[2022] KEHC 1637 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

(CORAM: R. MWONGO, J.)

CIVIL APPEAL NO. 40 OF 2019

JEREMIAH MITHAMO GODFREY..................................................................APPELLANT

VERSUS

JANE MUTHONI KIGWI...........................................................................1ST RESPONDENT

ANTHONY WARUI MUGO.......................................................................2ND RESPONDENT

EVANS MUNYIRI MUGO.........................................................................3RD RESPONDENT

JAMES NDEERE MUGO..........................................................................4TH RESPONDENT

CECILIA WANGITHI MUGO..................................................................5TH RESPONDENT

STEPHEN MWANGI MURIU...................................................................6TH RESPONDENT

JUDGMENT

1. The appellant’s summons for revocation and annulment of grant filed in the lower court in Kerugoya Chief Magistrate Succession Cause No. 27 of 2017 Jeremiah Mithamo Godfrey versus Jane Muthoni Kigwi was dismissed. Consequently, the confirmation of grant was issued on 29th May, 2019. This is an appeal against the dismissal of the said summons.

2. The role of this court in and appeal is to reevaluate the evidence and the principles of law applied adduced in the trial court and to come to its own conclusions as to their legal propriety. The court has however to bear in mind the fact that it did not have an opportunity to see and hear the witnesses first hand.

3. This duty is captured in Section 78 of the Civil Procedure Act which espouses the role of a first appellate court which is to: ‘…… re-evaluate, reassess and reanalyze the extracts of the record and draw its own conclusions.’ This position was re-stated by the Court of Appeal in the case of Peter M. Kariuki v Attorney General [2014] eKLR where it was held that:

“We have also, as we are duty bound to do as a first appellate court, to reconsider the evidence adduced before the trial court and revaluate it to draw our own independent conclusions and to satisfy ourselves that the conclusions reached by the trial judge are consistent with the evidence…….”

Background

4. The deceased, Mugo Warui, died intestate in 2016. He was survived by his wife, Jane Muthoni Kigwi and four children. Jane Muthoni was issued letters of administration intestate on 13th October, 2017. The beneficiaries were indicated as:

i). Jane Muthoni Kigwi - wife

ii) James Ndeere Mugo - son

iii) Antony Warui Mugo - son

iv) Evan Munyiri Mugo - son

v) Cecilia Wangithi Mugo – daughter

5. The grant was subsequently confirmed on 29th May 2018. The Respondent proceeded to distribute the properties amongst the four children of the deceased in accordance with the certificate of confirmation of grant.

6. To this end land parcel No. Mutira/Kianjege/62 belonging to the deceased and measuring 2. 3 hectares was partitioned into land parcels Nos. Mutira/ Kianjege/ 1685,1686,1687,1688,1689, 1690 and 1691. These sub-divisions (Nos. Mutira/ Kianjege/1685, 1686, 1687 and 1688) were then registered in the names of Anthony Warui Mugo, Evan Munyiri Mugo James Ndeere Mugo and Cecilia Wangithi Mugo respectively. Land parcel Nos. Mutira/Kianjege/1689, 1690 and 1691 were registered in the names of Jane Muthoni Kigwi who sold land parcel No. Mutira/Kianjege/1691 to the 6th respondent.

7. Dissatisfied, at not being included in the succession either as a beneficiary or as a dependant, the Appellant filed the said application for revocation of grant on 20th February 2019, which was dismissed. According to him, the deceased also had another daughter, Berisina Wangeci Mugo, alias Berisina Wangechi Mugo who died on 31st December, 2002 and predeceasing the father. This daughter was survived by 5 children namely:

i). Jeremiah Mithamo Godfrey - adult (appellant)

ii). Peter Mwangi Mugo - Adult

iii). Catherine Nyawira Irungu - Adult

iv). JK - Minor

(v). NW – Minor

8. In the lower court, the appellant had also filed a Chief’s letter dated 28- February 2019 which indicated that Berisina’s children had lived in their grandparents’ (the Deceased’s) home since their late mother died meaning they were dependants of the deceased.

9. The Respondent filed her response to the summons vide a replying affidavit dated 11th March 2019. Judgment was subsequently entered on 23rd May 2019, following a hearing and the impugned judgment were issued.

10. In this appeal, the appellant’s substantial prayers are that the appeal be allowed; that the confirmation of grant issued on 29th May, 2019 be revoked, and that the estate be re-distributed, taking into consideration Berisina’s children. The grounds of appeal are that:

1. The learned Magistrate erred in law and intact by hearing the summons for revocation of grant in an unprocedural manner i.e. without taking directions in the matter on the manner of hearing the summons for revocation of grant.

2. The learned magistrate erred in law and in fact by hearing the summons for revocation of grant in an unprocedural manner i.e taking unsworn evidence by the witnesses and going ahead to make a ruling thereof.

3. The learned magistrate erred in law and in fact by failing to find that the mode of redistribution of the estate proposed by the respondent was unfair and unjust.

4. The learned magistrate erred in law and in fact by failing to find that the share proposed by the respondent to be given to the applicant on behalf of his deceased mother Pherisina Wangechi Mugo was unfair and unjust.

5. The learned magistrate erred in-law and in fact by failing to give a chance to the applicant to lay out his case by giving full evidence; rather he only asked him if he is comfortable with 0. 05 Ha offered by the respondent and proceeded to make a ruling on it.

6. Without prejudice to the foregoing, the learning magistrate erred in law and in fact by no consideration that the respondent had offered to give 0. 05 Ha to the Applicant and his 4 siblings yet he did not order rectification of grant to this effect.

7. The learned magistrate erred in law and in fact by proceeding with the hearing of the summons for revocation of grant without ordering service of all beneficiaries of the estate as per the confirmed grant and third parties who had bought the land.

Appellant submissions

11. In his submissions, the appellant asserts that having got into the shoes of their deceased mother upon her demise, and acquiring equal rights with the 1st to 5th Respondent to apply for the letters of administration as they fall in the same degree of consanguinity (the 2nd degree) in terms of rule 7(1) (e) (iii) and rule 4 of the Second Schedule to the Probate and Administration Rules (PAR).

12. Reliance was placed on the cases ofImmaculate Wangari Munyaga versus Zachary Waweru Ireri [2016] eKLRand In re Estate of Florence Mukami Kinyua (Deceased) [2018] eKLR.In these it was essentially held that Under Part V,grandchildren have not right to inherit their grandparents who die intestate after 1st July 1981.

“The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.”

13. Further,Rule 4of the PAR states:

“In determining the degree of consanguinity of a person from the deceased by tracing through an intermediate relative, it is not necessary that such relative was living at the death of the deceased “

Thus, it was argued, a grandchild of the deceased living at the latter's death would be included among the relatives notwithstanding that his parent (i.e the deceased child) had died before the deceased

14. Accordingly, the appellant argues that he and his siblings ought to have been informed of and involved in the succession proceedings as the deceased’s dependants, since as they were brought up at their deceased grandparent’s home upon their mother’s death on 31st December, 2002. They thus had a right to inherit the estate of their grandfather

15. The appellant points out that in the case of Nahashon Karungu Macharia v Rosemary Kahura Njoroge [2016] eKLR, it was held that a daughter-in law of a predeceased son is a beneficiary of the estate of a subsequently deceased parent in law.

16. In addition, it was argued that Rule 26 of Probate and Administration Rules states that letters of administration shall not be granted to any applicant without notice to every person in the same degree as or in priority to the applicant. Since the children of Belisina Wangeci Mugo alias Pherisma Wangechi Mugo were not notified while the 1strespondent herein was applymg for letters of administration and neither were they provided for, the lower court ought to have revoked the letters of administration issued to the 1st respondent and the confirmation made on 29th May 2018.

17. The Learned Magistrate did not give a chance to the applicant to be heard. No directions were taken on how the summons for revocation of grant would be heard. No evidence was taken from the parties or their witnesses on oath required by the law.

18. The rules of hearing a matter were grossly flouted, and no directions were taken under rule 44(3) of the Probate and Administration Rules hence the 6th respondent was not served with the summons for Revocation of grant. This was clear flagrant breach of the law.

Respondent’s submissions

19. In their submissions the respondents framed the following issues for determination:

a) Whether the summons for revocation of grant were un-procedurally determined.

b) Whether the distribution of the estate of the late Mugo Warui was unfair to the applicant.

c) Whether the appellant is entitled to the estate of the deceased and in what capacity. Is it as a dependant or as a grandchild?

d) Whether the Appellants are entitled to the orders sought in the Appeal.

The respondents’ arguments under each issue are as hereunder.

Whether the summons for revocation of grant were unprocedurally determined

20. The respondents submit that the summons for revocation or annulment of grant were brought under Section 76 (a)- (c) of the Law of Succession Act which provides for revocation or annulment of a grant. The section 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 facts essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

21. The respondent further submits that under Rule 44 (4) of the Probate and Administration Rules the court may either either proceed with an application for revocation or annulment of grant to with a view to determining the same, or to issue alternative befitting orders as it deems fit.

22. The respondents submit that at the time of filing the application for revocation of grant, the estate had been fully settled; and that the Respondent had graciously and rightfully offered the Appellant a portion of land measuring 0. 05 Ha as his undeserved entitlement. As such the trial court was right in making “such other orders as it sees fit” for the conclusion of the matter and without interfering with the entitlements of the other beneficiaries and the purchaser.

23. Further, when the matter came up for mention several times thereafter, counsel who came on record on 4th April 2019, did not raise any concerns as to: taking directions; mode of distribution; or otherwise challenge the proposal made by the 1st Respondent. Indeed, that no efforts were made on the part of counsel to point out to the court any violated provisions of the law regarding taking of directions; nor did he indicate to the court that he wished to adduce more evidence in support of his claim. As such, argued the respondent, due process was accorded the appellant and the principles of natural justice were not violated

Whether the distribution of the deceased’s estate was unfair to the Applicant

24. The respondent submitted, and it is not disputed, that the estate of the deceased, consisted of Land Parcel No Mutira/Kianjrge/62, comprising 2. 3 hectares. As these had already devolved to the beneficiaries and some had already sold off their entitlement, this rendered the revocation of grant merely a moot point.

25. According to the respondents, the deceased’s said land was subdivided between his 4 surviving children, namely, the 2nd to 5th Respondents herein, each getting 0. 40 Ha and the 1st Respondent, namely the deceased’s surviving spouse, getting 0. 63 Ha.

26. In addition, the administrator gave to the Appellant land parcel number Mutira/Kianjege /1089, a portion measuring 0. 50 Ha. That portion, which the trial court allowed, is a portion bigger than any of the portions allocated to any other beneficiary. Thus, the Appellant and his siblings received a share that fully caters for them.

Whether the Appellant is entitled to the estate of the deceased and in what capacity. Is it as a dependant or as a grandchild?

27. It was submitted by the respondents that the Appellant brought the summons for revocation of grant in his capacity as a grandson to the deceased in place of his late mother one Berisina Wangeci Mugo. He could only do so for himself and his siblings, and not independently as a sole dependant.

28. The respondent also submits that it is not contested that the Appellant is a dependant in terms of Section 29 (b) of the Law of Succession Act. In that case, he argues, the appellant was sufficiently provided for since the administrator offered him and his siblings land parcel number Mutira/Kianjege/1089 measuring 0. 50Ha and even executed the appropriate instruments. Thus, that she ensured the appellant and his siblings were duly catered for.

29. It was argued that despite the Appellant and his siblings not appearing in Forms P & A. 5 and P & A 38, the administrator had sufficiently provided for them.

Whether the Appellants are entitled to the orders sought in the Appeal

30. On this issue, the respondents submit that it is evident from the proceedings and judgment of the trial court that the Appellant and his learned counsel on record were present throughout the hearing of the summons for the revocation of grant. Thus they were appropriately accorded a just and fair trial in which they presented their case and they accepted a proposal issued by the 1st Respondent.

31. Further they submit that revoking the grant will prejudice the beneficiaries and third parties like the 6th respondent who is a bona fide purchaser for value. They pray for the appeal to be dismissed with costs to the respondents.

Issues

32. In my view, the only real issue for determination is whether the confirmation of grant issued on 29th May, 2019 should be revoked and the estate be re-distributed.

Analysis and determination

33. I have carefully perused and considered the pleadings and proceedings before the trial court and its judgment. I have also considered the grounds of appeal herein and rival submissions by the parties.

34. Clearly, the appeal revolves around the propriety of the decision of the trial court in dismissing the summons for revocation of grant.

35. Section 76 (a)- (c) of the Law of Succession Act provides 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 facts essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

36. I have perused the petition Form P&A 80 and Affidavit in Support of Petition P&A 5, filed by the administrator on 24th February, 2017. I note that the appellant’s mother, who was the daughter of the deceased, was not included in the petition. That is, however, understandable because she pre-deceased her deceased father as she died in 2002. Thus, there was no substantive error of omission in the petition, nor could it be said there was an intention to defraud the appellant. It could not even be stated that an untrue allegation of fact to justify the grant was contained in the petition

37. Section 51 of the LSA provides that “Every application for a grant of representation shall be made in such form as may be prescribed, signed by the applicant…”. The Probate and Administration Rules , Rule 70 obliges applicants to use the forms contained in the First Schedule thereto. The apt form for the application for an affidavit in support of petition is Form 5 which provides that:

“4. The deceased died and left the following persons surviving him……”

38. To that end, the applicant’s application does not, in my view, invite the invocation of Section 76 LSA for revocation of the grant on the grounds thereunder.

39. I further note that, as argued by the respondent, the appellant was entitled to make an application to the court for dependency under and in in terms of Section 29 (b) of the Law of Succession Act. He did not, but instead filed for revocation.

40. The proper course was for the appellant to file a protest in terms of Rule 40(6) PAR as an objector to the confirmation of grant on grounds of dependency and the fact that he and his siblings were settled on a portion of the property of the deceased on which they lived. The appropriate form provided for this is Form 10.

41. Rule 40(6) PAR provides:

“Any person wishing to object to the proposed confirmation of a grat shall file in the cause in duplicate …and affidavit of protest in Form 10 against such confirmation stating the grounds of his objection

42. It is not in dispute that he appellant is a grandchild of the deceased. His mother had predeceased her father, the deceased. As held in the authorities stated above, therefore, he was entitled to inherit by stepping into the shoes of his parent. See In Re Estate of Florence Mukami Kinyua (Deceased) [2018] eKLR where it was held:

Under Part V, grandchildren have no right to inherit their grandparents who die intestate after 1st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.”

43. The failure in procedural compliance noted herein notwithstanding, the appellants position was properly ventilated at the trial court, as shown in the proceedings. Indeed, and this is also not disputed, the administrator gave to the Appellant land parcel number Mutira/Kianjege /1089 a portion measuring 0. 50 Ha. That portion, which the court allowed, is bigger than any of the portions allocated to any other beneficiary of the deceasedwho was his child. The deceased’s children were awarded 0. 40 ha. and the administrator was awarded 0. 63 ha.

44. From the judgment of the trial court, it noted that the younger siblings of the appellant, viz; JK and NW were minors and were still under the custody of their grandmother who would have to cater for them in terms of land or inheritance.

45. Indeed, the administrator of the deceased’s estate who is the grandmother of the appellants has been willing to ensure that the appellants share of the estate is transferred to them. She brought all the transaction documents to facilitate the transfer which are still in the court file.

46. I also note that since the estate had already devolved to the beneficiaries and some already sold off their entitlement, the revocation of grant would have been prejudicial to them, given that the application for revocation was not the proper application to be made for the purposes desired by the appellant.

Disposition

47. Taking the foregoing into account, I am of the firm view that there is nothing unjust or unfair in the apportionment of 0. 5 ha of the deceased to the appellant.

48. The appeal therefore fails and is hereby dismissed with costs.

49. Orders accordingly.

DATED AND DELIVERED AT KERUGOYA THIS 9TH DAY OF MARCH, 2022

____________________

RICHARD MWONGO JUDGE

DELIVERED IN PRESENCE OF:

1. THUNGU H/B FOR NYAGA FOR THE APPELLANT

2. KIMOTHO H/B FOR OMBONHI FOR THE RESPONDENTS

3. MURAGE: COURT ASSISTANT