[2023] KEHC 19576 (KLR)

Mugo v Kang’ethe (Civil Appeal E016 of 2022) [2023] KEHC 19576 (KLR) (3 July 2023) (Judgment)

Neutral citation: [2023] KEHC 19576 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal E016 of 2022

LM Njuguna, J

July 3, 2023

Between

Dorcas Njoki Mugo

Appellant

and

Chrispin Kienyu Kang’ethe

Respondent

Judgment

1. The appeal herein arose from the ruling of Hon. H.N. Nyakweba delivered on December 29, 2021, in Embu CMCC No. 26 of 2020. The appellant was aggrieved by the orders of the trial magistrate wherein the court invoked the provisions of Rule 73 of the Probate and Administration Rules and revoked the grant previously issued to her. The trial court while revoking the said grant, cited reasons inter alia that the appellant as a purchaser did not have locus standi to move court for issuance of grant in respective to the estate herein.

2. When the appeal came up for hearing, the parties took directions to dispose the same by way of written submissions and which directions the parties complied with.

3. The appellant submitted that the learned trial magistrate erred in law and fact in revoking the grant issued to the appellant. That the appellant had filed a citation against one Edwina Agolla Njiru, the widow of the deceased; the citation was duly served upon the said citee whereupon an order was made allowing the appellant to petition for grant of letters of administration to the estate of the deceased herein. Reliance was placed on section 76 of LSA which lists the grounds upon which a grant may be revoked. The appellant contended that amongst the said grounds, the trial magistrate did not point out any in revoking the grant herein. In support of this proposition, the appellant relied on the case of In re Estate of Kyengo Kiilu Ngungi (Deceased) [2021] in submitting that in as much as the appellant was a purchaser, there was no error on the part of the court in making the said grant to her for the reason that the said sale was between the appellant and the deceased herein.

4. Further, it was submitted that the appellant was condemned unheard since she was not served with the respondent’s summons for revocation of grant dated June 7, 2021. That by the time the appellant learnt of the said application for revocation and filed an application to arrest the ruling, it was too late and the said ruling had already been delivered. Reliance was placed on the case of J.M.K.vsM.W.M &another[2015] eKLR. It was contended that the courts have consistently stressed the importance of observing the rules of natural justice and in particular hearing a person who is likely to be adversely affected by a decision before the decision is made. Further reliance was placed on the case of Mbaki &others vsMacharia &another (2015) 2 EA 206. The appellant therefore prayed that the appeal herein be allowed as well as the costs of the appeal.

5. The respondent submitted that even before the trial magistrate revoked the said grant, it was already suspicious of the appellant’s activities hence the reluctance to confirm the grant. It was contended that the appellant gave herself consent to file the petition for letters of administration in respect to the estate of the deceased. Further, it was stated that the affidavit allegedly sworn on 09. 02. 2021 by Edwina Agola Njiru in which she claimed to know the appellant and further that, she was no interested in the land sought to be distributed, was unsigned. The respondent contended that the said affidavit is suspicious and most likely a forgery since the same was not signed by the said Edwina Agola. The respondent relied on the case of In re estate of Charles Boi (Deceased) [2020] eKLR. That the allegation that the appellant was not served with the application for revocation is unfounded for the reason that she was indeed served as noted in the affidavit of service dated June 7, 2021; but she failed to respond to the said application. This court was therefore urged to dismiss the appeal.

6. It’s now settled that the role of the first appellate court is to revisit the evidence on record, re-evaluate it and reach its own conclusion in the matter. The first appellate court ought not to ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings. [See Selle &anovAssociated Motor Boat Co Ltd (1968) EA 123].

7. I have read through and considered the memorandum of appeal and the submissions of both counsels. I have also considered the authorities referred to by each counsel to support their legal propositions in the matter. Further, I have read and re-evaluated the record and evidence adduced before the trial court. In my view, the only issue which this court is invited to decide is whether the trial court was right in revoking the grant previously issued to the appellant.

8. The genesis of this appeal is summons for revocation of grant dated 07. 06. 2021 filed by the respondent herein in which he had moved court for orders for revocation of the grant issued to the appellant herein. The trial magistrate after hearing the application before him, invoked the provisions of section 73 of the P& A Rules and thereby revoked the grant previously issued to the appellant. The trial magistrate held the view that the petitioner, the appellant herein, was a purchaser and therefore, had no locus to petition the court for grant of letters of administration in regards to the estate herein.

9. As I have already noted, the appellant’s application before the trial court was for revocation of grant. The grounds upon which the said application was premised were that the same was obtained fraudulently by concealment of material facts and making of a false statement; that the grant was obtained by means of untrue allegations of facts essential in point of law to justify the grant; and that the proceedings to obtain the grant were defective in substance.

10. Section 66 of the Law of Succession Act bestows this court with the 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. The court in exercise of the said discretion is mandated to accept as a general guide the following order of preference;-i.surviving spouse or spouses, with or without association of other beneficiaries;ii.other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;iii.the Public Trustee; andiv.creditors

11. Section 39 on the other hand stipulates that (1) Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority—i.Father; or if deadii.Mother; or if deadiii.brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none---------------

12. Rule 26 provides that letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant. Further that in an application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.

13. The effects of the above provisions is that where a person is applying for a grant of letters of administration intestate, he/she must get consent from persons of equal or lower priority than him; the respondent herein argued that the appellant did not seek for his consent before applying for the said grant.

14. The grounds upon which the respondent moved the trial court for revocation of grant previously issued to the appellant was inter alia that the said grant was obtained or by concealment from the court of material facts pertinent to the distribution of the estate and further, the respondent’s interest was not represented as his consent was not sought at the time of the filing for letters of administration of the estate herein, yet, he had an interest in the said estate.

15. From the record, the respondent filed for revocation of grant previously issued to the appellant for the reason that, he bought the said piece of land; namely Kagaari/Weru/1168 measuring 10. 7 ha from the deceased herein during his lifetime.

16. In the same breadth, I have also noted the concerns raised by the trial court in Civil Case No. 462 of 1994, SPM’s Court at Embu and in ELC Civil Appeal No. 3 of 2017 and wherein the said appeal was dismissed with costs to the respondents. It follows, therefore, that the respondent herein did not prove his claim of ownership against the deceased herein and so the estate herein.

17. It is trite law that whoever asserts a fact is under an obligation to prove it in order to succeed. The standard of proof in civil cases (the degree of certainty with which a fact must be proved to satisfy the court of the fact) is the balance of probabilities (SeeMiller v Minister of Pensions[1947] 2 All ER 372 and Sections 107 of the Evidence Act). A claimant remains with this burden even where a defendant has not denied the claim by filing of defence or even where the defendant did not appear. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side [See Daniel Toroitich Arap MoivMwangi Stephen Muriithi& another[2014] eKLR.

18. Of importance to note is the fact that the appellant previously cited the wife of the deceased to take out letters of administration of the estate herein to no avail.

19. Considering that the citor/appellant had attached a sale agreement as proof of the purchase of the said land from the deceased, she is deemed to be a creditor hence the amount paid to the deceased becomes a liability to the estate. Under Rule 22 of the P&A Rules, a citation may issue at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his/her right thereto. That the said agreement was in regards to Land Parcel Kagaari/Weru/1168 measuring approximately 10. 7ha which was bought sometime on February 25, 2012.

20. In view of the dictates undersection 66 of the Law of Succession Act, and Rules 21 and 22 of the P&A Rules and considering that the citees relinquished their right to petition for a grant of representation, the citor being an interested party in the deceased’s estate as a creditor was entitled to petition for a grant of representation.

21. Accordingly, it is my considered view that the grant that was issued to the appellant herein was in order. [See In re Estate of Nassir Ali Said (Deceased) [2021] eKLR].

22. Be that as it may, this court by dint of section 47 of the LSA and Rule 73 of the P&A Rules, is clothed with discretion to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. [In re Estate of the Late M’thigai Muchangi (Deceased) [2020] eKLR; Millicent Mbatha Mulavu & another v Annah Ndunge Mulavu & 3 others[2018] eKLR].

23. From the above therefore, I find that the respondent did not prove that he had locus to move the trial court for revocation of the grant previously issued to the appellant for the reason his appeal in which he ought to have proved his claim on ownership of the said land, was dismissed and the said judgment has not been set aside nor appealed against.

24. In the end and for the reasons above, I find that the trial magistrate erred by revoking the said grant issued to the appellant and I therefore make the following orders:i.The appeal herein has merits and it is hereby allowed.ii.The ruling by the trial court is hereby set aside and replaced by an order dismissing the summons for revocation of grant dated the 7/6/2021. iii.Each party to bear its costs.

25. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 3RD DAY OF JULY, 2023. L. NJUGUNAJUDGE………………………………………for the Applicant…………………………….………for the Respondent