[2023] KEHC 25120 (KLR)

Okou v Oduor & another (Civil Appeal E039 of 2022) [2023] KEHC 25120 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25120 (KLR)

Republic of Kenya

In the High Court at Busia

Civil Appeal E039 of 2022

WM Musyoka, J

November 10, 2023

Between

Onesmus Okou

Appellant

and

Vitalis Otieno Oduor

1st Respondent

Maurice Oketch Oduor

2nd Respondent

(an appeal arising from orders made in the ruling of Hon. PA Olengo, Senior Principal Magistrate, SPM, in Busia CMCSC No. 587 of 2017, delivered on 15th July 2022)

Judgment

1. The appeal herein arises from a decision of the trial court, in Busia CMCSC No. 587 of 2017, delivered on 15th July 2022. The grounds of appeal revolve around: the trial court allowing the objectors to proceed with their objection, when they were strangers to the application, not substituting the dead objector, and allowing the objectors to proceed in the capacity of legal representatives; there being no evidence to support the objection; finding that the objectors had purchased a 1 acre piece of land; distributing estate assets to strangers on the basis of an agreement entered into with individuals who were not administrators of the estate; disregarding evidence tendered by the appellant; failing to properly frame the issues, and to analyze evidence; applying wrong principles of the law; and ordering rectification of the grant ex parte.

2. Directions were given on 12th July 2023, for canvassing of the appeal by way of written submissions. The only written submissions on record were filed by the appellant, on 18th September 2023, dated 15th September 2023. Sections 79 and 80 of the Law of Succession Act, Cap 160, Laws of Kenya, and In re Estate of Barasa Kanenje Manya (Deceased) [2020] eKLR (Musyoka, J) are cited, to support the contention that the trial court erred, in recognizing the protestors as beneficiaries of the estate of the deceased.

3. The deceased died on 23rd January 1998. The letter from the Chief of Angorom Location, dated 16th December 2003, indicates that the deceased died a polygamist, having married 2 wives, and had 9 daughters and 4 sons, namely Flora Imuka, Josephine Nawire, Jacentah Nafula Otibine, Auleliah Imela, Meldah Aroni, Scoviah Aroni, Alice Atenge, Carolyne Omoding, Rispah Otidi, Lilian Awory, Salome Amojong, Vincent Okou, Patrick Okou, Onesmus Okou and Wycliffe Otibine. Representation was sought by Flora Imuka and Josephine Nawire, in their capacities as widows of the deceased, vide a petition filed In Busia HCSC No. 15 of 2004, which later became Busia CMCSC No. 587 of 2017, on 19th February 2004, who I shall refer to hereafter as the administratrices. The individuals listed as survivors of the deceased were all the 15 listed in the letter from the Chief. Agness Horeka Oduor is listed as a liability, claiming 1 acre. The deceased was expressed to have had died possessed of South Teso/Angorom/4143, 4983 and 4985. Letters of administration intestate were made on 5th April 2005, and a grant was issued, bearing an even date. The administratrices filed a summons for confirmation of grant, on 13th February 2007, of even date. The survivors of the deceased were identified as 12 children and 2 widows. It was proposed that the estate be shared out between the 2 widows, 1 son and the liability, that is to say Flora Imuka, Josephine Nawire, Wycliffe Otibine and Agness Horeka Oduor. That application was never heard.

4. A summons was then filed on 18th November 2014, by Onesmus Okou, of even date, seeking revocation of the grant, made to the administratrices on 5th April 2005. He wanted the court to “co-join” him and Vincent Okou as administrators of the estate. The 2 were sons of the deceased, and were complaining that they had not been informed when the cause was initiated. They averred that the initiation of the cause was driven by the alleged liability, Agness Horeka Oduor, who they accused for the mismanagement of the estate. They alleged that Agness Horeka Oduor had allegedly bought a portion of the estate from Josephine Nawire, without their knowledge. They also complained that they were unaware of the summons for confirmation of grant, dated 13th February 2007. The revocation application, dated 18th November 2014, was resolved by a consent, recorded in court, before Tuiyott, J, on 25th February 2015, where the grant made to Flora Imuka and Josephine Nawire was revoked, and they were substituted with Onesmus Okou and Vincent Okou as administrators, and an order in those terms was extracted on 2nd March 2015. A grant of letters of administration intestate was subsequently issued, dated 12th March 2015. I shall, hereafter, accordingly, refer to Onesmus Okou and Vincent Okou as the administrators.

5. Another summons for revocation of grant was filed on 11th November 2015, at the instance of Agness Horeka Oduor, seeking revocation of the grant made to Onesmus Okou and Vincent Okou, and that a grant be made to her, on grounds that the administrators of the estate of the deceased had failed to complete administration. She described herself as a beneficiary of the estate, having bought 1 acre out of South Teso/Angorom/4983 from the widows of the deceased, Flora Imuka and Josephine Nawire, on 28th September 2003. She averred that family members, who included Wycliff Otibine, were present. She averred that representation was sought to the estate thereafter, and a grant was made on 5th April 2005, which was subsequently revoked on 2nd March 2015, and a fresh grant made to other individuals. She accused the new administrators of failing to apply for confirmation of their grant. One of the new administrators, Onesmus Okou, responded to that revocation application, by his affidavit sworn on 12th February 2016. He argued that Agness Horeka Oduor was not a beneficiary of the estate, and that she lacked standing to bring that application. He accused her of being an intermeddler in the estate, which could not give her status as a beneficiary.

6. Agness Horeka Oduor filed a summons on 4th October 2017, dated 28th September 2017, seeking to be recognized as a beneficiary, for confirmation of the grant in her favour and for transfer of the matter to the lower court. In her supporting affidavit, sworn on 28th September 2017, she described herself as a beneficiary of the estate of the deceased, after buying part of the estate property from one of the surviving widows of the deceased, to raise funds for the succession process. She complained that the administrators had failed to have the estate distributed. The summons, dated 28th September 2017, came up for hearing on 18th January 2018, and was allowed , as it was unopposed, and the grant to the administrators was revoked, the administratrices were reinstated, and their grant was confirmed.

7. The proceedings and orders made on 18th January 2018 provoked the filing of the summons, dated 22nd March 2018, on even date, seeking the setting aside of the said orders, and revocation of the grant, allegedly made under those orders to Flora Imuka and Josephine Nabwire Ojuma. It was at the instance of the administrators, who argued that the proceedings were null and void, as there was a pending summons for revocation of grant, and the adminstratrices appointed under that order had previously been removed from office on 25th February 2015. In reply, Agness Horeka Oduor asserted that she was a beneficiary, who had bought 1 acre of the estate from the widows of the deceased, and that she was entitled to that share. The application, dated 22nd March 2019, was allowed on 9th May 2019, and vacated the orders of 18th January 2018.

8. Agness Horeka Oduor filed another summons on some unknown date, dated 15th January 2018, seeking confirmation of the grant, and asking the court to have the administrators summoned to court, for the purpose of the confirmation. She complained that the administrators had failed to move the court to have the grant confirmed, and the estate distributed. She sought confirmation on the same terms as the pending summons for confirmation of grant, dated 13th February 2007. She filed yet another summons on 24th June 2019, replicating that dated 28th September 2017, seeking to be recognized as a beneficiary or liability of the estate, saying that the widows of the deceased had sold part of the estate to her. That application was disposed of by orders that were made on 31st July 2019, by Hon. Temu, Principal Magistrate, PM, directing the applicant to file suit at the Environment and Land Court against the administrators.

9. The administrators then lodged a summons for confirmation of grant on 10th December 2019, dated 26th July 2019. The survivors of the deceased who were recognized were the 2 widows, 4 sons, 2 daughters, 1 grandson, and 3 purchasers. There was a consent on distribution that was signed by 11 out of the 12 named beneficiaries. Agness Horeka Oduor filed a protest to that application, complaining that an asset in which she had an interest in had been left out, yet she had bought a portion of it from the widows of the deceased. That application was withdrawn on an unknow date, and another summons for confirmation of grant was filed on 30th June 2021, dated 29th June 2021, essentially to include the names of the daughters of the deceased, who had been left out in the earlier summons. Renunciations, by way of affidavits, sworn by Jacinta Nafula, Imelda Nekesa, Scovia Aron Masiga, Alice Atenge, Risper Otiidi, Lilian Awuor and Salome Amojong, were subsequently filed on 27th July 2021. A protest was filed to that application, by Vitalis Otieno Oduor and Maurice Oketch Oduor, the respondents herein, in their purported capacities as biological sons and legal representatives of Agness Horeka Oduor, vide their affidavit, sworn on 14th August 2021, filed on 20th August 2021, on grounds that their mother was also a beneficiary of the estate, having bought a portion of the estate asset. Onesmus Ojambo Okou responded to the protest, vide his affidavit sworn, on 5th October 2021, dismissing Agness Horeka Oduor as an intermeddler, who had filed a land case in Busia CMCELC No. 33 of 2020, which was still pending.

10. Directions were given on 2nd February 2022, for disposal of the application, dated 29th June 2021, by way of written submissions. Submissions were filed, by both sides, and a ruling was rendered on it on 15th July 2022, a one-pager, where the court said:“The applicant filed submissions for confirmation of grant dated 29th June 2021 and the protestors herein filed affidavit of protest sworn on 14th August 2021. The upshot of the protest is that the protestors late mother Agnes Horeka Oduor bought one acre of land forming part of the estate of one Ojuma Otibine from the administrators of the said estate.The petitioners herein filed their response to the protests vide an affidavit sworn by one Onesmas Ojambo Okou.The parties thereafter filed their respective submissions. I have considered them.From the evidence on record, it is true that the mother to the protestor bought one acre of land from the estate.There is an agreement signed by the petitioners. Some family members also signed the same. It’s only fair that the protestors get what is rightfully theirs.I therefore allow the protest and order that one acre of land be given to the protestors as the administrators of the estate of their late mother Agnes Oreka Oduor. Í also grant costs of this application to the protestors.”

11. The appeal turns on only 1 question, whether the protest to the confirmation application should have been allowed.

12. The respondents case was that their mother had bought a portion of estate property from the widows of the deceased. They appeared to believe that the transaction was valid, so long as the sales were with the widows of the deceased, and were supported by some family members. According to their mother, from her affidavits, the sale happened after the demise of the deceased, and before representation was granted to the widows. Indeed, according to her, the sale was for the purpose of raising money to pay for the succession process. She stated that the succession cause, in Busia HCSC No. 15 of 2004, was initiated after that transaction. Several documents were placed on record as evidence of the said sale. They were dated 23rd September 2003, 8th December 2005 and 28th November 2006. That dated 23rd September 2003 was the agreement of sale, while that dated 28th November 2006 was an acknowledgement of the moneys paid and received. Regarding the sale transaction of 23rd September 2003, the sellers were Josephine Nabwire and Flora Imuka Okou, the 2 widows. The 2 documents, dated 8th December 2005, related to a transaction between Agnes Orega and Wycliffe Otibine Ojuma.

13. The question then is, were these transactions valid? Could they be reckoned for the purpose of distribution of the estate of the deceased? Did they make the mother of the respondents herein a beneficiary or liability of the estate herein? The trial court, in its one-page ruling, merely acknowledged the sales, but it did not examine their validity, in terms of the law of succession. The trial court was seized of succession proceedings, not a land case. The jurisdiction that it was called upon to exercise was to distribute the estate of the deceased, not to determine questions of ownership, or determine whether or not alleged buyers had acquired a stake in the estate, and had to be provided for. The mother of the respondents could only be entitled to a share in the estate if she had validly acquired a stake in the estate asset. Life would have been easier for them, if they or their late mother had obtained a decree from another court declaring that she was entitled to the 1 acre that she had allegedly bought. See In re Estate of Stone Kathuli Muinde (Deceased) [2016] (Musyoka, J). No such decree or other order of another court had been placed on record.

14. Why am I raising this? It is because the remit of the probate court is to distribute assets of a dead person. Anything that would appear to go beyond that mandate would be out of scope, and may have to be determined in separate proceedings, and even, in some cases, by another court. See In re Estate of Kimani Kinuthia [2008] eKLR (Ibrahim, J). It is in that context that Rule 41(3) of the Probate and Administration Rules, requires that, at confirmation, if an issue arises, regarding a share or identity or an estate, then the confirmation application, or the affected share or estate, ought to be held in abeyance, and the issue or question be set aside or appropriated, to await determination of the same in separate proceedings. See Everline Atiang’ Wanyama vs. William Osayo Siroko & another [2014] eKLR (F Tuiyott, J), In re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR (Gikonyo, J), In re Estate of Mwangi Kiondo (Deceased) [2018] eKLR (Muchemi, J) and In re Estate of M’Chokera M’Ramare (Deceased) [2019] eKLR (Gikonyo, J). Probate proceedings are not designed for determination of such heavy issues, they ought to be resolved elsewhere. In any event, where they relate to ownership or title to land, as in this case, the should be resolved in proceedings appropriately commenced and designed to determine such questions, but not in probate proceedings. See In re Estate of Kimani Kinuthia [2008] eKLR (Ibrahim, J), Jidraph Kamero Njuguna & 3 others vs. Hilda Njeri Kamero [2012] eKLR (L. Njagi, J), In re Estate of the Late Jonathan Kinyua Waititu - (Deceased) [2017] eKLR (Ndung’u, J), In re Estate of Mwangi Gikonyo [2017] eKLR (Waweru, J) and Pacific Frontier Seas Ltd vs. Kyengo & another (Civil Appeal 32 of 2018) [2022] KECA 396 (KLR) (M'Inoti, J Mohammed & Kantai, JJA). The trial court ought to have complied with Rule 41(3) of the Probate and Administration Rules, by appropriating or setting aside the alleged interest acquired by the mother of the respondents, to await determination of the issue in separate proceedings, which the court should have advised the respondents to commence under the provisions of the Land Act, No. 6 of 2012, Laws of Kenya. Indeed, in those same proceedings, the trial court, differently constituted, had previously directed the mother of the respondents to file such a suit, and she had already filed one, a fact which had been brought to the attention of the court by the appellant vide his response to the protest.

15. Rule 41(3) of the Probate and Administration Rules says:“41. Hearing of application for confirmation(1)…(2)…(3)Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71(2) of the Act, proceed to confirm the grant.(4)…”

16. From the record of the trial court, the mother of the respondents had raised that issue in her application, dated 24th June 2019, which was a replication of another that was still pending, dated 28th September 2017. That application, dated 24th June 2019, came up before Hon. Temu, PM, on 31st July 2019, and he determined it, by directing the mother of the respondents to file suit at the Environment and Land Court against the administrators. So, as at 15th July 2022, when Hon. Olengo, SPM, was rendering his ruling on the confirmation application and the protest, that issue was not on the table, for it had been dealt with by Hon. Temu, PM, on 31st July 2019. The order by Hon. Temu, PM, had not been set aside, and Hon. Olengo, SPM, was bound by it. He could not assume that it did not exist. I am just assuming that the orders of 15th July 2022 were made in ignorance or forgetfulness of the order of 31st July 2019. Hon. Olengo, SPM, should not have determined that the sales of land in question, to the mother of the respondents, were valid, and he should not have proceeded to order that the respondents be provided for, when there was a valid and subsisting order directing that that issue be placed before the Environment and Land Court. Hon. Olengo, SPM, had no jurisdiction to override the order by Hon. Temu, PM, in the manner that he did, and the order of 15th July 2022, on the protest, cannot possibly stand, in view of the order of 31st July 2019.

17. For avoidance of doubt, the proceedings before Hon. Temu, PM, on 19th July 2019, were recorded as follows:“31/7/19Before Hon. Temu PMCourt Assistant – DoreenPlResPurchaser – PresentNabulindo – present for purchaserThe matter is application dated 24/6/2019. We have served the application but there is no response and we have filed our Affidavit of Service.COURTThe applicant to file suit under ELC against the administrators.Signed31/7/19”

18. The appellant had, in his response to the protest, indicated to the trial court that the respondents had an environment and land suit pending, and identified it as Busia CMCELC No. 33 of 2020, and even attached a copy of the plaint. In it, the mother of the respondents had sued the appellant and his co-administrator, and the widows of the deceased, over the portion of land that she had allegedly bought from the widows. That suit was no doubt informed by the order that Hon. Temu, PM, made on 31st of July 2019, in the succession cause. That was in the spirit of Rule 41(3) of the Probate and Administration Rules. Hon. Olengo, SPM, should have invoked Rule 41(3), and appropriated the 1 acre allegedly sold to the mother of the respondents out of the estate, to await determination of the suit in Busia CMCELC No. 33 of 2020.

19. Sitting as a Judge of the High Court I have no jurisdiction to assess the validity or otherwise of the said sales, based on the provisions of the Land Registration Act, No. 3 of 2012, Laws of Kenya, and the Land Act, in view of Articles 162(2) and 165(5) of the Constitution. However, I have jurisdiction, under the Law of Succession Act, Cap 160, Laws of Kenya, to evaluate them on the basis of the provisions of the said Act. I will now proceed to do just that.

20. The deceased herein died on 23rd January 1998, which was nearly 2 decades after the Law of Succession Act had come into force on 1st July 1981. His estate was subject to administration and distribution under the provisions of the said Act, by virtue of section 2(1) of that Act. Under section 45(1) of the Law of Succession Act, the property of a dead person can only be lawfully handled by a person who has obtained representation to that estate. Under section 45(2)(a), handling such an estate in the absence of a grant of representation amounts to an offence, exposing the person to criminal proceedings, which can lead, upon conviction, to the person being jailed or fined or both. That is how serious it is. See Christine Kajuju Mwenda vs. Gervasio M’Rukunga [2006] eKLR (Lenaola, J), In re Estate of Damaris Njeri Kimani (Deceased) [2015] eKLR (Musyoka, J), Jane Wairimu Mathenge vs. Joseph Wachira Mathenge & 3 others [2016] eKLR (Ngaah, J) and In re Estate of Francis Kimani Muchiri (Deceased) [2018] eKLR (Musyoka, J). Under section 79, a grant of representation vests the estate of a dead person in the personal representative, whether an administrator or an executor, and such personal representative can then exercise the powers of personal representatives set out in section 82, and is under the duties set out in section 83. A person who handles an estate without a grant of representation is said to intermeddle with it, according to section 45, and that person is called an intermeddler. Intermeddling has been defined to include selling an asset of the estate, without a grant. Filing suits on behalf of the estate, or engaging in any form of litigation, without such a grant has also been said to amount to intermeddling. See Kothari vs. Qureshi and another [1967] EA 564 (Rudd, J), John Kasyoki Kieti vs. Tabitha Nzivulu Kieti & Annah Ndileve Kieti (2001) eKLR (Mwera, J), Priyat Shah & another vs. Myendra Devchand Meghji Shah [2017] eKLR (N. Mwangi, J), In re Estate of Asman Nambwaya Shibwabo (Deceased) [2018] eKLR (J. Njagi, J), Jackim Onyango Misewe & another vs. Bernard Otieno Odhiambo & another [2019] eKLR (Aburili, J), In re Estate of Biruri Kihoria (Deceased) [2019] eKLR (Sewe, J), In re Estate of Oloo Omolo Lumasai (Deceased) [2020] eKLR (Musyoka, J) and Pravinchandra Jamnadas Kakad vs. Estate of Lucas Oluoch Mumia & 2 others [2022] eKLR (Mogeni, J).

21. The relevant portions of section 45, 79 and 82 provide as follows.“45. No intermeddling with property of deceased person(1)Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.(2)Any person who contravenes the provisions of this section shall-(a)be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and(b)...”“79. Property of deceased to vest in personal representativeThe executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.”“82. Powers of personal representativesPersonal representatives shall, subject only to any limitation imposed by their grant, have the following powers-(a)to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative;(b)o sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best:Provided that-(i)…(ii)no immovable property shall be sold before confirmation of the grant;(c)…(d)…”

22. As indicated above, the deceased herein died in 1998. The sales that the respondents were asserting before the trial court were entered into in 2003 and 2005. The initial grant was made in Busia HCSC No. 15 of 2004 on 5th April 2005. That means that when the transaction of 2003 was happening, the widows of the deceased, who were involved in it, had not been appointed administratrices. They were not personal representatives of the deceased, and they could not represent him. The assets of his estate had not vested in them, by virtue of section 79 of the Law of Succession Act. The power to sell estate assets, which is given to administrators under section 82(b), had not yet accrued to them. They could not, therefore, lawfully sell the estate assets in 2003, and any purported sale was not lawful, nor valid, and they could not pass a good title to the alleged buyers. See In re Estate of Mbiyu Koinange (Deceased) [2020] eKLR (Muchelule, J). The property did not vest in them, and they had nothing to sell. As they had nothing to sell, the mother of the respondents could not lawfully buy anything from them belonging to the estate. The fact that they were widows of the deceased could not salvage the situation, for assets of a dead person do not vest on others based on their familial relationship with the dead, rather they vest only upon a grant of representation. See Hawo Shanko vs. Mohamed Uta Shanko [2018] eKLR (Chitembwe, J), In re Estate of Francis Kimani Muchiri (Deceased) [2018] eKLR (Musyoka, J), In re Estate of Barasa Kanenje Manya (Deceased) [2020] eKLR (Musyoka, J) and Joseph Muriuki Kithinji vs. Peterson Ireri Mwaniki & 3 others [2021] eKLR (Kaniaru, J). The fact that a grant was subsequently made to the widows later in 2005 did not help either. The grant made to them, on 5th April 2005, was of administration in intestacy, and, by virtue of section 80(2) of the Law of Succession Act, such a grant does not relate back to the date of death, so as to authenticate any transactions previously carried out by the administratrices without authority. See Roy Parcels Services Limited vs. Esther W. Ngure [2010] eKLR (Okwengu, J) and Simon Mwangi Ngotho & another vs. Susannah Wanjiku Muchina [2022] eKLR (Kasango, J). As administratrices, they could only carry out valid sales of estate assets after a grant had been confirmed, by dint of section 82(b)(ii) of the Law of Succession Act, or with leave of court before the grant is confirmed. Otherwise, anything outside that would be unlawful and invalid. As the sales of 2003 were done without a grant, they fell afoul of section 45(2). Those involved engaged in criminal activity, and should have been prosecuted. Conduct that amounts to a criminal enterprise cannot conceivably found basis for asserting legality or validity. A contract tainted by illegality and criminality cannot be valid. The sale agreement of 23rd September 2003 was illegal and criminal, it granted no rights to anyone, and it cannot be countenanced and upheld by any court of law.

23. Section 80(2) provides:“80. When grant takes effect(1)…(2)A grant of letters of administration, with or without the will annexed, shall take effect only as from the date of such grant.”

” 24. The sale transaction of 2005 involved a son of the deceased, called Wycliffe Otibine Ojuma. It was consummated on 8th December 2005. By then a grant had been made on 5th April 2005. However, it was made to the widows of the deceased, and not the son. The property did not vest in the son as at 8th December 2005, by virtue of section 79. He had no authority, from section 82(b), to sell the assets. He had nothing to sell, for the property did not belong to him, and did not vest in him. He had no title to pass. What he did amounted to intermeddling, and he was afoul of section 45(2)(b). His actions were illegal and criminal, and he should have been prosecuted. The contract of 8th December 2005 was tainted by illegality and criminality. It was not valid. It was not legal. No rights accrued from it that could be asserted at confirmation of the grant. The trial court should not have sanctioned acts that were carried out in violation of sections 45 and 82 of the Law of Succession Act.

25. The respondents came into the matter as legal representatives of their late mother. They were not children of the deceased, and so they could not get into the matter as of right, based on the entitlements due to them under the provisions of the Law of Succession Act. They were outsiders, coming in to assert the rights of another, in the estate of a person who was not their kin. They came to represent their mother. The right to represent a dead person does not accrue merely on account of blood or marital or familial relationship with the dead person. See Hawo Shanko vs. Mohamed Uta Shanko [2018] eKLR (Chitembwe, J), In re Estate of Francis Kimani Muchiri (Deceased) [2018] eKLR (Musyoka, J), In re Estate of Barasa Kanenje Manya (Deceased) [2020] eKLR (Musyoka, J) and Joseph Muriuki Kithinji vs. Peterson Ireri Mwaniki & 3 others [2021] eKLR (Kaniaru, J). It can only come from a grant of representation. The respondents did not establish that they held a grant in respect of the estate of their mother. From the record, I understand them to have been asserting that they were her biological sons, and, therefore, they qualified to be her legal representative. A legal representative is just the other term for a personal representative. Under Kenyan law, the Law of Succession Act, that means a person who holds a grant of representation, whether of probate or of letters of administration. No person can legally represent a dead person, unless they have a grant to represent them, duly issued by a competent court. A person does not become a legal or personal representative merely because they are a spouse or child or parent of the dead person, they have to hold a grant of representation. See Gitau and 2 others vs. Wandai and 5 others [1989] KLR 23 (Tanui, J), Omari Kaburi vs. ICDC [2007] eKLR (W. Karanja, J), Joseph Oginga Onyoni & 2 others vs. Attorney General & 2 others [2016] eKLR (JM Mutungi, J) and In re Estate of Francis Kimani Muchiri (Deceased) [2018] eKLR (Musyoka, J). Where a person claims to represent the dead, then they ought to provide proof of the authority to represent, which takes the form of a grant of representation. As the respondents did not have such a document, authorizing them to represent their dead mother, the trial court was in error in treating them as such representatives. I have not seen, from their affidavit of protest, of 14th August 2021, evidence of any such authority. They have only attached proof, by way of a certificate of death, that their mother had died, but such a certificate is not equivalent to a grant of representation. It confers no authority to anyone to represent the dead person. The trial court had no basis, therefore, to entertain the respondents. They had no authority to represent or speak on behalf of their mother, and their involvement in the proceedings before the court, amounted to intermeddling with the estate of their late mother.

26. I believe I have said enough to demonstrate that there is merit in the instant appeal. The trial court ought not have entertained the protest, leave alone allowing it. Consequently, I do hereby allow the appeal, set aside the order in Busia CMCSC No. 587 of 2017, made on 15th July 2022, allowing the protest, and substitute it with an order dismissing the protest, comprised in the affidavit of the respondents of 14th August 2021, and allow the application, dated 29th June 2021, as prayed. The appellant shall have the costs of this appeal, and of the summons for confirmation of grant, dated 29th June 2021. Orders accordingly.

JUDGMENT DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA THIS 10THDAY OF NOVEMBER 2023WM MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.Mr. Vitalis Otieno Oduor and Mr. Maurice Oketch Oduor, the respondents in person.AdvocatesMr. Okeyo, instructed by Okeyo Ochiel & Company, Advocate for the appellant.civil appeal no. e039 of 2022 – judgment 3