[2022] KEHC 11696 (KLR)

Mbuve v Mbuve & another (Succession Cause 487 of 2013) [2022] KEHC 11696 (KLR) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11696 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 487 of 2013

MW Muigai, J

July 14, 2022

IN THE MATTER OF THE ESTATE OF MBUVE MUNYAO alias JOSEPH MUKUTHI (DECEASED)

Between

Pius Mukuthi Mbuve

Applicant

and

John Muasya Mbuve

1st Respondent

Jane Michael Muindi

2nd Respondent

Ruling

Background 1. The deceased herein Mbuve Munyao alias Joseph Mukuthi (deceased) died on July 24, 1993.

2. He was survived by the following beneficiaries;-(1)Maria Nduku Mbuve (1st wife) deceased(2)Francisca Nthenya Wambua – daughter(3)Susan Kasiva Mutisya – daughter(40Cyprian Muinde Mbuve – son(5)Michael Muindi Mbuve – son(6)Bonface Kithuka Mbuve – son – (deceased)(7)Catherine Mutile Mutua – daughter(8)Jackson Makau Mbuve – son(9)Angela Wanza Mbuve – daughter(10)Pius Mukuthi Mbuve – son(11)Angela Nduku Mbuve - (2nd wife) – deceased(12)Charles Nzioka Mbuve – son – (deceased)(13)Jacinta Munyiva Mbithi – daughter(14)Rosemary Mukulu Mutangili – daughter(15)Ann Ndunge Manza – daughter(160John Muasya Mbuve – son(17)Victoria Mueni Somali – daughter(18)Tom Munyao Mbuve – son (deceased)(19)Margaret Mumbe Musyoki – daughter

3. Michael Muindi Mbuve and John Muasya Mbuve applied for Letters of administration intestate in the estate of the deceased herein. The Grant of letters of administration intestate was issued to the Respondents herein on October 14, 2013.

4. On August 23, 2017, Michael Muindi Mbuve and John Muasya Mbuve filed for the confirmation of the Grant vide the Summons for Confirmation of Grant dated on even date and subsequently rectified on November 22, 2018. In his supporting affidavit to the Summons, John Muasya Mbuve averred that all the properties of the deceased were to be given to the administrators to hold in trust for all the beneficiaries and on their behalf.

5. Consequently, a Certificate of Confirmation of Grant dated 22nd November, 2018 was issued on November 29, 2018 pursuant to the provisions of Section 71(1) and (3) of the Law of Succession Act.

6. In the schedule of assets attached to the Certificate, the beneficiaries were to share the deceased assets as follows;

NAME DESCRIPTION SHARE OF HEIRS

John MuasyaJane Michael Muindi Mitaboni/Mitaboni/2590 To be shared among the beneficiaries equally as follows:-1. Stephen Mbuve Muindi(to hold as a Trustee for the late Cyprian Muinde Mbuve)2. Jane Michael Muindi3. Jackson Makau Mbuve4. Pius Mukuthi Mbuve5. John Muasya Mbuve

Mavoko Town Block 3/014(40 Acres) 1. Stephen Mbuve Muindi to get 1. 0357(To hold as a Trustee for the late Cyprian Muinde Mbuve2. Jane Michael Muindi to get 20. 5714 acres3. Teresia Wayua Nzioka to get 2. 03574. Jackson Makau Mbuve to get 2. 0357 acres5. Phelista Kavindu Kithuka to get 2. 0357 acres6. John Muasya Mbuve to get 0. 2857 acres7. Pius Mukuthi Mbuve, Erastus Wainaina Mugo, Frank Mungai Mbugua and Mary Wanjiku Macharia to be given 12 acres.

John Muasya MbuveJane Michael Muindi Matungulu Co-operative Society-(55 acres) The land will be shared equally among the following beneficiaries namely:--27. 5 acres to be registered in the name of Teresia Wayua Nzioka-27. 5 acres to be registered in the name of Phelista Kavindu Kithuka

Matungulu Co-operative Society (Kiimani) 14 acres to be preserved for future use by administrators namely- John Muasya Mbuve and Jane Michael Muindi

Matungulu Co-operative Society Plot (20 x 100) To be preserved for future use by administrators namely-John Muasya Mbuve and JAne Michael Muindi

Commercial Plot No.4 (Lukenya Ranching & Farming Co-operative Society Ltd To be preserved for future use by administrators namely John Muasya Mbuve and Jane Michael Muindi

John Muasya MbuveJane Michael Muindi Mitaboni Market Plot No. 58 The plot will remain a family property under the administrators John Muasya Mbuve and Jane Michael Muindi

Matungulu Co-operative Society(2 ½ acres) To be preserved for future use by administrators namely John Muasya Mbuve and Jane Michael Muindi

Nguluni-matungulu Plot No. 1818 To be given to beneficiary Dick Kitele Kisini.

Summons for Revocation and/or Annulment of grant dated June 4, 2021 7. The Applicant sought the following orders:-(1)That the application herein be certified as urgent and heard exparte in the first instance(2)That pending the hearing and determination of this application, the prevailing status quo in respect to all properties forming part of the estate of the deceased herein be maintained.(3)That the Grant of Letters of Administration Intestate issued to John Muasya Mbuve and Jane Michael Muindi which was confirmed and rectified on November 22, 2018 be revoked and/or annulled.(4)That fresh Grant of Letters of Administration do issue to PIus Mukuthi Mbuve, the Applicant herein.(5)That in the alternative, the proceedings and orders of July 27, 2018 confirming the Grant be set aside and a fresh re-distribution be done equitably to all the beneficiaries.(6)That the cost of this application be provided for.

8. The Summons is supported by the Supporting affidavit of Pius Mukuthi sworn on even date. According to the deponent, he is one of the beneficiaries of the deceased herein. He averred that prior to the Confirmation of Grant, they had all consented to all the properties of the deceased be given to the administrators to hold in trust for all the beneficiaries and on their behalf but some interested parties filed Protests which led to advocates for the interested parties and administrators to engage in negotiations and reached an agreement without involving the him.

9. According to the deponent, he signed a consent without being given an opportunity to read its contents as he was assured by the administrators that his interest had been catered for hence forming his basis of not objecting to the confirmation of Grant on July 27, 2018. He averred that it was after obtaining the Certificate of Confirmation of Grant and reading its contents that he discovered that the administrators had concealed material facts from the court and had fraudulently made false statements with a view of disinheriting him.

10. According to the deponent, his share in Mavoko Town Block 3/2014 had been merged with that of third parties namely Erastus Wainaina Mugo, Francis Mungai Mbugua and Mary Wanjiku Macharia who are unknown to him. He averred that in the consent that arose out of the negotiations between the Interested parties and administrators, his share in the said parcel of land of 4. 2 acres was not specifically provided in terms of acreage and was not to be merged with that of the interested parties who are entitled to 12 acres excluding his share hence this allocation was meant to defraud him of his beneficial share and disinherit him from the deceased’s estate.

11. Regarding parcel known as Matungulu Co-operative Society(55 acres), he averred that he was misinformed by the administrators that the parcel of land measured 50 acres as per the Summons for Confirmation of Grant and two beneficiaries namely Teresia Wayua Nzioka and Phelista Kavindu Kithuka were to get 25 acres each but he realized that in the Certificate of Confirmation of Grant that the actual size of the parcel of land is 55 acres hence the extra 5 acres should be distributed among all the other beneficiaries.

12. According to the deponent, the use of the phrase “To be preserved for future use by administrators” in respect of some properties listed in the schedule of assets attached to the Certificate of Confirmation of Grant herein, is ambiguous and can be interpreted that the administrators should solely benefit from such properties hence the need to clearly describe that they will hold in their trust and in trust of the other beneficiaries. The deponent asserted that it is due to the wording in the Certificate of Confirmation of Grant in respect of property Mitaboni Market Plot No.58 which is developed that the administrators have been benefiting from the rental income and have failed to give the other beneficiaries an account of administration and distribution of the estate.

13. He averred that based on the attached annexure “PMM-6”, documents submitted to the Lands Office by administrators, the administrators have been attempting to fraudulently transfer parcel of land namely Mitaboni/Mitaboni/2590 to themselves in exclusion of the other beneficiaries notwithstanding that the parcel of land was to be subdivided amongst all the beneficiaries. That the dealing on the said parcel of land has been done secretly hence the administrators cannot be trusted to administer the estate. According to the deponent, since 2018 after the Grant was confirmed, subdivision has never been done and administration has never been finalized by the administrators who are solely benefiting from the estate hence the need to have the Grant revoked.

14. According to the deponent, his interest in the estate has been prejudiced since he has been kept in the dark by the administrators. He urged the court to revoke the Grant and proceed to issue it to him to protect his interest. According to the deponent, he will undertake to faithfully and diligently administer the estate herein and further ensure that every beneficiary gets his/her share within a reasonable time if appointed as the administrator.

15. He averred that in the alternative, the court can set aside the orders confirming the Grant and further direct a fresh re-distribution be done equitably to all the beneficiaries. According to the deponent, the orders he has sought are justified and in the interest of justice that they be granted.

Respondents Replying Affidavit 16. In opposition to the Summons, the 1st Respondent swore a replying affidavit dated July 13, 2021 wherein he has averred that the Summons is an afterthought, scandalous, frivolous, and vexatious and as such an abuse of the court’s process. According to the 1st Respondent, the Summons is made mala fides in a bid to scuttle the peaceful and amicable distribution of the estate of the deceased pursuant to the Grant issued on November 29, 2018 which before its confirmation, according to the 1st Respondent, the Applicant duly consented to the schedule of distribution without any objection as per the consent annexed as annexture ‘JMM-1’.

17. According to the deponent, the instant application is time barred as it is now 3 years down the line since the Grant was confirmed. According to the deponent, the Applicant is indolent as the application has been overtaken by events as transmission of some of the properties has already been initiated at the Lands Registry in particular for parcel of land Mitaboni/Mitaboni/2590.

18. According to the deponent, the Applicant is estopped from contesting the schedule of distribution he voluntarily and freely consented to. The deponent assert that there is substantially nothing left to adjudicate upon and the Applicant has no material interest in this matter. According to the deponent, the Applicant is driven by improper motive with the aim of delaying or obstructing the cause of justice since he fully participated in the confirmation of the Grant by duly signing the consent to the distribution as well as appearing in court and confirming that he had no objection as per paragraph 1 of page 8 of the ruling (JMM-3’) delivered by Kemei J. on 19/5/2021. The Ruling entailed that “Further, it is noted that the applicant fully participated in the confirmation of the grant by signing the consent to distribution as well as appearing in court and confirming that he had no objection to the confirmation of the grant.” He asserts that inherent jurisdiction vested upon this court is not intended to assist a litigant who aims to delay or obstruct the cause of justice but rather to deliver justice where it is due.

19. According to the deponent, the Confirmation of Grant process was done in open manner and in liaison between the Applicant and them. That the Applicant had ample opportunity to scrutinize the documents and schedule of distribution before the confirmation but the Applicant did not object.

20. It is the deponent ‘s view that the issue of acreage is an issue that can be remedied by calling a surveyor without the need of revoking the entire grant as this would be highly prejudicial to the Respondents and other beneficiaries as the transmission is already underway. According to the deponent, the application is incompetent, an abuse of the court’s process, destitute of merit and does not meet the threshold of law to grant the orders sought.

21. The Respondents urged the court to dismiss the Summons herein with costs in the interest of justice and fairness.

Applicant’s Further Affidavit 22. In response, the Applicant averred in his further affidavit sworn on September 21, 2021 that the replying affidavit contains mere falsehood meant to mislead this Court. According to the deponent, since the year 2018, no transmission has ever been done either as alleged or at all by the administrators. He asserts that the administrators have refused to ensure that beneficiaries get their respective shares but they continue to benefit from the estate in exclusion of the other beneficiaries. According to the deponent, the mode of distribution herein is unfair as it does not reflect what the beneficiaries had agreed and he will suffer irreparably.

Applicant’s Submissions 23. On behalf of the Applicant under Section 76 of LSA, it is submitted that the main issue for determination is whether or not the Applicant has made out a case for revocation of the Grant herein. It is submitted that the distribution of the estate was coupled with fraud and the Respondents have failed to exhibit any diligence in administering the estate herein and if the Grant is not revoked, the Applicant stands to suffer.

Respondents Submissions 24. On behalf of the Respondent, it is submitted that the Respondents were given the Grant of letters of administration by the Court after it was satisfied that they had met all the criteria as provided by Section 71(2) of the Law of Succession Act together with Rule 40(4) of the Probate and Administration Rules.

25. According to the Respondents, the Applicant who is a beneficiary of the estate was involved from the onset and as evidenced, he consented to the mode of distribution of the estate herein. It is submitted that the Applicant is purely motivated by greed and improper motive with the aim of delaying or obstructing the cause of justice owing to the fact that he appeared before this Court to confirm that he did not object to Respondents being nominated as administrators and the schedule of mode of distribution as agreed by the beneficiaries.

26. The Respondents assert that the Applicant has not adduced evidence to show that the Respondents have continuously misused, mismanaged and/or mishandled the estate of the deceased as administrators to invoke Section 76 of the law of Succession Act. According to the Respondents, the Applicant had ample opportunity to scrutinize the documents including the schedule for distribution where he would have objected to the same.

27. According to the Respondents, revoking and/or annulling the grant of letters of administration that were issued to the Respondents would be highly prejudicial as other beneficiaries are satisfied with the way the Respondents are managing the estate of the deceased.

28. The Respondents urged the court to strike out and dismiss the Summons seeking revocation and/or annulment of the Grant herein with costs. In support of their submission, the Respondents placed reliance on the cases.

29. In the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No.158 of 2000, Mwita J. in a decision rendered on November 15, 2016, noted thus:[13]Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not a 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 interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.See also Matheka & Another vs. Matheka (2005) 2 KLR 455.

Determination 30. I have considered the Summons, affidavit in support and in opposition as well as the submissions and cases relied upon.

31. The Summons is primarily premised on Section 76 of the Law of Succession Act, Cap 160 Laws of Kenya. The said provision states as follows:“76. Revocation or annulment of grantA 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.”

32. The power to revoke and/or annul the grant is discretionary in the sense that the court has to be guided by the factors set out under Section 76(supra). This was the position taken by Mativo J. in Lucy Wakarima Ngabucha & another vs. George Mwangi Ngabucha & another[2016] eKLR where the Judge held that“The grounds upon which a grant may be revoked or annulled are thus statutory and it is incumbent upon any party making an application for revocation or annulment of a grant to demonstrate the existence of any, some or all the grounds stipulated is section 76 of the act. The grounds laid down in section 76 can be divided into the following categories:- the propriety of the grant making process; mal-administration or where the grant has become inoperative due to subsequent circumstances.”

33. The provision under Section 76 uses the phrase “may at any time be revoked or annulled if the court decides’ which connotes discretion. Under the provision the grant may be revoked and/annulled whether or not confirmed.

34. Mwita J. in the Albert Imbuga Kisigwa vs. Recho Kavai Kisigwa, Succession Cause No.158 of 2000 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 interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”

35. I am fortified by the decision of Khamoni, J. in Re Estate of Gitau (Deceased) [2002] 2 KLR 430 where he expressed himself as hereunder:“Distribution of the estate comes during the proceedings to confirm the relevant grant and a party dissatisfied with the distribution may not necessarily be dissatisfied with the grant of letters of administration and vice versa. That being the position, it becomes unreasonable for a person dissatisfied with the distribution of the estate only to proceed to ask for the revocation or annulment of the grant, which has nothing wrong. While section 76 of the Law of Succession Act should therefore be relied upon to revoke or annul a grant it is not proper to use the same section where the objector is challenging the distribution only. There are relevant provisions to be used for that purpose and section 76 is not one of them.” See Mary Wangari Kihika vs. John Gichuhi Kinuthia & 2 Others [2015] eKLR

36. In Re The Estate of the Late Suleman Kusundwa [1965] EA 247,the court stated that:“The court is…not obliged to revoke the existing grant, and should only exercise its discretion to do so if useful purpose would be thereby achieved or any right of the applicant safeguarded which could not otherwise be safeguarded. In the present case such rights of inheritance as the applicant possesses, outside the will, are sufficiently safeguarded by the assurance given by the Administrator-General. Therefore I decline to revoke the existing grant, a revocation which would entail needless expense; but it is qualified by declaring that the provisions of the annexed will, in which he purported to leave the whole of his property to his nephew, the second respondent, shall be given effect to only in respect of such portion of the deceased’s property as he was entitled to dispose of by will under the applicable law of inheritance.”

37. In this case, the court notes that the Applicant signed the consent dated June 20, 2018 where beneficiaries mutually agreed how the estate of Mbuve Munya would be distributed. The Applicant has not sufficiently proved the allegations of fraud as no material has been placed before the court to place reliance on in finding that there was fraud perpetrated by the Respondents. Based on documents on record, there is sufficient evidence to conclude that the Applicant voluntarily and freely consented to the proposed distribution of the estate.

38. The Court’s view is that in this case, the issue of acreage is not a ground to warrant revocation of the grant herein under Section 76. In the consent, the Applicant’s share of acreage to be hived from parcel of land Mavoko Town Block 3/2014 is not indicated but in the attached schedule of assets to the Certificate of Confirmation of Grant, it is indicated that he is supposed to share 12 acres with Erastus Wainaina Mugio, Frank Mungai Mbugua and Mary Wanjiku Macharia who are purchasers of the parcel of land. The purchasers have also signed the consent and are not in opposition to the distribution of the parcel of land.

Dispositiona.In the upshot, the Court finds the Applicant’s Summons dated 4th June, 2021 for revocation of Grant lacks merit and the same is dismissed in its entirety.b.The Applicant has not demonstrated any fraud, material non-disclosure by Administrators save for contesting distribution and actual acreage of properties for distribution have not been indicated, his share has not been clearly defined and/or demarcated and there is alleged delay in conclusion of distribution of estate of deceased in line with confirmed grant since 2018 and/or Disclosure of Final Accounts by Administrators.c.The Applicant and Administrator to effect rectification/redistribution of confirmed Grant within 90 days by all beneficiaries so as to ascertain each beneficiaries’ beneficial interest in the distribution of the assets that comprise of the estate of the deceased as required under Section 71 Law of Succession Act for the following properties – (1) Matungulu Co-operative Society Kiimani – 14 Acres, (2) Matungulu Cooperative Society Plot (20x100), (3) Commercial Plot No. 4 (Lukenya Ranching & Farming Co-operative Society Ltd), (4) Mitaboni Market Plot No. 58 and (5) Matungulu Co-operative Society (2½ Acres). The Summons maybe filed by the Applicant and/or Administrators with written consents of all beneficiaries.d.The Administrators shall engage beneficiaries and/or Purchasers/Creditors to the estate in appointment of a Surveyor to apportion the suit properties as agreed and outlined in the Confirmed grant within 90 days from today/date of Ruling.e.The Administrator thereafter to provide Final Account on Administration and distribution of the estate as required under Section 83 of Law of Succession Act.f.Any aggrieved party may file application in Court for hearing and determination then.g.There shall be no orders as to costs.

DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 14TH DAY OF JULY, 2022 (VIRTUAL CONFERENCE).M.W MUIGAIJUDGE