[2023] KEHC 24820 (KLR)

Kagai v Wanjohi (Civil Appeal 92 of 2019) [2023] KEHC 24820 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24820 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 92 of 2019

LM Njuguna, J

November 3, 2023

IN THE MATTER OF THE ESTATE OF PAUL KING’URU NGOTO (DECEASED

Between

Simon Ngoto Kagai

Appellant

and

Kagai Wanjohi

Respondent

(Appeal from the Judgment of Hon. M. Kivuti SRM delivered in Senior Principal Magistrate’s Court Baricho Succession Cause No. 106 of 2016 on 07th November 2019)

Judgment

1. By a memorandum of appeal dated 01st December 2019, the appellant seeks orders that the appeal herein be allowed and the judgment of the subordinate court be set aside and be substituted with an order allowing the applicant’s amended summons for revocation of grant amended on 08th December 2018. The appeal is premised on the grounds that the learned magistrate erred in law and fact by:a.Failing to find that the applicant was entitled to a share of the estate of the deceased;b.Unfairly disregarding and failing to consider material evidence tendered by and on behalf of the appellant;c.Considering extraneous issues irrelevant to the suit hence dismissing the appellant’s suit without cause;d.Finding that the appellant and respondent herein appeared before the assistant chief on 05th February 2014;e.Awarding costs to the respondent; andf.Disregarding the appellant’s submissions.

2. Vide the said amended summons for revocation of grant, the appellant sought for orders that the grant issued to the respondent and confirmed on 20th April 2017 be revoked. The application was based on the grounds that the grant was obtained fraudulently by making of a false statement or by concealment from the court of something material to the case, the grant was obtained by means of untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently. In the supporting affidavit to the application, the appellant stated that the deceased had only one child who neglected him when he became blind and that the appellant is the one who was taking care of him until he died.

3. He deposed that prior to his death, the deceased had opened a joint account with the appellant, where they saved proceeds from land sale. That the deceased gave the appellant a piece of land on which he settled his wife and children. That it was the deceased’s wish that after his death, his property be inherited by the appellant because his daughter had neglected him. That 6 years after the demise of the deceased, the respondent and his children removed him from the land belonging to the deceased and the land was subdivided.

4. The court took viva voce evidence. PW1 stated that the deceased was his uncle and the respondent herein is a grandson of the deceased. That the deceased was blind and his only child refused to take care of him. That PW1 moved in with the deceased and took care of him for 13 years during which time, his daughter was nowhere to be found. That the bank account opened jointly between him and the deceased was used to deposit money and that PW1 singlehandedly took care of the deceased and even arranged for his burial without any help from the family of the deceased.

5. PW2 who is the wife of PW1 stated that they lived with the deceased and that PW1 used to take care of him before he died. That the deceased sold two (2) acres of his land and the money was deposited into a joint account held by both the deceased and PW1 and was used for upkeep of the deceased and also for his burial expenses. That PW1 did not know about the succession that the respondent was pursuing but the chief informed him of the same. That they no longer live on the land because they were chased away.

6. PW3 stated that he was present when the deceased called the elders and informed them that he wished to bequeath his property to PW1 who has been taking care of him when his daughter abandoned him. He stated that these wishes of the deceased were written down in the presence of five people but the ID number of the deceased was not indicated. That he knew that the deceased had sold a portion of his land but did not know how the proceeds were used.

7. DW1 stated that the deceased was his grandfather and that all the family members were informed of the succession proceedings including the appellant. That the appellant inherited his own father’s land and he does not have rightful claim over the deceased’s land. That the deceased’s title deed got lost and was reported as such. He denied having conducted the process of succession in secret. It was his testimony that the burial permit was given to his mother, daughter of the deceased and that he used it to procure the death certificate. That he does not know the circumstances under with the deceased and the appellant opened a bank account jointly.

8. DW2 testified that the deceased was his grandfather and that the appellant was a son to the deceased’s biological brother. He denied that the appellant buried the deceased alone and stated that he could have taken a leading role but that did not mean that the remaining family did nothing. That the appellant is a distant uncle and he has his own land and therefore, he is not a beneficiary of the property of the deceased.

9. DW3 stated that the deceased’s daughter was married but at some point, she lived on the deceased’s land when she left her marriage. That the burial permit was given to the appellant in the presence of the deceased’s daughter. That the deceased’s grandchildren and the appellant took care of the deceased together. That the appellant vacated the land of the deceased about two or three years after the death of the deceased and does not deserve a portion of the estate because he was not a son of the deceased.

10. In this appeal, the parties filed their written submissions as directed by the court.

11. The appellant submitted that in light of Section 3(2) of the Law of Succession Act, the deceased treated the appellant as his son and therefore, he should have been included in the process of confirmation of grant. He relied on the cases of In the Estate of Patrick Muyangi Watuiga (2015) eKLR, In the Estate of Mukhobi Namonya (2020) eKLR and In the Estate of M’richumi (dcd) (2008) eKLR. That it was erroneous for the trial court to depend on the fact that the appellant was allegedly made aware of the succession proceedings by the chief. That appearance before the chief does not give bearing to the fact that the appellant did not sign the succession forms.

12. The respondent submitted that none of the grounds of appeal has challenged the decision of the lower court on revocation of the grant. That at the trial, the appellant confirmed that the deceased was his uncle and therefore, he is not a dependant according to Section 29 of the Law of Succession Act. That the alleged will of the deceased did not meet the required standard of validity. He relied on the case of Micheni Aphaxand Nyaga & 2 Others v. Robert Njue & 2 Others (2021) eKLR. It was his argument that the appellant was well aware of the succession process at its initiation when the chief called him and the respondent about the same but no objection was filed. That the appellant did not prove that the deceased was his adoptive father.

13. Having perused the grounds of appeal together with the submissions herein, I find the issues for determination to be as follows:a.Whether the appellant is a dependent of the deceased and therefore entitled to a portion of the estate; andb.Whether the grant issued to the respondent should be revoked.

14. The role of an appellate court is to re-examine the evidence at trial and come up with its own conclusions while keeping in mind the findings of the trial court. In the case of Selle & Another v. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."

15. Dependents are not beneficiaries automatically. Dependency is a matter of fact and is proved through evidence. Part III of the Law of Succession Act provides for dependents under Section 29 as follows:29. Meaning of dependantFor the purposes of this Part, "dependant" means-(a)the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;(b)such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and(c)where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

16. In the case of Sarah Kanini Thigunku v. Elizaphan Njuki Thigunku [2016] eKLR the court observed that -“For one to be a dependant, however, under Section 29 aforesaid, it is clear that one must prove dependency. The use of the words “…as being maintained by the deceased immediately prior to his death...” in that Section, connotes that one must prove that he was dependent on the deceased before his demise…A mere relationship does not automatically qualify one to be a dependant under Section 29 of the Act. Prove of dependency is imperative.”

17. PW1 stated that he moved in with the deceased and took care of him for 13 years while he was blind. That the deceased gave him a piece of land to live on and cultivate. That he has been residing on the land even when he married his wife and they bore all their children while living on the same land. PW2 confirmed PW1’s testimony. None of the respondent’s witnesses controverted this position. In the case of RNM v. RMN (2017) eKLR the court stated that -“Proof of dependency is thus a condition precedent to the exercise of the discretion in Section 29(b) cited hereinabove. In addition, while considering the meaning of a dependant under Section 29 of the Act, the court held as follows in the case of Beatrice Ciamutua Rugamba v. Fredrick Nkari Mutegi & Others, Chuka Succ. Cause No. 12 of 2016:“From the foregoing, a dependant under Section 29 (b) and (c) must prove that he/she was being maintained by the deceased immediately prior to his demise. It is not the mere relationship that matters, but proof of dependency."I note in this regard that the Applicant did in her affidavits admit that the subject children were not the Deceased’s biological children, and did not provide any additional evidence of how the Deceased maintained the children, and the responsibility he undertook with respect to the said children. This Court cannot in the circumstances make any conclusive findings as to the said children’s dependency on the Deceased at this stage.”

18. It is my understanding that in as much as the appellant was taking care of the deceased, the deceased was taking care of the appellant. By virtue of the fact that the deceased gave a portion of his land to the appellant for his use, the appellant depended on the deceased until the deceased’s death. The respondent’s witnesses testified that the appellant moved out of the land after the death of the deceased. On the other hand, the appellant testified that he was chased away from the land he was given by the deceased after his death.

19. Section 29 of the Law of Succession Act provides for circumstances under which the appellant may be considered a dependant of the deceased:In considering whether any order should be made under this Part, and if so what order, the court shall have regard to-(a)the nature and amount of the deceased's property;(b)any past, present or future capital or income from any source of the dependant;(c)the existing and future means and needs of the dependant;(d)whether the deceased had made any advancement or other gift to the dependant during his lifetime;(e)the conduct of the dependant in relation to the deceased;(f)the situation and circumstances of the deceased's other dependants and the beneficiaries under any will;(g)the general circumstances of the case, including, so far as can be ascertained, the testator's reasons for not making provision for the dependant.

20. In my view, with reference to Section 29(d) and (e) of the Law of Succession Act, the appellant was a dependent of the deceased and ought to be given a portion of the estate as a proven dependant, albeit in the absence of a valid will. I note that the respondent’s witnesses did not refute that there was indeed a relationship between the deceased and the appellant, to an extent that they jointly held a bank account.

21. On the issue of whether the grant should be revoked, Section 76 of the Law of Succession Act provides:“76. Revocation or annulment of grant 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.”

22. The circumstances under which a grant may be revoked are issues of fact which must be proved by the alleging party on a balance of probabilities. In this case, the appellant alleges that the grant was obtained fraudulently by making of a false statement or by concealment from the court of something material to the case. From the evidence, the parties stated that the chief summoned them and were made aware about the impending succession proceedings. That after the said meeting, the respondent proceeded to file the succession cause. The respondent’s witnesses stated that the appellant was well aware of the proceedings but did not file any objection. The appellant, on the other hand, testified that he was not served with the succession petition or any other forms that needed his attention and that he was excluded from the process.

23. I take it that by the time the chief made the appellant aware of the intended succession proceedings, the respondent knew that he ought to have included the appellant in the cause but failed to do so. The respondent concealed from the court the material fact that the appellant ought to have been a party to the proceedings.

24. In conclusion, I have considered the competing arguments and the relevant law and I do find that the appeal has merit. Consequently, the following orders shall issue:a.The grant of letters of administration issued on 04th February 2016 to Kagai Wanjohi is hereby revoked;b.The certificate of confirmation of grant issued on 18th May 2017 is hereby set aside;c.The Land Registrar to cancel all entries in the title pursuant to the certificate of confirmation of grant and revert proprietorship of the land to the name of the deceased Paul Kinguru Ngoto; andd.Each party shall bear their own costs of the appeal.

25. It is so ordered.

DELIVERED, DATED AND SIGNED AT KERUGOYA THIS 3RD DAY OF NOVEMBER, 2023. L. NJUGUNAJUDGE.................................... for the Appellant.................................... for the Respondent