[2023] KEHC 20099 (KLR)

Wanja & 7 others v Njoka (Miscellaneous Succession Cause 36 of 2011) [2023] KEHC 20099 (KLR) (5 July 2023) (Ruling)

Neutral citation: [2023] KEHC 20099 (KLR)

Republic of Kenya

In the High Court at Embu

Miscellaneous Succession Cause 36 of 2011

LM Njuguna, J

July 5, 2023

Between

Odaria Wanja

1st Applicant

Elizabeth Wambura

2nd Applicant

Lucy Marigu

3rd Applicant

Agnes Njoki

4th Applicant

Eunice Kaari

5th Applicant

Catherine Riimi

6th Applicant

Beatrice Gicuku

7th Applicant

Flora Thaara

8th Applicant

and

Charles Kinyua Njoka

Respondent

Ruling

1. Before this court is a preliminary objection dated March 1, 2023 on grounds that:i.There is no provision under the Law of the Succession Act or any other law to revoke or annul a certificate of confirmation of grants or an amended certificate of confirmation of grant.ii.That the summons dated February 14, 2023 is therefore incompetent and should be struck out with costs to the respondent.

2. The court directed that the preliminary objection be canvassed by way of written submissions and only the respondent complied with the said directions.

3. It was submitted that the amended certificate of confirmation of grant dated February 22, 2010 prompted the applicants who are beneficiaries of the estate herein to file the summons for revocation of grant or annulment of grant dated February 14, 2023. That the applicants as beneficiaries or interested parties were aware of and participated in the court proceedings wherein the grant of letters of administration was issued to the respondent, was later confirmed and amended or rectified in the mode of distribution. It was submitted that the only conclusion is that the present applicants were dissatisfied with the mode of distribution of the estate as they wanted the same shared equally.

4. The respondent submitted that the application herein is to the effect that the applicants’ summons dated February 14, 2023 and brought under sections 47 and 76 of the LSA is incompetent as the cited sections of the law do not provide the basis of such summons. That there is no provision under the LSA that provides for revocation of either a certificate of confirmation of grant or an amended certificate of confirmation of a grant; and therefore, the preliminary objection herein meets the threshold of what consists a preliminary objection. Reliance was placed on the case ofJuma Shiteswa Kinani (Deceased) [2021] eKLR to buttress the fact that if the applicants were unhappy with the process of confirmation of the grant, then the provisions of Section 76 of LSA was not available to them. The respondent contended that the problems that arise from the confirmation process of a grant, such as failure to be involved in the process or lack of consents or the unfairness of the distribution of the deceased’s estate are not grounds upon which confirmed grant and certificate of confirmation of grant can be revoked. That the remedy available to such a party is either an appeal or review of the said order. For the said reasons, this court was therefore urged to allow the application herein.

5. I have considered the preliminary objection, and the submissions filed by the respondent herein and I find that the main issue for determination is whether the notice of preliminary objection is merited.

6. In the case of Hassan Ali Joho & Another Vs Suleiman Said Shabal & 2 Others SCK Petition No 10 of 2013 [2014] eKLRthe Supreme Court stated that:'A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit'

7. It is trite that if a preliminary objection if allowed, the same may dispose off the entire suit without giving parties the opportunity to be heard. Therefore, this has to be done with caution given that the court has a duty to hear all parties and determine the case on merit. In addition, this court has also a duty to safeguard itself against abuse of its process.

8. The application that prompted the respondent to file the preliminary objection dated March 1, 2023 is the summons for revocation or annulment of amended certificate of confirmation of grant issued to the respondent at Runyenjes SRM in Succession No 61 of 2006 that the same was fraudulently obtained through misrepresentation of facts.

9. The respondent contended that there is no provision under the LSA or any other law in Kenya which provides for revocation of either a certificate of confirmation of grant or an amended certificate of confirmation of grant.

10. Summons for revocation of grant is provided for under Section 76 of the Law of Succession Act Cap 160 of the Laws of Kenya which provides;'A 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.'It is important to note that only a grant of representation is one envisioned under section 53 and 54 of the Law of Succession Act Cap. 160 of the Laws of Kenya.53. Forms of grantA court may -a.Where a deceased person is proved (whether by production of a will or an authenticated copy thereof or by oral evidence of its contents) to have left a valid will, grant, in respect of all property to which such will applies, either -i.Probate of the will to one or more of the executors named therein; orii.If there is no proving executor, letters of administration with the will annexed; and(b)If and so far as there may be intestacy, letters of administration in respect of the intestate estate.54. Limited grantsA court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act.

11. A court is at liberty to revoke a grant of representation only where the applicant has satisfied the circumstances provided under section 76 of the Law of Succession Act. However, the law does not classify a certificate of confirmation of grant as a grant of representation. In the case ofIn re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR the court stated:'In principle, the applicants appear to be unhappy with the confirmation process. That is what comes out from the body of the application and the affidavits sworn in support of the application, as well as the oral testimonies of the applicant, his witnesses and his written submissions. The principal prayer in the application is for revocation of the certificate of confirmation of grant. A certificate of confirmation of grant does not take any of those forms, and it cannot possibly, therefore, be a grant of representation. It is a document extracted from the orders that a court makes after confirmation of a grant under section 71 of the Law of Succession Act, as evidence the fact that a grant of representation has been confirmed. It should be emphasized that the confirmation process does not produce another grant. The grant sought to be confirmed, through that process, remains intact, after confirmation.'

12. Having stated the above, it is my view that a certificate of confirmation of grant cannot be revoked or annulled but rather it can only be set aside or appealed. If the court were to revoke or annul the certificate of confirmation of a grant, what is to stop the parties from extracting another one? (See In Re Estate of Joel Cheruiyot Ronoh [2016] eKLR). The fact remains that since there are no legal grounds for revocation or annulment of the certificate of confirmation of grant, the grant of representation itself remains to be the only proclamation/order of the court that can be legally revoked or annulled.

13. In light of the above, the preliminary objection is allowed but with no orders as to costs.

14. It is so ordered.

DELIVERED, DATED ANDSIGNED ATEMBU THIS5TH DAY OFJULY, 2023. L. NJUGUNAJUDGE