Alice Sebi Minayo v Mary Grace Ayugu [2015] KECA 38 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM: MARAGA, AZANGALALA & KANTAI  JJ.A)

CIVIL  APPEAL  NO. 24 OF 2013

BETWEEN

ALICE SEBI MINAYO …………………. APPELLANT

AND

MARY GRACE AYUGU ………..……. RESPONDENT

(An Appeal from the Judgment of the High Court of Kenya at Kakamega (Chitembwe, J.) dated 29th May, 2013in H.C. SUCCESSION CAUSE .NO. 133 OF 2010)

JUDGMENT OF THE COURT

1.   BENARD KARANI  AYUGU    (the    deceased) died on 12th October, 2009.  On 26th February, 2010, Mary Grace  Ayugu (the respondent)  petitioned  the High  Court at Kakamega  for a grant of letters  of administration  intestate. On 6th April, 2010, Alice Sebii Minayo  (the appellant) filed an objection to the grant to the   respondent of letters   of   administrations   the   sole administratrix  of  the  deceased's estate  and  cross-petitioned to jointly administer the estate with the respondent.   Her objection was based on the ground that she was the 2nd  wife of the deceased and  that  the  respondent  had,  in  her  said  petition,  refused  to include her and her children as beneficiaries of the deceased's estate;   She therefore sought an order that as the second wife of the deceased  she  should  jointly  administer  the  estate  with  the respondent.

2. Pursuant to the direction taken in that cause, Chitembwe, J. heard the objection proceedings by viva voce evidence.  In his judgment delivered on  29th May,  2013,  the  learned  Judge  held  that  the appellant was not a legal wife but a dependant of the deceased; that the deceased  had not adopted  the appellant's  children  and that   they    were therefore not his dependants; and that the respondent was the legal wife of the deceased entitled to a grant of letters of administration  to administer his estate.  The learned Judge also found that the  appellant was not entitled to continue occupying  the  deceased's  property  situate  at  Moi's  Bridge  in Trans  Nzoia  District  and   known  as  Title  No.  Nzoia/Moi's Bridge/Block 1/1727(the suit property) and ordered her immediate eviction therefrom.

3.  Aggrieved by that decision, on 31st May, 2013 the appellant filed a  Notice  of  Appeal  evincing  her  desire  to  appeal  against  the whole decision.  However, on 27th July, 2013 she filed the present appeal limiting her complaints to and faulting the learned Judge for ordering her eviction from the suit property and finding that her children were not dependants of the deceased.

4.  On 27th   August, 2014,  slightly over a year later, the respondent filed a Notice of Cross Appeal and challenged the learned Judge's finding that the appellant was a dependant of the deceased within the meaning of Section 29 of the Law of Succession Act.

5. Presenting the appeal before us, Mr. Osango, learned counsel for the  appellant, submitted that the learned Judge erred  in prematurely ordering  the appellant's eviction from the suit property. He also faulted the learned Judge for finding that the appellant had sold vehicles belonging to the deceased when there was no evidence before the court that the deceased owned any motor vehicles. He further faulted the learned Judge for finding that the appellant's  children  were  not  dependants of  deceased. He therefore urged us to allow the appeal to facilitate the hearing of an application for distribution of the estate of the deceased.

6. Opposing  the appeal,  Mr. Indimuli,  learned  counsel  for  the respondent, submitted that the central issue in the administration cause was the sharing out of the deceased's estate which the appellant was wasting.  In his view therefore, the learned Judge cannot be faulted for taking a global view of the matter and ordering the appellant's eviction from the suit piece of land. He therefore urged us to find that this appeal has no merit and accordingly dismiss it with costs to the respondent.

7.  We have considered the matter. Rule 93 of the Court of  Appeal Rules  requires  any  respondent  desirous  of  contending  that  the decision appealed against or any part thereof should be varied or reversed  to  file a notice  of cross-appeal  within  thirty days  of service  of the  memorandum  or  record  of  appeal,  whichever  is later.  The  respondent's notice  of  cross  appeal  in  this  matter having admittedly been filed out of time without leave, we find it incompetent and accordingly strike it out.

8. On the merits of the appeal itself, we are in total agreement with counsel for the appellant that the learned Judge decided an issue that was not before him.  A grant of letters of administration had not been made.  What was before the Judge was the appellant's objection to the grant of letters of administration  being made to the respondent solely and a cross petition for the same to be made to both the appellant and respondent.  Having decided that it was the respondent who was entitled to solely administer the estate of the deceased,  the learned  Judge should have stopped  here  and asked the respondent  to file and serve the appellant  and all the other beneficiaries of the deceased's  estate with an application for distribution  of  the  estate.  In  the  circumstances  we  agree  with counsel for the appellant that the learned Judge erred in ordering the appellant's  eviction from the suit property.

9.    Mr. Osango also faulted the learned Judge for finding that the appellant's  children were not dependants of the deceased.  As the learned trial Judge quite correctly found, the appellant's children were, even at the time of hearing the objection proceedings, adults.  As they took no part in the objection proceedings and are not  parties  to  this  appeal,  we  find  no  merit  in the  appellant's ground  challenging  the learned  Judge's  holding  that they  were not dependents of the deceased and hereby accordingly dismiss it.

10. For  these  reasons  we  allow  this  appeal  in  part,  set- aside  the learned Judge's  order directing the eviction of the appellant from the  suit  property  and direct  the  respondent  to  apply  and  serve upon  the  appellant  an  application  for  the  distribution  of  the deceased's estate.

11. Until the determination of that application  and a finding  being made as to who is entitled to the suit property the appellant shall continue residing thereon. This being a family dispute we order that each party bears its own costs.

DATED and Delivered at Kisumu this 3rdday of March 2015.

D.K.MARAGA

JUDGE OF APPEAL

F.AZANGALALA

JUDGE OF APPEAL

S.Ole KANTAI

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR