[2022] KEHC 10368 (KLR)

Mutune v Mutune (Succession Cause 80 of 2007) [2022] KEHC 10368 (KLR) (20 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10368 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 80 of 2007

MW Muigai, J

June 20, 2022

Between

Mutuku Mutune

Applicant

and

Raymond Ndavi Mutune

Respondent

Judgment

1. The deceased herein, Mutune Mutungi alias Mutune Mutung’i died on July 2, 1991 at Uvavi/Miusuni/Machakos.

2. The respondent herein, Raymond Ndavi Mutune applied for Letters of administration intestate in the estate of the deceased herein. The grant of letters of administration intestate was issued to the Respondent herein on June 24, 2008 and confirmed on February 17, 2012.

3. In support of the petition for letters of administration intestate, vide a consent sworn on March 16, 2007, only Kavuu Mutune consented to the making of a Grant of administration Intestate to the respondent herein.

4. In support of the confirmation of grant, vide a consent sworn on October 29, 2010 in respect of the mode of distribution, the following beneficiaries signed;1. Ndindi Mutune - widow2. Kavuu Mutune3. Ndandi Mutune4. Munini Mutune5. Mutuku Mutune6. Nzilani Ndambuki7. Kioko Mutune

Summons for Revocation and/or Annulment of Grant Dated 2/09/2016 5. The firm of Kivuitu Maundu & Company Advocates filed on behalf of the objectors herein, Kavuu Mutune and Mutuku Mutune on September 5, 2016. The objectors sought the following orders:-1. Thatthe Hon Court do grant orders that the said grant issued on 17th day of February, 2012 to Raymond Ndandi Mutune and is hereby revoked and annulled.2. Thata grant be and is hereby given appointing Kavuu Mutuneand Mutuku Mutune as administrators of the estate of Mutune MutungialiasMutune Mutung’i.3. Thatthe cost of this application be in the cause.

6. The summons is supported by the supporting affidavit of Kavuu Mutune sworn on even date. He averred that the application for the grant was made by the respondent in secret and their signatures were forged. he averred that he did not consent to the grant being issued to his brother, the respondent herein and he was not aware that the application had been filed. According to him, the respondent is administering the estate of their deceased father without consulting other family members.

7. He averred that the respondent has given himself the largest share of properties of the deceased estate within Kangundo town without other family members consent. According to him, the respondent has sold and disposed off the deceased land without the consent of other family members and omitted to distribute to Nzilani Ndambuki a daughter of the deceased. According to the Applicant, the Respondent cannot be trusted to administer the estate alone where there are six other members of the family. The Applicant asserts that the Respondent is violating their rights to equal distribution of the estate and should be stopped hence the need to revoke the Grant issued to the Respondent and in its place, a new grant be made appointing Kavuu Mutune and Mutuku Mutune as administrators of the deceased’s estate.

Affidavit of Kavuu Mutune Sworn On 5/12/2016 8. On 5th December, 2016, Kavuu Mutune filed in person an affidavit he swore on 5th December, 2016. He averred that the succession proceedings herein were instituted by the Respondent upon full consultation amongst all members of the deceased’s family. According to him, any member of the contrary view is Not telling the truth.

9. He denied that he signed the said Notice of Appointment and the Supporting affidavit and urged the court to subject the signatures to a relevant handwriting examination and punish any person found to have forged his signatures. According to him, he did not instruct any advocate to represent him in the proceedings herein and does not know the advocates or have been to their offices. According to him, the Summons for revocation dated 2nd September, 2016 should be struck off.

Respondent’s Preliminary Objection Dated 26/09/2018 10. In opposition to the applicant’s summons dated September 2, 2016, the respondent’s raised a preliminary objection on points of law, that:-The applications are incompetent and improperly before this court in view of Kavuu Mutune’s affidavit sworn on 5/12/2017 and filed herein.

Respondent’s Replying Affidavit Sworn 9/12/2021 11. In opposition to the Summons, the respondent averred that the applicants are his brothers. He averred that the process of appointing him as the administrator of the estate of Mutune Mutungi has been open and in consultation with all family members, including the applicants. According to the respondent, all family members including the applicants consented to the confirmation of the grant on 29th October, 2010 by signing the consent marked as “RNM1”

12. According to the Respondent, no proof has been provided on allegations that the application was made in secret or that the signatures in the consent were purportedly falsified or any report has been made on the same hence the court should disregard such false accusations. The Respondent averred that on 17th February, 2012 when this matter came up for Confirmation of Grant, all the beneficiaries to the deceased’s estate were present in Court.

13. According to the Respondent, it is actually the Applicant who cannot be trusted with the administration of the estate since he had been found guilty of intermeddling with the estate vide this Court’s Ruling dated 23rd May, 2014 and a copy marked as “RNM3”for selling a portion of the property before confirmation of Grant. The Respondent averred that the Applicant is a Defendant’s witness in ELC No. 85 of 2020 which has been instituted by the Respondent as the administrator to preserve the deceased’s estate as part thereof was sold to third party by the Applicant and their deceased mother.

14. The Respondent averred that the beneficiaries of the estate have all been allocated property equally and in any case the grant may be rectified to correct the minor errors. According to the Respondent, the Summons for revocation of the Grant lacks merit as it was filed fraudulently and without the authority from all Applicants. He urged the court to dismiss the Summons.

Applicant’s Submissions 15. On behalf of the Applicant, it is submitted that on cross examination of the distribution in the Grant, the Respondent allocated to himself the largest portion of the properties at the expense of others and chose not to distribute any property to Nzilani Ndambuki. According to the Applicant, the Respondent received a portion of 10 out of 11 properties.

16. It is submitted that obtaining the Grant fraudulently by making of false statement or by concealment from the Court of something material to the case is a ground of revocation of the Grant under Section 76 of the Law of Succession Act. Reliance was also placed on Section 38 of the same Act that emphasizes on equal division of the property to the left surviving children where there is no spouse.

17. According to the applicant, this court is duty bound to establish if the mode of distribution as well as the omission of beneficiary, was a clever attempt by the Respondent to conceal material facts from the Court. It is submitted that the Court ought to establish whether the Petition for letters of administration was filed with the knowledge of all the beneficiaries or explained to them. It is submitted that Kavuu Mutune has been manipulated since he has recanted his allegations vide his affidavit sworn on 5th December, 2016 against the Respondent.

18. According to the Applicant, the Court’s ruling of 23rd May, 2014 did not mention the Applicant but the Respondent and their late mother Ndindi Mutune.

19. The Applicant placed reliance on the following authorities; Hsc No.859 of 2015(kakamega) In the matter of the Estate of Agwang Wasiro alias Achwang Wasino (Deceased), Hsc No.587 of 2012 (nairobi)In the matter of the Estate of Wilson Waithanje Thuku alias Waithanje Thuku (Deceased)Rnw vs. Ftw And Hsc No. 855 Of 2015(Nakuru) In the matter of the Estate of Stephen Mwangi (Deceased) Swm, Lmm, Gwm vs. Mnm.

Respondent’s Submissions 20. On behalf of the Respondent, it is submitted that the issue for determination is whether the grant issued on 17/02/2012 to Raymond Ndandi Mutune be revoked and/or annulled and the same issued appointing Mutuku Mutune and Kavuu Mutune as administrators of the estate of the deceased herein.

21. According to the Respondent, it is trite law that the threshold for revocation and/or annulment of the Grant is set out in Section 76 of the Law of Succession Act. Reliance was placed on the case of In re Estate of Agwang Wasiro (Deceased) [2020] eKLR.

22. It is submitted that the Applicant’s allegations of fraud are erroneous since the confirmation of Grant was supported by a signed consent by all beneficiaries of the estate including the Applicant. According to the Respondent, the Applicant’s allegations that his signature has been forged is not substantiated. Reliance was placed on the case of R.G Patel vs. Lalji Makanji[1957] EA on the proposition that allegations of fraud must be strictly proved.

23. According to the Respondent, the averment in the affidavit of Kavuu Mutune confirming that he did not instruct any advocate to file Summons for Revocation of the Grant and that the proceedings for confirmation of the Grant was conducted with full and open disclosure disown the allegations he averred in the supporting affidavit to the Summons for revocation of the grant hence an abuse of the court process and the Summons is fatally defective.

24. It is submitted that the schedule of distribution in the Summons for confirmation of the Grant dated 19th October, 2010 contained at paragraph 8 of the Respondent’s affidavit distributes the estate amongst all beneficiaries of the estate of the deceased equally.

25. According to the Respondent, the Applicants hands are unclean since he was found guilty of intermeddling with the estate of the deceased herein by a Ruling dated 23rd May, 2014 for selling off a portion of the estate to a third party before the Grant had been confirmed.

26. The Respondent urged this Court to uphold his Preliminary Objection herein and dismiss the Applicant’s Summons for Revocation of the Grant with costs.

Determination 27. I have considered the Summons, Preliminary Objection affidavit in support and in opposition as well as the submissions and cases relied upon.

28. The Summons is premised on Section 76 of the Law of Succession Act, Cap 160, Laws of Kenya. The said provision provides as follows:“Revocation or annulment of grant 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;

29. The Preliminary objection raised that the Applicant, Kavuu Mutune by the affidavit sworn on 5/12/2016 denied instructing Counsel to file an application for revocation annulment of grant.

30. The Applicant averred that the Succession proceedings herein were instituted by the Respondent upon full consultation amongst all members of the deceased’s family. According to him, any member of the contrary view is NOT telling the truth.

31. As it is therefore, there is no Applicant or party that instituted revocation/annulment of grant proceedings and moved the Court appropriately as the Applicant has recanted the application and/or instructions to Counsel to file and prosecute the application. The co-Applicant Mutuku Mutune cannot rely on the same application where the other Applicant Kavoo Mutune has recanted.

32. The Court has seen annexed to the Respondent’s Replying Affidavit of 23/11/2021 annexed copy of Consents to Confirmed Grant duly signed by beneficiaries and ID Numbers indicated. The Court record confirms that the beneficiaries were in court and consented to the mode of distribution.

33. If the signatures were forged as alleged then evidence of the same must be adduced as this is a serious claim and requires proof as per the standard of proof and the burden of proof is on the Applicant who in the instant case has disowned the application. Each of the Applicants to the application have divergent facts of the same claim, Kavoo Mutune denies any wrongdoing by Respondent, Mutuku Mutune asserts non-compliance by the Respondent. The claim is not proved by any stretch of imagination.

34. As such the Court cannot at this stage delve into the merits and demerits of the claim in the absence of Claimants to prove their claim as required by Section 107-109 of the Evidence Act.

35. In the absence of the Applicant owning and adducing evidence to prove the claim that would prove any, some or all grounds outlined by Section 76 LSA, the Court finds no competent Application is on record for determination. Although, Written Submissions have been filed by the Applicant’ Counsel it is not evidence.

36. The applications are incompetent and improperly before this Court in view of and filed herein.

Disposition1. By the Applicant’s, Kavuu Mutune’s affidavit sworn on 5/12/2017 there is no application for revocation and annulment of grant for determination.2. The Preliminary Objection is upheld.3. Each Party to bear own Costs.

It is so ordered.DELIVERED, DATED AND SIGNED IN OPEN COURT AT MACHAKOS THIS 20TH DAY OF JUNE, 2022 (VIRTUAL CONFERENCE).M.W. MUIGAIJUDGE