[2022] KEHC 11639 (KLR)

Kosgei v Muheria & another; Langat (Applicant) (Civil Appeal 74 of 2017) [2022] KEHC 11639 (KLR) (18 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11639 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal 74 of 2017

OA Sewe, J

May 18, 2022

Between

Alexander Dismas Kosgei

Appellant

and

Grace Chebor Muheria

1st Respondent

Kipkering Arap Chumo

2nd Respondent

and

Lucy Jepkurui Langat

Applicant

Ruling

1. Before the court for determination is the summons dated December 3, 2020. It was filed herein by law firm of M/s Limo R K & Company Advocates on behalf of the applicant, Jane Jepkemboi. The application is expressed to have been filed pursuant to sections 47, 81 and 82 of the Law of Succession Act, chapter 160 of the Laws of Kenya for orders that:(a)The Court be pleased to substitute Lucy Jepkurui Langat (deceased) with the applicant, Jane Jepkemboi, as the beneficiary of the estate of the late Kipkorir Arap Langat in place of her deceased mother, Lucy Jepkurui Langat.(b)The costs of the application be provided for.

2. The application was predicated on the grounds that the deceased, Lucy Jepkurui Langat was the daughter of the late Kipkorir Arap Langat; and was one of the administrators of his estate; that the late Lucy Jepkurui Langat was married but that before marriage, she had the applicant out of wedlock. Thus, the applicant averred that there is urgent need for substitution because the estate of the late Kipkorir Arap Langat is at the final state of distribution. She added that no prejudice shall be suffered by the parties if the application is allowed.

3. In her Supporting Affidavit sworn on December 3, 2020, the applicant averred that she is the first born child of the late Lucy Jepkurui Langat, who was the daughter of the late Kipkorir Arap Langat. She was therefore a sister to both the appellant and the 1st respondent. The applicant further averred that her late grandfather, Kipkorir Arap Langat, left behind a piece of land measuring 24. 26 acres, particularly known as land parcel number Nandi/Kapkangani/Kaimosi/553, which is in the process of being distributed to the beneficiaries of the deceased.

4. The applicant annexed a copy of the judgment of the court in this appeal to her Supporting Affidavit to demonstrate that the estate of her deceased mother, Lucy Jepkurui Langat, is entitled to a share of the estate of Kipkorir Arap Langat. It was therefore her contention that without substitution, the estate of her mother will be unrepresented and is, therefore, likely to miss out on the inheritance due to them. She likewise annexed copies of the Limited Grant of Letters of Administration ad Litem issued to her on November 16, 2020 in respect of the estate of Lucy Jepkurui Langat and the Certificate of Death proving the death of Lucy Jepkurui Langat.

5. The 1st respondent opposed the application vide her Replying Affidavit filed on April 21, 2021. While conceding that the applicant is the first born daughter of her deceased sister Lucy Jepkurui Langat, she asserted that she requires the consent of her 5 siblings to represent the estate of Lucy Jepkurui Langat; which consent she is yet to seek. The 1st respondent averred that, since the court has pronounced itself on the respective shares of the beneficiaries, including the estate of Lucy Jepkurui Langat, the orders sought herein are needless. She exhibited a copy of the proposed division scheme prepared by the county surveyor, Nandi, to demonstrate that the process of distribution will be effected in accordance with the orders of the court; and therefore that the applicant’s apprehensions are unwarranted.

6. Directions were thereafter given herein that the application be canvassed by way of written submissions. By the time the matter was reserved for ruling, only Ms Luseria for the 1st respondent had complied. Her posturing, in the written submissions filed on April 21, 2021 was that the applicant is not entitled to the orders sought because she is not the only child of the deceased, Lucy Ruth Jepkurui Langat. Counsel further submitted that, all the applicant has shown the court is a Grant of Letters of Administration Ad Litem; which in her view does not entitle her to administer the estate of Lucy Ruth Jepkurui Langat to the exclusion of her 5 siblings. Counsel relied on Re Estate of Tuaruchiu Marete (Deceased) [2019] eKLR in urging the court to dismiss the application.

7. I have given careful consideration to the application as well as the written submissions filed on behalf of the 1st respondent. The undisputed facts are that in a judgment dated August 13, 2020, this court held that the deceased’s estate be shared equally amongst his 3 children, namely, Grace Chebor Muheria (the 1st respondent), Alexander Dismas Kosgei (the appellant) and the estate of Lucy Ruth Jepkurui Langat (now deceased), who was the mother of the applicant. This was to be done in respect of the net estate, after taking care of the 2nd respondent’s claim to 6 acres of the estate land. It is manifest therefore that the Grant was long confirmed and that the administrators were busy working on the distribution when the applicant filed the instant application. The application is therefore belated.

8. But even if, arguendo, the application was timeously brought, it is trite that, for purposes of administration, the children of the deceased, Kipkorir Arap Langat, would rank in priority; such that the appellant and the respondent would come first in the order of preference before the applicant; who is grandchild. Section 66 of the Law of Succession Act is explicit that:“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;bother beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;cthe public trustee; anddcreditors”

9. It follows then, that as a granddaughter of the deceased, the applicant does not qualify for appointment as an administrator; especially in this instance where the deceased is survived by his own children. This is so even where one of the children charged with administration dies before finalizing the task; because a grant is an instrument issued in personam and is therefore not transferrable from a deceased administrator to her children or any other person for that matter. This was well-discussed in Re Estate of George Ragui Karanja (deceased) [2016] eKLR, by Hon Musyoka, J thus:“The Law of Succession Act does not expressly provide for substitution of personal representatives who die in office, particularly in cases where the estate is left without one. The closest provision is section 81 of the Act, which provides for vesting of the powers and duties of personal representatives in the survivor or survivors of a dead personal representative… It would appear to me that once all the holders of a grant die, section 81 of the Act would be of no application. Indeed, the said grant becomes useless and inoperative, and liable to revocation under section 76(e) of the Law of Succession Act, to pave way for appointment of new administrators. The appointment of fresh administrators to take the place of the previous ones following their death is subject to the provisions of sections 51 through to section 66 of the Act.”

10. And in the case of Florence Okutu Nandwa & Another vs John Atemba Kojwa, Kisumu Civil Appeal no 306 of 1998, the Court of Appeal was more explicit. It held that:“A grant of representation is made in personam. It is specific to the person appointed. It is not transferable to another person. It cannot therefore be transferred from one person to another. The issue of substitution of an administrator with another person should not arise.”

11. Thus, the question of the applicant herein being appointed in place of her deceased mother, Lucy Ruth Jepkurui Langat as the administrator of the estate of Kipkorir Arap Langat does not arise. Secondly, there is a distinction between the right to an inheritance and the right to administer the estate of a deceased person The children of the deceased Lucy do not have to be enjoined to this appeal so as to inherit their mother’s share of the estate of the deceased. The current administrators are duty bound to ensure their mother’s share of the estate is transmitted to her legal representatives for the benefit of her 6 children. It is for this reason that a Certificate of Confirmation must contain the names and shares of each of the beneficiaries. Besides, a separate cause of action would have to be pursued by the applicant and her siblings in respect of the estate of Lucy. Hence, the applicant’s apprehension that the estate of her mother would be dissipated appears to be unfounded.

12. Then there is the valid concern by the 1st respondent that, since all the applicant has is the Grant of Letters of Administration Ad Litem, there is the real danger of the applicant vesting the entire share of Lucy in her sole name. Counsel relied on Re Estate of Tuaruchiu Marete which Hon Gikonyo, J expressed the following concerns in a similar scenario:“Trouble may comes when one of the children of the deceased beneficiary takes the whole of the estate of the deceased beneficiary. This is fraught with many dangers. Consider these dilemmas; (1) you may disinherit other dependants of the deceased; (2) the court may not be in a position to identify the rightful beneficiaries of the estate of the deceased beneficiary; (3) the cause does not relate to the deceased beneficiary, thus, the safeguards in law say gazettement of the cause to invite objections may not be available in that kind of transmissions; (4) in case of disputes amongst the beneficiaries of the deceased beneficiary, those may not be resolved in the original cause. I have seen in my practice as a judge, many causes being unduly delayed by wrangles amongst the beneficiaries of the estate of deceased beneficiary. Of significance to note is that the share of the deceased beneficiary belongs to his estate and therefore, to all the beneficiaries of the deceased beneficiary. A more creative way which is supported by law is to indicate that the share shall go to the estate of the deceased to be shared equally by all his children. Such share is held in trust by the administrators of the original cause for transmission to the estate of the deceased beneficiary...”

13. In the premises, it is unseemly for the estate of Lucy to be discussed and distributed alongside the estate of her father, the deceased herein. The applicant and her siblings will have to approach the probate court with a specific petition for the administration and distribution of the share of their mother and subject themselves to the procedure set out in the Law of Succession Act for this purpose, including the embedded processes for advertisement and accountability.

14. Lastly, I note that the application for substitution of Lucy has been made in this appeal. That cannot be procedurally proper; for it is not the responsibility of an appellate court such as this to appoint administrators. That is the responsibility of the initial probate court; in this case the Kapsabet court. Ideally, the application ought to have been made in Kapsabet Succession Cause no 1 of 2012. In this respect too, the application is as misconceived as it is untenable.

15. The foregoing being my view of the matter, it is my finding that the application dated December 3, 2020 is utterly devoid of merit and is accordingly dismissed with an order that each party shall bear own costs of the application.It is so ordered.

SIGNED, DATED AND DELIVERED VIA EMAIL AT MOMBASA THIS 18TH DAY OF MAY 2022. ..........................OLGA SEWEJUDGE