[2022] KEHC 13904 (KLR)

Mlanga v Adongo (Succession Cause 3042 of 2003) [2022] KEHC 13904 (KLR) (Family) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13904 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 3042 of 2003

M Thande, J

October 7, 2022

In re Estate of Ambrose Adeya Adongo (Deceased)

Between

Alice Awino Mlanga

Applicant

and

Benjamin Adeya Adongo

Respondent

Ruling

1. By her summons dated September 23, 2021, Alice Awino Mlanga, the applicant herein seeks the following orders:a.Spent.b.That this honourable court be pleased to set aside, review and/or vary the amended order arising from consent order dated January 23, 2020 specifically in regard to order II relating to that parcel of property namely Eldoret/Municipality Block 14/XXX being transferred to Benjamin Adeya Adongo for himself and in trust for all other beneficiaries in respect of the house of Wilfred Adeya.c.That an order do issue restraining and or stopping the respondent (Benjamin Adeya Adongo), either by himself, agents, assigns from intermeddling, sub-dividing, alienating, selling, transferring and/or dealing in any way with that property namely Eldoret/Municipality Block 14/XXX pending the hearing of this application inter-parties.d.That this honourable court be pleased to make an order or declaration that the applicant is the rightful beneficiary to that property namely Eldoret/Municipality Block14/XXX.e.That the impugned amended order and the adopted consent order be declared null and void for all purposes and intent.f.That costs of this application be in the cause.

2. The deceased Ambrose Adeya Adongo died on March 2, 2001. The record shows that he was survived by 2 wives and several children. A grant of letters of administration was initially made to Margaret Doreen Atieno Adongo the deceased’s 2nd wife and Benjamin Adeya Adongo, the eldest son of the 1st wife on July 14, 2006. Following the demise of Margaret, a fresh grant was issued to Benjamin and Joe Trevor Adongo on November 18, 2019. The grant was thereafter confirmed and the estate was to be distributed amongst the beneficiaries in both houses.

3. The parties entered into a consent dated January 23, 2020, to rectify the certificate of confirmation. The amended order in respect of which the applicant seeks the orders herein, was made pursuant to the said consent which was presented to court on January 24, 2020. Order II of the amended order is what the applicant takes issue with. The order is in the following terms:It is hereby ordered by consent:-_1. That the confirmation of grant issued in respect of the estate of the late Ambrose Adeya Adongovide the court orders of August 3, 2006 and March 12, 2008 be rectified as here below:i.…ii.Property No Eldoret Municipality Block 14/XXX be transferred to Benjamin Adeya Adongofor himself and in trust of all other beneficiaries in respect of the house of Winfred Adeya.iii.…

4. In her affidavit sworn on even date, the applicant averred that she was the adopted daughter of the deceased. She claimed that the deceased purchased the property known as Eldoret/Municipality Block 14/XXX (the suit property) from one Paul Kemboi. The deceased showed and gave her the suit property prior to his demise and she has since been taking care and protecting the same from unscrupulous cartels. She filed Eldoret ELC Case No 30 of 2020 to protect the suit property from being grabbed and got interim orders. She further stated that she obtained a grant of letters of administration in respect of the estate of the deceased and was in the process of transferring the suit property to herself when she discovered that the respondent had obtained the amended order which included the suit property. The applicant further stated that in spite of being a dependant of the deceased, she has not benefitted from his vast estate and that the consent order was entered into without involving her. She urged the court to exercise its unfettered powers and grant the orders sought.

5. The respondent, one of the administrators of the estate of the deceased opposed the application vide his replying affidavit sworn on December 28, 2021. He asserted that the applicant is neither a beneficiary of the estate of the deceased nor a dependent and has not adduced any evidence showing that she is an adopted daughter of the deceased. He further stated that the beneficiaries of the estate agreed on the distribution of the suit property vide the consent dated January 24, 2020. The respondent accused the applicant of seeking to disinherit the rightful beneficiaries of the estate. He further alleged that in her previous attempt, she forged the deceased’s documents and obtained a grant of representation in respect of the estate of the deceased in Succession Cause No 243 of 2020 claiming to be a daughter of the deceased and sought to illegally obtain the suit property. Following his application, that grant was revoked. The respondent asserted that the application is an abuse of the court process and urged the court to dismiss the same with costs.

6. Parties filed their written submissions which I have duly considered. The issues that fall for determination are:i.Whether the applicant is a dependant/beneficiary of the estate with locus to make the present application.ii.Whether the applicant has been in use and possession of the suit property.iii.Whether the applicant has met the threshold for grant of the orders sought.

Whether The Applicant Is A Dependant/beneficiary Of The Estate With Locus To Make The Present Application 7. It is the applicant’s case that she had demonstrated on a balance of probabilities that she was adopted by the deceased from her childhood to her marriage and knew him as her father all along. She further submitted that the deceased paid her school fees and school related items and that she went to the home of the deceased during school holidays. She contended that she heavily relied on the deceased for financial assistance and upkeep and that is why he left the suit property to her while he distributed the other properties of the estate, to other family members.

8. To counter the assertion by the respondent that an adoption order has not been produced, the applicant submitted that under Dholuo culture, a child can be adopted without following due procedure, as long as family members of the minor agree to such arrangements. She relied on the cases ofBeatrice Ciamutua Rugamba v Fredrick Nkari Mutegi & 5 others [2016] eKLR andJohn Gitata Mwangi & 3 others v Jonathan Njuguna Mwangi & 4 others [1999] eKLRto buttress her submissions.

9. For the respondent, it was submitted that the applicant has not discharged the burden placed upon her by sections 107-109 of the Evidence Act of proving that she is a dependant within the definition stipulated in section 29 of the Law of Succession Act. It was further contended that the applicant failed to show dependence on the deceased, how she came to be taken care of by the deceased and at what age she was allegedly taken in. Additionally, the respondent submitted that the applicant attempted to illegally transfer the suit property to herself 20 years after the demise of the deceased but did not show any evidence that the deceased had given her the same. In sum, the respondent contended that the applicant has failed to support her claim. As such she has no locus to file the instant application.

10. The Law of Succession Act defines a dependant in section 29 of as follows:For the purposes of this part, "dependant" means—a.the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;b.such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; andc.where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

11. A child taken by the deceased into his family as his own, is a dependant. It is the applicant’s contention that the deceased had adopted her and taken her in had provided financial support for her educational needs and upkeep. He even left her the suit property.

12. It is a cardinal principle of the law of evidence that he who alleges must prove. Section 107 of the Evidence Act provides:1. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

13. In the case of Beatrice Ciamutua Rugamba v Fredrick Nkari Mutegi & 5 others [2016] eKLR relied on by the applicant, Mabeya, J stated:"From the foregoing, a dependent under section 29 (b) and (c) must prove that he or she was being maintained by the deceased immediately prior to his demise. It is not the mere relationship that matters, but proof of dependency that counts."

14. Similarly, in the case of In re Estate of Tom Maisiba (Deceased) [2021] eKLR, Musyoka, J. considered an application by a person claiming to be a son of the deceased therein and had this to say:He could only became child of the deceased through formal or informal adoption. The applicant did not allege nor prove any formal adoption process, nor produce any adoption orders issued by a court of competent jurisdiction. Informal adoption happens where a child is taken in by the man who marries his mother, is accepted by the man to be his own, and the man takes up permanent responsibility over him. That is what section 3(2) of the Law of Succession Act envisages. The Children Act, No 8 of 2001 also deals with it. The bottom-line is that the man has to take in the child into his home, accept him as his own and assume permanent parental responsibility over him. For the applicant to qualify to be a child of the deceased, these are the things that he should prove.

15. For the court to give favourable consideration to the applicant’s claim that she was a dependant of the deceased, she was obligated to place before the court cogent proof to support her claim. This she did not do.

16. Further, it is trite law that a person who seeks to propound customary law must call evidence to prove that customary law. In Sakina Sote Kaittany & another v Mary Wamaitha [1995] eKLR, Gicheru, JA (as he then was) had this to say concerning proof of customary law and practices:"The onus of proof to establish a particular customary law rests on the party who relies on that law in support of his case… As a matter of necessity the customary law must accurately and definitely established. The court has a wide discretion as to how this should be done but the onus to do so must be on the party who puts forward the customary law. This might be done by reference to a book or document of reference and would include a judicial decision but in view, especially, of the present apparent lack in Kenya of authoritative text books on the subject, or of any relevant case law, this would in practice, usually mean that the party propounding the customary law would have to call evidence to prove that customary law, as he would prove the relevant facts of his case."

17. To prove that a under Luo customs, a child can be adopted without following due procedure as long as family members of the child agree to such arrangement, the onus was on applicant to bring in an expert of Luo customary law to support her claim. She failed to do so.

18. It is not disputed that the applicant is not a biological child of the deceased. She has however neither proved relationship with the deceased nor her dependency upon him. Further, the applicant did not tell the court where she came from, her age at the alleged adoption, the identity and details of her family members who consented to the alleged adoption or indeed the circumstances under which she was allegedly adopted. Further, the applicant did not provide any evidence to demonstrate the financial support she allegedly received from the deceased. For instance, where did she go to school? At what stage in her schooling did the deceased begin his support for her? How much school fees was paid by the deceased for her and where are the receipts? In which of the deceased’s homes did she stay during the school holidays? None of this evidence was placed before the court. Without any proof to support her allegations, the applicant’s claim that she is a beneficiary of the estate or dependant of the deceased rings hollow and the court rejects the same.

19. The court notes that the applicant had obtained a grant of letters of administration in respect of the estate of the deceased in Eldoret Chief Magistrate’s Court Case No 243 of 2020. In her application for that grant dated July 14, 2020, she claimed that the deceased was only survived by herself as a daughter and by a son who was deceased. The grant was confirmed on February 25, 2021 and the suit property which had been indicated as the only asset of the estate, was distributed to the applicant solely. The grant was however revoked by the High Court at Eldoret on Novemebr 26, 2021 in Miscellaneous Application No E018 of 2021. The court found that the grant was “fatally defective” for inter alia being obtained without the involvement of all beneficiaries of the estate. Following the revocation of that grant, the only recourse that was available to the applicant, if she really were a beneficiary of the estate, was to apply for revocation of the grant issued to Benjamin and Trevor, for having been excluded from the proceedings to obtain the same.

20. I will now proceed to consider whether the applicant has the necessary locus standi to make this application. It is on this one issue that this application will turn.

21. Black’s Law Dictionary Tenth Edition defines locus standi as:"The right to bring an action or to be heard in a given forum."

22. And in the case of Alfred Njau & 5 others v City Council of Nairobi [1983] eKLR, the Court of Appeal defined locus standi as follows:"The term locus standi means a right to appear in court and, conversely, as is stated in Jowitt’s Dictionary of English Law, to say that a person has no locus standi means that he has no right to appear or be heard in such and such a proceeding."

23. This application is anchored on the claim that the applicant was an adopted child of the deceased and hence a beneficiary of his estate. Having found that the applicant is neither a beneficiary nor a dependant, it follows that she has no locus standi to bring the present application. Put differently, the applicant has no right to appear or be heard in these proceedings.

24. It is trite that a suit or an application filed by a person with no locus is incompetent and a nullity, ab initio. The application herein having been filed by a person with no locus standi, is incompetent and incurably so. Accordingly, this court has no jurisdiction to entertain an incurably incompetent application. Without jurisdiction, there would be no basis for a continuation of the proceedings herein.

25. The locus classicus on jurisdiction is the celebrated Court of Appeal case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1where Nyarangi, JA eloquently stated that:"Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence and a court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

26. Duly guided by the Court of Appeal, I find no basis for a continuation of the proceedings herein to consider the remaining issues and I down my tools.

27. In the end and for the reasons stated, the court finds that the application dated September 23, 2021 is incompetent and the same is hereby struck out with costs to the respondent.

DATED, SIGNED AND DELIVERED IN NAIROBI THIS 7TH DAY OF OCTOBER, 2022. M. THANDEJUDGEIn the presence of: -…………………………………………………for the Applicant………………………………………………for the Respondent…………………………………………………… Court Assistant