[2017] KEHC 3577 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KABARNET

MISC. SUCCESSION CAUSE NO. 1 OF 2017

IN THE MATTER OF THE ESTATE OF KEZIA TALAI TONJE (DECEASED)

ISHMAEL CHEPYEGON & 12 OTHERS................................APPLICANTS

VERSUS

ANGELA CHEPTAMOS TONJE & 3 OTHERS..................RESPONDENTS

RULING

[1] This is a Ruling on an application for review of an order of the Court made on 19th June 2017 giving directions for the hearing of the Summons for Revocation Grant herein and requiring the hearing of the Summons to proceed by way of affidavits and submissions by the parties.

[2] Section 76 of the Law of Succession Act provides for revocation/annulment of grant in the following terms:

“76. Revocation or annulment of grant

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 suchinventory 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.”

[3] By their Summons for Revocation/Annulment of Grant dated 22nd February 2017, the applicants principally seek an order –

“That the Grant o Letters of Administration made to Mathew Kolgat Tonje, John Bartinga Tonje and Zippora Boiwo on 10th day of February 2015 by the Eldama Ravine Senior Principal Magistrate vide Eldama Ravine Succession NO. 20 of 2013 be revoked and/or annulled.”

[4] The application is based upon grounds set out in the Summons as follows:

“1. That the grant was obtained fraudulently by the making of false statement and concealment from the Court of something material to the cause.

2. That the petitioners obtained confirmed grant with intention to defraud the applicants.

3. That the petitioners have colluded to deny the applicants their respective plots.”

[5] By their supporting Affidavit sworn by the 9th Applicant on their behalf, the applicants assert a right as creditors to the estate of the estate of the deceased, which interest was manifested by a Memorandum of Understanding specifying the interest of each and every applicant. The cause of action in the proceedings for revocation is then stated as the realisation that in apparent breach of the memorandum of understanding the respondents proceeded to confirmation of grant of representation to the estate of deceased and the suit property allocated to the 1st proprietor as the absolute owner and who subsequently filed a suit at the Environment and Land Court for trespass against the applicants in an attempt to lock them out of the estate of the deceased in which they claim interest as creditors. Accordingly, the applicants pray for an order for the revocation of the confirmed grant “so that each of us gets an opportunity to state their claim as creditors of the estate of Kezia Talai Tonje (deceased).”

[6] The 1, 2 and 4 Respondents filed a replying affidavit sworn by the 2nd Respondent on their behalf setting out their substantive response that the 1st respondent is the 3rd Respondent had upon the death of the deceased embarked on unlawful selling the deceased’s property including the suit parcel of land Baringo/Sabatia/103/331 and the said purchasers, the applicants herein never obtained an interest in the estate property; and that the Memorandum of Understanding purporting to recognise and provide the applicants’ interest in the estate property was invalid for various reasons set out in the said affidavit. The respondents also raised the issue of proceedings before the Environment and Land Court in which the applicants are defendants in which the court had barred the defendants from proceeding with any developments on the suit land, and that the present proceedings were an attempt by the applicants to circumvent the due process of the law.

[7] The 3rd Respondent has filed a Replying Affidavit sworn on 24th April 2017 substantially supporting the case of the applicants as valid purchasers of portions of the estate sold by him on behalf and with the authority via a power of attorney of his deceased mother; and that some of the estate property distributed by the confirmed grant was subject of litigation in the Court of Appeal arising from Nakuru HC Succession Cause NO. 177 of 2005 Estate of Simeon Chepkonga Tonje.

Order of the Court of 19th June 2017

[8] The order of the Court herein made on 19th June 2017, which was made with the consent of the parties that the Court may proceed to hear and determine the application for revocation of grant on the basis of affidavit and submissions, was in the following specific terms:

1. Application for Revocation of Grant to be determined on the bais of affidavits filed by the parties and submissions thereon.

2. Applicants and 1, 2, & 4 Respondents to file supplementary Affidavits, within 14 days.

3. Hearing of the application on 31st July 2017 at 10. 00am.

4. Liberty to file skeleton arguments.

[9] When the matter came up for hearing on 31st July 2017, the applicants without filing the supplementary affidavits within 14 days as allowed in the said directions, now sought have the order on directions as to the mode of hearing review to allow for viva voce evidence and urged that -

“The purpose of the application for revocation of grant is to identify the applicants as creditors of the Estate of Keziah Talai Tonje, Deceased. [Although,] it can be heard in the Eldoret civil suit, this Court through the Succession Cause in Eldama Ravine can determine the issue of the applicant’s entitlement to the property.”

[10] The application for review of the order on directions as to hearing by affidavit and submissions was supported by the 3rd Respondent who seeks to validate the sale of portions of property by himself on purported authority of his mother, the deceased herein, and the Memorandum of Understanding recognising the said sales and the applicants, among others, as bona fide purchasers of the deceased’s estate.

[11] The 1, 2 and 4 Respondent opposed the application, and counsel for the parties pointed out to the lack of factual or legal basis for an order for viva voce evidence because “all the grounds relied on [in the application of revocation] are in the supporting affidavit complete with annextures; there was leave to file supplementary affidavit; directions for written submissions and affidavits were given; [and] it is the procedure for hearing of summons.”

Determination

[12] Rule 44 of the Probate and Administration Rules made under the Law of Succession Act provide as follows:

44. Revocation or annulment of grant

(1) Where any person interested in the estate of the deceased seeks pursuant to the provisions of section 76 of the Act to have a grant revoked or annulled he shall, save where the court otherwise directs, apply to the High Court for such relief by summons in Form 107 and, where the grant was issued through the High Court, such application shall be made through the registry to which and in the cause in which the grant was issued or, where the grant was issued by a resident magistrate, through the High Court registry situated nearest to that resident magistrate’s registry.

(2) There shall be filed with the summons an affidavit of the applicant in Form 14for revocation or annulment identifying the cause and the grant and containing the following particulars so far as they are known to him—

(a) whether the applicant seeks to have the grant revoked or annulled and the grounds and facts upon which the application is based; and

(b) the extent to which the estate of the deceased has been or is believed to have been administered or to remain unadministered, together with any other material information.

(3) The summons and affidavit shall without delay be placed by the registrar before the High Court on notice in Form 70 to the applicant for the giving of directions as to what persons (if any) shall be served by the applicant with a copy of the summons and affidavit and as to the manner of effecting service; and the applicant, upon the giving of directions, shall serve each of the persons so directed to be served with a notice in Form 68, and every person so served may file an affidavit stating whether he supports or opposes the application and his grounds therefor.

(4) When the persons (if any) so directed to be served (or such of them as the applicant has been able to serve) have been served with a copy of the proceedings, the matter shall be placed before the High Court on notice by the court to the applicant and to every person so served, and the court may either proceed to determine the application or make such other order as it sees fit.

(5)Where the High Court requires that notice shall be given to any person of its intention of its own motion to revoke or annual a grant on any of the grounds set out in section 76 of the Act the notice shall be in Form 69 and shall be served on such persons as the court may direct

[13] It is clear that the Probate and Administration Rules for the hearing of Summons for revocation/annulment of grant contemplate only evidence taken by affidavit save for the general saving under Rule 64 of the Probate and Administration Rules that in the event that matters of customary law are urged the court may take oral evidence thereon to assist in arriving at a fair decision on the matter. The practice of allowance of viva voce evidence in succession causes in premised on provision in Rule 41 of Probate and Administration Rules on application for confirmation of grants which call for hearing of all the parties interested as follows:

“41. Hearing of application for confirmation

(1) At the hearing of the application for confirmation the court shall first read out in the language or respective languages in which they appear the application, the grant, the affidavits and any written protests which have been filed and shall then hear the applicant and each protester and any other person interested, whether such persons appear personally or by advocate or by a representative.

(2)The court may either confirm the grant or refer it back for further consideration by the applicant or adjourn the hearing for further evidence to be adduced or make any other order necessary for satisfying itself as to the expediency of confirming the applicant as the holder of the grant or concerning the identities, shares and interests of the persons beneficially entitled and any other issue which has arisen including the interpretation of any will.

(3)Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions ofsection 82of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso tosection 71(2) of the Act, proceed to confirm the grant.

(4)In proceedings under subrule (3), unless the court otherwise directs, the personal representative of the deceased shall be the applicant seeking determination of the question, and the person claiming so to be beneficially interested together with the residuary legatee or other person to be appointed by the court to represent the residuary estate shall be the respondents; and the court in such proceedings shall give all necessary directions relative to the prosecution thereof including the safeguarding of the share or estate so appropriated and set aside and the provision of costs.

(5)Where the court in exercise of its power undersection 71 (2)(a)of the Act directs that a grant be confirmed it shall cause a certificate of such confirmation in Form 54 to be affixed to the grant together with the seal of the court and shall appoint a date not more than six months ahead, by which time the accounts of the completed administration shall be produced to the court for its approval.

(6)Where the court, in exercise of its power undersection 71(2)(b) of the Act, instead of confirming a grant already issued directs the issue of a confirmed grant, this grant may be in Form 55.

(7) On production of the accounts in court any person beneficially entitled and any creditor may appear and be heard before the court’s approval is given.

(8) The approval of the accounts in court may be dispensed with if all persons beneficially entitled have signed as consenting to the accounts as produced.

(9) On the date for approval of the accounts and on any adjourned date application may be made for an adjournment to a fixed date not longer than three months away.

[14] Oral evidence is, however, permitted in all applications under the Law of Succession Act where the impact of the African Customary Law is to be considered, by virtue of Rule 64 of the Probate and administration Rules -

64. Application of African customary law

Where during the hearing of any cause or matter any party desires to provide evidence as to the application or effect of African customary law he may do so by the production of oral evidenceor by reference to any recognized treatise or other publication dealing with the subject, notwithstanding that the author or writer thereof shall be living and shall not be available for cross-examination.

[16] It would appear to me that the practice of court in giving directions for viva voce evidence to be taken in succession causes by way of Summons for revocation of Grant is based on rule 41 of the P& A Rules and the ordinary civil procedure on Originating Summons under Order 37 Rules 18 and 19 of the Civil Procedure Rules, which provide as follows:

[Order 37, rule 18. ] Evidence and directions upon hearing of summons.

18. At the time of directions, if the parties do not agree to the correctness and sufficiency of the facts set forth in the summons and affidavit,the judge may order the summons to be supported by such further evidence as he may deem necessary, and may give such directions as he may think just for the trial of any issues arising thereupon, and may make any amendments necessary to make the summons accord with existing facts, and to raise the matters in issue between the parties.

[Order 37, rule 19. ] Powers of court upon hearing of summons.

19. (1) Where, on an originating summons under this Order, it appears to the court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause had been begun by filing a plaint, it may order the proceedings to continue as if the cause had been so begun and may, in particular, order that any affidavits filed shall stand as pleadings, with or without liberty to any of the parties to add to, or to apply for particulars of, those affidavits.

(2) Where the court makes an order under subrule (1), Order 11 shall apply.

(3) This rule applies notwithstanding that the cause could not have been begun by filing a plaint.

(4) Any reference in these Rules to proceedings begun by a plaint shall, unless the context otherwise requires, be construed as including a reference to a cause proceeding under an order made under subrule (1).”

[16] For the determination of the question, as put by Counsel for the applicants, as to ‘who bought what property from who’, it is not necessary to take oral evidence because transactions for the sale of land are dealings in writing by requirement of law under section 3 of the Law of Contract Act, and it is possible to demonstrate by affidavit attaching the sale documents, leave for the filing of which bysupplementary affidavits, the Court has already granted to the applicants and the respondents in its directions of 19th June 2017.

Appropriate forum for determination of the dispute

[17] The existence of parallel proceedings before the Environment and Land Court at Eldoret raises the issue of the appropriate forum for determination of this dispute. Although the Succession Court has in matters of administration and distribution or succession of estates of deceased persons, jurisdiction to deal with land as an asset for purpose of succession, where there is dispute as to ownership or other interest in land, the proper court, in my respectful view, is the Environment and Land Court which has the constitutional mandate under Article 162(2) (b) of the Constitution “to hear and determine disputes relating to—

a. …………….

b. the environment and the use and occupation of, and title to, land.”

[18] In Re Estate of Wilson Mutyauvyu Ndunda, Machakos H.C. Succession Cause No. 321 of 2003, I considered the point as to the appropriate forum for determination of disputes relating to succession of a deceased’s estate involving questions of title to land assets, and held as follows:

44. “In the circumstances of this case, the dispute may be resolved only by a determination of the question whether the Objectors have an interest, and if so to what extent, in the suit property. I would agree, as held by Nyamweya, J. in Salome Wambui Njau (suing as the Administratrix of the Estate of Peter Kiguru Njuguna (Deceased) v. Caroline Wangui Kiguru,Nairobi ELC suit NO. 351 of 2013, [2013] eKLR, that in matters of succession disputes touching on land, the Environment and Land Court pursuant to Article 162 (2) of the Constitution and the High Court as the Succession Court under section 47 of the Law of Succession Act would appear to have a concurrent jurisdiction.

45. However, without deciding, it would appear that the Environment and Land Court is more suited of the two courts for the hearing and determination of the question of beneficial ownership of the suit property asserted by the Objectors and denied by the administrators, and which really turns on construction of contracts of sale of land alleged by the parties. The determination of the interested parties’ right to property is simply a matter of application of succession law and it depends on the finding of the court on the question of beneficial ownership of the suit property.

46. ….

47. The Court of Appeal has in Dr. Leonard Kimeu Mwanthi v Rukaria M'twerandu M'iriungi [2013] eKLRdeprecated the mixture of pure succession questions and ownership disputes in applications before the Succession Court and has advised that separate civil causes be filed as follows:

“The litigation in this matter has seen parties litigate for the same subject matter both under theCivil Procedure and theLaw of Succession. We must state this is a procedure that causes confusion as there is a clear justification and sound reasoning why Legislature separated both regimes. This case is a clear demonstration that when both regimes of law are applied interchangeably, a simple matter for example of Succession of a deceased estate becomes protracted and parties keep hovering from the civil court to the succession cause.

The Law of Succession Act was envisaged as a complete regime of law complete with its own procedure for purposes of administering the estate of a deceased person and the distribution of the estate to the beneficiaries. If there is any claim of civil nature against a deceased's estate, a claimant is supposed to file a civil suit against the administrators of the deceased's estate. Involvement of claimants of civil obligations or others in matters of the administration of a deceased estate causes delays and difficulties in resolving them within the regime of the law of succession.”

[19] Indeed, under Article 165 (5) of the Constitution, the general jurisdiction of the High Court is ousted in matters of environment and land as follows:

“(5) The High Court shall not have jurisdiction in respect of matters—

(a) …………………….

(b) falling within the jurisdiction of the courts contemplated in Article 162 (2).”

[20] Accordingly, I would find that the dispute as to the applicants’ interest in the estate of the deceased as creditors or otherwise must be determined by the civil court in the Environment and Land Court, and the Succession Court to deal with the matter as a purely successioncause as distinguished from a dispute as to ownership of the land as an asset of the deceased’s estate after the interests of the parties, if any, in the estate are determined.

Orders

[21] Accordingly, for the reason set out above, the Court declines the invitation by the applicants for the review of its orders on directions as to hearing on the basis of affidavit evidence and submissions by the parties.

[22] In deference to the constitutional provision as to the jurisdiction of the Court in matter of land, under Articles 162 (2) (b) and 165 (5) of the Constitution, and to avoid two conflicting decisions of the courts in the same matter, this Court shall hold the Summons for revocation of grant in abeyance to await the determination of the civil suit before the Environment and Land Court, which is the Court with primary jurisdiction to deal with questions of ownership of land.

[23] In the interest of justice, this Court shall make an order for stay of proceedings in this succession suit pending the hearing and determination of the civil suit before the Environment and Land Court at Eldoret.

[24] As this Court does not know the status of the proceedings before the Environemnt and Land Court at Eldoret, there shall be liberty to apply.

[25] Costs in the Cause.

DATED AND DELIVERED THIS 15TH DAY OF SEPTEMBER 2017.

EDWARD M. MURIITHI

JUDGE

Appearances:

M/S Kipkenei & Co. Advocates for the Applicants

M/S Nyekwei & Co Advocates for the 1, 2, & 4 Respondents

Mr. John Bartinga Tonje, the 3rd Respondent in Person.