[2022] KEHC 11193 (KLR)

Kabucho v Kabucho"B" & 3 others (Succession Cause 430 of 1983) [2022] KEHC 11193 (KLR) (Family) (3 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11193 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Family

Succession Cause 430 of 1983

M Thande, J

June 3, 2022

IN THE MATTER OF THE ESTATE OF MURAGA KABUCHO (DECEASED

Between

Francis Njuguna Kabucho

Administrator

and

Joseph Ndungu Kabucho"B"

1st Beneficiary

Paul Kabucho Wanjiru

2nd Beneficiary

Francis Njogu Wanjiru

3rd Beneficiary

Naomi Wanjiru Wanjiru

4th Beneficiary

Ruling

1. The brief background of this long outstanding matter as can be gleaned from the record is that the deceased Muraga Kabucho died 55 years ago on 29. 1.67 in Kiambu at the ripe old age of 90 years. A grant of letters of administration in respect of the estate of the deceased was on 14. 9.83 issued to Francis Njuguna Kabucho (the respondent) a grandson of the deceased. In his application for the grant, the respondent had indicated that the deceased was survived by only 3 grandsons. The grant was confirmed on 16. 12. 94 and the estate consisting of a property known as Ngecha/Mbari ya Igi/37 (the suit property) devolved upon the respondent absolutely.

2. The record shows that on 7. 4.15, the order of confirmation of grant was set aside and the certificate of confirmation of grant of even date cancelled. All transactions undertaken relating to the suit property were cancelled and the suit property reverted to the estate of the deceased. The court further directed the respondent to immediately re-apply for confirmation of grant with a fresh mode of distribution to include all the beneficiaries of the estate. There is on record a certificate of confirmation of grant dated 16. 12. 94 and rectified on 11. 7.17. This was pursuant to a consent order of even date.

3. In the present application dated February 14, 2020, the applicants seek revocation of the grant issued to the respondent and appointment of Joseph Ndungu Kabucho “B” as administrator. The applicants also prayed for an order directing the Land Registrar-Kiambu to dispense with the production and surrender of the original title deed of the suit property upon transfer by transmission.

4. The grounds are that since the 12. 7.17, the respondent has failed to proceed diligently with the distribution of the estate. The applicants urged the court to revoke the grant noting that the deceased died way back in 1967. The applicants further asserted that the respondent has neglected to surrender the original title deed of the suit property and urged the court to issue an order that the production of the said title deed to the Land Registrar be dispensed with.

5. The respondent though served did not file any response.

6. I have considered the application and the applicants’ written submissions.

7. The jurisdiction of this court to revoke a grant of representation is set out in section 76 of the Law of Succession Act cap 160 as follows:76 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 fact essential in point of law 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 the grant within one year from the date thereof, or such longer period as the court order or allow; or(ii)to proceed diligently with the administration of the estate; or(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (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.

8. Under section 76(d)(ii) of the Act, failure to proceed diligently with the administration of the estate of a deceased person, after due notice and without reasonable cause, is one of the statutory grounds for revocation of grant. It is noted that the certificate of confirmation of grant was rectified on 11. 7.17. Almost 5 years later, the respondent is yet to administer the estate. The respondent did not file any response to the application herein explaining the reason, if any, as to why he has failed to proceed diligently with the administration of the estate. The applicants exhibited letters dated 26. 6.18 and 14. 2.19 from their advocates to the respondent’s advocates indicating that due notice has been given to the respondent to proceed with the administration of the estate. The notice has however gone unheeded. In the premises, the court is satisfied that the applicants have demonstrated the existence of the ground in section 76(d)(ii). Further, it has been 55 years since the demise of the deceased and about 5 years since the confirmation of the grant. Accordingly, for failure to diligently proceed with the administration of the estate of the deceased, the grant issued to the respondent cannot stand.

9. On the prayer that an order be issued directing the Land Registrar, Kiambu to dispense with the production of the title deed to the suit property, the applicants submitted that the respondent’s aim in failing to release the title is to frustrate them and to deny them their just entitlement. The order sought will thus ensure that the applicants are not held hostage.

10. The court notes that the applicants stated that the respondent has failed to release the original title to them. It must be remembered that the respondent was at all material times and still is, the administrator of the estate of the deceased. Accordingly, the suit property was vested in him as administrator. Section 79 of the Act provides:The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.

11. As administrator of the estate of the deceased, the respondent is under no obligation to release the original title to the applicants or to any other person. In the premises, the applicants cannot be heard to say that the respondent is frustrating them and seeking to disinherit them by failing to release the title to them.

12. Section 31 of the Land Registration Act provides:1. If a certificate of title or a certificate of lease has been issued, then, unless it is filed in the registry or the Registrar dispenses with its production, it shall be produced on the registration of any dealing with the land or lease to which it relates, and, if the certificate of title or the certificate of lease shows all subsisting entries in the register, a note of the registration shall be made on the certificate of title or the certificate of lease.

13. The import of the above provision is that the Land Registrar has power to dispense with the production of the original title. The Land Registrar’s office is therefore the first port of call, before a party approaches the court. In the present case, it has not been demonstrated that sufficient grounds exist for the court’s intervention.

14. In the end, and in view of the foregoing, I make the following orders which are necessary for the ends of justice:i) The grant of letters of administration in respect of the estate of the deceased Muraga Kabucho to Francis Njuguna Kabucho is hereby revoked.ii) Grant is hereby issued to Joseph Ndungu Kabucho “B”.iii) Francis Njuguna Kabucho is directed to surrender to Joseph Ndungu Kabucho “B”, the original title deed in respect Ngecha/Mbari ya Igi/37 within 7 days.iv) Given the conduct of the respondent, he shall bear costs of this application.v) Mention on 14. 6.22. to confirm compliance.

DATED, SIGNED AND DELIVERED IN NAIROBI THIS 3RD DAY OF JUNE 2022. ............................................................M. THANDEJUDGEIn the presence of: -…………………………………………………………… for the Applicants…………………………………………………………… for the respondent……………………………………………………..…….. Court Assistant