[2015] KEHC 3080 (KLR)
The court found that the application for confirmation of grant filed by Isabella was incompetent and null because she was not the legally appointed administrator of the estate. Under Section 71 of the Law of Succession Act, only the administrator may apply for confirmation of grant. The application also failed to...
Source-derived case information.
- Citation
- [2015] KEHC 3080 (KLR)
- Parties
- Respondent: Juvenalis Lubuka Khagoni; Applicant: Nancy M Sawenja
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 6 of 2003
- Procedural Posture
- Succession Cause / Ruling on Protest Against Confirmation of Grant
- Outcome
- Application for confirmation of grant by Isabella struck out as incompetent and null.
- Judges
- J Karanja
- Legal Topics
- Succession, Confirmation of Grant, Beneficiary Rights, Administrator Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Juvenalis Lubuka Khagoni
Respondent
Nancy M Sawenja
Applicant
Procedural Posture
Succession Cause / Ruling on Protest Against Confirmation of Grant
Legal Issues
- 1 Whether a beneficiary who is not the administrator can competently apply for confirmation of grant.
- 2 Whether all rightful beneficiaries were included in the application for confirmation of grant.
- 3 Whether the inclusion of a third party as a beneficiary without proper consent is valid.
Ratio Decidendi
The court found that the application for confirmation of grant filed by Isabella was incompetent and null because she was not the legally appointed administrator of the estate. Under Section 71 of the Law of Succession Act, only the administrator may apply for confirmation of grant. The application also failed to obtain the necessary consent from all rightful beneficiaries, and the inclusion of a third party as a beneficiary was improper without resolution of her alleged interest through appropriate legal proceedings. The delay in confirming the grant was attributed to disagreements among beneficiaries and the omission of the daughters as beneficiaries. The court held that the proper...
Court Disposition
Application for confirmation of grant by Isabella struck out as incompetent and null.
Orders
- The summons for confirmation of grant filed on 24th February 2012 by Isabella is struck out as null and void.
- Aggrieved beneficiaries may pursue the pending application for revocation of grant dated 23rd June 2009 if consensus on distribution cannot be reached.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
SUCCESSION CAUSE NO. 6 OF 2003
IN THE MATTER OF THE ESTATE OF AUGUSTINO KHAGONI – DECEASED
JUVENALIS LUBUKA KHAGONI …...................................... PETITIONER
VERSUS
NANCY M SAWENJA …........................................................ APPLICANT
R U L I N G
The grant respecting the estate of the lateAugustino Shigunga Khagoni, was issued on the 26th June 2003, to Juvenalis Lubuka Khagoni ( Petitioner / applicant) after he petitioned for the same on the 13th January 2003. The only asset listed in the petition was a portion of land described as Land Parcel No. 61 Bungoma within Kabuyefwe Settlement Scheme No.13 measuring 27. 4 hectares.
The listed beneficiaries included the widow of the deceased and her four (4) sons including the applicant. The daughters of the deceased were not listed as beneficiaries. Nonetheless, the grant remains unconfirmed to date. Summons for its revocation dated 23rd June 2009 were filed on 15th September 2009 by the daughters namelyNancy Sawenja, Harriet Khagoni, Isabella Obedo and Beatrice Khagoni. They complained of being excluded as beneficiaries of the estate. The summons however, remain pending to this day.
On 24th February 2012, an unsigned summons for confirmation of the grant was filed byIsabella with the consent of all the daughters of the deceased and one son (Maurice). The petitioner / applicant and two other sons of the deceased (Peter and Alex) did not consent to the summons for confirmation which included a third party as a beneficiary i.e. Margaret Lusike Kituyi, who also consented to the summons.
In response to the confirmation summons, the petitioner filed a protest dated 2nd January 2013 supported by his own affidavit together with those of PeterandAlex dated 2nd January 2013, 5th March 2014and 2nd September 2014, respectively.
Replying affidavits dated 24th march 2014, were in that regard filed by Isabellahand Margaret Lusike Kituyi.
The protest was heard by way of “viva voce” evidence,
The petitioner Juvenalis (PW1) testified in support of his protest and was supported by his brothers Peter (PW2)and Alex (PW3). Isabella (DW1)testified in opposition to the protest. All the witnesses apparently based their respective testimonies on the averments contained in the supporting and replying affidavits.
The bone of contention seems to be whether the grant should be confirmed as applied by Isabella yet there is a clear disagreement on the actual beneficiaries and the distribution of the estate.
Under S.71 of the Law of Succession Act, the petitioner was required to apply for confirmation of the grant after the expiry of six months from the date of the grant but he did not do so. The distribution of the estate was therefore stalled and perhaps this explains why it was a beneficiary (Isabella) who made the necessary application rather than the petitioner. It was obviously out of frustration that the beneficiary applied for the confirmation of the grant although it was not within her right to do so. Her application is therefore incompetent as she is not the legally appointed administrator of the estate of the deceased.
The application is not only incompetent but also defective in as much as the necessary consent was not sought from all the rightful beneficiaries. The consent given by Margaret Lusike Kituyi was immaterial but she has a right to sue the estate in the event that her alleged interest in part of the estate property is disregarded by the administrator.
As per the evidence adduced herein it is apparent that the delay in having the grant confirmed was occasioned by the disagreements of the beneficiaries with regard to the distribution of the estate and the omission of the daughters of the deceased as beneficiaries as well as the inclusion of a “stranger” (i.e Margaret Lusike Kituyi)as a beneficiary of the estate. Indeed, the petitioner alluded to an Appeal Case No.44 of 2004 relating to the stranger's alleged interest in a part of the estate property.
The petitioner indicated that, that case remains pending in court and has contributed to the delay in having the grant confirmed.
This protest is therefore well merited. The beneficiary Isabella is not the administrator of the estate. She cannot therefore purport to apply for confirmation of the grant issued to the petitioner whereas all the beneficiaries are yet to agree on the mode of distribution of the estate and the inclusion of all the unlisted beneficiaries without any discrimination based on gender or marital status. The summons for confirmation of grant filed on 24th February 2012 by Isabella is therefore null and void and is hereby struck out. It would be appropriate for Isabella and all other aggrieved beneficiaries to pursue their application for revocation of the grant dated 23rd June 2009 if they cannot agree with the rest of the beneficiaries on the mode of distribution or if they feel that the petitioner is not administrating the estate in a proper and lawful manner.
J. R. KARANJA
JUDGE
Read and signed this 19th day of August 2015 in the presence of the applicant and M/s Munialo for Respondent