[2023] KEHC 25122 (KLR)

Were & 2 others v Okumu (Civil Appeal E020 of 2021) [2023] KEHC 25122 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25122 (KLR)

Republic of Kenya

In the High Court at Busia

Civil Appeal E020 of 2021

WM Musyoka, J

November 10, 2023

Between

Rodah Were

1st Appellant

Pascalia Anyango Wesonga

2nd Appellant

Truphena Auma Rudia

3rd Appellant

and

Boaz Otieno Okumu

Respondent

(an appeal arising from orders made in the ruling and orders of Hon. PA Olengo, Senior Principal Magistrate, SPM, in Busia CMCSC No. 126 of 2016, delivered on 29th May 2020, and issued on 14th January 2021)

Judgment

1. The appeal herein arises from a decision of the trial court, in Busia CMCSC No. 126 of 2016, delivered on 29th May 2020, and formally extracted on 14th January 2021. The grounds of appeal revolve around: the trial court holding that the parties had agreed, by consent, to abandon the application, dated 10th November 2017, yet that application had been made by only one of the appellants; the application was dismissed yet the appellants were beneficiaries of the estate; the evidence on record was not considered; the standard of proof was not measured; the court holding that the said application was similar to an earlier one, yet the prayers in both were different; the court erring in holding that the parties had consented to the mode of distribution; and the trial court erring in finding that the appellants had been involved in the succession process. The appellant would like the said decision set aside, and the application, dated 12th February 2019, be granted, and the administrators be at liberty to apply for confirmation of grant.

2. The impugned ruling was delivered on 29th May 2020. It turned on a summons for revocation of grant, dated 12th February 2019, filed by the 2nd and 3rd appellants. The 2nd and 3rd appellants had prayed for revocation of the grant made to the respondent, on 26th June 2016, and confirmed on 17th August 2017, and cancellation of transfer of Marachi/Bumala/363 to the respondent, and its restoration to the name of the deceased, and a fresh grant be made jointly to them and the respondent. They averred that the deceased had 4 wives, namely, Margaret Auma, the late Pascalia Anyango, Christine Auma and the late Anastacia Anyango; and 6 children, being Truphena Auma Budia, the late Joseph Wesonga Okumu, the late Peter Ajiwa Okumu, the late Alfayo Odongo Okumu, the respondent and Thomas Otega Okumu. It was asserted that, save for the 6 children, the deceased had no other children. It was noted that according to the certificate of confirmation of grant, the estate was devolved to Margaret Aluoch Wesonga, Pascalia Anyango Owuor Wesonga, John Ochieng Okumu, Carolyne Adhiambo Juma, Vincent Ogonda Juma, Bonface Otieno Oloo and Stephen Onyango Juma. It was pointed out that Vincent Juma and Stephen Onyango Juma were strangers, and their inclusion in the estate was irregular. It was argued that the consent of the appellants had not been sought prior to the filing of the cause, and of the confirmation application. It was further argued that the respondent and Thomas Otendo Okumu had been given separate parcels of land, and were not entitled to Marachi/Bumala/363. It was further submitted that some survivors of the deceased had been excluded, and strangers were included instead. It was stated that the deceased had not sold Marachi/Bumala/363 to anyone.

3. The respondent reacted to that application by filing grounds of opposition, dated 17th July 2019. It was argued that a similar application, filed by the 1st appellant, dated 10th November 2017, had been voluntarily withdrawn; the 2nd and 3rd appellants had no capacity, in the context of consanguinity, to bring the application; it was in bad faith; and was frivolous and vexatious.

4. The application was canvassed by way of written submissions, and in the end, the court ruled that a similar application had been mounted and abandoned, which paved way for confirmation of the grant, which meant that all the parties had consented to the mode of distribution of the estate. It was further held that the appellants had been involved in the succession process, hence they agreed on the mode of distribution.

5. Both sides agreed to canvass the appeal by way of written submissions. Both filed their respective written submissions. I have read through the said submissions, and noted the arguments made.

6. In their submissions, the appellants point out that their names were not in the list of beneficiaries at confirmation, and those listed had not signed the consent on distribution or they were not allocated any shares. It is submitted that the 3rd appellant was a daughter of the deceased, who was not involved at all at any of the stages of the succession process. It is submitted that the 1st appellant was pursuing the share that ought to have gone to her father. It is submitted that, although the 2nd appellant was listed as a beneficiary, her consent was not sought when the petition was being filed. She is a widow of one of the sons of the deceased. It is submitted that, although Vincent Ogonda Juma, Stephen Onyango Juma and Cyprian Owino Nayema are alleged to be purchasers of estate property, no proof has been provided of the alleged sales. It is submitted that considering those facts, the ruling by the trial court was erroneous.

7. On his part, the respondent, largely agrees with the impugned ruling, principally that a similar summons for revocation of grant had been withdrawn, which act allowed for the estate to be distributed, and that the appellants were not challenging the mode of distribution. He concedes that the 2nd and 3rd appellants were not party to the withdrawn application, and were never joined to these proceedings, and they were not proper parties to the matter. It is submitted that they never asserted their beneficial interest at the confirmation of the grant. It is argued that the prayers in the application were similar, in nature and content, to those in the previous application.

8. Perhaps before I consider the appeal on its merits, I should set out the history of the matter from the initiation of the cause, as a sort of background. The certificate of death, on record, indicates that the deceased died on 5th August 1980. The letter from the Assistant Chief of Bumala “A” Sub-Location, dated 29th February 2016, indicates that the deceased was survived by 8 individuals, 5 are said to be family members and 8 are buyers. The family members are 2 daughters-in-law, 3 grandsons and 1 granddaughter, namely Margaret Aluoch Wesonga, the 2nd appellant, Barack Owuor Wesonga, Manuel Odhiambo, John Ochieng Okumu and Carolyne Adhiambo Juma. The buyers are said to be Vincent Ogonda Juma, Stephen Onyango Juma and Cyprian Owino Nayema. Curiously, the signatory of the letter is one of the buyers, Cyprian Nayema, as Assistant Chief. The respondent is identified as administrator. The property is said to be Marach/Bumala/363. Representation was sought by the respondent, in his capacity as a son of the deceased, vide a petition filed herein on 6th March 2015. The individuals listed as survivors of the deceased are Margaret Aluoch Wesonga, the 2nd appellant, Barack Owuor Wesonga, John Ochieng Okumu and Carolyne Adhiambo Juma, being daughters-in-law, grandson and granddaughter, of the deceased, respectively. The 3 alleged buyers were also listed. The cause was gazetted on 13th May 2016, letters of administration intestate were made on 28th June 2016, and a grant was issued, curiously dated 26th June 2016.

9. The respondent filed a summons for confirmation of grant, on 6th January 2017, dated 3rd January 2017. The survivors of the deceased were identified as Margaret Aluoch, the 2nd appellant, Caroline Adhiambo Juma, Barack Owuor Wesonga and John Ochieng Okumu. It was proposed that Margaret Aluoch, the 2nd appellant, Caroline Adhiambo Juma, Barack Owuor Wesonga and John Ochieng Okumu take 2¾ acres out of Marachi/Bumala/363, with the balance devolving upon Vincent Ogonda Juma, Bonface Otieno and Onyango Juma. A consent on distribution was filed contemporaneously, executed by all the 8 beneficiaries mentioned in the application. An amendment was filed on 24th January 2017, to tweak the distribution, to give specific shares to the 5 family members or survivors of the deceased. The summons came up several times, without the beneficiaries attending, although I see no affidavits of service, to indicate whether or not the application and hearing notices were being served. I have seen summonses to witnesses, dated 24th May 2017 and 6th July 2017, addressed to the 2nd appellant. I have not seen any affidavits of service, with respect to the witnesses summonses, but the 2nd appellant filed, on 18th July 2017, an affidavit of protest, sworn on even date. She protested that she had not been consulted when the cause was initiated, yet she was a daughter-in-law of the deceased, with a stake in the estate; she was not involved, and did not sign any consent for the respondent to continue with the cause. She asserted that the proposed mode of distribution was not genuine. She proposed that a government surveyor visit the land before confirmation. She also stated that the beneficiaries involved should only appear before the court after they had fully consented to the distribution proposed. She urged the court not to confirm the grant before she was satisfied with her share. A Motion was filed by the respondent, on 26th February 2017, to summon the 2nd appellant to attend court for confirmation. I suppose that informed the protest by the 2nd appellant. What is averred in the affidavit, sworn in support by the respondent, should be of some interest. He disclosed that the deceased was survived by 5 sons, being himself, Jocek Wesonga Okumu, Thomas Otieno Okumu, Peter Ajiwa Okumu and Odongo Juma. It is averred that Jocek Wesonga Okumu, Thomas Otieno Okumu, Peter Ajiwa Okumu and Odongo Juma were all dead, but survived by families, who were all adults. It is averred that the families of the late sons of the deceased had been included in the cause, so as to benefit from the shares due to them from the estate. He stated that when the matter came up in court on 7th February 2017, all the beneficiaries attended, except for the 2nd appellant and Baraka Owuor, and the court declined to confirm the grant in their absence. It was said that Baraka Owuor, son of Jocek Wesonga, later consented in writing, but the 2nd appellant, a widow of Jocek had declined. The grant was subsequently confirmed on 17th August 2017, and a certificate of confirmation of grant was issued, dated 22nd August 2017.

10. A summons was then filed on 17th November 2017, by the 1st appellant, dated 10th November 2017, seeking revocation of the grant, made to the respondent on 26th June 2016. The 1st appellant was a granddaughter of the deceased. She identified 4 sons and 6 daughters-in-law of the deceased, and their respective children. Her case was that the deceased had not distributed his property before he died. She complained that the grant was obtained secretly, without informing all the beneficiaries, and omitting the names of some of them, like her. The administrator later had the grant confirmed, in a process where some beneficiaries were not allocated anything. She asserted that she was not aware that the matter was coming up in court on 17th August 2017, when the grant was confirmed, and that she only got to know of the matter when the respondent began dividing the estate. She protested her exclusion on grounds of gender. She argued that the grant was obtained through a process that was not inclusive. She proposed that the family should sit and agreed on an administrator. She also protested that the Assistant Chief, who wrote the letter to court, at the initiation of the cause, was one of the alleged purchasers of the estate land, and she feared collusion. That application came up several times, before it was eventually marked as abandoned, on 1st March 2018, by consent of the parties. That abandonment then paved way for transmission of the estate. That transmission process appears to be what provoked the filing of the summons for revocation of grant, dated 12th February 2019, by the 2nd and 3rd appellants. The affidavit, in support of that application, was sworn by the 2nd appellant. She was protesting the manner in which the grant had been obtained, saying that the proceedings were defective, as they were compromised by fraudulent concealment of matter from the court and untrue allegations, essentially saying that some people were left out, consents were not obtained, strangers were involved in the process, the respondent and Thomas Otendo Okumu had benefitted from other parcels of land, and that the deceased had not sold a portion of Marachi/Bumala/363. That application was dismissed on 29th May 2020, giving rise to the instant appeal. The principal ground, for the dismissal, was that a similar application had been brought on 10th November 2017, and was abandoned by consent of the parties.

11. What happened at the confirmation of the grant on 17th August 2017, should have a bearing on the appeal. Those present were Ms. Kituyi, as Advocate for the respondent herein, who was the administrator applicant, and the 2nd appellant herein, who was the respondent protestor. The handwritten and typed record indicates that the proceedings were not properly recorded. What I make of it is that Ms. Kituyi was telling the court that the confirmation application was unopposed, but the 2nd appellant was objecting, saying that she wanted the surveyor to go to the ground. It would appear that the court recessed, during which Ms. Kituyi and the 2nd appellant had a discussion, for, when the court resumed, Ms. Kituyi informed the court that they had agreed that the confirmation process continue, which position the 2nd appellant confirmed, and the court proceeded to confirm the grant, after being satisfied that there was indication of the shares for each beneficiary.

12. The said proceedings were recorded as follows:“17. 8.17Before Hon Chepseba CMKituyi for the petitioner/appThe Respondent is in person and presentKituyi – It was coming for Confirmation of Grant. Service had not been effected.We filed Affidavit in court of service. There is no objection on record.I object. The surveyor to go to confirm the groundM at 1030 am1100 amI have talk to the Protestor - We have agreed the Confirmation continuesProtestor – I agree.CT to put specific share for each individual.M 1230 amCT . The Affidavit showing the shares is dated 24/1/17. The Affidavit clearly indicating the shares of eachCT. Application for Confirmation allowed as per summons.”

13. If I understand the appeal herein, it is premised on the argument that the trial court was wrong, in dismissing the subject revocation application, on grounds that the previous revocation application had been abandoned by consent, yet that previous revocation application was by the 1st appellant, and not the 2nd and 3rd appellants. It is correct, the earlier revocation application, dated 10th November 2017, was by the 1st appellant, and the 2nd and 3rd appellants were not party to it. They were not party to its abandonment, and the trial court was not, therefore, justified to dismiss it on that ground. I agree, the latter application was by a different set of claimants, who should have been heard on the merits of their application, instead of being dismissed in limine. I find it curious that the 1st appellant is named as a party in these appellate proceedings, yet she was not party to the application, dated 12th February 2019, whose dismissal, on 29th May 2020, is what gave rise to the instant appeal. She cannot be aggrieved by orders made on an application to which she was not party. She had no right to file appeal against the said orders. She has no basis for being in this cause.

14. The 2nd appellant had a right to appeal against the said ruling and orders, for the reason that I have given above. She was not party to the earlier revocation application, and the dismissal of her application, on grounds that a similar application had been abandoned, was unfair to her. However, the outcome of 29th May 2020, with respect to the 2nd appellant, is still defensible, although it was founded on improper grounds. Why do I say so? The 2nd appellant participated in the confirmation of the grant on 17th August 2017. She had filed a protest to the confirmation application, but abandoned it on 17th August 2017, and the grant was confirmed. The issues that she was articulating in her revocation application, dated 12th February 2019, should have been articulated in her protest affidavit, or they should have been presented at the confirmation hearing on 17th August 2017. Under section 71 of the Law of Succession Act, Cap 160, Laws of Kenya, some of the things that come up for consideration, at confirmation of grant, include whether the grant had been properly made or obtained, whether the administration had been done properly, and whether the administrator should be confirmed to proceed to the next step. So, it behooves parties, with issues on how the grant was obtained, to raise them at confirmation, so that the court can deal with them, by deciding whether to confirm the administrator to continue, or whether to replace him. The 2nd appellant had that opportunity on 17th August 2017. She had in fact filed an affidavit of protest, raising those issues. However, she passed up the chance when she abandoned her protest, and allowed the grant to be confirmed. She cannot now turn around and ask, after confirmation, that the grant be revoked. See Mburu Njoroge v Frederick Mburu Njoroge [2014] eKLR (Ngaah, J).

15. The provisions in section 71 of the Law of Succession Act, that I am alluding to, are in subsection (2)(a)(b). They are to effect that where the court, at confirmation, is satisfied that the grant was made rightly to the administrator, and that he was administering the estate well, and would continue to administer the estate well after confirmation, should confirm the grant. Where it is not so satisfied, it should revoke the grant, and issue it to some other person or persons, so that they can complete administration. The court can revoke a grant on its own motion or on application, according to section 76 of the Law of Succession Act. It means the court may, on its own, that is without prompting by any party, find material, from the record, which would indicate that the grant was not properly made, or that the administrator was not doing a good job of administration, or that the administrator could not be trusted to complete administration, for whatever reason, such as having reached a very great age or suffering debilitating infirmity or on account of impropriety on his part or on account of his having impossibly heavy schedules or on account of his being outside jurisdiction, and decide to revoke the grant and remove the administrator. The court may also do so on application. Indeed, it usually does so on application, based on section 71, through a protest to a summons for confirmation of grant, or section 76, through a summons for revocation of grant. The discretion to revoke a grant, under section 71, and to appoint another administrator, is usually exercised by the court on its own motion, based on the matters the subject of section 71(2)(a(b). So, a party should not sit through a confirmation process, and then jump up thereafter to move for revocation of the grant, when they had a chance to do exactly that at confirmation.

16. For avoidance of doubt, section 71(2)(a(b) states:“7Confirmation of grants(1)…(2)Subject to subsection (2A), the court to which application is made, or to which any dispute in respect thereof is referred, may-(a)if it is satisfied that the grant was rightly made to the applicant, and that he is administering, and will administer, the estate according to law, confirm the grant; or(b)if it is not so satisfied, issue to some other person or persons, in accordance with the provisions of sections 56 to 66 inclusive, a confirmed grant of letters of administration in respect of the estate, or so much thereof as may be unadministered; or(c)…(d)…”

17. The 3rd appellant was not active in the whole Gprocess. She only came in when the revocation application, dated 12th February 2019, was mounted, for she was named there as a co-applicant. It emerges from the affidavit of the 2nd appellant, sworn in support of the application, that she was a daughter of the deceased. She did not swear any affidavit of her own. Instead, she executed an authority in favour of the 2nd appellant, to sign affidavits and other documents on her behalf. She did not participate in the confirmation process, and her name had not come up at all, until the second revocation application was filed. To that extent, she was not heard on any issue in the course of the matter, and it was unjust to dismiss the second revocation application, on grounds that a similar application, to which she was not party, had been abandoned by the parties. She should not have been lumped together with the 1st appellant, when the said 1st appellant had not even mentioned her name in the first revocation application, nor purported to be articulating her case.

18. Should the 3rd appellant have been entertained, with respect to the second revocation application? I do not think so. Firstly, she did not file any papers, by way of an affidavit, to articulate her case. It is purported that she is a daughter of the deceased. She has not asserted so herself, and none of her alleged blood relatives have mentioned her as such in their filings. Secondly, the 2nd appellant could not speak for her or articulate her position. The 2 of them are not at the same level. She claims as a daughter of the deceased, the 2nd appellant claims as a spouse of a dead son of the deceased. The 2nd appellant claims the stake that ought to accrue to her late husband as a son of the deceased, the 3rd appellant ought to be claiming her stake as a daughter. That would bring me to the third issue. The deceased died on 5th August 1980, before the Law of Succession Act came into force on 1st July 1981. He died intestate. The law applicable to distribution of his estate should be, by dint of section 2(1)(2) of the Law of Succession Act, the law and custom that applied to estates of African intestates in 1980, which was customary law. See In Re: Kiiru Muhia “A” [2002] eKLR (Rawal, J), Weru Gatere v John Wachira [2013] eKLR (Wakiaga, J), Wangari Mburu vs. Mary Wairimu Kamau [2017] eKLR (Muigai, J) and Rose Wanjiku Ndigirigi vs. Jane Nyawira Muthami [2018] eKLR (Musyoka, J). Under customary law daughters are not entitled to shares in the estates of their dead fathers, for their access to inherited property is through their husbands. See Kanyi vs. Muthiora [1984] KLR 712 (Kneller JA, Chesoni & Nyarangi, Ag JJA) and Wambugi w/o Gatimu v Stephen Nyaga Kimani [1992] 2 KAR 292 (Hancox CJ, Masime & Kwach, JJA). Sons are entitled exclusively, save where a daughter is unmarried. So, from this, the stake by the 2nd appellant is vastly different from the stake by the 3rd appellant. They are entitled differently, and each should state their respective distinct cases. Since the deceased died before the Law of Succession Act became effective, and since customary law applies, it is no wonder that the 3rd appellant had not been factored or featured in the matter from the beginning. That could be justified, on account of section 2(2) of the Law of Succession Act, and the provisions of the Constitution of Kenya that was retired on 27th August 2010, which allowed discrimination based on gender.

19. For avoidance of doubt, section 2(1)(2) of the Law of Succession Act provides as follows:“2. Application of Act1. Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of this Act and to the administration of estates of those persons.2. The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commence or proceed so far as possible in accordance with this Act.3. …”

20. However, Kenya is under a new constitutional dispensation, and gender discrimination, as was permitted under customary law and old legal regime, has no room anymore. Article 27 of the Constitution outlaws discrimination based on gender; and Article 2(4) renders any law, including customary law, and any act, which contravenes the Constitution, invalid. See In re Estate of Evan Muthui s/o Nyamu [2019] eKLR (Ngaah, J) and Wanjiru & 4 others vs. Kimani & 3 others [2021] KECA 362 (KLR) (W Karanja, HA Omondi & Laibuta, JJA). Going by the law prevailing in 1980, when the deceased died, the 3rd appellant was not entitled to a share in the estate; but going by the current law she is entitled. However, since the deceased died at a time when the 3rd appellant was not entitled to a share in his estate, according to the law then prevailing, the court, at the present, can only extend the advantage of the current law to her upon her application. She did not make that case in the summons, dated 12th February 2019, for she did not swear any affidavit, and so no facts were presented before the court to make that case. The 2nd appellant did not make that case for the 3rd appellant either, in her affidavit in support of the application, for there was no articulation about Articles 2(4) and 27 of the Constitution. The trial court could not, on its own motion, have applied the current law to that situation, to the advantage of the 3rd appellant, when the said appellant had not made that case. I get the sense that the 3rd appellant was been dragged into the matter by the 2nd appellant.

21. For avoidance of doubt, Articles 2(4) and 27 of the Constitution, state as follows:“2. Supremacy of this Constitution(1)...(2)...(3)…(4)Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.(5)...”27. Equality and freedom from discrimination(1)Every person is equal before the law and has the right to equal protection and equal benefit of the law.(2)Equality includes the full and equal enjoyment of all rights and fundamental freedoms.(3)Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.(4)The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).(6)…(7)...(8)…”

22. I believe I have said enough to demonstrate that the trial court came to the right decision, to dismiss the application, dated 12th February 2019, albeit for the wrong reason. I, accordingly, find no merit in the appeal herein. I hereby dismiss it. Being a family matter, each party shall pay their own costs. Orders accordingly.

JUDGMENT DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA THIS 10TH DAY OF NOVEMBER 2023WM MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMr. Were, instructed by Mr. Gabriel Fwaya, Advocate for the appellants.Mr. Makokha, instructed by JP Makokha & Company, Advocate for the respondent.