[2022] KEHC 15048 (KLR)

Robert v Kathuma & 2 others (Civil Appeal 44 of 2019) [2022] KEHC 15048 (KLR) (9 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15048 (KLR)

Republic of Kenya

In the High Court at Kitui

Civil Appeal 44 of 2019

RK Limo, J

November 9, 2022

Between

Nancy Kavete Robert

Appellant

and

Chrispus Mavuthi Kathuma

1st Respondent

Kathini Nzyoki Kathuma

2nd Respondent

Benjamin Mwendwa Kithue

3rd Respondent

(Interlocutory Appeal against the Order Made by Hon. S.N. Mbungi – Chief Magistrate in Kitui CM’s Court Succession Cause No. 23 of 2007)

Judgment

1. This is an interlocutory appeal lodged by Nancy Kavete Robert, the appellant herein against the Order made by Hon. S.N. Mbungi –Chief Magistrate in Kitui Chief Magistrate’s Court Succession Cause No. 23 of 2007.

2. That cause in the Lower Court related to the estate of the late Kathuma Nzivu who died intestate on 2nd August, 1984 domiciled in the now Kitui County at a place known as Kyangwithya East.

3. According to the Petition for letters of administration in that court, the deceased died leaving the following dependants: -i.Nzioki Kathuma (deceased)ii.Mukai Kathumaiii.Maluki Kathumaiv.Telesia Kathumav.Kithue Kathuma (deceased)vi.Mawindu Kathumavii.Mavuti Kathumaviii.Mbilu Kathuma

4. The estate of the deceased comprised the following listed assets namely: -a.Kyangwithya/Kaveta/880b.Kyangwithya/Kaveta/612c.Kyangwithya/Kaveta/888d.Kyangwithya/Kaveta/869

5. The Petitioner in the petition a son of the deceased Maluki Kathuma, was appointed the administrator of the estate through a grant dated 22nd August, 2008.

6. The Appellant herein was named as in interested party in the lower court where she had filed a Caveator’s Affidavit of Protest against confirmation of grant dated 23rd April 2018. Her protest was premised on the ground that she was entitled to part of the estate of the deceased being a portion of land Registration Number Kyangwithya/Kaveta/ 612. She claimed that she was a creditor of the estate of the deceased having purchased the said portion from the deceased.

7. On 23rd October 2018, Robert Mavindu withdrew his Protest which prompted the Appellant herein, Nancy Kavete to withdraw her Caveator’s protest as well. The Court delivered a Ruling dated 30th October 2018 noting that the two protests had been withdrawn and as a result, it allowed the application for confirmation of grant filed dated 26th October 2018.

8. Upon issuance of grant of letters of administration to the Petitioner, three of the beneficiaries (the Respondents in this appeal) filed Summons for Revocation of Grant dated 29th January 2019 objecting to the mode of distribution on the ground that they were not involved in the proceedings. On 13th March 2019, the trial court fixed the application for hearing and gave directions that all the parties in the cause be served.

9. The matter was subsequently mentioned before the trial court to confirm service and on 16th July 2019, it came up before the chief magistrate for hearing for the application of revocation of the grant.

10. Counsel for the Applicant Mr Kalili was present in court, Ms Njeru for the Interested Party, and the Respondent were also present. Counsel for applicant sought to have the grant set aside and informed the court that the Respondent had agreed and the court issued an order setting aside the grant.

11. The trial court revoked the grant with consent of the parties present in court to wit Chrispus Mavuthi Kathuma through Counsel Mr. Kalili, M/s Njeru for Nancy Kavete ( the Interested Party) and Maluki Kathuma-( the Petitioner).

12. The appellant herein, who was the interested party in the lower court was aggrieved by the Order made by the Chief Magistrate’s Court and filed this appeal listing the following grounds namely:-i.That the learned trial court erred and misdirected himself when he made the order appealed against on a mention dateii.That the learned trial magistrate erred in law when he made the order appealed against without regard to the interest of the Appellant.iii.That the learned trial magistrate erred in law when he made the order appealed against even when he had ceased to exercise jurisdiction in the matteriv.That the learned trial magistrate erred in law when he made the order appealed against, which order operated as an order in appeal against the subordinate’s court’s judgment dated 30. 10. 2018v.That the learned trial magistrate erred in law when he made the order appealed against.

13. The appellant contends that the trial Magistrate became funtus officio after the protests were withdrawn and after confirming the grant.

14. According to her, the 1st Respondent participated in the proceedings leading up to summons for confirmation of grant and was estopped from seeking to have the same grant revoked.

15. She submits that the 2nd and 3rd Respondent were catered for in the proposed mode of distruction and therefore, they were estopped as well from seeking for revocation of grant.

16. She submits that she was an interested party in the proceedings but she was not served with the summons for revocation of grant.

17. The Respondents have opposed this appeal and insists that the trial court was not functus officio when it revoked the grant in presence of all the parties. They submit that the summons for revocation of grant was unopposed and that the appellant was represented when the revocation of grant was made.

18. I have considered this appeal which in my view is interlocutory in nature because the Order appealed from, did not finally settle the matter.The trial court simply revoked the grant with a view to adjudicating upon the issues raised by the applicants who felt prejudiced by the distribution adopted by the court when confirming the grant.

19. The appellant’s main contention is that the trial court was functus officio and lacked jurisdiction to hear and make a determination on the summons for revocation of grant dated 29th January 2019.

20. Secondly, that the Appellant was not served with the summons for revocation of grant and that the trial court made the order during a mention without confirmation of service.

21. Before I delve on whether the Summons for Revocation of grant dated 29. 01. 2019 was properly before the subordinate court, I will consider the grounds upon which a grant whether or not confirmed can be revoked or annulled.

22. Section 76 of the Law of Succession Act which provides for revocation or annulment of grant 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 substanceb.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 casec.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 inadvertentlyd.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; 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.that the grant has become useless and inoperative through subsequent circumstances

23. An applicant can move a court for revocation of grant on any or combination of the above listed grounds. It is also important to note, that a court can on its own motion pursuant to the provisions of Section 76 and revoke a grant whether or not confirmed.

(b) Whether the trial court was functus officio 24. A court becomes functus officio once it adjudicates upon a dispute placed before it and renders itself with finality. The Supreme Court expounded well the doctrine of functus officio in the decision of Raila Odinga & others versus Independent Electoral Boundaries Commission and Others [2013] eKLR when it observed,The functus officio doctrine is one of the mechanism by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a general rule exercise those power only once in relation to the same matter. The principle is that once such a decision has been given it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision matter."

25. The question posed in light of the above doctrine is whether the trial court had earlier adjudicated upon the same summons for revocation of grant and rendered itself with finality prior to the Order made on 16th July, 2019? The answer to that question is obviously in the negative and that clearly shows that the doctrine of functus officio did not operate against revocation of grant made by the trial court.

26. The only question posed is whether the subordinate court was seized with jurisdiction to revoke the grant.

27. The jurisdiction of the magistrate’s court to determine matters concerning revocation of grants is provided for under Section 48 (1) of the Law of Succession Act which provides as follows;Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49, a magistrate shall have jurisdiction to entertain any application and to determine any dispute under this Act and pronounce such decrees and make such orders therein as may be expedient in respect of any estate the gross value of which does not exceed the pecuniary limit prescribed under section 7 (1) of the Magistrates’ Courts Act, 2015.

28. The subordinate court was well seized with jurisdiction to entertain the Summons for Revocation of Grant.

29. The grounds upon which revocation of grant was sought in this case is that; the process of obtaining the grant was fraudulent as the Respondent made false allegations and further concealed material facts and that the applicants did not consent to petition for letters of administration or distribution of the estate.

30. From the trial court’s records, the Summons for Revocation of Grant was not heard on merit because the same was allowed on consent of parties. The 3rd Respondent is said to have been left out in the distribution. He is described as a grand-child of the deceased who is entitled to a share of the estate in place of his deceased mother who was the daughter of the deceased. On that basis there was basis to have the grant revoked by the magistrate’s court so that the interest of the grandchild could be determined on the estate.

31. This court has also gone through the proceeding and finds that the appellant was an Interested Party. She was a purchaser of portion of the estate. She was present in court and was throughout represented in the proceedings and expressed no objection to the revocation of grant on 16th July, 2019 when the trial court revoked the grant. She was duly represented in court and in my view, the doctrine of estoppel, which she has cited, really operates against her in this appeal. She cannot turn back and say she was not aware of the revocation of grant when she was represented in court.

32. I am also not persuaded that the trial court was wrong to revoke the grant when the matter was listed for mention. As I have observed a court can even move on its own motion and revoke a grant and it matters not if the matter was listed for mention or hearing of the application. The trial court was moved through a consent of all the parties and simply adopted their consent to have the grant revoked and the same could be done even on a mention date.

33. The appellant has contended that the revocation order went against the judgement of the same court dated 30. 10. 2018

34. The trial court did not issue a judgment on 30. 10. 2018, it simply confirmed the grant following withdrawal of the two protests that had been filed in the matter. There was no appeal following that confirmation but a filing of the summons for revocation of grant.

35. This court finds that in any event the revocation order did not necessary prejudice the appellant as she can still stake her claim during the distribution of the estate herein.

36. In the premises for the aforementioned reasons, this court finds no merit in this appeal. The same is dismissed with costs. I further direct that the lower court file be forwarded to the lower court with a view to expediting the confirmation of grant and bringing the cause to a rest.

DATED, SIGNED AND DELIVERED AT KITUI THIS 9THDAY NOVEMBER, 2022. HON. JUSTICE R. K. LIMOJUDGE