[2017] KEHC 3728 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

SUCCESSION MISC. APPLICATION NO. 186 OF 2015

IN THE MATTER OF THE ESTATE OFWAMBUA MALONZA(DECEASED)

KASOLO WAMBUA.........................................................APPLICANT

VERSUS

PATRICK PETER KITHIKII...........................................RESPONDENT

R U L I N G

1. By way of an application dated 25thday of August, 2014,the Applicant seeks revocation of a grant of Letters of Administration Intestate (grant) issued to the Respondent on 7th April, 2014and confirmed on 25th June, 2014. The application is premised on grounds that: Proceedings to obtain the grant were defective in substance; the grant was obtained fraudulently by the making of a false statement or by the concealment from Court of something material to the case and that it was obtained by means of untrue allegation of a fact essential in point of law to justify the grant.

2. The Applicant swore an affidavit in support of the application where he deposed that he is a son to the Deceased but neither him nor other beneficiaries were served with Citation to accept or refuse to take up Letters of Administration. The grant was issued by a Magistrate who lacked requisite jurisdiction as the Estate is over Kshs. 4,000,000/=in value. Consequently, orders were obtained irregularly and the same were not served on beneficiaries. The grant was unprocedurally confirmed two (2) months later. An allegation that he refused to accept a Citation to accept or refuse to take out Letters of Administration was false. The Respondent has obtained a consent to subdivide Land Parcel No. Matinyani/Kalindilo/1077the Deceased’s Estate. That he (Applicant) is a person of greater priority to the Respondent who is merely a purchaser of a portion of Land Parcel No. Matinyani/Kalindilo/1077.

3. The Respondent filed a replying affidavit in response to the application stating that he filed the Succession Cause claiming a purchaser’s interest in a portion of Land Parcel No. Matinyani/Kalindilo/1077. This was after making fruitless efforts to have the Applicant and other beneficiaries of the Estate take up Probate and Administration of their father’s Estate. He notified the Applicant and his two (2) brothers of his intention to take out Letters of Administration by way of Citation but only Kyalo Wambuaresponded by way of swearing an affidavit where he had no objection. The Applicant and his other brother disregarded the same though duly notified. That he purchased a portion of the Estate of the Deceased from the Applicant, his brother and other family members at Kshs. 720,000/=following their financial needs. The Applicant, his wife and some other immediate family members invaded the portion he purchased in 2013that is when he realized they had an ill motive. He reported a case of malicious damage to trees and trespass to Kitui Police Station.They threatened to kill him while armed with pangas. It has come to his knowledge that the Applicant and his immediate family members, except Kyalo Wambuahave sold the portion they sold to him and the persons are already excavating a foundation. He wishes to distribute the Estate by having the same sub-divided to hive off what belongs to him and leave the remaining portion of 6. 258 Hato the family of the Estate. A mode of distribution that is acceptable to the Applicant’s brother who has already signed mutation forms.

4. The application was canvassed by way of written submissions that I have duly considered.

5. The Respondent herein approached the Lower Court by way of a citation. A citation to accept or refuse to take out a grant of Letters of Administration Intestate was issued to the Applicant and another, Kyalo Wambua.The Respondent filed the application in his capacity as a person who had purchased a portion of land forming part of Matinyani/Kalindilo/1077measuring “330 x 100”.On being served Kyalo Wambuahad no objection and even added in writing that the Respondent was entitled to additional “30 x 100”forming part of his shares. There is an affidavit of service filed by Boniface Munyoki Kyenza,a Process Server who deponed that he served the Applicant who declined to sign the copy. Consequently the learned Magistrate, Hon. A. G. Kibiru,Chief Magistrate granted the Respondent an order to take out Letters of Administration Intestate of the Estate of the Deceased. He also directed the Registrar of Births and Deaths to issue a certified copy of the death certificate.

6. It is not indicated if the second limb of the order was complied with but the date of death of the Deceased was given by the Respondent as 6th May, 1996.

7. The Respondent sought confirmation of the grant of Letters of Administration before the expiry of the requisite six (6) months. He proposed that the portion of land be distributed amongst three persons (himself, the Applicant and Kyalo Wambua).The grant was confirmed and the property shared thus:

Patrick Peter Kithiki – 0. 334 Ha.

Kyalo Wambua

Kasolo Wambua - Jointly 6. 266 Ha.

8. Looking at Form P&A 5(Affidavit in Support for Letters of Administration Intestate) the Deceased was survived by:

Esther Kithome – Daughter

Martha Mutua – Daughter

Kasolo Wambua – Son

Ndimu Kamanda – Daughter

Mutende Kyalo – Daughter

Kyalo Wambua – Son

9. No provision was made for other beneficiaries.

10. Section 66of the Law of Succession Actprovides thus:

“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—

(a) surviving spouse or spouses, with or without association of other beneficiaries;

(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;

(c) the Public Trustee; and

(d) creditors:

Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.”

Other beneficiaries were not notified of the Respondent’s intention to take out Letters of Administration Intestate. Secondly, the question that should have been posed by the trial Magistrate was whether the Respondent was a creditor to the Estate of the Deceased.

11. The Respondent filed an application for protection of the Intestate Estate of the Deceased. He deposed an affidavit in support of the application where he stated thus:

“2. That I am a purchaser of a portion of a part of land parcel Matinyani/Kalindilo/;1077 measuring (360 x 100) feet that is 0. 334 hectares or thereabouts. (See affidavits dated 12. 10. 2013 and 9. 5.2014 marked as PPKI (a) and (b) respectively.

3. That this portion was sold to me by the sons and brothers of the deceased for value and consideration on understanding that they would later file and obtain grant of letters of administration and then subdivide the parcel into two portions so that I may be given title to the portion I had purchased.

4. That I purchased this portion of good value and consideration of about Kshs. 765,000/- as per the affidavit in support of citation (See paragraph 4 of citation and the annextures thereto which documents are now part and parcel of the court records).”

What in essence he stated was that there was interference with the Estate of the Deceased prior to people concerned getting authority from a Court of Law.

12. Section 55of the Law of Succession Actprovides thus:

“(1) No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets, or to make any division of property, unless and until the grant has been confirmed as provided in section 71.

(2) The restriction on distribution under subsection (1) does not apply to the distribution or application before the grant of representation is confirmed of any income arising from the estate and received after the date of death whether the income arises in respect of a period wholly or partly before or after the date of death.”

Section 82(b)(ii)of the Law of Succession Actis more specific. It provides that:

“(ii) no immovable property shall be sold before confirmation of the grant;”

The Respondent and those who purported to sell to him the portion of land intermeddled with the Estate of the Deceased before they applied for a grant of representation. Their action amounted to criminal acts that call for prosecution. (See Section 45 of the Law of Succession Act).

13. The Deceased passed on having not established any relationship with the Respondent. Therefore the Respondent had no claim whatsoever over the Estate. As such he was not a Creditor to the Estate but an intermeddler, whose claim lies against people who received his money illegally.

14. The value of the property in issue having not been given this Court cannot assume as alleged that it was beyond the Kshs. 100,000/=stated.

15. From the foregoing it has been demonstrated that proceedings that resulted into the Respondent being appointed as the Administrator of the Estate of the Deceased were defective in substance. No consent was obtained from beneficiaries to the Estate who were not cited prior to the grant being confirmed. The Respondent did not qualify to be a Creditor to the Estate.

16. This calls for revocation of the grant which I hereby do with no orders as to costs.

17. The file shall be returned to the Lower Court which currently is seized of the jurisdiction to handle such matters for purposes of applying for fresh Letters of Administration.

18. It is so ordered.

Dated, Signed and Delivered at Kitui this 13th day of July, 2017.

L. N. MUTENDE

JUDGE