[2022] KEHC 500 (KLR)

Ngoge v Oyugi (Probate & Administration 176 of 2008) [2022] KEHC 500 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 500 (KLR)

Republic of Kenya

In the High Court at Kisumu

Probate & Administration 176 of 2008

FA Ochieng, J

May 12, 2022

IN THE MATTER OF THE ESTATE OF THE LATE PAUL OTIENO NYAMODI (DECEASED)

Between

Peter Odiwuor Ngoge

Applicant

and

Antone Udida Oyugi

Respondent

Ruling

1. Before me is an application for the revocation of the Grant of Letters of Administration dated June 26, 2008, which was later confirmed on March 20, 2009.

2. The Applicant is Peter Odiwuor Ngoge.He prays that –a.The bills of Costs of O P Ngoge & Associates in the case Misc. Civil Application No. 669 of 2006; and Misc. Application No. 1085 of 2005 be included as liabilities of the estate of the deceased.b.The Law Firm of O P Ngoge & Associates be granted leave to sell the assets of the deceased, so as to enable the said firm recover its legal fees for services which the firm rendered, pursuant to instructions given by the deceased.c.The Public Trustee be appointed as the Administrator of the estate.d.Mama Margaret Aorobe enjoined into this matter as one of the bonafide beneficiaries of the estate.

3. The application was supported by the Applicant’s affidavit. He deponed that the deceased had retained him to render services for Woolfe Projects & Building Constructions Limited, And Sage International Limited.

4. The Applicant exhibited a Decree which was issued in the case which he had filed against one of the two companies named above, being Woolfe Projects & Building Constructions Limited.

5. Another annexture was a Certificate of Taxation issued in favour of the Applicant, against Sage International Limited. The Decree was issued on June 7, 2010, whilst the Certificate of Taxation was issued on January 26, 2006.

6. Neither the Decree nor the Certificate of Taxation cites the deceased, Paul Otieno Nyamodi, as a party.

7. Notwithstanding the fact that the deceased was not a party in the two cases, the Applicant has submitted that the Administrator of the Estate of the late Paul Otieno Nyamodi, should have cited him as a liability against the said estate.

8. In his view, the failure to name him as a liability was a deliberate and fraudulent action on the part of the Administrator, as the action was intended to deny the Applicant his right to access his legal fees.

9. The Applicant first stated that his claim was based upon the fact that it was the deceased who had given him instructions to represent the two companies. However, the Applicant did not provide to this court, documents to show that the deceased had given him the alleged instructions.

10. At paragraph 14 of his supporting affidavit, the Applicant deponed that his entitlement to recover his legal fees was a claim;“…arising from the legal services which I rendered to the late Paul Otieno Nyamodi…”

11. It is thus not clear whether the Applicant rendered some legal services to the two companies only, or if he also rendered other legal services to the deceased.

12. Either way, the Applicant has not made available any documentary proof of the nexus between the deceased and him.

13. If services were rendered to the deceased, the Applicant ought to have provided the contract between him and the deceased. To date, the court has not been provided with any proof of services which the Applicant rendered to the deceased.

14. The Applicant has placed reliance upon an Order made by Chitembwe J on July 13, 2021, to support his claim that the Administrator had acted fraudulently by failing to cite his legal fees as a liability against the estate.

15. However, the Applicant failed to demonstrate to this court that he had made the Administrator aware of his legal fees. If the Administrator was not made aware of the legal fees, he cannot be accused of deliberately failing to recognize the same.

16. In any event, there is also no proof that the deceased was a shareholder or a director or an officer of either of the two companies against whom the Applicant has a claim for his legal fees. But even if the deceased was a shareholder, or a director or an officer of the said companies, that could not, of itself, render his estate personally liable for such debts as may be payable by the said companies.

17. It is well settled that a limited liability company has separate and distinct legal personality, which is separate from its shareholders and directors. Therefore, unless the Applicant was to first undertake the onerous task of lifting the corporate veil, so as to render the deceased personally liable for the debts of the companies, I find that the claim against the estate of the deceased is not properly founded in law.

18. I find that the Applicant has not proved that there was any fraud, or misrepresentation, or concealment of any material facts by the Petitioner, at the time he lodged the petition for Grant of Letters of Administration.

19. The Applicant has told this court that the assets which constituted the estate had been transferred to third parties, namely: -i.Meline Atieno Ogando, andii.Mereza Achieng Ogango.

20. He also said that two of the parcels of land had been transferred to Park View Holdings Limited.

21. Thirdly, the Applicant said that one parcel of land had been transferred to Fred Nyandeya Magomere and James Shikule Anzabwa.

22. If indeed the named persons are the current registered proprietors of parcels of land which hitherto constituted the Estate of the late Paul Otieno Nyamodi, I find that they were essential parties to the matter which was being canvassed before me. I so hold because if the court were to revoke the Grant and to set aside the Certificate of Confirmation of Grant, the said orders would have a direct impact on the proprietary rights of the registered owners of the various parcels of land.

23. The Applicant has not taken any steps to inform the said purchasers that he had lodged an application which may result in orders that might be extremely prejudicial to them.

24. In the result, if I had formed the considered opinion that the application was well founded, in law, I would still have found it difficult to make any orders that could impact on persons who had not been accorded an opportunity to be heard.

25. I have focused my attention on the issue of the Applicant’s legal fees, because that, to my mind, is his sole interest in the matter. I have therefore ignored the side-shows, which have been introduced by the Applicant, because neither the mother of the deceased, nor the only son of the deceased are Applicants herein. It therefore appears to me that the Applicant was intent to introduce into the application any “party” or any matter which could possibly lead to the re-opening of the whole succession cause.

26. In the result, the application dated October 15, 2021 is dismissed. The Applicant will pay the costs thereof, to the Respondent.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 12THDAY OF MAY 2022. FRED A. OCHIENGJUDGE