[2017] KEHC 2909 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

SUCCESSION CAUSE NO. 430 OF 2014

IN THE MATTER OF THE ESTATE OF NGILA KIMBO (DECEASED)

NDUNDA NDONYE MBITI..............................PETITIONER

VERSUS

1. JOSEPH MAKALI NZUKI

2. BONIFACE MUSYOKI KIILU...................OBJECTORS

CONSOLIDATED WITH

SUCCESSION CAUSE NO. 429 OF 2014

IN THE MATTER OF THE ESTATE OF LENGESI KIMBO (DECEASED)

NDUNDA NDONYE MBITI..............................PETITIONER

CONSOLIDATED WITH

SUCCESSION CAUSE NO. 431 OF 2014

IN THE MATTER OF THE ESTATE OF KIILU KIMBO (DECEASED)

NDUNDA NDONYE MBITI................................PETITIONER

VERSUS

BONIFACE MUSYOKI KIILU.............................OBJECTOR

CONSOLIDATED WITH

SUCCESSION CAUSE NO. 432 OF 2014

IN THE MATTER OF THE ESTATE OF NDAVI KIMBO (DECEASED)

NDUNDA NDONYE MBITI................................PETITIONER

VERSUS

MUSYOKI KIILU..............................................OBJECTOR

CONSOLIDATED WITH

SUCCESSION CAUSE NO. 433 OF 2014

IN THE MATTER OF THE ESTATE OF NZUKI KIMBO (DECEASED)

NDUNDA NDONYE MBITI..................................PETITIONER

VERSUS

JOSEPH MAKALI NZUKI.................................OBJECTOR

RULING

Introduction

Grants of letters of administration intestate was issued to the Petitioner herein with respect to the estates of Ngila Kimbo, Lengesi Kimbo, Kiilu Kimbo, Ndavi Kimbo, and Nzuki Kimbo, (hereinafter referred to as “the Deceased Persons”), who were registered as proprietors of I/5 share each of the parcel of land known as Mitaboni /Mutituni/2381 measuring 2. 6 hectares. The Petitioner is nephew off the Deceased Persons while the Objectors are sons and nephews of the Deceased persons.

The Petitioner had previously filed various citations and was granted leave to file Petitions for letters of administration with respect to the Estates of the said Deceased Persons, whereupon he was granted letters of administration intestate with respect to the said estates. He thereupon fled Summonses for Confirmation of Grant all dated 17th August 2015 in Succession Causes 430, 431, 432 and 433 of 2014, in which he sought that the Deceased Persons shares therein be distributed to himself, one John Ndonye Mbiti and one Joseph Ndonye Muya to hold in equal shares.

The Objections

The Objectors subsequently filed summonses for revocation of grant dated 19th December 2016 in Succession Causes 430, 431 and 433 of 2014, seeking orders that the grants issued to the Petitioner be revoked. Their grounds for the revocation are as follows:

1. The proceedings to obtain the grants were defective in substance.

2. The grants were obtained fraudulently by making of false statements and concealing from the court of material facts to the case and untrue allegations of essential facts.

3. The Objectors consents were not sought at the time of filing the petitions nor on the proposed distribution of the estates

4. the Petitioner secretly without involvement of the Objectors applied for confirmation of the grants with the sole intention to disinherit lawful beneficiaries of the deceased .

Boniface Musyoki Kiilu swore a supporting affidavit on 19th December 2016 to the summons for revocation in Succession Cause 430 of 2014, wherein he stated that he is a nephew of the deceased Ngila Kimbo, and the Petitioner is his cousin and never consulted him or sought his consent to the filing of the grant with regard to the deceased’s estate. Further, that he has been disinherited and the deceased estate should devolve to him as a nephew of the deceased and he should be administrator.

The said deponent also reiterated the said averments in a supporting affidavit he swore on 19th December 2016 to the summons for revocation in Succession Cause 431 of 2014, wherein he stated that he is a son of the deceased Kiilu Kimbo .

Similar averments were made by Joseph Makali Nzuki in a supporting affidavit on 19th December 2016 to the summons for revocation in Succession Cause 433 of 2014 wherein he stated that he is a son of the deceased Nzuki Kimbo.

The Response

The Petitioner filed replying affidavits sworn on 13th January 2017 and 30th January 2017 to the Objectors Summonses, wherein he averred that the Court ordered that he be allowed to Petition for letters of administration for the Deceased Persons estates upon conclusion of citation proceedings regarding the various estates namely:-

a. P&A Cause 240/2012 for the Estate of Lengesi Kimbo

b. P&A Cause 241/2012 for the Estate of Nzuki Kimbo

c. P&A Cause 242/2012 for the Estate of Ngila Kimbo

d. P&A Cause 243/2012 for the Estate of Kiilu Kimbo

e. P&A Cause 244/2012 for the Estate of Ndavi Kimbo

The Petitioner annexed copies of the various court orders given in the citation proceedings, and further averred that it was on the strength of the said orders that he filed the respective petitions in Succession Causes Nos. 429 of 2014, 430 of 2014, 431 of 2014, 432 of 2014 and 433 of 2014 in respect to the above estates, and he annexed the respective grants issued to him in the said succession causes.

According to the Petitioner, the Objectors have not filed any responses to his applications for the confirmation of the said grants despite having been supplied with the same, and that as per the courts directions, he did file letters from the local administration in Succession Causes Nos. 430 of 2014 and 432 of 2014 showing that the Deceased therein had no survivors. He annexed copies of the said letters.

Lastly, the Petitioner contended that the Objectors have no share or interest in the Deceased Persons estates as they are well aware that the deceased persons were wrongly and or fraudulently registered as proprietors of Mitaboni /Mutituni/2381, as the land rightfully belonged to the Petitioner’s father Ndonye Mbiti, who is since deceased.

The Determination

The Court directed that the Objectors’ summonses be heard by way of written submissions. P.N Musila Advocates for the Petitioner filed submissions dated 17th March 2017, while Kamolo & Company Advocates for the Objectors filed submissions dated 28th March 2017.

I have read and carefully considered the pleadings and submissions made by the Petitioner and Objectors. The issue to be decided is whether the grants issued to the Petitioner should be revoked. The grounds for revocation of a grant are provided in section 76 of the Law of Succession as follows:

“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 has ordered or allowed; 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.”

The Objectors submitted in this respect that the Petitioner filed the various Petitions secretly, and they only came to know of the same when they were served with a hearing notice on 19th January 2016. That he further falsely represented himself as the only surviving son, yet the Objectors are surviving sons and nephews of the Deceased Persons. Lastly, that no shares were allocated to the Objectors in the summonses for confirmation, and the allegation that the Petitioner’s father was to be registered as owner of the Deceased Persons estates can only be determined by the Environment and Land Court and not the succession court.

The Petitioner on the other hand relied on Rule 22 (7) (a) of the Probate and Administration rules argue that he at liberty to petition for letters of Administration after the expiry of the dates in the Orders issued by this Court in the citation proceedings, and as such he correctly applied for the letters of administration intestate and the grants herein were properly issued. Further, that if the Objectors had any interest they ought to have petitioned for the grants, and the fact that they participated in the Citation proceeding shows that they have not come to this Court with clean hands. The Petitioner also reiterated that he had demonstrated that the Objectors have no interest in the Deceased Persons estates.

I will at the outset firstly address the Petitioners arguments as to his authorisation to petition for the letters of administration for the Deceased Persons Estates in his capacity as Citor. Section 62 of the Law of Succession Act and rule 22(1)(2)(2) of the Probate and Administration Rules in this regard do permit a person who has an interest in an estate to apply for a grant of representation, after citing and calling upon persons who have a superior right to obtain a grant. If the persons so cited do not respond or fail to take out the grant, the citor may apply for the grant with the leave of the Court.

However, such leave does not operate to discharge a Citor from observing the procedures for applying for a grant of representation that are set out in section 51 of the Civil Procedure Act and rule 7 of the Probate of Administration Rules. Section 51 of the Law of Succession Act provides as follows in this regard:

1) Every application for a grant of representation shall be made in such form as may be prescribed, signed by the applicant and witnessed in the prescribed manner.

(2) Every application shall include information as to—

(a) the full names of the deceased;

(b) the date and place of his death;

(c) his last known place of residence;

(d) the relationship (if any) of the applicant to the deceased;

(e) whether or not the deceased left a valid will;

(f) the present addresses of any executors appointed by any such valid will;

(g) in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased;

(h) a full inventory of all the assets and liabilities of the deceased; and

(i) such other matters as may be prescribed.

(3) Where it is alleged in an application that the deceased left a valid will—

(a) if it was written, the original will shall be annexed to the application, or if it is alleged to have been lost, or destroyed otherwise than by way of revocation, or if for any other reason the original cannot beproduced, then either—

(i)an authenticated copy thereof shall be so annexed; or

(ii)the names and addresses of all persons alleged to be able to prove its contents shall be stated in the application;

(b) if it was oral, the names and addresses of all alleged witnesses shall be stated in the application.

(4) No omission of any information from an application shall affect the power of the court to entertain the application.

Rule 7(1) of the Probate and Administration Rules reiterates the procedure to be followed and details to be provided.

The requirements as to the giving of consent to an application for grant of administration intestate by persons of prior preference is found in Rule 7(7) of the Probate and Administration Rules as follows:

“(7) Where a person who is not a person in the order of preference set out in section 66 of the Act seeks a grant of administration intestate he shall before the making of the grant furnish to the court such information as the court may require to enable it to exercise its discretion under that section and shall also satisfy the court that every person having a prior preference to a grant by virtue of that section has—

(a) renounced his right generally to apply for a grant; or

(b) consented in writing to the making of the grant to the applicant; or

(c) been issued with a citation calling upon him either to renounce such right or to apply for a grant.”

Rule 26 of the said Rules in addition requires notice to, and consent by all persons entitled to a grant in equality or priority to the Applicant as follows:

“ (1) 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.

(2) 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.

(3) Unless the court otherwise directs for reasons to be recorded, administration shall be granted to a living person in his own right in preference to the personal representative of a deceased person who would, if living, have been entitled in the same degree, and to a person not under disability in preference to an infant entitled in the same degree.”

From the above provisions, the only dispensation allowed to a citor is the requirement of consent of persons equally entitled to a grant if it is shown they have been cited and refused to take up the grant; however even in these circumstances a citor must provide this information by way of affidavit with supporting evidence.

I have perused the Petitions made by the Petitioner in the consolidated causes herein, and note that quite apart from the issue of lack of consent of other survivors of equal or superior rights, there was also complete non-disclosure by the Petitioner of these other survivors of the Deceased Persons, which survivors included children of some of the Deceased Persons which disclosure is required by law. These survivors were in addition well known to the Petitioner as he had cited them in the citation proceedings. The summonses for confirmation of grant equally do not provide for the said survivors or provide their consent.

I have also perused the citation proceedings in Machakos P&A Causes 240, 241, 242, 243 and 244 of 2012 in which the Petitioner was granted leave to Petition for grants of representation with respect to the Deceased Persons estates. I note that the Objectors were represented by an Advocate in the said citation proceedings, and did not take any action to Petition for letters of administration with respect to the Deceased Persons Estates after having been given the opportunity by this Court to do so.

In the circumstances it would be inequitable for the Objectors to now come to Court and plead ignorance of the succession proceedings herein, having been given notice of the same, and they are effectively deemed to have renounced their right to petition for grants for representation. It is also my view that in the circumstances, and irrespective of the non-disclosure by the Petitioner, the concerns raised by the Objectors as regards their interest in the Deceased Persons estates are more appropriately and adequately addressed in confirmation proceedings in the interests of expeditious disposal of the dispute between the parties.

The Objectors’ only recourse therefore is to file affidavits of protest, as provided for by Rule 40 (6) and (7) of the Probate and Administration Rules, as they missed the boat as regards representation of the deceased Persons Estate, and they still have the opportunity to contest the distribution proposals made by the Petitioner.

For the avoidance of doubt, I must also comment of the Petitioner’s argument that the Objectors have no right to the Deceased Persons estates, which he claims were fraudulently registered in the name of the deceased persons. The Petitioner and Objectors will in this regard all be required to prove their respective interests in the estates in the confirmation proceedings, and the fact of applying for a grant of representation does not of its own entitle an applicant to the Deceased’s estate. Under section 71 of the Law of Succession Act, it is specifically provided in this regard that the court must be satisfied as to the respective identities and shares of all persons beneficially entitled to an intestate’s estate during confirmation proceedings.

The Objectors’ summonses for revocation of grant dated 19th December 2016 in Succession Causes 430, 431 and 433 of 2014 are accordingly dismissed for the above reasons. This Court consequently gives the following directions, arising from the findings herein:

1. The Petitioner herein shall file and serve all the Objectors and other survivors and beneficiaries of the Deceased Persons in the consolidated cases herein with the respective Summonses for Confirmation of Grant within 30 days of the date of this Ruling.

2. The Objectors shall file and serve their Affidavit of Protest, if need be, to the said Summonses for Confirmation of Grant within 30 days of service of the Summons, failing which the Summonses for Confirmation of Grant shall proceed to hearing.

3. The status quo that shall obtain as regards the properties and assets belonging to the estates of the Deceased Personsending the confirmation of the grants of administration shall be that the Petitioner, Objectors and Beneficiaries of the estates of the Deceased Persons shall continue to be in possession and occupation of the properties and assets they currently occupy as at the date of this ruling; and that the said Petitioner, Objectors and Beneficiaries shall not sell, transfer, lease, undertake any further developments on, or in any manner dispose of or waste the said properties and assets.

4. There shall be no order as to costs.

Orders accordingly.

Dated, signed and delivered in open court at Machakos this 14th day of September 2017.

P. NYAMWEYA

JUDGE