[2023] KEHC 26962 (KLR)

Omambia v Omambia (Family Appeal E004 of 2023) [2023] KEHC 26962 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26962 (KLR)

Republic of Kenya

In the High Court at Nyamira

Family Appeal E004 of 2023

WA Okwany, J

December 14, 2023

Between

Joash Mokaya Omambia

Appellant

and

Monica Nyaboke Omambia

Respondent

(Appeal against the Ruling of Hon. W. K. Chepseba (Mr.) – CM Nyamira dated and delivered on the 4th day of May 2023 in the original Nyamira Chief Magistrate’s Court Succession Cause No. E087 of 2021)

Judgment

Introduction 1. The Respondent herein was the Petitioner before the Lower Court where she petitioned for Grant of Letters of Administration (Intestate) of the Estate of Penuel Borisi Omambia (Deceased).

2. Grant of Letters of Administration Intestate was issued on 6th January 2022 after which the Respondent filed Summons for Confirmation of grant through an application dated 21st April 2022.

3. The Respondent’s Advocates, Ms. Okemwa S. O. & Co. Advocates filed another application for confirmation on October 2022.

4. The Appellant objected to the application for confirmation of grant through the Replying Affidavit dated 8th November 2022 wherein he sought the revocation of grant on the basis that it was obtained through misrepresentation and concealment of material facts.

5. The Appellant faulted the Respondent for hurriedly applying for confirmation of grant without considering the interests of all the beneficiaries and for failing to disclose that the deceased was a polygamous man.

6. In a nutshell, the Appellant was not in agreement with the mode of distribution proposed by the Respondent.

7. When the matter came up for mention before the trial court on 8th November 2022, directions were issued that the application for confirmation of grant be canvassed by way of written submissions. The matter was thereafter listed for mention on 17th January 2023 to confirm the filing of submissions.

8. In a ruling delivered on 14th February 2023, the trial court found that there was no evidence to show that the grant was obtained by misrepresentation or concealment of material facts. The court concluded that the objection to the grant lacked merit and directed the parties to file their proposals on the mode of distribution.

9. In an order issued on 4th May 2023, the trial court allowed the application for confirmation of grant. It is alleged that the confirmed grant was rectified one day later on 11th May 2023.

Appeal 10. The rulings by the trial court on confirmation and rectification of grant precipitated the filing of the appeal that is the subject of this judgment.

11. The Appellant listed the following grounds of appeal in the Memorandum of Appeal: -1. The trial Magistrate erred in law and fact in failing or refusing to accord the Appellant an opportunity to be heard on his objection to confirmation of grant, yet the Appellant who was present in court on 4th May 2023 infirmed the court that he was objecting to the confirmation of grant sought by the Respondent and he further informed the court that he had only been served with a mention notice.

2. The trial Magistrate erred in law and fact in allowing an application for confirmation of grant, yet the application before court (dated 21st August, 2022) did not include a proposed mode of distribution or sharing of the deceased’s net estate as is mandatorily required under Section 71 of the Law of Succession Act Cap. 160 and Rule 40 (4) of the Probate and Administration Rules.

3. The trial Magistrate erred in law and fact in distributing the deceased’s net estate in a skewed manner and further erred when he left out some of the deceased’s dependants from sharing the net estate.

4. The trial Magistrate erred in law and fact in giving one of the deceased’s properties, namely Title No. Kericho/Kaplelartet/1057, which is a developed and highly valuable piece of land situated in Sondu Town, to the Respondent in WHOLE “for the rest of her life and thereafter to go to any beneficiary whom she may have named in her last will”, contrary to Section 35 of the Laws of Succession Act which restricts a widow’s interest in the net estate of a deceased to a life interest only.

5. The trial Magistrate erred in law and fact in distributing the net estate of the deceased in an arbitrary manner and in breach of the provisions of Section 35 of the Law of Succession Act.

12. The Appellant seeks the following orders in the said appeal: -a.That lower court’s order dated 4th May, 2023 confirming the grant be set aside.b.That the cause be referred back to the Chief Magistrate’s Court for a fresh hearing of the application for confirmation of grant before a magistrate other than Hon. W. K. Chepseba.c.Costs of the appeal be awarded to the Appellant.

13. The Appellant filed another appeal No. E003 of 2023 contesting the decision of 11th May 2023 rectifying the said confirmed grant. He listed the following grounds of appeal: -1. The trial Magistrate erred in law and fact in failing to ensure that the application dated 5th May 2023 by which the Respondent sought amendment and/or rectification of the confirmed grant was served upon the Appellant and the other beneficiaries of the deceased’s estate before the same could be heard and determined.

2. The trial Magistrate erred in law and fact in failing to accord the Appellant a hearing before determining and/or allowing the Respondent’s application dated 4th May 2023.

3. The trial Magistrate erred in law and fact in allowing the application for rectification of the confirmed grant when no sufficient grounds had been given by the Respondent for seeking amendment or rectification of the confirmed grant and the trial Magistrate further erred when he allowed strangers to inherit the deceased’s property.

4. The trial Magistrate erred in law and fact in dealing with an application which had far reaching implications in a casual manner, and as if the application was one falling under the purview of Rule 43 of the Probate and Administration Rules, when it did not.

14. Both appeals were canvassed by way of written submissions as follows.

Appellant’s Submissions 15. The Appellant contested the order issued on 4th May 2023 on the grounds that: -a.The order dated 11th May, 2023 be set aside and in place therefore be substituted an order dismissing the Respondent’s Summons for amendment and/or rectification of the mode of distribution dated 5th May, 2023. b.Costs of this appeal be in the cause.

16. The Appellant faulted the trial court for ignoring his protest and for distributing the estate of the deceased in a casual manner without giving any explanation for such distribution.

17. The Appellant noted that the grant was confirmed in the absence of most of the dependants who did not consent to the mode of distribution.

18. It was the Appellant’s case that the trial court did not accord him a hearing as it allowed an application for confirmation that did not propose a fair mode of distribution and distributed the estate in a skewed manner thereby giving the Respondent a highly developed property contrary to Section 35 of the Law of Succession Act. The Appellant faulted the trial court for distributing the estate in an arbitrary manner.

19. Regarding the order for rectification of grant issued on 11th May 2023, the Appellant submitted that the said order was granted in outright breach of the law and without hearing all the parties despite the fact that the order had far reaching consequences.

20. It was submitted that the rectification was done contrary to the provisions of Sections 35 (1) 74 of the Law of Succession Act (hereinafter “the Act”) thus introducing a new mode of distribution that changed the mode of sharing of the net estate.

21. The Appellant contended that the trial court did not ensure that the application for rectification was served on the Appellant and all the beneficiaries, did not accord the Appellant a hearing, allowed the applications when no sufficient grounds had been given, allowed strangers to inherit the deceased’s property and dealt with the application in a casual manner.

22. Reference was made to the decision in the matter of the Estate of Hasalon Mwangi Kahero [2013] eKLR where the court discussed the import of Section 74 of the Act and held that: -“An error is essentially a mistake. For the purposes of Section 74 and Rule 43, it must relate to a name or description or time and place of the deceased’s death, or the purpose of a limited grant. Is an omission of a name or in the description of a thing an error? It would be an error if say a word in the full name of a person is omitted or a word or number or figure in a description is omitted. But where the full name of a person or a full description of a thing or property is omitted, it would be stretching the meaning of the word “error” too far to say that that would amount to the error or mistake envisaged in Section 74 and Rule 43. In this case it cannot be said that the property was omitted by error or mistake as the administrators did not know of the property at the time they sought letters and confirmation thereof. The omission of the property is a matter that does not fall under the purview of Section 74 of the Law of Succession Act.”

Respondent’s Submissions 23. The Respondent submitted that the appeals lack merit and are actuated by malice and jealousy.

24. On the Appellant’s claim that he was not accorded a hearing during the confirmation of the grant, the Respondent submitted that the Appellant was accorded a hearing on his protest which was dismissed for lack of merit before a date was set for confirmation where he also protested albeit unsuccessfully.

25. The Respondent urged the court to invoke the principle of finality in litigation and find that the Appellant was accorded a fair hearing before the trial court.

26. On whether the order for rectification of grant meets the legal threshold, the Respondent submitted that the amendments did not affect the mode of distribution in any way. The Respondent explained that the rectification was done in a hurried manner because of the Respondent’s advanced age and failing health.

27. It was submitted that the distribution of the estate was done in a fair and just manner in line with the provisions of the Law of Succession Act (hereinafter “the Act”).

28. The Respondent explained that all the three houses (widows) of the deceased were considered in the distribution and that the 3rd house (widow) was excluded as the deceased had bequeathed them their inheritance during his lifetime.

29. According to the Respondent the 3rd house was not interested in the residue of the deceased’s estate.

30. It was submitted that there was an unequivocal consent by all the 14 surviving beneficiaries with the decision except the Appellant who is pursuing a selfish agenda to defraud the other beneficiaries of their rightful share of the estate.

Analysis and Determination 31. I have considered the two appeals, the record of appeal and the parties’ rival submissions. The main issue for determination is whether the trial court made the correct decision during confirmation and rectification of the grant.

Confirmation of Grant 32. The Appellant opposed the mode of distribution adopted during the confirmation while arguing that some of the beneficiaries were excluded and that the said distribution was skewed besides the claim that one title No. Kericho/Kaplelartet/1057 was wholly given to the Respondent contrary to the provisions of Sections 35 and 40 of the Act.

33. The Respondent, on the other hand, submitted that the distribution of the estate was fair and just.

34. Section 40 of the Act stipulates as follows: -40. Application for confirmation of grant1. Where the holder of a grant which has not been confirmed seeks confirmation of the grant he shall apply for such confirmation by summons in Form 108 in the cause in which the grant was issued, supported by an affidavit in Form 8 or 9 exhibiting the grant together with an estate duty compliance certificate or other satisfactory evidence that no estate duty is payable and setting out the full names of the deceased person to whose estate the grant relates, and he shall satisfy the court that no application under Part III of the Act is pending.2. An application for confirmation by virtue of section 71(3) of the Act shall be by summons in Form 109 in the cause and the applicant shall in addition to the requirements of subrule (1) satisfy the court by affidavit in Form 18 that there is in existence no dependant of the deceased and that it is expedient in all the circumstances of the case that the grant be confirmed before the expiration of six months from its date of making.3. Save in the case of whole or partial intestacy or where the application is brought by virtue of section 71(3) of the Act, there shall be filed with the summons an affidavit containing the following information and particulars so far as known to the applicant— (a) the names, ages and addresses of the children of the deceased by whom he was survived (whether or not they were being maintained by him immediately prior to his death) and of such of his parents, step-parents, grand-parents, grand-children whom he had taken into his family as his own, brothers, sisters, half-brothers and half-sisters, as were living at his death and were being maintained by him immediately prior thereto with full details of the manner and extent and for what period they were being or had been so maintained; (b) in the case of a male deceased, his wife or wives or former wife or wives living at his death and, in the case of a female deceased, her surviving husband if he was being maintained by her immediately prior to her death with full details of the manner and extent and for what period he was being or had been so maintained.4. Where the deceased has died wholly or partially intestate the applicant shall satisfy the court that the identification and shares of all persons beneficially entitled to the estate have been ascertained and determined.5. Where it appears to the principal registrar that an application has been made in any registry for the confirmation of a grant to the estate of a deceased in regard to which a caveat has been entered pursuant to rule 15 and is subsisting, the principal registrar shall send a notice in Form 111 to the caveator warning him of the making of the application and notifying him that if he wishes to object to the confirmation of the grant he must file in duplicate an affidavit of protest in Form 10 in the principal registry within fifteen days (or such longer period as the registry for reasons to be recorded may allow) from the receipt of the notice, in default of which the caveat shall cease to have effect in regard to the confirmation of the grant.6. Any person wishing to object to the proposed confirmation of a grant shall file in the cause in duplicate at the principal registry an affidavit of protest in Form 10 against such confirmation stating the grounds of his objection.7. The registrar shall without delay forward to the applicant a copy of each protest filed in the cause under subrule (5) or (6).8. Where no affidavit of protest has been filed the summons and affidavit shall without delay be placed by the registrar before the court by which the grant was issued which may, on receipt of the consent in writing in Form 37 of all dependants or other persons who may be beneficially entitled, allow the application without the attendance of any person; but where an affidavit of protest has been filed or any of the persons beneficially entitled has not consented in writing the court shall order that the matter be set down as soon as may be for directions in chambers on notice in Form 74 to the applicant, the protester and to such other persons as the court thinks fit.9. In giving directions the magistrate’s court may in a case before it either order that the application for confirmation should proceed in that court, or at the request of any party or of its own motion order that it be transferred to the High Court and give all necessary consequential directions in that behalf to enable the application to be dealt with by the High Court.

35. In the present appeal, a perusal of the summons for confirmation of grant together with the affidavit dated 24th October 2022 reveals that nowhere in the said pleadings did the Respondent disclose the proposed mode of distribution of the estate. I however note that, at paragraph 6 and 7 of the supporting affidavit to the summons for confirmation of grant, the Respondents states that she had complied with a court order requiring her to prepare and file the mode of distribution which she had served on all the beneficiaries. I note that there is a schedule of distribution contained at page 41 of the Record of Appeal.

36. A cursory glance of the said schedule of distribution shows that the deceased’s property known as LR No. North Mugirango/Bokeira/1284 was not distributed equally among 5 beneficiaries while the whole LR No. Kericho/Kaplelartet/1057 was given to the Respondent. I also note that there was no consent to the proposed of mode of distribution by all the twelve living beneficiaries of the estate listed in the affidavit in support of the petition for letters of administration. I further note that the said beneficiaries did not attend court during the confirmation to confirm whether or not they agreed to proposed mode of distribution.

37. My finding is that the trial court skipped a very fundamental step in the confirmation of grant, which is to secure the concurrence of all the beneficiaries with the mode of distribution.

38. I also note that the Appellant was present in court during the confirmation when he lodged a protest to the distribution and informed the court that: -“I was only served with a mention. The whole family have refused.”

39. It is instructive that the court did not heed the Appellant’s protest and went ahead to order as follows: -“There is no objection which was delivered. The application for confirmation allowed as proposed on the affidavit paragraph.”

40. Having regard to the nature of the proceedings that were undertaken during the confirmation of grant, I am not satisfied that the trial court dealt with the distribution of the estate as provided for under the Act.

41. I concur with the Appellant’s position that the distribution was done in a casual, skewed and unprocedural manner that does not meet the muster of Section 40 of the Act. It would have been appropriate for the Appellant herein to file an affidavit of protest to the proposed mode of distribution so as to enable the trial court make an informed decision over the same.

Rectification of the Confirmed Grant 42. Having found that the confirmation of grant was not done in accordance with the provisions of the Act, it follows that the rectification of the confirmed grant that was allegedly done on 5th May 2023 is also invalid.

43. In sum, I find that the instant appeal is merited and I therefore allow it. Consequently, I set aside the confirmation and rectification of grant done on 4th and 11th May 2023 respectively.

44. I direct that this matter be placed before the Lower Court for Confirmation of Grant before any other Magistrate other than Hon. Chepseba. The Lower Court is directed to ensure that all the beneficiaries appear in court during confirmation to confirm their concurrence with the proposed mode of distribution. In this regard, parties are at liberty to file consent on distribution or file separate proposals on distribution for the court’s consideration within 30 days from the date of this judgment.

45. I make no order as to the costs of the appeal considering that the parties herein are members of the same family (relatives).

46. It is so ordered.

JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA VIA MICROSOFT TEAMS THIS 14TH DAY OF DECEMBER 2023. W. A. OKWANYJUDGE