Fredrick Kimutai Kiprono v John Kangogo Chebiator [2016] KEHC 7148 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

PROBATE & ADMINISTRATION CAUSE NO. 96 OF 2014

RE: ESTATE OF ESTHER TALAI TALLAM (DECEASED)

FREDRICK KIMUTAI KIPRONO............PETITIONER

VERSUS

JOHN KANGOGO CHEBIATOR..………OBJECTOR

RULING

The objector prays that the grant of letters of administration to the estate of the deceased be revoked. The objector claims to be a creditor of the estate; and, that the petitioner has deliberately omitted his name from the list of creditors or beneficiaries of the estate.

The objector also prays for an order to restrain the petitioner from interfering with his quiet possession of two acres comprised in the land known as [ particulars withheld] . The objector claims that on 7th March 1995, he bought the land from one Alesus Kipkogei Rotich who had in turn bought it from the deceased. The objector also seeks general damages.

The objector has presented a chamber summons dated 5th May 2015. The summons is founded upon section 47 of the Law of Succession Act and Rules 44 and 49 of the Probate and Administration Rules. There is an affidavit filed in support of the summons. He avers that the two acres were to be hived off from the suit land. The objector claims that the letters of administration were obtained in secret and without his consent. At paragraphs 5 and 6 of the deposition he states that the petitioners have put up a barbed wire fence around the property and intend to evict him.  He avers that he will suffer irreparable loss and damage.

The objector has also annexed an earlier deposition sworn on 31st March 2015 by Alesus Kipkogei Rotich. The latter confirms he sold the two acres of land comprised in the estate to the objector on 7th March 1995. The consideration was Kshs 110,000. He states that the sale agreement was lost; and, that he reported the matter to Eldoret Police Station vide OB No. 54/30/3/2015. Although he says he has annexed it as exhibit B, it is not there.

The application is contested. The petitioner has filed a replying affidavit sworn on 10th August 2012. He states as follows-

“5. That the purported agreement relied upon by the objector was entered into with a stranger…………

6. That on 13th April 1989 the deceased sold 2 acres to be excised from the [suit land] to one Julius Kiptoo Arusei (deceased) who was to take care of the remaining 3 acres.  (Herein annexed and marked FKK3 is a copy of the Sale Agreement).

7. That in 1996, when we were still in school, we came to claim our late mothers land only to be chased away by the applicant.

8. That on 16th April 2014 a meeting was held at the Chief's office at Kapsoya comprising of village elders and one Alesus Kipkogei Rotich who was ordered to avail the sale agreement between him and Esther Talai Tallam. It was also resolved that the owners of the land do remain on the land until Alesus Kipkogei Rotich produces the agreement.

9.  That in the annexed affidavit of one Alesus Kipkogei Rotich he claims to have lost the agreement entered into with the deceased and reported the same to Eldoret Central Police Station vide OB NO. 54/30/3/2015, however no copy of the abstract has been annexed.

10. That on 27th April 2015 another meeting was held at the Chief’s Office Kapsoya in which it was resolved that the agreement between Esther Talai Tallam (deceased) and Julius Kiptoo Arusei (deceased) for 2 acres still stands; and, that 3 acres [are] for the family.”

On 19th October 2015 I heard arguments from learned counsels for the objectors, petitioners and beneficiaries respectively. I have considered the summons, the depositions, and the rival submissions.

Section 47 of the Law of Succession Act gives the High Court jurisdiction to entertain any application and determine any dispute under the Act. Rule 73 of the Probate and Administration Rules provides that nothing in the Rules shall limit the inherent powers of the court to make such orders as are necessary to prevent the ends of justice from being defeated.

A grant once confirmed may be revoked either by the court suo moto or by an application made under section 76 of the Law of Succession Act. The relevant part of the section states as follows-

“76. 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;

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;……………….”

Section 51(2) of the Law of the Succession Act on the other hand provides as follows-

“51(2). An application shall include information as to-

(a) the full names of the deceased;

(b) the date and place of his death;

(c) his last known place of residence;

(d) the relationship (if any) of the applicant to the deceased;

(e) whether or not the deceased left a valid will;

(f) the present addresses of any executors appointed by any

such valid will;

(g) in cases of total or partial intestacy, the names and addresses

of all surviving spouses, children, parents, brothers and

sisters of the deceased, and of the children of any child of

his or hers then deceased;

(h) a full inventory of all the assets and liabilities of the

deceased; and

(i) such other matters as may be prescribed.”

Rule 26 of the Probate and Administration Rules is also relevant. It states as follows;

“26(1) Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.

An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require”

The Court has discretion in determining who should administer an estate. The order of preference of persons entitled to administration is set out in section 66 of the Law of Succession Act-

“66. When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice, to that discretion, accept as a general guide the following order of preference-

surviving spouse with or without association of other beneficiaries;

other beneficiaries entitled in intestacy, with priority according to their respective beneficial interests as provided by Part V;

The Public Trustee; and

creditors.”

I am satisfied that the objector presented a formal notice of objection under Rule 14(4) to the Registry on 7th May 2015; and, that a notice was delivered as required by Rule 17. There is also an answer to the petition and a petition by way of cross-application for a grant. The key question for determination is whether the grant issued to the petitioner should be revoked. I set out earlier the conditions under which a grant may be revoked by the court.

The objector claims to be a creditor of the estate. I disagree. He did not purchase the two acres from the deceased Esther Talai Tallam. He claims to have bought the land from a third party, Alesus Kipkogei Rotich. The petitioners acknowledge that Alesus Kipkogei Rotich purchased land from the estate but deny he subsequently sold the land to the objector.

The burden of proof of the latter sale fell squarely upon the shoulders of the objector. See sections 107 and 109 of the Evidence Act. See also Evans Nyakwana v Cleophas Ongaro, High Court, Homa Bay, Civil Appeal 7 of 2014 [2015] eKLR. The objector did not produce the sale agreement between him and the third party. He said it was lost. That fact was confirmed by the deposition of Alesus Kipkogei Rotich dated 31st March 2015. The police abstract referred to is not annexed. From the depositions of the objector and Alesus Rotich, I do not doubt that the portion may have been sold to the objector. I say that very carefully. But that does not make him a creditor or beneficiary of the estate of Esther Talai Tallam.

The point that I am making was well explained in Kennedy Olela v William Ochuodho & Another, High Court, Homa Bay, Sucession Cause 19 of 2014 [2014] eKLR. Majanja J held as follows-

“I have perused the original file in Rongo Succession Cause No. 11 of 2013 and I have not detected any defect in the form and procedure used. All the beneficiaries were disclosed in the letter dated 10th September 2012 written by the Chief, West Kanyada Location and in the petition (Form P&A 80) and the affidavit in support (Form P&A 5). The applicant, as a purchaser, is not a person entitled to a grant of letters of administration under Section 66 of the Law of Succession Act.  I would further add that the applicant was neither a dependant nor beneficiary of the deceased and he cannot therefore apply for revocation of a validity issued grant.  In Ireri Nyaga v Karani Ngari & Another Embu HC Succ. No. 68 of 2007 [2010] eKLR it was held that “…....... a buyer or purchaser cannot cause an otherwise valid grant to be revoked for the only reason that he was not recognized in the proceedings. As stated earlier in my ruling, his recourse lies in suing whoever sold the property to him and if such person be dead, then he can only sue the administrator of the deceased's estate.”

I am again fortified in my finding by the decision in Muriuki Hassan v Rose Kanyua & 4 others, High Court, Meru, Succession Cause 62 of 2012 [2014] eKLR

“The interested parties are not direct creditors of the deceased before his death but purchasers from one of the deceased’s beneficiaries and the sale of the land to them is challenged in this application. In such circumstances the interested parties’ interest cannot be considered in this matter and the remedy for them if they would be aggrieved by final court's decision and distribution, is to file suit against the said Muriuki Musa Hassan”.

Purely from a factual and evidential standpoint, the objector has not established, on a balance of probabilities, that he is a creditor of the estate of Esther Talai Tallam. In so far as that estate is concerned, the objector is a third party. I am thus unable to hold that the objector should have been notified of the filing of this cause; or, that his consent was a prerequisite.

That is not to say that the objector has no remedy: only that his recourse lies in an action against either the estate of Alesus Kipkogei; or, against the administrators in this cause for a declaration that he is entitled to that portion of land. In a synopsis, his claim or interest cannot be a plausible ground to revoke the grant issued to the petitioner.

The upshot is that summons for revocation of grant dated 5th May 2015 is devoid of merit.  It is dismissed. In the interests of justice, I order that each party shall bear its own costs.

It is so ordered.

DATED, SIGNED and DELIVERED at ELDORET this 2nd day of February 2016.

GEORGE KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of:-

Ms. Chepkurui for the petitioner.

No appearance for the objector.

Mr. J. Kemboi, Court clerk.