[2017] KEHC 3011 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MIGORI

SUCCESSION CAUSE NO. 440 OF 2015

(FORMERLY KISII HIGH COURT SUCCESSION CAUSES NO. 658 AND 659 OF 2009)

IN THE MATTER OF THE ESTATE OF: CHACHA MWITA MURIMI ALIAS CHACHA MWITA MWIRIMI

AND

MURIMI MWITA MURIMI ……………………………...………………… DECEASED

AND

IN THE MATTER OF REVOCATION OF GRANT OF LETTERS OF ADMINISTATION

AND

IN THE MATTER OF SECTION 76 OF THE LAW OF SUCCESSION ACT CAP 160

BETWEEN

JOHN MWITA MURIMI

JOSEPH MWITA MURIMI

NYAMOHANGA MARWA MWITA ……...............................…… APPLICANTS

VERSUS

MWIKWABE CHACHA MWITA

JULIUS MAGIGE MURIMI ……………................................…….PETITIONERS

RULING

1. This cause involves two estates of deceased persons. They are the Estate of Chacha Mwita Murimi alias Chacha Mwita Mwirimi (hereinafter referred to as the Estate of ‘Chacha Mwita’) and the Estate of Murimi Mwita Murimi (hereinafter referred to as the Estate of ‘Murimi Mwita’).

2. Chacha Mwita died on 11/01/2002 whereas Murimi Mwita died on 02/05/2002. Resulting from the said deaths Grants of Letters of Administration Intestate for their respective estates were petitioned for and successfully issued. Mwikabe Chacha Mwita (hereinafter referred to as ‘Mwikabwe’) was issued with the administration of the estate of Chacha Mwita on 18/10/2012 vide Kisii High Court Succession Cause No. 658 of 2009 while Julius Magige Murimi (hereinafter referred to as ‘Julius’) was also issued with the administration of the estate of Murimi Mwita on 18/10/2012 vide Kisii High Court Succession Cause No. 659 of 2009. The two causes were duly transferred to this Court on the establishment of this High Court station and were consolidated into this current Succession Cause No. 440 of 2015.

3. Mwikabwe is a son to Chacha Mwita whereas Julius is a son to Murimi Mwita. Chacha Mwita and Murimi Mwita were brothers; the children of one Mwita Murimi. The said two brothers had other siblings including Panyako Mwita, Mtongori Mwitaand John Mwita Murimi. Whereas Chacha Mwita and Murimi Mwita are deceased Panyako Mwita, Mtongori Mwita and John Mwita Murimi are still alive.

4. From the record I have found out that the three Applicants herein namely John Mwita Murimi (hereinafter referred to as ‘John’), Joseph Mwita Murimi (hereinafter referred to as ‘Joseph’) and Nyamohanga Marwa Mwita (hereinafter referred to as ‘Nyamohanga’) filed Objections to Making of the Grants and Cross Petitions in the two causes at the Kisii High Court sometimes in February 2013; long after the respective grants had been issued. The Objections and Cross Petitions were however withdrawn and the Applicants herein filed a joint Summons for Revocation of those grants on 15/03/2016. The Summons is dated 14/03/2016 and is brought under Sections 47, 58, 76 and 82(d) of the Law of Succession Act, Cap. 160 of the Laws of Kenya (hereinafter referred to as ‘the Act’), the Probate and Administration Rules and Articles 48 and 159 of the Constitution alongside all other enabling provisions of the law. I will henceforth refer to the application as ‘the Summons’.

5. The Summons was supported by the Affidavit of John sworn on 14/03/2016 which has several annextures thereto. It is made on some 29 repetitive grounds but mainly that the grants were issued by concealment and/or non-disclosure of material facts, that no consents of all the beneficiaries were sought for and/or obtained, there was fraudulent misrepresentation as well as outright disobedience of Court orders.

6. The Summons was opposed by the Petitioners through the Replying Affidavit of Julius sworn on 30/03/2016. Pursuant to the directions of this Court and the concurrence of the parties the Summons was heard by way of viva voce evidence. For the purposes of that hearing the Applicants were deemed as the Plaintiffs and John testified on their behalf. The Petitioners were deemed as the Defendants and both Mwikabwe and Julius testified alongside one Mtongori Mwita also known as Joseph Murama.

7. John adopted the contents of his Affidavit and reiterated that the dispute before Court had a history which he traced to the times of his late father Mwita Murimi. That, their father initially owned a parcel of land that was unadjudicated where all his father’s four wives and their children lived thereon until when their father died sometimes in 1965. That, on the demise of their father and during the demarcation and adjudication process sometimes in 1973 four of John’s elder brothers namely Chacha Mwita, Murimi Mwita, Panyako Mwita and Mtongori Mwita registered themselves as owners of their father’s land on behalf of all the wives to the deceased as well as their other siblings. That land, which measured 108. 50 Hectares, was then known as BUGUMBE/MABERA/324 (hereinafter referred to as ‘the land’).

8. It was the further testimony of John that all went on well until when Chacha Mwita and Murimi Mwita died. That was when the families of the said two commenced succession proceedings in total exclusion of the other children of their late father Mwita Murimi claiming that the land was not registered in the name of the late Mwita Murimi but in their fathers’ names instead and as such those who do not form part of the families of Chacha Mwita, Murimi Mwita, Panyako Mwita and Mtongori Mwita have no share on the land. That, Mwikabwe and Julius initially filed Migori SRMCC Succession Cause No. 386 of 2004 and obtained a Grant of Letters of Administration Intestate for the estates of Chacha Mwita and Murimi Mwita in 2005 which grant was subsequently confirmed. Being aggrieved by the foregone actions, the Applicants herein together with one Rioba Marwa Mwita challenged the issuance of the grant and the confirmation thereof vide Kisii High Court Succession Cause No. 215 of 2005 which Cause was settled by way of a consent on 25/07/2007 where the grant and the certificate were nullified and parties ordered to petition for fresh grants within a period of 12 months.

9. John further testified that Mwikabwe and Julius instituted Kisii HighCourt Succession Cause No. 658 of 2009 and KisiiHigh Court Succession Cause No. 659 of 2009 respectively but again did not include any of the Applicants as beneficiaries hence the current Summons. He referred to various P & A Forms filed in the two causes. He likewise stated that the matter had been a subject of deliberation before the local District Officer where Mwikabwe and Julius were directed to involve all the children of the late Mwita Murimi in this matter but they declined.

10. John contended that he, alongside the other Applicants herein, are entitled to a share of the land which was originally owned by his father and was only registered in the names of his four elder brothers as trustees and on behalf and for the benefit of the whole family of Mwita Murimi and not otherwise.

11. On cross-examination John admitted that the current causes are in respect of the Estates of Chacha Mwita and Murimi Mwita and not the Estate of Mwita Murimi. He also admitted that he was a brother to the late Chacha Mwita and the late Murimi Mwita and that he never depended on any of them during their lifetimes.

12. In opposing the Summons, Mwikabwe held the contrary position. While admitting that the land was registered in the joint names of his father Chacha Mwita and three of his father’s brothers he denied that the registration was made in trust of other members of his grandfather’s family including the Applicants. He contended that the family of Chacha Mwita consented to him petitioning for the Grant of Letters of Administration in respect to the estate of his father and that he made all necessary disclosures and obtained a letter from the Chief as well as all consents thereto. To him, the Applicants could only benefit from the estates of their fathers and not his father. He however admitted that all along the Applicants have been living on the land with their respective families. He prayed for the dismissal of the Summons.

13. Julius echoed the evidence of Mwikabwe. He equally contended that upon the demise of his father the family appointed him to petition for the Grant of Letters of Administration in respect to the estate of his father and that he made all necessary disclosures and obtained a letter from the Chief as well as all consents thereto. He also prayed for the dismissal of the Summons.

14. Mtongori Joseph Mukama MwitaaliasMtongori Mwita testified as a witness for the Petitioners. He is one of the children of the late Mwita Murimi and a registered co-owner in the land in issue. He was of the firm position that the Applicants are not in any way concerned with the estates of his two brothers namely Chacha Mwita and Murimi Mwita as they were neither dependents nor beneficiaries thereof. He also denied that the land was registered in trust as alleged.

15. At the close of their respective cases parties filed written submissions. The Applicants raised five issues for determination as follows: -

a. Whether the Petitioners / Respondents have complied with the Court Order issued on the 25th day of July 2007?

b. Whether the Grant of Letter of Administration was procured and / or obtained by Concealment of Materials Facts?

c. Whether the Applicants herein form part of the beneficiaries of the estate of the deceased persons?

d. Whether the Objectors / Applicants have established a basis to warrant the Revocation of the Grant of Letters of Administration?

e. Whether the Objectors are entitled to the Orders south?

16. The Applicants’ Counsel answered all the above issues in favour of the Applicants. He inter alia submitted that the Petitioners failed to abide by an order of the High Court issued in Kisii Succession Cause No. 215 of 2005 on 25/07/2007 and that it was procedurally wrong for the Petitioners to file multiple petitions for the same estates more so without notice to all the necessary parties including the Applicants who are part of the beneficiaries of the estates of the deceased persons. That was tantamount to concealing material facts. It was further submitted that there was ample evidence to show the relationship between the Applicants and the deceased persons and that the relationship was also conceded to by the Petitioners and their witness as well as by the Chief’s letter. As a result, it was submitted that Sections 39 and 66 of the were very clear that the Applicants cannot be ousted from benefiting from the estates. Counsel cited the Court of Appeal cases of Joseph Waitiki Ndegwa & Another vs. Duncan Nderitu & Another Civil Appeal No. 179 of 2002 (unreported) at Nyeri and of Musa Nyaribari Gekone & 2 othersvs. Peter Miyienda & Another, Civil Appeal No. 2 of 2014 (unreported) at Kisumu in support of the Summons.

17. The Petitioners took the Court through the evidence tendered and submitted that the Applicants had failed to prove that they were entitled to benefit from the estates in this cause since they were not children or dependants of any of the two deceased persons and that they had failed to demonstrate that they have any entitlement to the estates. Section 29 of the Act was relied upon in that submission. It was further submitted that under Section 66 of the Act the Applicants were nowhere near being appointed as administrators of the estates of the deceased persons as the widows and children thereof are still alive have indeed taken out the administration of the estates. The Petitioners also submitted that they never concealed any material facts to the Court as they disclosed all the beneficiaries and procured their consents as required in law and called this Court to find that the Summons was not within the confines of Section 76 of the Act. The Petitioners also submitted that since the Applicants’ claim is in respect to the distribution of the estates then that matter can be dealt with during the confirmation proceedings but not in the current revocation proceedings. The case of Re Estate of Gitau (Deceased) 2002 KLR 430 was relied upon in support of the submissions.

18. It is on the foregone background that this Court is called upon to determine the Summons. Due to the centrality of Section 76 of the Actin this matter, I will reproduce it verbatim: -

“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 untrue allegations of a fact essential in point of la w 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 grant within one year from the date thereof or such longer period as the court order or allow; or

(ii) to proceed diligently with administration of the estate; or

(iii) to produce to the court, within the time prescribed’ any such inventory or account of administration as its required by the provisions of paragraph (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”

19. In line with the above provision I will endeavor to determine the issues raised by the Applicants in their submissions as follows:

a. Whether the Petitioners complied with the order issued on 25/07/2007: -

20. The order in issue was made in Kisii High Court Succession Cause No. 215 of 2005. It was a consent order by the very parties herein. The order had six limbs which were tailored as follows: -

a. The Grant of Letters of Representation issued and confirmed in favour of the two Petitioners herein on the 5th day of May, 200, vide MIGORI SRMCC SUCCESSION CAUSE NO. 386 OF 2004 be and is hereby nullified.

b. The registration of LR NO. BUGUMBE.MABERA/324 in the names of the Petitioners herein, that is, JULIUS MAGIGE MURIMI and MWIKWABE CHACHA MWITA, be and is hereby nullified and the subject parcel of land do revert to the joint names of MURIMI MWITA and CHACHA MWITA, respectively.

c. KISII HCC NO. 190 OF 2004 between the Objectors herein as the Plaintiffs and the Petitioners as the Defendants be and is hereby marked as settled.

d. The Petitioners and the Objectors do continue to occupy their respective positions on the subject property pending issuance of Grant of Representation.

e. The Parties herein do arrange and take out letters of representation in respect of the Estates of the two Deceased persons herein within the next 12 months.

f. Each party shall bear its own costs in the suit.

21. It was order (e) above that was relied upon in the issue under consideration. I have carefully reconsidered the whole order. As the order comprises of an extracted copy of the consent entered by the parties this Court did not have the advantage of the grounds upon which the application that resulted into the consent was made. Part (e) of the order directed the ‘parties to arrange and take out letters of administration in respect of the Estates of the two Deceased persons herein within the next 12 months.’ The way I understand that part of the order is that all the parties were to jointly take steps towards petitioning for the administration of the two estates within the next 12 months of that order. In other words, all parties were to be involved in reaching an arrangement towards petitioning for the administration of the two estates more so given that an earlier grant made in Migori SRMCC Succession Cause No. 386 of 2004 had been nullified.

22. From the record that part of the order was not complied with to the extent of not involving the Applicants in the subsequent petitioning for the administration of the two estates. I need not re-emphasize that the order resulted from a consent of the parties. I however wish to be clear that to me the order did not confer any settled entitlement by any of the parties to the two estates but recognized the parties’ right to petition for the administration of the estates under inter alia Section 66 of the Act. Parties need to remember that an administrator or administratrix of an estate need not be specifically and beneficially entitled to the estate as the duty is only limited to administration of the estate. Issues of who is entitled to what in an estate are within the confines of confirmation proceedings under Sections 71 to 75A of the Act.

23. I hence answer the first issue in favour of the Applicants.

b. Whether the Applicants form part of the beneficiaries of the Estates of the deceased persons, whether the Grant was procured and/or obtained by concealment of material facts and whether theSummons is merited/: -

24. I will consider the two issues together due to their interrelation. Section 76 of the Act provides that an application to revoke or annul a grant can be made by any interested party or by the Court on its own motion. The Court of Appeal in the case of Musa Nyaribari Gekone & 2 others (supra) held that a buyer of a portion of a parcel of land forming part of an estate qualifies him/her as an ‘interested party’ with standing to challenge a grant. The Court went further and held that: -

‘The expression ‘any interested party’ as used in that provision, in its plain and ordinary meaning, is in our view wide enough to accommodate any person with a right or expectancy in the estate. We are not persuaded, as Mr. Oguttu urged, that the expression is limited by or should be construed against the provisions of sections 66 and 39 of the Law of Succession Act’

25. From the above guidance it therefore means that an interested party to an estate is one with a right or expectancy in that estate. Because of such ‘interest’ such a party is clothed with the locus standi to apply for the revocation of a grant. That party cannot therefore be a busy body and must be able to demonstrate the ‘interest’ in the estate to qualify, in the first instance, to challenge the grant in force. It is that ‘interest’ which is to be demonstrated by way of ‘a right’ or ‘an expectancy’ in the estate.

26. The category of those entitled to an estate ‘as of right’ include the persons contemplated under Section 29and Sections 35 to 42 inclusive of the Act which includes even those people who are to benefit from the estate property which was held by the deceased person in their trust. The other category who are entitled to an estate ‘by way of an expectancy’ include creditors or those who purchased the estate property or part thereof from the deceased person. These are ordinarily the ones who must or ought to be disclosed as part of the liabilities to an estate.

27. In this case John testified that the land was held by the two deceased persons as well as the two other brothers who were all among the elder children of their father Mwita Murimi on their own behalf and on behalf of and in trust of all the family members of the late father Mwita Murimi. It is on that premise that John contested that the land has all along been occupied by all the children and wives of the late Mwita Murimi all of who have defined portions thereon. The position is echoed by part (d) of the consent order. Whereas the position is opposed by the Petitioners, there is prima facie evidence of the existence of a trust and that in itself qualifies the Applicants to challenge the grant, as of right. The substantive consideration of whether the deceased persons were holding part of the estate property in trust will however be subject of the confirmation hearing which proceedings will also settle the issue as to whether the Applicants are beneficially entitled to the estates.

28. By taking all the foregone considerations into account it is obvious that the Petitioners blatantly disregarded an order of the Court which they had entered by consent and further concealed material facts to the Court. The Petitioners were under a duty to involve the Applicants in the process of petitioning for the administration of the estates and to likewise seek and obtain their consents or evidence of the Applicants’ refusal to co-operate. A grant procured under those circumstances cannot be allowed to stand. It is on that basis that I find the Summons merited.

29. Resulting from the foregone are the following final orders: -

a. The Grant of Letters of Administration made to the Mwikabwe Chacha Mwita in respect to the Estate of Chacha Mwita Murimi on 18/10/2012 and the Grant of Letters of Administration made to the Julius Magige Murimi in respect to the Estate of Murimi Mwita Murimi on 18/10/2012 be and are hereby revoked and/or annulled.

b. Since the Estate of Chacha Mwita Murimi and the Estate of Murimi Mwita Murimi comprise of only one property being the land known as BUGUMBE/ MABERA/324 and given that the Causes are now consolidated, a single Grant of Letters of Administration shall forthwith issue in both estates in the joint names of Mwikabwe Chacha Mwita, Julius Magige Murimi, John Mwita Murimi and Joseph Mwita Murimi.

c. The Administrators and/or any of them shall apply for the confirmation of the Grant within 21 days of the issuance of the joint Grant.

d. As the matter involves close family members and since there are further pending proceedings each party to bear its own costs.

DELIVERED, DATED and SIGNED at MIGORI this 11th day of October 2017.

A. C. MRIMA

JUDGE