[2023] KEHC 27259 (KLR)

Ketoyo v Ketoyo (Succession Cause 48 of 2017) [2023] KEHC 27259 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27259 (KLR)

Republic of Kenya

In the High Court at Mombasa

Succession Cause 48 of 2017

G Mutai, J

November 21, 2023

IN THE MATTER OF THE ESTATE OF ANDRONICUS JACQUES KETOYO (DECEASED)

Between

Fridah Inzera Ketoyo

Applicant

and

Lydia Ann Awinja Ketoyo

Respondent

Ruling

1. Before this court is a summons for revocation of grant dated 23rd May 2022. The summons seeks the following orders: -a.Spent;b.That the aforementioned grant of probate letters of administration issued to Lydia Ann Awinja Ketoyo on 31st March 2021 be revoked and/or annulled under the provision of Section 76(b) of Cap 160 Laws of Kenya upon the basis that the same was obtained fraudulently and by concealment from Court of material facts relating to the estate;c.That all steps taken by the respondent pursuant to the said order granting the letter of administration and which may have changed the assets of the estate subject of this application be declared nullity in law; andd.That cost of the application be provided for.

2. The summons is premised on the grounds therein stated and the supporting affidavit of the applicant. She stated that she is the 2nd wife of the deceased, with whom they were blessed with two children who are now adults. She is equally entitled to apply for a grant of letters of administration intestate in respect of the estate of the deceased herein. The respondent, being the 1st wife of the deceased, applied for the same without involving her. She learnt about the case at the confirmation stage. She stated that the estimated value of the estate given in the summons for confirmation of the grant was low.

3. She further stated that the respondent obtained the grant fraudulently by not listing all assets, as she omitted a residential house in Nyali, which is currently let out to a school, and rent collected monthly.

4. She averred that she should be appointed a co-administrator of the estate to ensure fairness, transparency and equitable distribution of the estate of the deceased amongst all beneficiaries of the estate. She thus urged the court to revoke the grant issued to the respondent.

5. In response, the respondent filed a replying affidavit sworn on 16th June 2022 and filed on 17th June 2022. She termed the application as one without merit. In her response, she averred that she got married to the deceased person on 12th August 1972 in Muhanda, Vihiga, and cohabited with him as husband and wife in Nyali, Mombasa, from 1972 to 2006. They were blessed with five children, one of whom, namely Loretta Yugi Ketoyo, predeceased the decedent in 2003 without any heirs and two of whom, namely Andrew Jacques Ketoyo and Anthony Mudanya Ketoyo, passed away in 2020, leaving two surviving children, each. The deceased came into marriage with a son, namely Albert Ketoyo, who passed away in 2018 without leaving any issue. The deceased also sired one child, Christian Ketoyo, with another woman. Both sons were listed as beneficiaries in her petition.

6. She further stated that during their marriage, she worked as a food control officer with Kenya Breweries for some time, while the deceased worked with Kenya Ports Authority until his retirement in 1996. All properties comprised in the estate were acquired before the deceased’s retirement in 1996. Although the said properties are registered in the name of the deceased, she substantially contributed to their acquisition and improvement over the years.

7. She averred that property no.CR1791(subdivision number 290 of Section I Mainland North), measuring 11. 44, was jointly owned by herself and the deceased until the sale in the year 2006/2007. Upon the sale, the deceased purchased eight parcels of land, one of which is MN/1/14818, where he built a home for himself and the applicant. Before his demise, the deceased sold the remaining seven parcels of land; however, he died before the transfer and full payment of the said properties. She averred that the applicant had not disclosed this information to the court.

8. She further averred that the Nyali property was acquired in 1972 through a 15-year mortgage facility from Barclays Bank of Kenya for Kes.150,000/- which was taken up by the deceased employer and deductions for repayment done from the deceased’s salary. She made substantial contributions towards development and accruing maintenance /renovation expenses in respect of the said property and payment of rates accrued over the years. She averred that she paid legal fees of Kes.2,000,000/- to Sachdeva Advocates for conveyance, mortgage and discharge of the said property. She moved out of the said property in 2017 as she could no longer afford to pay the utility bills and the costs of renovations. She agreed with her children to lease out the property to overcome the said challenges.

9. She stated that no formal valuation was done on the suit properties; thus, the allegation that she undervalued the estate cannot stand. She listed all lawful beneficiaries in her petition, including the applicant and her children, and even reached out to her for the execution of court documents and sought an amicable agreement on the distribution of the estate, but the applicant was uncooperative. She deposed that the allegation by the applicant that she learnt of this matter only after the summons for confirmation of grant was filed is not true. She stated that she tried to reach the applicant through her advocates with no success.

10. She further stated that she has faithfully and diligently administered the estate of the deceased pursuant to the grant of letters of administration issued to her. She cannot distribute an income collected from the estate at this juncture, and thus, the allegation by the applicant that she has not received her share of the rental income collected cannot stand as the grant has not been confirmed.

11. She deponed that the applicant sold some assets of the estate, including Plot No. Kwale/Shimba Hills/187, which was bought by the deceased in 1982, in 2018/2019, without accounting for the sale proceeds. After the demise of the deceased, the applicant successfully claimed the deceased’s dividends from Bandari Sacco, which exceeded Kes.300,000/-, without accounting for it. That these actions were unlawful, fraudulent and solely meant to deprive the other beneficiaries of their equitable share as she did not have a grant of representation. She urged the court to order the applicant to give a full account of all properties she has taken from the estate and all benefits she has gained from the estate. The respondent urged that the deceased distributed several properties as gifts inter-vivos and that the said properties ought to be taken into account in determining the net intestate estate.

12. The respondent averred that Title No. S/Maragoli/Madzuu/1065 was acquired by the deceased and transferred to the applicant on 8th January 2014, one month before the demise of the deceased. She urged the court not to revoke the grant and to give orders on distribution.

13. The summons was canvassed by way of viva voce evidence.

14. The applicant, Fridah Inzera Ketoyo, told the court that she was relying on her witness statement filed on 18th November 2022, an affidavit sworn on 23rd May 2022 and also on her list of documents. She testified that she got married to the deceased on 17th July 2007. She had however lived with him for some time before they officiated their marriage. The marriage was blessed with two children, one born on 9th May 1996 and the second born on 26th March 2003. Prior to his death, the deceased was fully providing for her and the children.

15. She further stated that the relationship between her and the respondent has never been cordial and that all meetings held on the distribution of the estate were futile. The only benefit she got from the deceased’s estate was a pension from Kenya Ports Authority, as the deceased had written her name and that of the respondent as his beneficiaries. She gets a pension payment of Kes. 10,000/- per month from the deceased’s pension. Further she got paid Kes. 300,000/- from Bandari Sacco shares in respect of the estate of the deceased.

16. It was her evidence that before his demise, the deceased divided several properties, among them being Bamburi property, whereby the respondent sold her portion and bought property in Mtwapa while on her portion, she built her house, which she lives on to date. The deceased built a house for her in Vihiga. She also sold the motor vehicle Peugeot 504 belonging to the deceased at Kes.50,000/-. The deceased had plots next to each other, out of which she sold one after his death. She sold the said properties before moving the court.

17. She testified that the Nyali home belongs to the estate of the deceased as the same was bought by the decedent. The same was, however, bought before she got married to the deceased, and she has never stayed there. She has not received any share of the rent collected from the said property.

18. It was her testimony that the respondent applied letters of administration intestate without informing her and without her consent and that she only learnt of the same when the matter came for confirmation of the grant. That she was called to the advocate's office to take out the letters of administration, but she didn’t go. She did not sign the distribution agreement as she felt it was inequitable and unfair. That the estate of the deceased should be divided equally among all the beneficiaries and urged the court to revoke the grant and appoint her as a co-administrator.

19. Christian Munangwe Ketoyo told the court that he is the son of the deceased and one Henrietta Malemba Maganga. He was born on 26th December 1982. He adopted his witness statement filed on 18th November 2022 as his evidence in chief.

20. It was his testimony that the deceased used to provide for him and his mother until his demise on 1st February 2014. The deceased used to live alone in Nyali. He stated that he had not received any share from the estate and that the pension funds were shared between the two houses of the applicant and the respondent.

21. He stated that he learnt that this matter was coming up for confirmation of grant and that he did not consent to the petition of letters of administration. The respondent listed him as a member of her household in the petition and that he was left out of the distribution agreement. He urged the court to revoke the grant and appoint the applicant as a co-administrator.

22. The respondent, Lydia Awinja Ketoyo, adopted her witness statement dated 10th February 2023 and the bundle of documents dated 10th February 2023. She reiterated her position in her replying affidavit and stated that she got married to the deceased on 12th August 1972. They were blessed with five children, of whom three are deceased. The deceased had two children out of wedlock, namely Christian Ketoyo and Albert Ketoyo. Further, she used to work at KBL from 1973 to 1979 when the deceased asked her to leave employment to take care of the children and that she had a shop while working, which she continued with after leaving employment. After their wedding, they came to Mombasa and stayed at KPA and Nyali.

23. On the Nyali house on Plot No.1362, she told the court that it was bought in 1973 after the deceased came back from Dar es Salaam, and it was registered in the deceased’s name. The same was their matrimonial home, and they added 2 rooms, which she supervised and paid rates of Kes.2,000,000/- as the deceased had not paid rates for ten years. The same is rented to a school for a sum of Kes.150,000/- per month.

24. It was her evidence that there was no property in Mtwapa. The Bamburi property was bought by the deceased. He also sold the property and shared the proceeds. She doesn’t have Land in Maragoli as it belongs to the deceased.

25. Lenah Mwaniga Ketoyo adopted her witness statement dated 6th February 2023. She stated that she was a daughter to the deceased, born on 7th July 1981. Prior to her relocation in 2010, she used to reside in Mombasa at the family residence in Nyali on Plot No.MN/I/1362. She lived there with her parents until the deceased decided to build a second home therefore juggling between both households. Her parents used to do farming at both Nyali property and Bamburi, which included small-scale poultry farming, among other activities. Her parents also had a farm in Shimba Hills, which they used to visit on weekends and would come back with various citrus fruits for sale.

26. She stated that she knew her stepbrother Albert Ketoyo as he used to visit them, but Christian Munangwe Ketoyo was unknown to her. She saw the applicant for the first time at Pandya Hospital, where her late father was hospitalised.

27. It was her testimony that she is not agreeable to the applicant being made a co-administrator as she is dishonest. That the applicant sold properties of the estate of the deceased without a grant of representation. The applicant cannot say that she was not aware of the whole process as her brother used to go to see her over the same and that she has not disclosed the properties given to her by the deceased and the properties she has benefited from since the demise of the deceased.

28. Allan Ketoyo, the son of the deceased, was the respondent’s third witness. He also adopted his statement dated 6th February 2023. He stated that the Nyali home has been his home since his childhood and that his mother left the property in 2017.

29. He stated that he reached out to the applicant and even took the court documents for signing but she declined. He stated that he was opposed to her being made an administrator. He has never seen Christian or the applicant in their home. That he has no issue with Christian being made an administrator. He averred that the applicant had houses in Bamburi and Maragoli while his mother was left with the house in Nyali and Maragoli. The Bamburi property gave birth to the Mtwapa property as proceeds were shared between the two houses. He testified that the property in Nyali is registered in the deceased’s name. Allan stated that the applicant had sold several properties without involving anyone.

30. It was his testimony that they had a farm in Bamburi and that his mother used to sell cakes as they had a bakery.

31. Upon closure of both parties’ cases, the court directed parties to file written submissions.

32. I have considered the summons, the response, the oral evidence and rival submissions by both counsels, and the issue that arises for determination is whether the grant issued to the respondent should be revoked.

33. Section 76 of the Law of Succession Act provides;“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; orii.ii) to proceed diligently with the administration of the estate; oriii.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; ore.that the grant has become useless and inoperative through subsequent circumstances.

34. On the court’s power to revoke a grant the court in the case of In Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] eKLR stated: -“(13)Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account the interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”

35. In this case, the applicant has urged the court to revoke the grant on the ground that it was obtained fraudulently and by concealment from a court of material facts relating to the estate. The applicant argued that the respondent obtained the grant without involving her and also without listing all assets of the deceased and that the estate of the deceased was undervalued.

36. On concealment or non-disclosure of material facts, the court in the case of In re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR stated: -“Needless to state that, in any judicial proceeding, parties must make full disclosures to the court of all material facts to the case including succession cases. This general rule of law emphasizes utmost good faith (uberimaefidei) from parties who take out or are subject of the court proceedings. The said responsibility is part of justice itself. Accordingly, non-disclosure of material facts undermines justice and introduces festering waters into the pure steams of justice; such must, immediately be subjected to serious reverse osmosis to purify the streams of justice, if society is to be accordingly regulated by law.”

37. The applicant conceded that the respondent involved her by reaching out to her to sign the court documents, which she declined. In view of her admission, her assertion, which she must be taken to have made knowingly, that she only became aware of the proceedings upon the filing of the Summons for Confirmation of Grant is false. Having deliberately refused to participate in these proceedings, the respondent cannot be faulted for taking the course that she took.

38. The applicant alleged that the estate of the deceased was undervalued. Unfortunately, she did not back up her assertion with cogent evidence, such as valuation reports. Without valuation reports, this court cannot tell if the estate was undervalued or not.

39. I also note that the applicant admitted that she had disposed of certain properties of the deceased. This would appear to me to be troubling as the grant has not been confirmed.

40. I find and hold that the applicant was aware of the proceedings and opted not to participate for reasons best known to herself. This is evidenced by the letter dated 23rd June 2017 written by then lawyers Sherman Nyongesa & Mutubia Advocates to the firm of Kennedy Ngaira & Associates Advocates vide which she requested a copy of the “petition and the application for a grant to enable us to advise our client on whether it is in her interest to sign or give authority as requested”.

41. The grounds raised in the summons for revocation of the grant are not backed by the evidence presented. It would appear to this court that the respondent did her best to bring the applicant on board but that the applicant demurred. Notwithstanding, the respondent appears to have done a good job listing all the dependants of the deceased and particulars of his assets and liabilities. Given the extent of the estate of the deceased, leaving it un-administered for an extended period of time was risky.

42. Revocation of grant under Section 76 is an exceptional remedy that should be granted sparingly and only in the clearest of cases. In this case I am not convinced that any of the grounds listed in the said section have been met; I am not convinced that the proceedings to obtain the grant were defective in substance; I have not seen a statement that could be described as being wilfully false or that amounts to concealment from court of something material to the case; I also haven’t seen untrue allegation. Given the conduct of this matter, it is evident that the respondent has been very diligent in prosecuting the same, and the grant has not become useless or inoperative.

43. The upshot of the foregoing is that I find no merit in the summons for revocation of grant dated 23rd May 2022. The same is dismissed. This being a family matter, each party shall bear own costs.

44. So as to bring this matter to a close, I refer this matter to court-annexed mediation so that the family members may agree on the mode of distribution of the estate of the deceased. It is only after the mediator’s report is filed that the summons for confirmation of the grant, or the protest, if any, may be considered.It is so ordered.

DELIVERED, DATED AND SIGNED AT MOMBASA THIS 21STDAY OF NOVEMBER 2023 VIA MICROSOFT TEAMS.GREGORY MUTAIJUDGEIn the presence of: -Mr. Muhuni for the Administrator/Respondent;Mr. Obonyo for the Objector/Applicant; andArthur – Court Assistant