[2022] KEHC 14374 (KLR)

Njiru v Kiura & 2 others (Civil Appeal 29 of 2019) [2022] KEHC 14374 (KLR) (19 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14374 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal 29 of 2019

LM Njuguna, J

October 19, 2022

Between

Aleta Muthoni Njiru

Appellant

and

Gerishon Njeru Kiura

1st Respondent

Alex Abraham Kinyua

2nd Respondent

Bedan Njiru Johan

3rd Respondent

(The instant appeal was instituted vide a memorandum of appeal dated June 14, 2019 and the same being from the ruling by Hon LK Mwendwa (SRM) delivered on May 16, 2019 in Runyenjes Succession Cause No 96 of 2017. )

Ruling

1. The instant appeal was instituted vide a memorandum of appeal dated June 14, 2019 and the same being from the ruling by Hon LK Mwendwa (SRM) delivered on May 16, 2019 in Runyenjes Succession Cause No 96 of 2017. The appellant framed seven grounds of appeal as enumerated in the memorandum of appeal.

2. When the appeal came up for hearing, the parties took directions to dispose the same by way of written submissions and which directions were complied with by all the parties.

3. The appellant submitted that the estate herein is one of Kiura Mukono, a father in law to the appellant herein. That all the family members sat together and agreed on the mode of distribution on what exactly each beneficiary was to get. As a result, the grant dated September 14, 2009 was issued whereby the appellant together with her husband were given ¾ acres out of suit land. That the administrator later on colluded with the respondents and secretly filed an application to amend the said grant without involving the appellant and other family members. That as a result, the grant was amended whereby the name of the appellant’s husband through which he had been given a share was replaced by one Alex Abraham Kinyua and an amended grant dated July 24, 2021 was issued.

4. It was her case that she thereafter filed an application to have the amended grant revoked, which application was dismissed by the trial court hence the appeal herein. That the appellant’s share was given to a stranger which denied her the share that she could have inherited through her husband. She thus sought that the appeal herein be allowed for the reasons enunciated above.

5. The 1st respondent submitted that neither the appellant nor the 3rd respondent are beneficiaries of the estate of the deceased and in particular, the 3rd respondent is not a son to the late Kiura Mukono. That the appellant and her husband were not initially parties to the succession proceedings up and until the point of confirmation of grant when the 3rd respondent inherited ¾ acres out of the suit land; that the same had been purchased from one of the beneficiaries of the estate, known as Fredrick Nyaga Kiura. That subsequent to the confirmation of the grant, the 3rd respondent sold the said portion to two parties namely the 2nd respondent (½ acre) and one Joseph Mugo Muru (¼ acre).

6. The 1st respondent proceeded to submit that the parties applied to have the grant rectified to reflect the said changes. That at no time was the ¾ acre portion registered in favour of the 3rd respondent and further, the appellant did not prove that she is a beneficiary of the estate herein. Further, it was her case that the appellant did not demonstrate that she was a party to the transaction between her husband and the beneficiary Fredrick Nyaga Kiura and therefore, the dispute herein should be dealt with in other proceedings and not in this succession cause. That the trial court erred in permitting a purchaser to be included in the estate and the same applies to the case of the 3rd respondent who was included in the grant and yet he was a purchaser.

7. The 2nd respondent submitted that the appellant herein is not a beneficiary and as such, has no interest whatsoever in the estate herein. That the appellant who also happens to be the wife of the 3rd respondent seeks to pursue a share of the estate that her husband had bought from one of the beneficiaries and that the same cannot be supported by the law given that the husband has equally been sued as the 3rd respondent. It was submitted that the appellant herein was not listed as a beneficiary in the first place and that the main dispute lies between the appellant and the 3rd respondent who is not a beneficiary of the estate herein. In the end, it was prayed that the appeal herein be dismissed with costs.

8. It’s now settled that the role of the first appellate court is to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. [See Selle & anor v Associated Motor Boat Co Ltd (1968) EA 123]. The first appellate court ought not to ordinarily interfere with findings of fact by the trial court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings. [See Mwanasokoni v Kenya Bus Service Ltd [1982-88] 1 KAR 278 and Kiruga v Kiruga & another [1988] KLR 348].

9. Further, there is no set format which the first appellate court ought to conform to, in its 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 and that what matters in the analysis is the substance and not its length. (See Supreme Court of Uganda’s decision in Uganda Breweries Ltd v Uganda Railways Corporation [2002] 2 EA 634 and Odongo andanotherv Bonge Supreme Court Uganda Civil Appeal 10 of 1987 (UR).

10. I have read through and considered the memorandum of appeal and the submissions of both counsels. I have also considered the authorities referred to by each counsel to support their legal propositions in the matter. Further, I have read and re-evaluated the record and evidence adduced thereto by the appellant. In my view, the only issue which this court is invited to decide is whether the trial court was right in dismissing the appellant’s application for revocation of the grant.

11. As I have already noted, the appellant’s application before the trial court was for revocation of grant. The grounds upon which the said application was premised were that the same was obtained fraudulently by concealment of material particulars and secretly without any notice to the applicants and other beneficiaries. However, when the application came up for hearing before the trial court, the appellant’s testimony was to the effect that the Respondents petitioned for letters of administration and later amended the grant without her knowledge.

12. It is trite that 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.[See re Estate of Prisca Ong’ayo Nande (Deceased)[2020] eKLR and re Estate of Agwang Wasiro (Deceased) [2020] eKLR].

13. Section 76 of the Law of Succession Act and rule 44 of the Probate and Administration Rules 1980 indeed provides for the circumstances for revocation of a grant. Under the said provisions, a grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by an interested party or of its own motion on the grounds either that the proceedings to obtain the grant were defective in substance; that the grant was obtained fraudulently by making of a false statement or by the concealment from the court of something material to the case; or that the grant was obtained by means of untrue allegation of a fact essential in point of law to justify the grant not withstanding that the allegation was made in ignorance or inadvertently.

14. The law under rule 26 (a) and (2) of the Probate and AdministrationRules provides as follows: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.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 ….

15. In the instant case, the applicant herein submitted that she is the wife of the 3rd respondent who had previously purchased a piece of land from the estate herein from a beneficiary- Fredrick Nyaga Kiura - of the said estate. That thereafter, the grant was confirmed and the 3rd respondent acquired a ¾ acre of the estate and further sold his portion to one Joseph Mugo Muru and Alex Ibrahim Kinyua. It was further submitted by the respondents that, the changes were carried out with the knowledge of all the beneficiaries.

16. The appellant has submitted that the changes herein were made fraudulently without the knowledge of all the beneficiaries and yet, she is the wife of the 3rd respondent who was a purchaser of the estate having bought the same from a beneficiary of the estate of the deceased herein. By all means, the appellant does not fall within the provisions of section 76 and therefore, the failure by the respondents to inform her of the amendment of the grant which the appellant later sought to revoke and which is the subject of this appeal, cannot therefore succeed. This is because the 3rd respondent whom the appellant hinges her case on, in the first place, was not a beneficiary but just a purchaser. [See section 66, section 29 of LSA].

17. From the perusal of the appeal before me, it is clear that the appellant is not one of the beneficiaries of the estate of the deceased. Her interest in the estate of the deceased arises from her relationship with the 3rd respondent who is her husband and who has equally opposed the appeal herein. The 3rd respondent is also not a beneficiary of the estate save for the beneficial interest he acquired after having bought a piece of the estate from a beneficiary. In view of the foregoing, could the appellant be said to have interest in the estate herein to enable this court grant the prayers sought in the appeal?

18. Under the circumstances, it is my view therefore that the applicant does not possess the requisite locus standi to present the instant appeal. There is no way she can claim against the estate of the deceased whereas she is neither a beneficiary nor a dependant of the deceased.

19. In the circumstances, I find that the appeal has no merits and the same is dismissed with costs to the respondents.

20. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 19TH DAY OF OCTOBER, 2022. L NJUGUNAJUDGE.........................for the Appellant........................for the Respondent