[2016] KEHC 1884 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 943 OF 2009

IN THE MATTER OF THE ESTATE OF THE LATE ANNAH KALUNDE KYALO (DECEASED)

MULE KYALO MBUI.........................................PETITIONER/APPLICANT

VERSUS

1. PETER KYALO

2. DAVID MATOLO

3. MULEI MUTYEIA...................................OBJECTORS/RESPONDENTS

RULING OF THE COURT

1. Before the court are Submissions to Citation and Revocation of Grant of Letters of Administrationissued inSuccession Cause No. 611 of 2012dated 9th April 2015. The firm of B.M. Musau & Co. Advocates submitted on behalf of Mule Kyalo Mbui the Petitioner/Applicant in this Succession Cause.

2. The Petitioner/Applicant, Mule Kyalo Mbui is a son of the Deceased, Annah Kalunde Kyalo and is a brother to the 1st and 2nd Objectors; David Matoloand Peter Kyalo.

3. The Petitioner/Applicant filed the Petition for Grant of Letters of Administration Intestate in 2009 and the Objectors filed an objection to the Petition dated 7th December 2009 and registered in court on 7th December 2009. The grounds of the objection were set out as:-

a. The Petitioner filed the Petition for Letters of Administration without consent of the 1st and 2nd Objectors.

b. The land parcel known asMasii/Vyulya/585was bequeathed to the 1st Objector by the Deceased as a gift inter vivos.

c. The land parcel known asMasii/Vyulya/585was sold to the 3rd ObjectorMulei Mutyeiaby the 1st Objector.

d. The Petitioner had omitted land parcel known asMasii/Vyulya/417which is part of the estate of the deceased to whom these succession proceedings relate.

e. The 3rd Objector has been utilizing the land parcel known asMasii/Vyulya/585since 2003 and the Petitioner seeks to deprive him of the land parcel.

4. The objection was never prosecuted.

5. The Advocates then on record for the Petitioner/Applicant filed a Chamber Summons application under Section 45 (1) of the Law of Succession Act dated 19th March 2010 seeking an injunction order against the Objectors, their agents and/or servants from interfering in any manner with land parcel known as Masii/Vyulya/585 until the objection is heard and determined.

6. The Ruling to the Chamber Summons was delivered by Justice Jaden on 19th March 2015 where the Honourable Judge disallowed the application and ordered that the parties maintain status quo and further directed that the parties move with speed to have the grant confirmed. She explained that since the parcel had not been demarcated, an order of injunction would be effective because the owner of the property in issue was deceased. The Honourable learned Judge found that there was no existence of a gift inter vivos as alleged by the Objectors.

7. The Petitioner/Applicant filed a Citation dated 9th April 2015 citing his brothers; David Matolo and Peter Kyalofor them to accept or refuse Letters of Administration intestate in respect of the estate of their deceased mother, Annah Kalunde Kyalo.

8. The Citees filed a Memorandum of Appearance dated 11th August 2015 together with a replying affidavit to the Citation sworn on 11th August 2015. It was from the replying affidavit filed by the Citees that the Citor learnt that the Citees had filed another succession cause in respect of the estate of the deceased, Annah Kalunde Kyalo being Machakos High Court Succession Cause No. 611 of 2012.

9. Upon perusal of the court record, the Citor realized that the Citees had forged his signature and appended it in the Consent to Making of a Grant Intestate (Form 39) and attached a copy of his National Identity Card.

10. Further, the Citor found out that the Interim Grant of Letters of Administration Intestate had already been issued to one Peter Mule Kyalo, the Petitioner in Succession Cause No. 611 of 2012. Apparently, there was no beneficiary to the estate of Annah Kalunde by the name Peter Mule Kyalo. The only surviving beneficiary was Peter Kyalo. The grant was made to a non-existent person.

11. From the foregoing background it is self-evident that under Section 76 of the Law of Succession Act, the grant of Letters of Administration to Peter Mule Kyalo in Machakos Succession Cause No. 611 of 2012 without the knowledge of the Petitioner herein Mike Kyalo Mbui was irregular and unlawful. At the same time the taking out of the current proceedings by the Petitioner without the consent of his brothers the 1st and 2nd Objectors was equally irregular. Further, it has not been determined conclusively the assets of the estate of the Deceased and more specifically whether the land parcel known as Masii/Vyulya/585 was bequeathed to the 1st Objector by the Deceased as a gift inter vivos; or whether land parcel known as Masii/Vyulya/417 is part of the estate of the Deceased. It would therefore be premature to issue Letters of Administration to the Petitioner in this matter with the above issues crying for determination.

12. Pursuant to the above, it is prudent to consolidate the above two Succession Causes for purposes of hearing and determination of all the issues together before Letters of Administration can be issued in this matter or before Letters of Administration issued in the Cause No. 611 of 2012 may be revoked.

13. The final orders of the court are:-

(a) This application is dismissed with costs in the cause.

(b) This cause being Machakos High Court Succession Cause No. 943 of 2009 is herewith consolidated with Machakos High Court Succession Cause No. 611 of 2012 for hearing and determination.

(c) Parties to take a mention date for directions when the said two causes shall be mentioned.

Orders accordingly.

Dated and delivered at Machakos this 12thday of October 2016.

E. OGOLA

JUDGE

In the presence of:

Mr. Nthiwa holding brief for Musau for Petitioner

Court Assistant – Mr. Munyao