[2017] KEHC 1252 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

FAMILY DIVISION

CITATION CAUSE NO. 824 OF 2015

IN THE MATTER OF THE ESTATE OF BENTA ESENDI KIBIGO (DECEASED)

AND

JOHN JANDI KIBIGO.............................................CITOR

VERSUS

AYIEGO KIBIGO.......................................................CITEE

R U L I N G

Introduction

1. This citation relates to the estate of Berita Esendi Kibigo (deceased) who died on 26. 12. 2000 at the age of 92 years. From a letter dated 08. 04. 2015 by the chief of Mung’oma location the deceased was survived by the following;-

1) Yohana Jandi – Son

2) Joseph Ayiego – Son

3) Hezron Ketoyo - Son

4) AbsolomObungu – son (deceased)

5) Daina Ingadima – daughter

6) Tokesi Mmboga – daughter

7) Loice Kareha – daughter

The Citation

2. In his affidavit in verification of the proposed citation to accept or refuse letters of administration intestate, the Citor states that the deceased was survived by John Jandi Kibigo and Ayiego Kibigo and adds that Ayiego Kibigo has refused to sign the petition for Letters of Administration or to give his consent to the Citor to take out the letters of administration intestate. The Citor also says that Absolom Abongo Kibigo, a son of the deceased, died and was NOT survived by any beneficiaries while Hezron Kibigo is of unsound mind, hence the Citors desire to take out Letters of Administration of the deceased’s estate.

3. The Citation is opposed by the citee who filed his statement on 01. 03. 2017 in which he states that the deceased was survived by four sons as set out in the chief’s letter (supra). Though he does not mention the daughters, one of the daughters Loice Mideva Ininda has filed a statement in which she says that the deceased had seven children, one of whom Absolom Kibigo is dead, but is survived by a son who stays in South Nyanza with his mother.

4. In the citee’s statement, he avers that Absolom Obungu Kibigo is survived by a son known as Kibigo who is now an adult and lives in South Nyanza. He confirms that the share of the deceased’s estate meant for Absolom is reserved for the son. The citee has also raised the issue of who is entitled to the deceased’s estate because the citor already owns his son portion of land known as South Maragoli/Mahanga/585. In my considered view, the issue of who is or is not entitled to the deceased’s estate is premature because no grant has been issued yet nor has any summons for confirmation of the same been filed in accordance with the rules.

Issue for Determination

5. From the pleadings, the issue for determination by this court is who is entitled to take out the Letters of Administration intestate to the estate of the deceased. Should it be the citor or the citee. In the submissions filed by the respective parties, the citor says he is the right person to be granted the Letters of Administration while the citee says that it is him and his brother Hezron Kedoyo Kibigo who should be granted the Letters of Administration intestate to the estate of the deceased herein, Berita Esendi Kibigo.

Determination

6. After a careful analysis of the pleadings and the submissions, it is clear that the two brothers are trying to outdo each other in this matter to the extent of the citor giving information that is not in tandem with the information provided by the chief of Mung’oma location as to the number of beneficiaries who survived the deceased. Before I make the final pronouncement on who should be granted Letters of Administration of the deceased’s estate, it is important to refer to Section 56 of the Law of Succession Act which provides as follows;-

“56(1) No grant of representation shall be made-

a. to any person who is a minor or of unsound mind or a bankrupt, or

b. to more than four persons in respect of the same property.”

7. The above provision means that if Hezron Ketoyo is of unsound mind, then he is excluded from being issued with the grant of representation.

8. From the submissions made, I find and hold that the citor is not a truthful person and it would not be safe to grant the letters of Administration to him as prayed. Why do I say this? I say so because in his citation, he states that the deceased was survived by two sons, the citor himself and Ayiego Kibigo aged 86 and 70 years respectively. He also alleges that Absolom Kibigo who is deceased, left no issue and further that Hezron Kibigo is of unsound mind. These allegations have been refuted by the citee in his submissions and the witness statements. If the rebuttal was not true, the citor would have gone ahead to call oral evidence to give the court the right position regarding the mental health of Hezron Kibigo. The citor having failed to do so, the only option left for this court is to believe the version of the citee that Hezron Kibigo is of sound mind.

9. The law on citations is set out in part VI of the Probate and Administration Rules (P&A Rules) where three types of citations are set out. The first citation is to accept or refuse a grant, while the second is to take probate on a will. The third one is intestacy and in this third category a person who is entitled to administer the estate of the deceased may be cited by the court to accept or refuse a grant of letters of administration. This is the scenario in this case. If the person cited refuses or fails to appear upon being cited or to apply for the grant, the citor may proceed to petition the court for grant. For this proposition, I rely on the case of JosiahMuli Wambua – deceased, Nairobi Succession Cause NO. 2557 of 2012 [2014] eKLR where W. Musyoka – J stated the following at paragraph 9 of his ruling:-

“9. In intestacy, citation issue only in cases where no petition has been lodged in court. Citations are intended to trigger the process of applying for letters of administration intestate in circumstances where the persons entitled to apply are not willing or are slow in moving the court in that behalf. The citor should not be a person who has himself already applied for the grant, for the citor should only apply for grant after the citee fails to so apply.”

10. In the instant case, the citee responded to the citation and has also told the court that he is ready and willing to petition for grant of letters of administration intestate with his brother Hezron Kibigo. I accordingly direct that the citee Ayiego Kibigo, together with his brother Hezron Kibigo do petition the court for the grant of letters of administration intestate to the estate of Berita Esendi Kibigo within sixty days from the date of this ruling. The citor shall be at liberty to file objections once the petition is gazetted.

11. In the event that the citee fails to comply with these directions, then the citor shall upon expiry of sixty days, be at liberty to petition for the grant in accordance with the law and the relevant rules; Costs shall be in the cause

Orders accordingly

Ruling delivered, dated and signed in open court at Kakamega this……6th ….day of…December…2017

RUTH N. SITATI

JUDGE

In the presence of;-

…M/S Mogeni (absent)……………...for citor

…Miss Omoro (present)…………....for citee

…Polycap……………………....…….Court Assistant