[2016] KEHC 6254 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

SUCCESSION CAUSE NO. 127 OF 1999

IN THE MATTER OF THE ESTATE OF THE LATE RICHARD NJOROGE NJOGU-DECEASED

John Mundia Njoroge & 9 others.........................................Applicants

Versus

Cecilia Muthoni Njoroge

John Ngari Njoroge..............................................………….Respondents

RULING

John Mundia Njoroge & 9 others (herein after referred to as the applicants) filed a summons for revocation of the Grant issued in these proceedings on 31st July 2001 and confirmed on 5th October 2001 citing grounds inter alia that:-

the proceedings were commenced and proceeded without their knowledge,

that as a consequence they were disinherited,

that the estate has not been administered for 10 years,

that the larger family of the deceased was not involved in the proceedings,

that the manner of distribution adopted is inequitable,

that one of the administrators is dead,

that the persons to whom the grant was made have not proceeded diligently.

The application is opposed. The Respondents filed Replying affidavits. On his part John Ngari Njorogefiled on 24th July 2014 states that:-

Two applicants, namely Richard Gichohi Njoroge and Rose Wambui Hunja are not heirs to the deceased's estate nor are they beneficiaries.

That the application for the grant and the subsequent litigation had the active participation of the co-administrators, the objector, and the deceased's widows and all the applicants who were then of full age and capacity knew about the proceedings.

That the second and third applicants signed the requisite consent to the petition and that the applicants have been very active even to the extent of providing funds to pay advocates and even instructing the advocates.

That the applicants other than the two strangers were represented by their mother and that none of the applicants filed a protest.

That there is in place a court judgement which determined the distribution.

That majority of the applicants are children of the protestor who filed an unsuccessful protest.

That the mode of distribution is pursuant to a court judgement.

That the applicants have been un-cooperative making it impossible for the administrators to perform as required, and cited their refusal to pay survey fees, using the land haphazardly, conniving with a one Grace Wachuka and physically obstructing survey work.

There is a pending application seeking to substitute the deceased administrator by the same applicants yet they seek to revoke the same grant.

On 17th November 2015, counsel for the Respondents filed a notice of a preliminary objection and raised the following grounds, namely;

That the grant was made pursuant to a lengthy litigation process which culminated in a court judgement.

That the application does not meet the threshold of section 76 of the Law of Succession Act.[1]

That the alleged omitted beneficiaries can if proved as genuine be accommodated by way of rectification within their respective houses.

Section 81 of the Act provides an answer where an administrator dies.

Both counsels filed written submissions. Counsel for the Respondents referred the court judgement delivered on 5th October 2004 which dismissed the objection referred to above and ordered the mode of distribution and the confirmation of the grant, that the orders sought would amount to setting aside a court judgement, and further, no appeal has been preferred.

Counsel further submitted that the grounds relied upon do not meet the threshold of Section 76 of the Act and that Section 81 of the Act provides that on the death of one administrator, the surviving administrators assume the administration without the necessity of substitution.

The applicants counsel submitted inter alia that the applicants were not parties to the proceedings, so they can't appeal nor can they seek a review since order 45 of the Civil Procedure Rules does not apply to succession proceedings. Counsel further submitted that the applicants were not involved in the succession and that some of the beneficiaries were not provided for and that the beneficiaries were never cited nor did they renounce their interests to the estate, that failure to provide for some beneficiaries is not a matter for rectification, that the grant can be revoked under Section 76 of the act whether it is pursuant to a court judgement or not.

Discussing what constitutes a preliminary objection, Law JA in Mukisa Biscuit Manufacturers Ltd vs Westend Distributors Ltd[2] said:-

"...so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration."

In the words of Sir Charles Nwebold P at page 701, B:-

"...A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion."

In my view, a preliminary objection can be raised on any of the following grounds:-

Lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue or improper form or service of a writ of summons or a complaint;

Failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter;

Insufficient specificity in a pleading;

Legal insufficiency of a pleading (demurrer);

Lack of capacity to sue, non-joinder of a necessary party or mis-joinder of a cause of action; and

Pendency of a prior action or agreement for alternative dispute resolution.

The objection before me raises the question of the legal insufficiency or otherwise of the application filed by the applicants. In determining the preliminary objection, it is inevitable that i will have to delve into the merits of the application because clearly, the grounds relied upon by the applicants ate statutory just like the objection before me.

First, I propose to address the position taken by the applicants advocates that " The applicants counsel submitted inter alia that the applicants were not parties to the proceedings, so they can't appeal nor can they seek a review since order 45 of the Civil Procedure Rules does not apply to succession proceedings."

With tremendous respect, I do not agree with the above position. Rule 63 (1) of the Probate and Administration Rules provides that:-

"Save as in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Orders V, X, X1, XV, XV111, XXV, XL1V, and XL1X, together with the High Court (Practice and Procedure ) Rules, shall apply so far as relevant to proceedings under these Rules."

As stated above, the only provisions of the Civil Procedure Rules imported to the Law of Succession Act[3] are Orders dealing with service of summons, interrogatories, discoveries, inspection, consolidation of suits, summoning and attending witnesses, affidavits, review and computation of time.[4]

Clearly, Order 45 relating to review is one of the Civil Procedure Rules imported into succession practice by rule 63 of the Probate and Administration Rules.[5]An application for review in succession proceedings can be brought by a party to the proceedings, a beneficiary to the estate or any interested party. However, the application must meet the substantive requirements of an application brought for review set out in Order 45 of the Civil Procedure Rules.[6]

It is not disputed that there is on record a court judgement rendered by Okwengu J (as she then was) on 5th October 2004 after a long protracted litigation involving a protest filed by a one Grace Wacuka Njoroge and the administrators. It does not escape the court's attention that the protestor is a mother to some of the applications in the application now before me, a fact that has not been denied. Secondly, two of the applicants, namely, Chrispus Mugambi Njoroge, David Maina Njoroge, signed the consent to the making of the grant and this too has not been denied. Further, one of them, namely Chrispus Mugambi Njoroge, paid legal fees for the litigation as evidenced by a copy o the receipt annexed to the replying affidavit of John Ngari Njoroge. This has not been contested. It is alleged all were of full age and capacity during the pendency of the proceedings. This too has not been rebutted. The foregoing raises doubts as to whether it is true that the applicants were not aware of the proceedings.

No appeal or review was preferred in this case and in my view those two processes were available to the applicants so long as they claim as lawful beneficiaries

The learned judge in her well reasoned judgement referred to above rendered in this case on 5th October 2004 stated that:-

" In the circumstances the deceased's estate must be administered as an intestate succession which takes us back to the Law of Succession Act[7] Sections 35 to 40. This means that the estate of the deceased has to be distributed equally among the 5 houses, and then be redistributed equally among the children in each house, the respective spouse where surviving retaining personal and household effects and a life interest in the remainder.

I do therefore order that the letters of administration intestate issued to the applicants be confirmed and that the distribution be done as aforesaid."

I have carefully considered the proceedings in this cause, the application before me, the supporting affidavits and the affidavit in reply and the submissions filed by the parties and in my view, the following is the issue for determination, namely:-

Does the preliminary objection raise points of law which if allowed can determine the application before me.

Section 76 of the Law of Succession Act[8] provides as follows:-

A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by an 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 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 untrue allegation of a fact essential in point of law to justify the grant not withstanding that the allegation was made in ignorance or inadvertently;

The grounds upon which a grant may be revoked or annulled are thus statutory and it is incumbent upon any party making an application for revocation or annulment of grant to demonstrate the existence of any, some or all the above grounds. A close look at Section 76shows that the grounds can be divided into two categories:- the first two deal mainly with the propriety of the grant making process; the other grounds deal mainly with mal-administration i.e personal representatives have not been effective in administration.

The proceedings to obtain a grant are considered defective in substance under several circumstances. For example where there is a will, which is the basis of the petition, and the same is found to be invalid.[9] In the matter of the state of Mwaura Mutungi alias Mwaura Gichichio Mbura alias Mwaura Mbura-deceased[10]a grant was revoked because the applicant had failed to notify the applicant of the petition and obtain his consent. In Musa vs Musa[11] the grant was revoked for contravening Section 58 of the Law of Succession Act. Similarly, In the matter of the Estate of Karanja Gikonyo Mwaniki-deceased[12] where the court issuing the grant had no jurisdiction, the proceedings were declared to be defective and the grant was revoked.

The Supreme Court of India in Anil Behari Ghosh vs SMT. Latika Bla Dassi & Others[13] interpreting their equivalent of Section 76 (a) had this to say:-

"the expression "defective in substance" ....means that the defect was of such a character as to substantially affect the regularity and correctness of the previous proceedings"

A grant can also be revoked on account of false statements and concealment of vital matters. In Samuel Wafula Wasike vs Hudson Simiyu Wafula[14]it was alleged that the appellant had deceived the court when he stated in his petition that he was a grandson of the deceased. The deceased was in fact not his grandmother, but a sister to his grandmother. The persons who had prior right to the grant had not given the consent. It was held that the grant had been obtained fraudulently by the making of a false statement.

In the matter of the Estate of Robert Napunyi Wangila[15]the sister of the deceased applied for and obtained letters of administration. She did not disclose in her petition that the deceased had died testate and that a grant of probate had already been issued to the executors. Her grant was revoked on application of the executors.

A grant can also be revoked for lack of diligence in administering the estate or for becoming in operative or useless. (See In the matter of the estate of Mohamed Mussa[16]and in the matter of the estate of Elizabeth Wamaitha Ngaruiya-deceased.[17]

In the matter of the Estate of Murathe Mwaria-deceased[18]Koome J summarised the grounds for revocation of a grant under Section 76 as follows:-

when the procedure followed in obtaining the grant is defective in substance.

when the grant is obtained fraudulently by making a false statement.

making an untrue allegation of fact essential in point of law to justify the grant.

or when the person who has the grant has failed to proceed diligently with the administration of the estate.

Under Section 76, the court has discretionary power when faced with an application for revocation.[19] It can make such orders as it considers fit in the circumstances.[20] The court is not bound to issue revocation even where the case has been set out under Section 76. In Kipkurgat arap Chepsiror and Others vs Kisugut arap Chepsior,[21] the court declined to grant the prayer for revocation, but instead entered the names of the applicants in the grant as beneficiaries. In the matter of the estate of Jonathan Mutua Misi-deceased[22]the applicant sought revocation on grounds that it had been obtained on false statements. He was a son of the deceased and his name had been omitted from the list of survivors and instead of ordering a revocation, the court directed that his name be included in the list.

I take the view that the applicants can on application and upon satisfying the court that they were indeed bona fide beneficiaries, be accommodated by way of rectification of the grant and within their respective houses as per the court judgement or in such manner as the court may deem just without necessarily revoking the grant.

A grant can only be revoked on the grounds enumerated under Section 76 of the Act, and the grounds relied upon must be proved, and even then, the court has the discretion as observed above. This is a matter that has been in court for long and litigation must be brought to a close. I find nothing in this application to demonstrate that the applicants have established any of the grounds stated in section 76 of the Act.

The other ground relied upon is that one of the administrators is dead. That may be so, but it's not a ground for revoking or annulling a grant nor is it one of the grounds provided for under Section 76 of the Act. Indeed, Section 81 of the Act provides that powers and duties of personal representatives vest in survivor on death of one of them. The said Section provides that:-

"Upon the death of one or more of several executors or administrators to whom a grant of representation has been made, all the powers and duties of the executors or administrators shall become vested in the survivor or survivors of them:

Provided that, where there has been a grant of letters of administration which involve any continuing trust, a sole surviving administrator who is not a trust corporation shall have no power to do any act or thing in respect of such trust until the court has made a further grant to one or more persons jointly with him."

The grant was issued to three persons, one of whom is now deceased. That is not a ground to make it inoperative and as observed above the provisions of section 81 cited above come into play to remedy the situation.

I find that the preliminary objection has merit. I therefore uphold the preliminary objection and dismiss the applicants application dated 26th May 2014 with costs to the Respondents.

Right of appeal 30 days

Dated at Nyeri this 21stday ofMarch2016

John M. Mativo

Judge

[1] Cap 160, Laws of Kenya

[2] {1969} E.A 696 AT PAGE 700

[3] Cap 160, Laws of Kenya

[4]See more at: http://www.kenyalawresourcecenter.org/2011/07/probate-succession.html#sthash.4aLT92zr.dpuf

[5] See W. M. Musyoka, Law of Succession, law Africa, at page 191.

[6] Ibid, at page 191

[7] Ibid

[8] Cap 160, Laws of Kenya

[9] See Mwathi vs Mwathi & Another {1995-1998} 1 EA 229

[10] NBI HC Succ No 935 of 2003

[11] {2002} 1 EA 182

[12] Nakuru Mic 245 of 1988

[13] {1955} AIR 566, [1955} SCR (2) 270

[14] CA No 161 of 1993

[15] HC SUCC No 2203 OF 1999

[16] {1997}

[17] HC Succ No 2499 of 2001

[18]

[19] See W. M. Musyoka, Law of Succession, law Africa, at page 188.

[20] Ibid

[21] CA No. 24 of 1991

[22] HC P & A 95 of 1995