[2022] KEHC 12708 (KLR)

Milka Nabwrie Amukowa v Collins Onyango Amukowa & 3 others (Succession Cause 62 of 2000) [2022] KEHC 12708 (KLR) (15 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12708 (KLR)

Republic of Kenya

In the High Court at Busia

Succession Cause 62 of 2000

JR Karanja, J

June 15, 2022

IN THE MATTER OF THE ESTATE OF THE LATE PAUL FESTO AMUKOWA (DECEASED)

Between

Milka Nabwrie Amukowa

Applicant

and

Collins Onyango Amukowa

1st Respondent

Sylvanus Amukhale Amukowa

2nd Respondent

Marydina Namukuru Amukowa

3rd Respondent

Stephene Ombune Amukowa

4th Respondent

Ruling

1. The preliminary objection dated November 10, 2020 was raised by the respondents against the applicant’s summons for revocation of grant dated September 28, 2020 seeking to revoke the certificate of confirmation of grant in relation to the estate property described as, South Teso/Angoromo/1854, which was distributed to the applicant widow of the deceased late Paul Festo Amukowa and her children, Marydina Namukuru Amukowa and Stephen Ombune Amukowa (third and fourth respondents respectively).

2. The objection was opposed by the applicant prompting the hearing thereof by way of written submissions which were filed by both parties through their respective advocates.Having given due consideration to the objection and indeed the impugned application the court holds the view that the propriety and competence of the objection and the application would be the basic issue for determination so as to open the way for subsequent determination of the objection and the application or to close the way for any subsequent determination of the objection and the application on the merits.In that regard, a chronological examination of the court record and events leading to the confirmation of the grant and by extension to the distribution of the estate among the rightful beneficiaries would be important and most necessary.Accordingly, the record shows that this succession cause was actually instituted about twenty-two years ago in the year 2000 by the applicant following the death of the deceased on August 4, 2000.

3. The grant itself was issued on October 31, 2005 and was to be confirmed within a period of six (6) months from that date. However, the summons for confirmation of the grant was taken out belatedly on November 10, 2011. Notably, the applicant and her son Collins John Amukoa Werethe appointed administrators of the estate of the deceased comprising of several portions of land including the subject land parcel No South Teso/Angoromo/1854. The application for confirmation of the grant was slated for September 28, 2012 on which date the grant was confirmed in terms of the applicant’s supporting affidavit.Paragraph 5 of the said affidavit contained the agreed mode of distribution of the estate with the subject estate being distributed jointly to the applicant and the third and fourth respondents.The applicants present application dated September 28, 2020, seeks to alter and/or overturn the mode of distribution pertaining to the subject property by revocation of grant.

4. The record shows that after the confirmation of grant on the February 28, 2012, the parties embarked on implementing the agreed distribution and transmission of the estate to the beneficiary. Ironically, all these happened without the necessary instrument or facility for such distribution and transmission which is the formal certificate of confirmation of grant. This therefore meant that the exercise was a nullity for failure by the parties to obtain from the court the formal certificate of confirmation of grant.S.71 of the Law of Succession Act provides for confirmation of grants by the court if it is satisfied “interalia” that the grant was rightly made to the applicant and that he will administer the estate in accordance with law.

5. The procedural law in the confirmation of grants is clarified in rule 41 of the Probate & Administration Rules. In that regard rule 41 (5) is most important as it provides for the issuance of a certificate of confirmation of grant in the following terms:-“Where the court in exercise of its power under section 71 (2) (a) of the act directs that a grant be confirmed it shall cause a certificate of such confirmation in form 54 to be affixed to the grant together with the seal of the court and shall appoint a date not more than six months ahead by which time the accounts of the completed administration shall be produced to the court for its approval”.

6. Clearly, the applicant/petitioners herein side stepped the aforementioned provision of the law by first and foremost failing to obtain the certificate of confirmation of grant after the grant was confirmed on September 28, 2020 yet they went ahead to distribute the property without the certificate and in the process they disagreed in the manner of managing their inheritance and deemed it necessary to seek the assistance of the court to undo what it had done. This explains the reason behind the present application for revocation of the certificate of confirmation of grant which application is countered by the present preliminary objection.There being no certificate of confirmation of grant capable of being removed, the application dated September 28, 2020 is misconceived improper and incompetent before this court. As such, the preliminary objection dated November 10, 2020 is also misconceived, improper and incompetent before this court. The court cannot therefore make any determination on both on their merits.

7. Both application and objection are in the circumstances untenable and are hereby dismissed with each party bearing their own costs.The parties are advised to never attempt to open healed wounds and due to passage of time the estate is already spent such that there is nothing to confirm or revoke.However, to align the erstwhile distribution and transmission of the estate property to the rightful beneficiaries with the law, a certificate of confirmation of grant shall now be formally issued but to operate retrospectively from the date of confirmation of the grant.Ordered accordingly.

J.R. KARANJAHJ U D G E[DATED & DELIVERED THIS 15TH DAY OF JUNE 2022]