[2024] KEHC 1323 (KLR)

Omboga & another v Maiko & 2 others (Succession Cause 702 of 2011) [2024] KEHC 1323 (KLR) (25 January 2024) (Ruling)

Neutral citation: [2024] KEHC 1323 (KLR)

Republic of Kenya

In the High Court at Kisii

Succession Cause 702 of 2011

TA Odera, J

January 25, 2024

Between

Drusilla Nyang'ara Omboga

1st Petitioner

Mary Nyabate Maiko

2nd Petitioner

and

Dickson Motanya Maiko

1st Objector

Kefa Maiko Maiko

2nd Objector

Richard Nyamwao Maiko

3rd Objector

Ruling

1. By a Summons for Revocation or Annulment of Grant filed under a Certificate of Urgency and dated 14. 2.2022 and filed through the firm of Ochoki & Company Advocates, the Objectors/Applicants seeks the following orders: -a.Spent.b.Pending the hearing and determination of the instant Summons, the Honourable Court be pleased to order that status quo be maintained with regard to the occupation, title and possession of the parcels of land known as L.R. No. Mwongori Settlement Scheme/895, 896, 897, 942 and 943. c.Pending the hearing and determination of the instant Summons, the Honourable Court be pleased to grant an order of injunction restraining the Petitioner/Respondent herein or any other person working under her instructions from selling, alienating or causing further sub-divisions on parcels of land known as L.R. No. Mwongori Settlement Scheme/895, 896, 897, 942 and 943. d.The Grant of Letters of Administration Intestate made to Drusilla Nyang’ara Omboga And Mary Nyabate Maiko, the Petitioners/Respondents herein on the 20th March 2013 be revoked.e.The Honourable Court be pleased to order for cancellation of all Titles arising out of the sub-division of Land Parcels Mwongori Settlement Scheme/427 and to have the same revert back to the name of the deceased.f.The Honourable Court be pleased to compel the Petitioners/Respondents herein to render a full account of all the income received from the deceased’s properties to wit Plot 50A in Keroka Town and the proceeds held in Kenya Commercial Bank, Keroka Branch A/C No. 15XXX81 and shares in Kenya Commercial Bank Share No. 0XXX65. g.Such further and/or other orders be made as this Honourable Court may deem fit and expedient.h.Costs of this application be provided for.

2. The grounds on the face of the Application are that the Petitioners/Respondents fraudulently obtained Letters of Administration Intestate with respect to the Deceased’s estate herein. This was done without the Objectors/Applicants knowledge. The Petitioners/Respondents had not applied for confirmation of grant but had proceeded to subdivide the Deceased’s assets. It was therefore imperative that the Petitioners/Respondents produce a full and accurate inventory of accounts of the Deceased’s Estate.

3. The Application was supported by an Affidavit sworn by Richard Nyamwaro Maiko on 14. 2.2022. He deponed that he was authorized by his co-objectors to swear the Affidavit. He deponed that he is a son to the Late Martha Moraa Maiko (Deceased). He deponed that the instant succession proceedings were conducted in secrecy, without their knowledge and fraudulently. He deponed that the Petitioners had not applied for confirmation despite having obtained the Letters of Administration Intestate in 2013. He deponed that the Petitioners had proceeded to subdivide L.R. No. Mwongori Settlement Scheme/427 and alienated to third parties. He deponed that the signatures appearing in the suit did not belong to him and he did not consent to the succession proceedings as filed. He deponed that his brothers equally denied the signatures appearing in the proceedings. He deponed that the Petitioners had neglected to render accounts for the Estate despite their demands. He urged the Court to revoke the grant and protect the interests of the beneficiaries of the Deceased’s Estate.

4. I have perused the Court record and despite being granted time to file their responses, there are no responses in opposition to the Application.

5. I have taken note of the Replying Affidavit sworn by Martha Nyabate Maiko on 9. 6.2022. It is titled Succession Cause No. 20 of 1994 (702/2011). However, at Paragraph 3, it is indicated that the same is in response to the Application dated 4. 2.2022 and therefore has nothing to do with the present application.

Submissions The Petitioners’ Submissions 6. The 1st and 2nd Petitioners/Respondents filed their submissions dated 16. 10. 2023. Looking at the Submissions in totality, they appear to be in response to an Application dated 28. 4.2021. They submissions further refer mostly to Elizabeth Kemunto who was a co-wife of the Deceased herein. The Petitioners also submitted that the Estate of Livingstone Maiko Ogwora was distributed in full by the Late Martha Moraa Maiko, who was the Administrator, prior to her death.

7. Obviously, the said Submissions do not speak to the Application presently before Court.

8. In any event, “…Indeed and strictly speaking submissions are not part of the evidence in a case. Submissions, to this court’s view, are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim/charge or disprove it. Once the case is closed, a court may well proceed to give its judgment. There are many cases especially where parties act in person where submissions are not heard. Even some counsel may opt not to submit. So submissions are not necessarily the case.” See Nancy Wambui Gatheru v Peter Wanjere Ngugi Nairobi HCCC No. 36 of 1993 cited in Robert Ngande Kathathi v Francis Kivuva Kitonda [2020] eKLR

Objectors’ Submissions 9. The Objectors filed their Submissions dated 17. 11. 2023. They submitted that at the time of the Deceased’s death, she was survived by 6 children, being the Petitioners and Objectors herein. The Petitioners petitioned for Grant of Letters of Administration Intestate which was subsequently issued on 26. 3.2013.

10. They submitted that on 28. 6.2013, before the Grant was confirmed, the Petitioners caused the subdivision of Mwongori Settlement Scheme/427 into Titles 895, 896 and 897, some of which were alienated to third parties. Parcel 897 was subdivided further into Parcels 942 and 943. The Petitioners had also not rendered any accounts with regard to the income received from the rental units on Plot No. 5XA and proceeds from Bank Account Number 15XXX81 Kenya Commercial Bank and shares in Kenya Commercial Bank.

11. They cited the case of Re Estate Prisca Ong’ayo Nande (Deceased) [2020] eKLR where the Court held that Section 76 of the Law of Succession Act provided for the grounds for revocation of a grant and the Court proceeded to elaborate on the grounds.

12. The Objectors submitted that the Petitioners obtained the letters of administration without the knowledge and consent of the Objectors and was therefore fraudulent; and that they proceeded to subdivide the Deceased’s parcel of land without confirmation of grant; further that the Petitioners had failed to apply for confirmation of grant since the year 2013.

13. They cited the case of Re Estate of the Late Epharus Nyambura Nduati (Deceased) [2021] eKLR, where the Court revoked a grant and annulled titles issued on the ground that the Petitioners failed to proceed diligently with the administration as the 1st Respondent caused the subdivision of the Deceased Estate’s property prior to the confirmation of the grant.

14. They urged the Court to allow the Application.

Determination 15. As indicated above, the Application is unopposed.

16. Section 76 of the Law of Succession Act, Cap 160 of the Laws of Kenya provides as follows: -76. Revocation or annulment of grantA grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion-(a)that the proceedings to obtain the grant were defective in substance;(b)that 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)that 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)that 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; or(ii)to proceed diligently with the administration of the estate; or(iii)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; or(e)that the grant has become useless and inoperative through subsequent circumstances.

17. In the present suit, the Objectors/Applicants alleged that the Petitioners did not involve the Objectors. Looking at the Application, there is no authority to plead attached from the 1st and 2nd Objectors acquiescing to the filing of the Application or authorizing the 3rd Objector to swear any affidavit on their behalf.

18. That said, the 3rd Objector deponed that his consent was not sought and he was unaware that the proceedings had been filed. He alleged that the signature appearing against his name was not his. The Petitioners did not oppose this and I find no reason not to agree with the 3rd Objector.

19. The 3rd Objector also alleged that the Petitioners had failed to apply for confirmation of the grant. As espoused above in Section 76 of the Law of Succession Act, failure to apply for confirmation of grant within one year and after due notice and without reasonable cause is a ground for revocation of a grant. Looking at the Objector’s Annexture RNM2, there is nothing indicative of the 3rd Respondent calling upon the Petitioners to apply for confirmation of grant. Be that as it may, the Petitioners were issued with a Grant of Letters of Administration Intestate on 26. 3.2013. Indeed, there is no pending or determined application for confirmation of grant. That is about well around 10 years since the grant was issued. I find that 10 years is indeed inordinate. The Petitioners did not respond to the Application and did not explain the period of inaction of 10 years.

20. The 3rd Objector also alleged that the Petitioners had proceeded to subdivide the Deceased’s Estate. In support of this, the 3rd Objector, attached various annextures.a)Annexture RNM1(a) is a green card for Title No. Mwongori Settlement Scheme/427 which was initially registered in the name of Martha Moraa Maiko on 23. 11. 1999. A caution in favour of Maiko Dickson Motanya was registered on 9. 1.2006. A Title Deed was issued in the Petitioners’ names on 28. 6.2013 and closed for subdivision on the same day.Title No. Mwongori Settlement Scheme/427 resulted in Nos. 895, 896 and 897. b)Title No. Mwongori Settlement Scheme/896 was registered in the name of Florence Nzula Mounde on 28. 6.2013. c)Title. No. Mwongori Settlement Scheme/897 was further subdivided on 20. 11. 2013 into Nos. 942 and 943. d)Title No. Mwongori Settlement Scheme/943 was registered in the name of Elizabeth Kemunto Osoro on 9. 1.2015. e)Title No. Mwongori Settlement Scheme/942 was registered in the name of Elizabeth Kemunto Osoro on 12. 11. 2013.

21. It is not clear, therefore, how the caution registered on 9. 1.2006 was removed. That, however, would lie within the realm of the Environment and Land Court.

22. However, it is not clear how the Petitioners were able to subdivide the property in the absence of a confirmed grant.

23. Section 55 of the Law of Succession Act, Cap 160 of the Laws of Kenya provides thus:055. No distribution of capital before confirmation of grant(1)No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets constituting a net estate, or to make any division or property, unless and until the grant has been confirmed as provided by section 71.

24. Section 82 [i] and [ii] of the Law of Succession Act provides as follows:82. Powers of personal representatives(i)any purchase by them of any such assets shall be avoidable at the instance of any other person interested in the asset so purchased; and(ii)no immovable property shall be sold before confirmation of grant.

25. Section 83 of the Law of Succession Act, Cap 160 of the Laws of Kenya provides for the duties of personal representatives. The Petitioners are required to produce a full and accurate inventory of the deceased’s assets and liabilities within 6 months of the date of the grant. Obviously, this has not been done.

26. Section 83(h) of the Law of Succession Act, Cap 160 of the Laws of Kenya provides that the court may require a personal representative to produce a full and accurate inventory of the Deceased’s Estate’s assets and liabilities. I am therefore inclined to allow this prayer.

27. In view of the foregoing, I am satisfied that the 3rd Objector has proved his case.

28. I also note that at the point of petitioning for the grant in this cause, the Petitioners listed the following properties as belonging to the Deceased, Martha Moraa Maiko.a.L.R. No. East Kitutu/ Bonyamondo II/5X0. b.L.R. No. Mwongori Settlement Scheme /4X7. c.Lease interest in Plot No. 1XXA in Keroka Town.d.Lease interest in Plot No. 5XA in Keroka Town.e.Money held in Kenya Commercial Bank Keroka Branch A/c No. 15XXX81. f.Shared held in Kenya Commercial Bank Shareholder No. 0XXX65.

29. I am aware that there is Kisii High Court Succession Cause No. 20 of 1994 Estate of Livingstone Maiko Ogwora. In that case, Martha Moraa Maiko was appointed as the Administrator of the said Estate. In the said suit, the following properties were listed as belonging to the Late Livingstone Maiko Ogwora (Deceased):a.Kisii/ Mwongori Settlement Scheme/4X.b.Plot No. 1X7 Keroka.c.Plot No. 5X Keroka.d.East Kitutu/ Bonyamondo II/5X0.

30. It is not immediately clear as to how East Kitutu/ Bonyamondo II/5X0 would be listed in both Estates. Notably, in both suits, no one attached a search for the said property.

31. In the circumstances, I find that the Application is merited.

32. The question as to whether this Court can issue orders of injunction was resolved in the Court of Appeal case of Floris Piezzo & Another vs Giancarlo Falasconi (2014) eKLR (cited in the case of Re Estate of Kitur Chepsungulgei (Deceased) [2021] eKLR. The Court of Appeal held as follows: -“We have carefully considered the grounds of appeal, rival written and oral submissions, and the law. The application before the High Court was for temporary injunction to restrain the appellants from dealing with the suit premises in a manner inimical to the estate of the deceased. The question which arose and had to be determined first was whether the Court had jurisdiction to grant an injunction in a Succession Cause. The appellants took the position that the Court had no jurisdiction whereas the Respondent took the contrary position. However, the High Court was persuaded that Rule 73 of the Probate and Administration Rules reserved the Court’s inherent jurisdiction to allow for the grant of injunctions in deserving cases. We are in total agreement with this conclusion. We have no doubt at all that the Law of Succession Act gives the Court wide jurisdiction in dealing with testamentary and administration issues of an estate. Indeed Section 47 of the said Act gives the Court jurisdiction to entertain any application and determine any dispute under the Act and to pronounce such decree and orders as may be expedient. It cannot be said that such decrees and orders would exclude injunction orders. In other words, we are of the same view that Section 47 of the Act gives the Court all-embracing powers to make necessary orders, including injunctions where appropriate to safeguard the deceased’s estate. This section must be read together with Rule 73 of the Probate and Administration Rules which further embodies Court’s jurisdiction to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of Court. We would imagine such orders would also include injunctive orders.

33. The 3rd Objector also sought for a prayer for cancellation of titles arising out of the subdivision of Mwongori Settlement Scheme/427 and have the same revert to the name of the Deceased,

34. There are a number of persuasive decisions stating that this Court indeed has jurisdiction to cancel titles to protect and or preserve the estate of deceased persons. Looking at the persuasive decision in Re Estate of Fredrick Mwaniki Mbogo alias Mwaniki Mbogo (Deceased0 [2021] eKLR, the Court held that generally, the Environment and Land Court is vested with jurisdiction on matters relating to ownership or title to land. However, under Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules gives the Court wide discretion to pronounce such decrees and orders as may be necessary for the ends of justice or to prevent abuse of the process of the court, which would include powers to preserve the estate among others.

35. I am satisfied that the set of circumstances in this case indeed call for this Court to cancel the titles emanating from Mwongori Settlement Scheme/427 i.e. Title Nos. 895, 896, 897, 942 & 943 in a bit to protect the interests of the other beneficiaries of the Estate herein.

36. In view of the fraudulent process used to obtain the Letters of Administration Estate of the Deceased’s Estate herein, the 3rd Objector/Applicant has established the grounds for revocation of a grant. Further in view of the fact that the Petitioners have taken well over 10 years and there appears to be no pending application for confirmation of grant, I am inclined to revoke the Grant issued on 20. 3.2013.

37. In the end, I determine the Application in the following manner: -1. The Application dated 14. 20. 2022 is allowed in terms of prayers [d], [e] and [f] to wit;a.The Grant of Letters of Administration Intestate made to Drusilla Nyang’ara Omboga and Mary Nyabate Maiko, the Petitioners/Respondents herein on the 20th March 2013 be and is hereby revoked.b.I order for cancellation of all Titles arising out of the sub-division of Land Parcels Mwongori Settlement Scheme/427 and the same to revert back to the name of the deceased.c.The Petitioners/Respondents herein to render a full account of all the income received from the deceased’s properties to wit Plot 50A in Keroka Town 20. 3.2013 and the proceeds held in Kenya Commercial Bank, Keroka Branch A/C No. 15XXX81 and shares in Kenya Commercial Bank Share No. 0XXX65. d.The Petitioners shall render a full inventory of the assets of the Deceased’s Estate within 30 days of the date of this Ruling.e.The 3rd Objector is awarded costs of the Application.

DATED, DELIVERED AND SIGNED AT KISII THIS 13TH DAY OF DECEMBER 2023. TERESA ODERAJUDGEIn the presence of:Miss Ndemo for the 3rd Objector/Applicant, (Objectors also present)N/A for the PetitionersBosire for the Respondent /PetitionersOigo- Court AssistantCourt: The grant has been revoked and the estate remains unadministered counsel to suggest two beneficiaries to be appointed administrators.Miss Bosire: We suggest Drusilla Nyangara Omboga.Miss Ndemo: We suggest Richard Nyamwaro MaikoOrder: Richard Nyamwaro Maiko and Drusiall Nyangara are appointed joint administrators of the estate of deceased. Summons for confirmation of grant be filed within 30 days from today.T. ODERAJUDGE25. 1.24.