[2022] KEHC 15884 (KLR)

In the Matter of Domenico De Masi (Deceased) (Succession Cause 625 of 2009) [2022] KEHC 15884 (KLR) (Family) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15884 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 625 of 2009

MA Odero, J

November 11, 2022

Between

Munyaka Kuna Co Ltd

Objector

and

Bernado Vinzencio Demasi

Administrator

Administrator of the estate of Domenico De Masi (Deceased)

and

Moses Maina Ngugi

Interested Party

Simon Peter Waweru Maina

Interested Party

Judgment

1. Before this court is the summons for Revocation of Grant dated March 21, 2019 by which the objector/applicant Munyaka Kuna Co Ltd seek the following orders:-1. Spent2. That the Grant of letters of Administration made to Bernado Vincenzio Demasi on July 272009 be revoked.3. That Bernado Vincenzio Demasi the administrator of the estate of the deceased do surrender to the court the custody of the grant for the property of the deceased known as land reference number 42/11. 4.That the court do substitute the administrator of the estate of the deceased with the public trustee and or such other persons that the court may deem fit to accomplish administration and distribution of the estate of the deceased.5. That the costs of this application be provided for.”

2. The summons which was premised upon section 76 (d) (ii) of the Law of Succession and rule 44 theProbate and Administration Rules and all other enabling provisions of law was supported by the Affidavit of even and the supplementary Supporting Affidavit dated June 8, 2022 both date sworn by Dedan Kimathi Waigera a director of the Munyaka Kuna Co Ltd (the objector)

3. The respondent/administrator Bernado Vincenzio Demasi opposed the application through his Replying Affidavit dated June 3, 2022. The summons was canvassed by way of written submission. The objector filed the written submissions dated June 29, 2022 whilst the respondent relied upon his written submission dated July 17, 2022.

B 4. This succession cause relates to the estate of the late Domenico Demasi (hereinafter ‘the deceased’) who died intestate on July 14, 2000 at Wexham Park Hospital in the United Kingdom. Following the demise of the deceased one of his sons Bernado Vincenzio Demasi(the respondent herein) applied for and obtained Grant of letters of Administration Intestate which were issued on July 27, 2009. The grant was duly confirmed on January 31, 2011.

5. Dedan Kimathi Waigera a director of the objector/applicant then filed an application dated March 1, 2011 seeking orders of injunction to restrain the respondent/administrator from dealing with the property of the deceased. The objector laid claim to six (6) acres of L R no 42/111 which belonged to the estate as a result of a sale Agreement which the company had entered into with the deceased during his lifetime.

6. The objector also filed in the Environment and Land Court case ELC no 107 of 2011 seeking to be registered as proprietor of the six (6) acres of land that had been sold to them by the deceased. Vide a ruling delivered on May 25, 2018 the ELC determined the case in favour of the objector and awarded six (6) acres out of the property known as LR no 42/11 to the objector on the basis of adverse possession.

7. Following the decision of the ELC the High Court vide a ruling delivered on November 6, 2018 revoked the confirmed grant which had been issued to the respondent on January 31, 2011. The court also directed that the summons for confirmation of grant dated August 27, 2000 be set down for hearing. To date the grant has not been confirmed.

8. The objectors avers that the respondent as administrator has failed to proceed diligently with the administration and distribution of the estate and has defied the orders made by the court on April 27, 2009. That the respondent has defiantly failed to include the objector as the beneficiary of six (6) acres out of the property known as LR 42/11 contrary to the orders of the ELC court in suit no 107 of 2011.

9. Based on the above, the objector prays that the grant issued to the respondent be revoked and that a fresh grant issue to the public trustee or any other person the court may deem suitable to finalise the distribution of the estate of the deceased.

10. As stated earlier this summons was opposed. The respondent insists that the objectors interest in the six (6) acres of land awarded to him by the ELC remains intact. The respondent avers that the objector has been demanding to be allocated more than the six (6) acres that was awarded to him by the ELC.

11. The respondent states that he has severally invited the objector to go and identify his portion of LR 42/11 to allow for sub-division but that the objector has declined to do so stalling the final distribution of the estate.

12. Finally the respondent avers that the objector has frustrated the confirmation of grant by filing numerous applications in this cause. He urges the court to dismiss in it’s entirely this summons for revocation of grant.

Analysis and determination 13. I have carefully considered this summons for revocation of grant, the reply filed thereto as well as the written submissions filed by both parties.

14. The law governing the circumstances under which a grant may be revoked is to be found in section 76 of The Law of Succession Act cap 160, Laws of Kenya which provides as follows:-“76. A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—(a)that the proceedings to obtain the grant were defective in substance;(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either—(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or(ii)to proceed diligently with the administration of the estate; or(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(e)that the grant has become useless and inoperative through subsequent circumstances.”

15. It is common ground that following a judgment delivered by the ELC court the objector is entitled to six (6) acres of LR no 42/11, which belongs to the estate of the deceased. The respondent has not appealed against this decision nor has he sought to have the said order reviewed. Therefore, this probate court is obligated to give effect the decree from the ELC in this succession cause.

16. The objector alleges that the respondent as administrator has failed to proceed diligently with the distribution of the estate of the deceased. That despite clear orders having been made by Hon Justice Onyiego on November 6, 2018 that the summons for confirmation of grant dated August 27, 2009, be set down for hearing the respondent in disobedience of the said orders has failed to move to have the grant confirmed. It is not in dispute that on November 6, 2018 the High Court made the following orders:-(a)That the certificate of confirmation issued on January 31, 2011 be and is hereby revoked.(b)That the petitioner/applicants application for confirmation dated August 27, 2000 be set down for hearing.(c)That the administrator do include Munyaka Kuna Co Ltd as a beneficiary of six acres out of LR 42/11 Nairobi as per the decree in the ELC case no 107/11. (d)That the matter be set down for mention within 14 days from the date of delivery of this ruling to confirm compliance.”

17. To date the respondent has not set down the summons for hearing. Therefore the respondent has failed to comply with the court orders and has also failed to fulfil his obligations as administrator in accordance with section 76 (d)(i) of the Law of Succession Act.

18. The respondent accuses the objector of causing the delay by filing numerous application. It is a fact that the objector did file a Notice of Motion dated Febraury 23, 2021. The objector filed this application in order to alert the court of the illegal registration of certain sub-divisions of LR no 42/11. The objector sought to have the titles which had been issued to third parties following said illegal sub-divisions cancelled/revoked.

19. In the ruling delivered on October 1, 2021 this court found that the administrator had illegally sold portions of LR 42/11 when he had no legal capacity to do so. The court went on to find the respondent guilty of contempt and fined him kshs 100,000. It is clear therefore that the filing of the application by the objectors was necessitated by the illegal activities of the administrator (respondent) with respect to estate property. The respondent cannot now turn around and blame the objector for coming to court over his own illegal activities. The objector has no option but to file the said application in order to protect their interest in the estate property.

20. By prayer (3) of this summons the objector seeks that the respondent be ordered to surrender to the court title to Land Reference no 42/11. In view of the illegal activities of the respondent regarding this parcel of land, his previous attempts to sell the same without legal authority I find that this prayer has merit. The respondent is not the owner of the said land. He is merely an administrator of the estate and as such holds estate property in trust for the beneficiaries. The respondent cannot be allowed to treat the estate property as his own property to deal with as he wishes. Therefore, it is necessary that custody of the original title document be vested in the court pending confirmation of the grant.

21. Instead of setting down the summons for confirmation of Grant for hearing as directed by the court the respondent went on a spree of sub dividing and selling off estate property when he had no legal capacity to do so. This contravenes the duty placed upon the respondent to proceed diligently with the administration of the estate in accordance with section 76(d)(ii) of the Law of Succession Act.

22. The claim by the respondent that despite several invitations the objector has failed and/or declined to go and identify its six (6) acres of land is not plausible. In any event, the respondent did not revert to the court to complain about any difficulties he was facing in complying with the courts orders. This allegation in my view is nothing but an excuse put forward by the respondent in an attempt to explain away his own indolence.

23. Based on the foregoing I am satisfied that the respondent has failed in his duties as administrator of the estate of the deceased. There exists sufficient grounds upon which to revoke the grant issued to the administrator.

24. Having said that, I note that this is a very old matter, which commenced in the year 2000, (twenty two (22) years ago). To revoke the grant at this stage would be detrimental to the beneficiaries as well as to the objector as it will return the matter back to square one. In the circumstances, this court will have to micro manage the process in order to ensure that the estate is finally distributed.

25. Section 47 of The Law of Succession Act provides that:-“47. The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.”

26. Similarly rule 73 of the Probate and Administration Rules provide as follows:-“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court."

27. In conclusion therefore this court makes the following orders:-(1)The respondent to file and serve a summons for confirmation of grant for hearing within thirty (30) days of this date to include the award made to the objector vide ELC no 101 of 2011. (2)All beneficiaries to file written consents to the proposed mode of distribution of the estate.(3)The respondent is to surrender to the court through the hon deputy registrar within two (2) days the original title document to the property known an as land reference number 42/11 for safe keeping pending confirmation of the grant.(4)The respondent will bear the costs of his application.

DATED IN NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. …………………………………MAUREEN A ODEROJUDGE