[2017] KEHC 1521 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

SUCCESSION CAUSE NO. 462 OF 2009

In the Matter of the Estate of Raiji Raiji (Deceased)

M’INOTI M’ RAIJI...................................................PETITIONER

-Versus-

JOHN MBAABU MUGWIKA....................................OBJECTOR

ESTHER MWENGWA..............................2nd ADMINISTRATOR

RULING

[1]` By Summons for Rectification of Temporary Grant and Confirmation thereof dated 16th March 2015, the Objector seeks the following orders that:

1. The temporary Grant issued herein be rectified by deleting the name of the late M’ Inoti M’ Raiji as one of the Administrators of the estate of the deceased.

2. The Grant so rectified be confirmed in terms of paragraph 5 of the supporting affidavit.

The provisions of law under which the application is premised has not been stated. Be that as it may, the Objector’s case was that pursuant to this court’s ruling delivered on 17th February 2011, the Objector and Esther Mwengwa (the 2nd Administrator) were enjoined as co administrators of the estate herein. But, subsequently, the Petitioner died. Thus, it becomes necessary to remove her name from the administration of the deceased estate.

[2] On 21st February 2017, it was agreed that the application shall be canvassed by way of written submissions. The Objector filed submissions and argued that: (1) the Amended Form P & A that was filed pursuant to a ruling delivered by Lesiit J on 14th February 2011, showed that the estate was indebted to the Objector and that the original petition was brought by a person who knew of the relationship between him and the Objector; and (2) as the court record showed, there was an exchange of land between the two families during land adjudication in the then Meru District and that the exchange amounted to sale. The Objector further contended that he was entitled to land parcel number Nyaki/Munithu/208 and that this succession cause was filed to purposely facilitate the transfer.

[3] On the other hand it was submitted for the 2nd Administrator that the instant application was wanting as the two prayers sought could not be co-joined in this matter and that the 1st Administrator duped his deceased father only to appear in this cause without other beneficiaries consent. It was urged further that the Objectors allegation that there was exchange of land was without any documentation or supporting evidence and that at no time had the 2nd Administrator admitted the exchange. They vowed that they would call oral evidence thereto.

DETERMINATION

When one of administrators die

[4] This application is a twinning of rectification of grant and confirmation of grant. The first limb is fairly simple and I will deal with it straight-away. The Petitioner who was one of the three administrators is now dead. In such situation, the correct course to take is to apply to have the name of the deceased administrator deleted from the grant as a matter of simple rectification of grant and consequently, the grant is amended accordingly. Therefore this application has merit. Accordingly, the Grant of representation issued herein shall be rectified by deleting the name of the late M’ Inoti M’ Raiji as one of the Administrators of the estate of the deceased. And an amended grant in the names of the two surviving administrators shall be issued forthwith. To give power and illustration to this point, the law is that, upon the death of one or more of several executors or administrators to whom a grant of representation has been made, all the powers and duties of the executors or administrators shall become vested in the survivors or survivor of them.Except, where there is a continuing trust, a sole surviving administrator cannot act alone and the court is required to make a further grant to one or more persons jointly with him. The surviving sole administrator where there is a continuing trust is obligated under section 75A of the Law of Succession Act to apply without delay to the court to appoint, subject to section 66, appropriate number of joint administrators. In the event of failure by the sole administrator to so apply within months of the trust, any interested party may apply or the court may move suo moto to appoint additional administrators. See the full text of section 81 of the Law of Succession Act that:

81. Powers and duties of personal representatives to vest in survivor on death of one of them

Upon the death of one or more of several executors or administrators to whom a grant of representation has been made, all the powers and duties of the executors or administrators shall become vested in the survivors or survivor of them:

Provided that, where there has been a grant of letters of administration which involve any continuing trust, a sole surviving administrator who is not a trust corporation shall have no power to do any act or thing in respect of the trust until the court has made a further grant to one or more persons jointly with him.

[4] In so far as confirmation is concerned, a thorny issue has arisen between the parties. The Objector has argued vehemently that there was an exchange of land between the two families during land adjudication in the then Meru District and that he is entitled to land parcel number Nyaki/Munithu/208. The 2nd Administrator denied existence of any such land exchange as alleged by the Objector and accused the 1st Administrator of duping his deceased father only to appear in this cause without other beneficiaries’ consent. Parties vowed to call oral evidence to prove or disapprove the alleged exchange of land. These matters will require proper and intense evaluation by the court through plenary hearing of the parties and any other interested party. But given the nature of the issue in controversy, it will be imprudent to ignore the need to establish the best legal way and forum of resolving the question of land exchange noting that this is a succession cause. I am particularly guided by rule 41(1), (2) & (3) of the Probate and Administration Rules on hearing of application for confirmation which provides as follows:-

41. Hearing of application for confirmation

(1) At the hearing of the application for confirmation the court shall first read out in the language or respective languages in which they appear the application, the grant, the affidavits and any written protests which have been filed and shall then hear the applicant and each protester and any other person interested, whether such persons appear personally or by advocate or by a representative.

(2)The court may either confirm the grant or refer it back for further consideration by the applicant or adjourn the hearing for further evidence to be adduced or make any other order necessary for satisfying itself as to the expediency of confirming the applicant as the holder of the grant or concerning the identities, shares and interests of the persons beneficially entitled and any other issue which has arisen including the interpretation of any will.

(3) Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71 (2) of the Act, proceed to confirm the grant. (4) In proceedings under subrule (3), unless the court otherwise directs, the personal representative of the deceased shall be the applicant seeking determination of the question, and the person claiming so to be beneficially interested together with the residuary legatee or other person to be appointed by the court to represent the residuary estate shall be the respondents; and the court in such proceedings shall give all necessary directions relative to the prosecution thereof including the safeguarding of the share or estate so appropriated and set aside and the provision of costs.

Accordingly, in exercise of my discretion I direct the parties to submit on the best legal way of and forum for resolving the alleged exchange of the suit land herein. Meanwhile, the application for confirmation is adjourned. Parties may also isolate those issues which are or not in dispute for speedier resolution of this dispute. I will thereafter give firm, practical and prudent directions on how to deal with the identity and share of any person claiming to be beneficially interested in the estate. It is so ordered.

[5] This being a succession matter there will be no order as to costs.

Dated, signed and delivered in open court at Meru this 9th day of October 2017

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F. GIKONYO

JUDGE

In the presence of:

Mr. Njaga advocate for Mokua advocate for 2nd administrator

Objector – present

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F. GIKONYO

JUDGE