUGH TEAMS APPLICATION, THIS 3RD DAY OF NOVEMBER, 2022F. Gikonyo M.JudgeIn the presence of:1. Mr. Kasaso – CA2. Mutai for Andama for the Applicant3. Tanyasis for Respondent