[2017] KEHC 3014 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

SUCCESSION CAUSE NO. 883 OF 2013

IN THE MATTER OF THE ESTATE OF DANIEL

NGUVA KISELI alias NGUVA KISELI (DECEASED)

NELSON MUNGUTA NGUVA....................................PETITIONER

VERSUS

1. JOSEPH MUTUA NGUVA

2. PETER NGUVA KISELI

3. KELVIN KILUU NGUVA......................................OBJECTORS

RULING

The Summons

The Petitioner herein was issued with grant of letters of administration intestate on 15th January 2014 with respect to the estate of the deceased Daniel Nguva Kiseli alias Nguva Kiseli (hereinafter referred to as “the deceased”), which grant was confirmed on 4th April 2014. The Petitioner is a son of the Deceased. The Objectors, who are also sons of the Deceased, thereupon filed summons dated 3rd June, 2016 seeking the following orders:

a) That the court do order a caution to be registered on Athi River/ Athi River block 1/159 and plot number 1606 and 2786 at Kyumbi pending hearing and determination of this application.

b) That the court do suspend the use of, the grant of administration intestate made on the 20th November, 2014 to Nelson Munguti Nguva and confirmed on the 22nd May, 2014 pending the hearing and determination of the summons for confirmation.

c) That the grant of letters of administration intestate made on 20th January, 2014 to Nelson Munguti Nguva and confirmed on 22nd May, 2014 be annulled and or revoked.

d) That all title deeds and transfers effected by use of the said grant confirmed on 22nd May, 2014 be recalled and cancelled.

e) That the administrators do give an account of all properties and incomes of the estate of the deceased.

This Court at a hearing held on 22nd March 2016 directed that the summons would be heard by way of affidavit evidence, and arties were also directed to file and exchange written submissions.

The summons is supported by affidavits sworn on 3rd June 2016 by the Objectors. The Objectors contend that the grant was obtained fraudulently through concealment of material facts; that the Objectors being persons of prior or equal rights did not consent to the said grant or renounce their rights prior to the issuance of the letters of administration; that the interests of the Objectors herein have not been taken care of in the said grant, and that the Petitioner omitted 17 beneficiaries who are not catered for and or disclosed.

Further, that the grant was obtained through forgery, and the petitioner has started disposing off assets belonging to the deceased estate without consent from other beneficiaries, and that unless the grant is revoked or annulled the beneficiaries stand to suffer irreparably.

The Objectors filed a further affidavit sworn by the 1st Objector on 24th April, 2017. The contended therein that the Petitioner has admitted the existence of three wives of the Deceased, but not demonstrated that he obtained consent from all the beneficiaries. Further, that the Petitioner has not tendered any evidence to demonstrate that the Deceased shares at Katelembo Co-operative Society belonged to his mother, and that it was transferred to him. According to the Objectors, the petitioner failed to disclose to the court that in fact it is the wives Mbelelu and Nthambi who bought the shares and the parcels therefore did not form part of the deceased’s estate.

It was also contended that the Petitioner had already started meddling with the deceased’s estate way before he was issued with a certificate of confirmation of grant. That this is so because the certificate of confirmation of grant was issued on 4th April, 2014 but the petitioner had by 25th October, 2013 through the office of the assistant chief requested that the ownership details of all that parcel Athi river/ Athi river block 1/159 be changed from the names of the deceased to himself.

The Objectors’ advocate, B.M. Mungata Advocates reiterated the foregoing averments in their submissions dated 2nd May 2017, and cited the decision in Jamleck Maina Njoroge v. Mary Wanjiru Mwangi (2015) e KLR for revocation of the grant and return of the Deceased’s estate to its status quo ante.

The Response

The Petitioner in response filed a replying affidavit he swore on 28th June, 2016. He contended that during his life time, his father bought three shares at Katelembo Co-operative Society for his three wives, and that each house had a share in the name of the wife as a next of kin. Further, that the share of his mother was transferred to him since his mother was dead and he was the next of kin, and his name was legally substituted by the society according to its by-laws and the Cooperative Society Act.

According to the Petitioner, Mbelelu the first wife’s share is No. 2618 and she should apply to be issued with the said title deed, his share is 2170 and Nthambi’s share is 1802. He denied that he committed any fraud and petitioned the court in respect of his mother’s share and he could not include the other two houses since their individual shares are in the society. He stated that he obtained a letter dated 25th October, 2013 from the chief and applied for consent to sell the plot.

The Petitioner’s advocate, Paul Kisongoa & Company Advocates filed submissions dated 16th June 2017 wherein it was urged that it was incumbent upon the Objectors to prove their allegations. He cited section 107 (1) and (2) of the Evidence Act in this regard. Further, that the Petitioner was not aware of any other property of the Deceased and the Objectors should have availed evidence in that regard.

In addition, that the Objectors admit to being served with a date for confirmation of grant but failed to disclose the date on which they were so served. The Petitioner submitted that the grant should not be annulled since it was in regard to his mother’s estate. Lastly, that pursuant to Rule 69 of the Probate and Administration Rules, the costs and incidentals to all proceedings under these rules shall be in the discretion of the court.

The Issues and Determination

I have read and carefully considered the pleadings and submissions made by the Objectors and Petitioner. It is not disputed that the Objectors are the sons of the Deceased. The issues therefore to be decided are firstly, whether the Petitioner is culpable of non-disclosure of this material fact; secondly whether the Petitioner’s confirmed grant of letters of administration should be revoked, and thirdly whether the orders sought by the Objectors as to revocation of titles and making of accounts can be issued.

A perusal of the Petition for Letters of Administration Intestate filed by the Petitioner on 6th November 2013 and the affidavit in support shows that neither the Objector or other survivors of the Deceased were disclosed. I have also perused the affidavit sworn by the Petitioner on 12th February 2014 in support for the summons for confirmation of grant. It is indicated therein that the Petitioner is the only one surviving the deceased and that the deceased left the following properties:

a) Land Parcel No. Athi River/ Athi River Block 1/159

b) Plot No. 2786 at Kyumbi

Likewise, the proposed distribution in the said affidavit leaves out the Objector and other beneficiaries, and their consent to the said distribution was not provided. Lastly, it is indicated on the Court record that the Petitioner again represented himself as the sole beneficiary of the estate of the Deceased during the confirmation proceedings on 4th April 2014.

The said averments particularly that the Petitioner is the only surviving heir of the Deceased are untrue bearing in mind the Petitioner’s concession that the deceased had other wives apart from his mother, and the fact that he has not contested the Objectors’ claim that they are sons of the deceased. It follows therefore that the Petitioner misled the court to believe that he was the only beneficiary of the deceased and It is evident that there was material disclosure on his part.

Section 76 of the Law of Succession Act (Chapter 160 of the Laws of Kenya) provides as follows in this regard:

“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 confirmed grant issued herein is thus subject to revocation on account of the material non-disclosure on the Petitioner’s account, and also on account of the exclusion of key beneficiaries of the Deceased from the succession and confirmation proceedings.

On the last issue as regards this Court’s powers to issue orders revoking any titles title and order for accounts, this court has wide inherent powers in succession matters to make such orders as may be expedient, to ensure that the ends of justice are met and prevent abuse of court process by parties under section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules. Section 47 of the Law of Succession Act provides as follows:

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 (emphasis mine)

Provided that the high court may for the purpose of this section be represented by resident magistrates appointed by the chief justice

Rule 73 of the Probate and Administration Rules provides 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.”

As to whether there are grounds for the Court to exercise these powers in relation to revocation of title to the deceased properties acquired by a third party from the Petitioner, it is notable from the certificate of official search annexed as Annexure “JMN3” to the Objectors supporting affidavit that the Petitioner transferred the property known as Athi River/Athi River BLK 1/159 to a third party on 28th July 2014, after he had been issued with a Certificate of Confirmation of Grant herein on 4th April 2014. The Objectors did not seek to join the third party as a party to this proceedings to defend himself, as he would be affected by the orders sought by the Objectors.

In addition Section 93(1) of the Law of Succession Act provides:

“(1)All transfers of any interest in immovable or movable property made to a purchaser either before or after the commencement of this Act by a person to whom representation has been granted shall be valid, notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this Act.”

It was however held in Adrian Nyamu Kiugu vs. Elizabeth Karimi Kiugu and Anor[2014] eKLR that section93 of the Law of Succession Act does not protect and validate transfers by a person by whom representation was obtained fraudulently.

In the above circumstances, the orders that I am of view are appropriate in the circumstances of this application are as follows:

1. The grant of letters of administration intestate issued herein to Nelson Munguti Nguba on 15th January 2014 with respect to the estate of Daniel Nguva Kiseli alias Nguva Kiseli be and is hereby revoked.

2. The Certificate of Confirmation of Grant issued herein to Nelson Munguti Nguba on 4th April 2014 with respect to the estate of Daniel Nguva Kiseli alias Nguva Kiseli be and is hereby revoked.

3. The Summons for Confirmation of Grant dated 12th February 2014 filed herein by the Petitioner on 13th February 2014 be and is hereby expunged from the Record.

4. A Prohibition shall forthwith be registered against the title to Athi River/ Athi River Block 1/159 and plot number 1606 and 2786 at Kyumbi prohibiting any dealings with the said title of any type pending hearing and determination of this Succession Cause.

5. The shall file and serve a full and accurate account of all dealings and monies received with respect to the properties known as Athi River/ Athi River Block 1/159 and plot number 1606 and 2786 at Kyumbi up to the date of the account within 60 days of the date hereof.

6. The Petitioner, Objectors and Beneficiaries ofDaniel Nguva Kiseli alias Nguva Kiseli (Deceased) shall agree and file a consent on the new administrators of the Estate of the saidDeceased within 60 days, failing which this Court shall appoint the new administrators of the said Estate.

7. The status quo that shall obtain as regards the properties and assets belonging to the Estate ofDaniel Nguva Kiseli alias Nguva Kiseli (Deceased) pending the appointment of new administrators shall be that the Petitioner, Objectors and Beneficiaries of the Deceased shall continue to be in possession and occupation of the said properties and assets they currently occupy; and that the 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.

8. There shall be no order as to costs.

Orders accordingly.

Dated, signed and delivered in open court at Machakos this 18th day of September 2017.

P. NYAMWEYA

JUDGE