[2023] KEHC 24286 (KLR)

Ngiela v Ngiela & 2 others (Civil Appeal E078 of 2022) [2023] KEHC 24286 (KLR) (24 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24286 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal E078 of 2022

KW Kiarie, J

October 24, 2023

Between

Mary Achieng Ngiela

Appellant

and

Wycliffe Ochieng Ngiela

1st Respondent

Maricue Dikenze O. Yudah

2nd Respondent

Philip Odoyo Odindo

3rd Respondent

(Being an Appeal from the ruling and order in Oyugis Senior Principal Magistrate’s SPM Succession Cause No.209 of 2020 by Hon. B.O Omwansa–Senior Principal Magistrate)

Judgment

1. Mary Achieng Ngiela the appellant herein had filed an application dated 15th day of December 2021 by way of Summons for revocation of grant. Her application was premised on the following grounds:a.The petitioner/respondent herein filed and/or commenced Succession proceedings herein and thereby obtained Grant of Letters of Administration and the attendant certificate of Confirmation of Grant, in respect of the Estate of the deceased person herein, albeit failing to disclose to the Honorable court that the Estate of the deceased had been dealt with and distributed vide Kisii HCC Succession Cause No. 406 of 2009 whereby the applicant herein was one of the appointed Legal Administrator.b.Besides, LR NO. Central Kasipul/Kamuma/474 (herein referred to as the suit property) was one of the properties of the Estate of the deceased herein vide Kisii HCC Succ Cause No. 406 of 2009 which property was distributed to one Andronico Ondoro Ngiela, now deceased.c.Subsequent to the issuance of the Grant of Letters of Administration and the Certificate of Confirmation of the Grant, the petitioner/respondent has since caused the suit property to be subdivided into LR. No. Central Kasipul/Kamuma/9453, 9454, and 9455 whereby the same have now been transferred and registered in the names of the petitioner/respondent herein and the interested parties.d.Pursuant to the offensive and unlawful transfer, the petitioner/respondent and the interested parties herein are now threatening to sell, dispose of, and/or alienate the suit property (now sub-divided) herein so as to put same beyond recovery, under the pretext of reliance on the provisions of Section 93 of the Law of Succession Act, Chapter 160, Laws of Kenya.e.In the premises, the applicant herein who is the duly and legally appointed administrator of the estate of the deceased vide Kisii HCC Succession Cause No.406 of 2009 has the duty to safeguard the Estate herein from such offensive and unlawful actions. Besides, the suit property having been distributed to one Andronico Ondoro Ngiela, now deceased was not available for distribution.f.In the circumstances, it is imperative that appropriate orders be issued to preserve and conserve the Estate of Joseph Ngiela Mbori, the deceased person herein, and in particular, LR. No. Central Kasipul/Kamuma/474 (now sub-divided into LR. Nos. Central Kasipul/Kamuma/9453, 9454, and 9455), pending the determination of the instant Summons for Revocation of Grant.g.Consequently, unless the orders sought herein are granted, the applicant and the other true heirs and/or beneficiaries of the Estate of the deceased person herein, are bound to be denied and/or deprived of their lawful/rightful entitlements.h.In view of the foregoing, there exists Special Exceptions and/or Peculiar circumstances, to warrant the instant application being certified urgent, so as to abate and/or mitigate the loss that shall accrue, in the event that the suit property is disposed of, sold, charged and/or otherwise alienated.

2. The appellant filed this appeal through Ogutu Mboya, Ochwal & Partners Advocates after the application was dismissed with costs on August 31, 2021. The appeal raised the following grounds of appeal:a.The learned trial magistrate erred in law and in fact in disregarding and/or ignoring the pleadings filed by and/or on behalf of the appellant herein and in particular, that as at the time of lodging the probate proceedings vide Oyugis PMCC Succession Cause No.209 of 2020, in the subordinate court, the appellant and one Andronico Ondoro Ngiela, now deceased had been appointed the legal Administrators of the Estate of the deceased one, Joseph Ngiela Mbori vide Kisii HCC Succession Cause No.406 of 2009 on the 6th July 2011 and the Grant therein confirmed on the 28th September 2017. b.The learned trial magistrate failed to appreciate the evidence placed before him with respect to the subject Estate comprising LR. No. Kasipul/Kamuma/474 (now subdivided into LR. No. Central Kasipul/Kamuma/9453, 9454, and 9455) being part of the Estate distributed vide Kisii HCC Succession Cause No.406 of 2009 and thus same was not available for redistribution in the probate cause vide Oyugis PMCC Succession Cause No. 209 of 2020. c.The learned trial magistrate erred in fact and law and further failed to appreciate that there can never be two grants in respect of the same Estate issue dot two Administrators in separate probate causes.d.The learned trial magistrate failed to appreciate the resultant import and tenor of Form 30 of the Probate and Administration Rules issued by the Principal Registrar which is to ensure that there are no multiple causes in respect of the same Estate.e.The learned trial magistrate erred in law in delving into the issues beyond its jurisdiction particularly when same sought to answer whether the respondent herein was aware of Kisii HCC Succession Cause No.406 of 2009, for clarity, it behooved the learned magistrate to direct the respondent to pursue revocation of the grant issued to the appellant vide the said cause and not the cause before the learned magistrate.f.The trial magistrate erred in law in finding and holding that the appellant failed to demonstrate that the respondent was involved in the proceedings vide Kisii HCC Succession Cause NO.406 of 2009, for clarity, the proceedings therein were not at the disposal of the trial magistrate neither did same have jurisdiction to interrogate the manner in which the grant therein was issued.g.The learned trial magistrate erred in law in finding and holding that the appellant failed to comply with the provisions of Section 83(g) of the Law of Succession Act. Noting that it was not within the mandate of the trial magistrate to make such a finding on a matter that was not within his jurisdiction. For clarity, the learned magistrate assumed supervisory powers over a Superior Court thus arriving at a slanted decision.h.The learned trial magistrate failed to appreciate the evidence on record in regard to the facts surrounding the estate of one Joseph Ngiela Mbori, now deceased, in regard to the grant issued to the appellant herein.i.The learned Trial Magistrate misdirected himself and framed his own issues particularly issues on the confirmed grant issued vide Kisii HCC Succession Cause No.406 of 2009 which grant had not been revoked and/or annulled by the Superior court therein.j.The learned trial magistrate failed to cumulatively and/or exhaustively evaluate the entire evidence on record and hence failed to capture and decipher the salient issues and/or features of the suit before him (Trial magistrate) and thus arrived at an Erroneous conclusion, contrary to and in contradiction of the evidence placed before him.k.The trial magistrate arrived at a slanted and erroneous ruling based on the failure to appreciate and/or discern the claim by and/or at the instance of the appellant.l.The ruling of the learned trial magistrate does not capture the issue(s) for determination, the determination thereof, and the reasons for such determination, consequently, the judgment of the learned trial magistrate contravenes the mandatory provisions of Order 21 Rule 4 of the Civil Procedure Rules, 2010.

3. The appeal was opposed by the respondents through the firm of O.H. Bunde & Company Advocates, on the following grounds:a.That the respondent was not privy to Kisii HCC Succession Cause No.406 of 2009. b.That the respondent was not given any beneficial share in Kisii HCC Succession Cause No.406 of 2009.

4. As the first appellate court, I understand that it is my responsibility to thoroughly review all evidence presented on record. It is important to note that I did not have the opportunity to witness any witness testimonies or observe their behavior. My decision-making process will be influenced by the ruling in the Selle v Associated Motor Boat Co. Ltd. [1965] E.A. 123 case, which dictates that the first appellate court must re-examine and assess all evidence presented in the initial trial, ultimately forming our own conclusions about the matter at hand.

5. The trial magistrate who presided over the case did not provide any reasons for dismissing the application for revocation. Although he confirmed that he had reviewed the application, the supporting affidavit, and the replying affidavit, along with the accompanying exhibits, he did not give any explanation for his decision. This is a concern, as important legal matters were brought up and required his attention.

6. It was contended, and not denied, that there was another succession cause prior to the one in respect of which this appeal arose. This was Kisii High Court Succession Cause number 406 of 2009. Rule 4 (1) of Probate and Administration Rules provides:A district registrar shall send to the principal registry a notice in Form 73 of every application made in his registry for a grant as soon as may be after the application has been filed and no such grant may be signed by the court until the receipt from the principal registry of a certificate in Form 30 to the effect that no other application made in respect of the estate of the deceased has been granted or notified to the principal registry as pending; and such certificate shall be despatched promptly by the principal registry to the district registrar.

7. This rule is in place to safeguard the interests of beneficiaries and to deter any attempts to file multiple successions in different registries. It is imperative that this rule be adhered to. As exemplified in the case of In re Estate of Sandra Gathoni Kanyotu (Deceased) [2022] eKLR, where the court stated:It is trite law that two grants cannot issue in respect of the same estate. That is why form 30 issued by the principal Registrar is necessary to ensure that there are no multiple causes in respect of the same estate. This is meant to preserve the dignity of the court not to issue contradicting orders and also to bring litigation to an end once and for all.

8. The trial magistrate should not have dismissed the application had he considered the Rule and the cited authorities.

9. It is not sufficient to argue that the respondent was not aware of the succession cause in the High Court at Kisii and that he was not a beneficiary in that estate. He ought to have moved the court for redress in the Kisii HCC Succession Cause No.406 of 2009.

10. I therefore find that the appeal is merited. The same is allowed and the grant in Oyugis Senior Principal Magistrate’s Succession Cause No.209 of 2020 is accordingly revoked. Any part of the estate of Joseph Ngiela Mbori that has not been distributed to be dealt with in the Kisii High Court Succession Cause number 406 of 2009.

11. The respondents will bear costs in this appeal and for the application in the trial court.

DELIVERED AND SIGNED AT HOMA BAY THIS 24TH DAY OF OCTOBER 2023KIARIE WAWERU KIARIEJUDGE