[2022] KEHC 3123 (KLR)

Njeru v Silas (Civil Appeal 39 of 2019) [2022] KEHC 3123 (KLR) (18 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3123 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal 39 of 2019

LM Njuguna, J

May 18, 2022

Between

Michael Murathi Njeru

Appellant

and

Simon NK Silas

Respondent

(Being an appeal against the Ruling of Hon. H. Nyakweba SPM in Embu Succession Cause No. 225 of 2017 delivered on 2. 07. 2019)

Judgment

1. Vide a memorandum of appeal dated 15. 07. 2019, the appellant herein filed the instant appeal having been dissatisfied with the Ruling in Embu CMCC No. 225 of 2017 and thus set out the following grounds of appeal:1)The learned trial magistrate erred in law and in fact in ignoring and or failing to appreciate the binding nature of judicial precedent.2)The learned trial magistrate gravely erred in failing to find and hold that the respondent herein had no power in law to sell and/or dispose the property of the estate before the confirmation.3)The learned trial magistrate failed to find and hold that the respondent had no interest or title which he could validly transfer or confer on any one before the grant was confirmed.4)The learned trial magistrate erred in law and in fact in failing to find and hold that one Joseph Kinyua Muriuki did not and could not validly receive a benefit from the deceased’s estate.5)The learned trial magistrate erred in law in failing to hold that over-reaching did not and could not take place over the deceased’s estate.6)The learned trial magistrate erred in failing to find and hold that one Joseph Kinyua Muriuki was not an equity’s darling of the deceased’s properties.7)The learned judge erred in failing to appreciate that the disputed house is standing above and upon the grave of the appellant’s deceased’s parents.

2. The Appellant prayed for orders that:1)The appeal herein be allowed and the grant of letters issued to the respondent on July 3, 2010be revoked and the sale of 0. 30 ha wrongfully sold to Joseph Kinyua Muriuki be set aside and or revert to the estate for proper distribution.2)Costs of this appeal be borne by the respondent.

3. The appellant’s case is pegged on the allegation that the respondent herein fraudulently made a false statement by concealing from the court something material to the case. That the respondent one Joseph Kinyua Muriuki is neither a beneficiary nor a dependent to the deceased herein but was allotted 0. 30 ha of the estate of the deceased. It was the appellant’s case that Joseph Kinyua Muriuki conspired with the respondent to deprive the real beneficiaries of their rightful inheritance. That the said Joseph Kinyua Muriuki had proceeded and build a permanent house on top of the graves of the appellant’s parents which conduct is a reckless provocation of the spirits of those parents. That armed with information, he moved the lower court for prayers for revocation of the said grant but contrary to his prayers, the trial court reached a determination that the same was without merit. It is that ruling that has brought about the appeal herein.

4. The appeal was canvassed by way of written submissions wherein the appellant complied.

5. The appellant in support of the appeal submitted that the grant herein was obtained fraudulently by making of a false statement or by concealment from the court of something material to the case. That the respondent, before the grant could be confirmed, sold to Joseph Kinyua Muriuki 0. 30 ha, property of the estate herein. Reliance was made on the case of Re estate of Isaac Kabiru Marete (Deceased)(2017) eKLR. It was submitted that the said Joseph Kinyua Muriuki was not a purchaser since no sale agreement or transfer documents were ever produced before the court and as such, he cannot find refuge in Section 93 and 24 of LSA. Further reliance placed on the case of Wanja Kamau v Rosemary Wanjiru & Another2013 eKLR. That it was not enough to state that the appellant was present during the confirmation of the said grant and never raised any objection as his presence did not mean that the illegality was ratified. In the end, it was prayed that the appeal be allowed, the grant revoked and the illegal sale by the respondent to Joseph Kinyua Muriuki be declared a nullity.

6. I have read through and considered the memorandum of appeal and the submissions by the appellant. Further, I have read and evaluated the record of appeal and evidence adduced before the trial court by the parties herein. As I have already stated, what was before the trial court was summons for revocation of grant. It is my view that the issue which this court is invited to determine is whether the grant issued to the respondent herein on July 29, 2010 ought to be revoked.

7. As a first appellate court, this court has a duty to examine matters of both law and facts and subject the whole of the evidence to a fresh and exhaustive scrutiny, before drawing a conclusion from that analysis. The court has however to bear in mind the fact that it did not have an opportunity to see and hear the witnesses first hand. This duty is captured by Section 78 of the Civil Procedure Act which espouses the role of a first appellate court which is to:“‘…… re-evaluate, reassess and reanalyze the extracts of the record and draw its own conclusions.’This was buttressed by the Court of Appeal in the case of Peter M. Kariuki v Attorney General[2014] eKLR where it was held that:“We have also, as we are duty bound to do as a first appellate court, to reconsider the evidence adduced before the trial court and revaluate it to draw our own independent conclusions and to satisfy ourselves that the conclusions reached by the trial judge are consistent with the evidence……. (See Ansazi Gambo Tinga & another v Nicholas Patrice Tabuche [2019] eKLR).

8. However, there is no uniform method for evaluation of the evidence on record. What is expected of a trial court is to identify the legal and factual issues for consideration and to analyze the evidence tendered to determine what facts have been proved or disproved. [See John K. Malembi v Trufosa Cheredi Mudembei & 2 others [2019] eKLR]. Neither is there any set format to which this court ought to conform to, in the re-evaluation of the trial court’s evidence but the evaluation should be done depending on the circumstances of each case and the style used by the first Appellate Court. What matters in the analysis is the substance and not its length. [Uganda Breweries Ltd v Uganda Railways Corporation [2002] 2 EA 634 and Odongo and Another v BongeSupreme Court Uganda Civil Appeal 10 of 1987 (UR)].The circumstances under which a grant of representation may be revoked are provided for under section 76 (a)- (e) of the Law of Succession Act and include: -a)Where the proceedings to obtain the grant were defective in substance;b)Where 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)Where 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)Where 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 order or allow; orii)to proceed diligently with the administration of the estate; oriii)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; ore)Where the grant has become useless and inoperative through subsequent circumstances.

9. The above provisions of law were well explained by the court in Re Estate of Agwang Wasiro (Deceased) [2020] eKLR (W. Musyoka J) where the Learned Judge held that: -“Under section 76 of the Act, a grant of representation is liable to revocation on three general grounds. The first ground would be where the process of obtaining it was attended by glaring difficulties, such as where the same was defective, say because the person who obtained representation was not qualified to be appointed as personal representative, or the procedural requirements were not met for some reason or other. It could also be because the petitioner used fraud or misrepresentation or concealed important information in order to obtain the grant. The second general ground is where the grant is obtained procedurally, but the administrator subsequently runs into difficulties during the process of administration of the estate. Such difficulties include his failure or omission to apply for confirmation of his grant within the period allowed in law, or where he fails to exercise diligence in administration of the estate, such as where he omits to collect or get in an asset, or where he fails to render accounts as and when he is required to do so by the law. The third general ground is where the grant has become inoperative or useless on account of subsequent circumstances, such as where the sole administrator died or loses the soundness of his mind or is adjudged bankrupt.”

10. The appellant’s main contention is that the respondent herein fraudulently made a false statement and/or concealed from the court something material to the case. That the respondent one Joseph Kinyua Muriuki is neither a beneficiary nor a dependent to the deceased herein but was allotted 0. 30 ha of the estate of the deceased.

11. It is trite law that whoever asserts a fact is under an obligation to prove it in order to succeed. The standard of proof in civil cases (the degree of certainty with which a fact must be proved to satisfy the court of the fact) is the balance of probabilities [See Miller v Minister of Pensions [1947] 2 All ER 372 and Sections 107 of the Evidence Act]. A claimant remains with this burden even where a defendant has not denied the claim by filing of defence or even where the defendant did not appear. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side [See Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi& another [2014] eKLR].

12. Where fraud is pleaded, the burden and standard of proof was well explained by the Court of Appeal in Kuria Kiarie & 2 others v Sammy Magera [2018] eKLR held as thus: -“25…… The law is clear and we take it from the case of Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA. (as he then was) stated as follows:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.”26. As regards the standard of proof, this Court in the case of Kinyanjui Kamau Vs George Kamau eKLR expressed itself as follows: -“……It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo vs Ndolo (2008) 1 KLR (G & F) 742 wherein the Court stated that: “...We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases...”...In cases where fraud is alleged, it is not enough to simply infer fraud from the facts."

13. Having perused the grounds upon which the appeal is hinged, I come to one conclusion that the appellant seeks for revocation of the grant based on the alleged illegal sale by the respondent to Joseph Kinyua Muriuki. It was submitted that the sale by the respondent was long before the grant was confirmed and given that the administrator derives his power to deal with the deceased’s estate, from a certificate of confirmation of the grant, the outcome of the transaction was a nullity. Further, it was the appellant’s case that Joseph Kinyua Muriuki could not be referred to as a purchaser since no agreement was presented before this court for scrutiny. That, failure by the appellant to object to the mode of distribution during the confirmation, according to the appellant, cannot ratify an illegal sale or disposition of 0. 30 ha. of the estate of the deceased herein.

14. I note that the application for confirmation of grant lists the respective shares to include the beneficiaries of the deceased. The mode of distribution is also not equal. This being the case, the respondent argued that this was as a result of the fact that due to financial constraints, the appellant was approached by the respondent and other beneficiaries so that they could hive off part of their respective shares of land to sell so as to get money to run the process of succession, a suggestion that the appellant rejected. That the respondent and the widow of his brother by the name Patrick Gacungi disposed off part of their portions of their respective shares to enable realization of funds to conduct the succession. It was argued that all this was done with the knowledge of the appellant and further, each beneficiary took up their possession of their respective portions upon confirmation of grant in the year 2010 and have proceeded to develop their respective shares.

15. From the perusal of the court record, it is clear that the parties herein inherited different sizes of the estate. It is of importance to also note that the appellant is the only one who inherited biggest share of the estate. In my considered view, the appellant has not addressed his case that the grant in this matter was obtained in a manner that rendered it defective in substance, or fraudulently by making of a false statement, or concealment from the court something material to the case but instead, has simply decried the fact that Joseph Kinyua Muriuki’s was apportioned a share. I find the appellant to be insincere and moreover, given that he was present during the confirmation of grant that he is now seeking to revoke, and further compounded by the reason that he had to wait for a period of six years to realize that the respondent had fraudulently made a false statement, and/or concealed from the court something material to the case. I am inclined to believe the explanation of the respondent that there was an agreement amongst the beneficiaries to dispose off a part of the estate to realize the succession process.

16. In regard to the allegation that the respondent fraudulently made a false statement or concealed from the court something material to the case, I find that there has been no proper evidence presented before this court to support such an allegation and even if he had pleaded, he still had the burden of proving the same. I am guided by the decision of F. Gikonyo J’s in Augustine Johnstone Moi Kirigia v Catherine Muthoni Isumali Kirimi[2017] eKLR that he who alleges fraud bears the burden of proving the same.

17. In the circumstances herein, and considering all the above, it is my view that the appellant herein has not satisfied any of the conditions for revocation of grant as provided for under Section 76 of the Law of Succession Act. As such, the trial court did not err in its finding in relation to the summons for revocation of grant which was before it. The applicant did not make out a case for revocation of grant issued to the respondent and in that regard, I hereby dismiss the appeal.

18. Each party to bear its own costs of the appeal.

19. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 18TH DAY OF MAY, 2022. L. NJUGUNAJUDGE..................... for the Appellant..................... for the Respondent