[2022] KEHC 15833 (KLR)

Yegen v Ngeno (Civil Appeal 12 of 2019) [2022] KEHC 15833 (KLR) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15833 (KLR)

Republic of Kenya

In the High Court at Kericho

Civil Appeal 12 of 2019

AN Ongeri, J

November 11, 2022

Between

Mary Yegen

Appellant

and

George Kiplangat Ngeno

Respondent

(Being an Appeal from the Ruling of Hon. S. Ngetich (PM) delivered in Succession Cause No.80 of 2016 at Kericho on 18/4/2019)

Judgment

1. This appeal arose out of a ruling delivered on April 18, 2019 in an application dated September 24, 2018 seeking revocation of grant issued to the petitioner/respondent on the ground that the mode of distribution was not agreed on and further that some of the signatures of the beneficiaries were forged.

2. The appellant/applicant is the widow of the deceased while the petitioner/respondent is the son of the deceased.

3. The trial court made a finding that all the parties were present when the agreement was signed before the district officer and it was confirmed by the chief.

4. The trial court also found that the appellant/applicant did not establish which signatures were forged and the application dated September 24, 2018 was dismissed.

5. The appellant/applicant is aggrieved by the said order and has appealed to this court on the following grounds: -i.That the learned trial magistrate erred in law and in fact by failing to make an order revoking and/or annulling the confirmed grant, well knowing that the proceedings to obtain the grant were defective in substance;ii.That the learned trial magistrate erred and misdirected himself by failing to find that the consent used to confirm the grant was fraudulent as the accepted consent was allegedly verified by the district officer, whereas this verification is done in court when each entitled beneficiary presents their identity card;iii.The learned trial magistrate erred in law and fact by failing to consider the argument and authorities in the appellant’s submissions on the issue of the mode of distribution based on section 40 of the Law of Succession Act;iv.The learned trial magistrate improperly exercised his judicial discretion in failing to hold and find that the conduct of the respondent is most prejudicial to the administration of the deceased’s estate, most particularly the respondent’s motive to act in person when the mandatory procedures under order 9 of the Civil Procedure Rules, 2010 were not adhered to;v.The learned trial magistrate misdirected himself in law and fact by failing to give adequate consideration to the appellant’s application that raised triable issues of merit thus denying the appellant a chance to be heard as she is aggrieved as a legitimate beneficiary to the estate.

6. The parties filed written submissions as follows: -The appellant submitted that when succession proceedings relating to the estate were filed, the respondent did not seek and obtain consent from the concerned and entitled beneficiaries of the estate, but instead chose to forge their signatures in the consent form dated the January 17, 2018. It was further submitted by the appellant that from the consent and affidavit of support of the appellant’s application filed on the May 11, 2019, the signature of the appellant displays marked differences.

7. It was also submitted by the appellant that the District Officer of Londiani is not mandated to verify signatures of the beneficiaries in succession proceedings as this is a duty given to court; and in the circumstance therefore, the appellant is justified in arguing that the grant was obtained by fraud and therefore defective, and thus requires revocation and annulment.

8. The respondent on the other hand, submitted that the appellant’s application is a mere tactic seeking to delay the performance of positive obligation that are set out in certificate of confirmation of grant; and further that if the orders prayed for are granted to the appellant, the estate of the deceased will stand to suffer great prejudice as it requires a legal representative to manage the same, and no prejudice will be suffered by the applicant who occupies the land and has refused to give some portion to the respondent by tactically employing tricks and abuse of court process.

9. It was further submitted by the respondent that the applicant’s application and appeal are devoid of merit and ought to be dismissed since the chief magistrate court delved on the matter and found no cause to order a revocation.

10. This being a first appellate court, it is my duty to re-evaluate the evidence adduced before the trial court and arrive at my own conclusion whether or not to support the findings of the trial court.

11. The petitioner/respondent was issued with grant of letters of administration on January 12, 2017.

12. The grant was confirmed on August 1, 2018.

13. The sole issue for determination in this appeal is whether the appellant/applicant established any ground for annulment/revocation of grant.

14. The appellant/applicant submitted that the consent was forged and further that the petitioner/respondent did not seek and obtain the consents of the other beneficiaries.

15. The trial court made a finding that the signatures were obtained after consultation and that the parties signed before the district officer and were confirmed by the chief.

16. The trial court also found that the appellant/applicant failed to establish that any of the signatures in the consent signed by the beneficiaries was forged.

17. However, I find that it was the duty of the court to call all the beneficiaries in order to confirm that they signed the consent before confirmation of grant.

18. Rule 41 (1) and (2) of the ProbateandAdministration Rules provides as follows: -(1)At the hearing of the application for confirmation the court shall first read out in the language or respective languages in which they appear the application, the grant, the affidavits and any written protests which have been filed and shall then hear the applicant and each protester and any other person interested, whether such persons appear personally or by advocate or by a representative.(2)The court may either confirm the grant or refer it back for further consideration by the applicant or adjourn the hearing for further evidence to be adduced or make any other order necessary for satisfying itself as to the expediency of confirming the applicant as the holder of the grant or concerning the identities, shares and interests of the persons beneficially entitled and any other issue which has arisen including the interpretation of any will.

19. The high court in Re Estate Of Robert Mungai Gichinji (deceased) Succession Cause No 1077 Of 1993, stated as follows: -“Then there is rule 41 of the Probate and Administration Rules. It deals with the actual hearing of the application for confirmation for grant. The language of rule 41(1) suggests that the grant, the application, the supporting affidavits and the protest affidavits ought to be read to the administrator applicants, any protestors and ‘any other person interested.’ This would mean that all those interested in the estate ought to be notified of the hearing in order that they may be present when the grant is being confirmed, so that they can raise any issues of concern to them.”

20. Justice Musyoka, in the case of Gerald Ambosa Liona & 4 Others v Ernest Shipoche Liona [2020] eKLR, stated that: -“The right to a hearing is a constitutional fundamental. That fundamental is underscored in rule 41(1) of the Probate and Administration Rules. Those who should be heard with respect to a confirmation application are the applicant/administrator, the protestor and any other person interested. It is on that basis that courts should insist that all beneficiaries, meaning all the persons beneficially interested or affected or entitled, in terms of rule 40(4), attend court at confirmation of grant, so that they can get the opportunity, provided by rule 41(1), to be heard. Rule 41(1) takes us back to what I addressed earlier, that the summons for confirmation of grant ought to be served on all the individuals contemplated in rule 40(4), so that they can get to be heard under rule 41(1). For avoidance of doubt, rule 41(1) says: “At the hearing of the application for confirmation the court shall first read out in the language or respective languages in which they appear the application, the grant, the affidavits and any written protests which have been filed and shall hear the applicant and each protestor and any other person interested, whether such person appear personally or by advocate or by a representative.”

21. The grounds for revocation of grant are contained in section 76 of the Law of Succession Act as follows: -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-(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.

22. I find that the appellant/applicant did not establish any ground for revocation of the grant.

23. However, all the beneficiaries are required to appear in court and to be heard before confirmation of grant.

24. I partially allow the appeal and direct that summons do issue to all the beneficiaries to appear before the chief magistrate for further evidence to be adduced or for making of any other order necessary for satisfying himself as to the expediency of confirming the grant especially concerning the identities, shares and interests of the persons beneficially entitled to the estate and any other issue which may have arisen.

25. The parties to take a date before the chief magistrate within 30 days of this date for compliance.

26. Each party to bear it’s own costs of the appeal.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 11TH DAY OF NOVEMBER, 2022A N ONGERIJUDGE