In r Estate of the Late Francis Mwia Kichere (Deceased) [2022] KEHC 2961 (KLR)

In r Estate of the Late Francis Mwia Kichere (Deceased) (Succession Cause E006 of 2021) [2022] KEHC 2961 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 2961 (KLR)

Republic of Kenya

In the High Court at Migori

Succession Cause E006 of 2021

RPV Wendoh, J

May 12, 2022

IN THE MATTER OF THE ESTATE OF THE LATE FRANCIS MWIA KICHERE (DECEASED) AND IN THE MATTER OF AN APPLICATION FOR REVOCATION/ANNULMENT OF GRANT

In the matter of

Diana Girose Marwa

Applicant

and

Diana Matinde Francis

Petitioner

Ruling

1. This matter relates to the Estate of the Late Francis Mwita Kichere who died intestate on 14/2/1992. Juma Francis Mwita and Diana Girose Marwa (Objectors) filed an application for summons for revocation or annulment of grant dated 27/4/2021 issued to Daina Matinde Francis, the petitioner. The application is supported by affidavits sworn by each one of them. The estate relates to Land Parcel No. Bukira/Buhirimonono/59 (suit land). The objectors sought the following orders: -

i.Spent.ii.That the court be pleased to issue an order revoking and/or annulling the Grant of Letters Administration intestate issued herein on 28/8/2019 and confirmed on 13/11/2020. iii.That the respondent/petitioner be restrained by herself, her servants, agents, employees and/or anybody else deriving title from her in any way transferring, alienating, dealing in or with or otherwise interfering with land parcel no. Bukira/Buhirimonono/59 until this application is heard and determined.iv.Spent.v.In The Alternative And Without Prejudiceto prayers 2 and 3 above, any transfer and/or subdivision of the title to the land parcel no. Bukira/Buhirimonono/59 from the name of the deceased into the name of the respondent/petitioner or to any other party be cancelled, revoked and/or annulled.**vi.Costs of this application be in the cause. .2The respondent Dina Matinde Francis opposed the application and filed a replying affidavit dated 20/5/2021.

3. Directions were taken that the application be canvassed by way of written submissions. The applicants filed theirs on 25/11/2021 but Soire Advocate for the Respondent, did not file by 17/2/2022 when this matter was reserved for Ruling.

4. The objectors brought this application as the children of the deceased. It is their contention that the family had already carried out a succession of their late father’s property vide Mombasa Succession Cause No. 46 of 1995 where all their late father’s property was divided amongst the beneficiaries.

5. Around February 2021, they got to learn that the respondent had commenced succession proceedings of their late father’s estate in Kehancha being Kehancha Succession Cause No. 33 of 2019. They did not object to the proceedings at first since they knew it would not have proceeded because of the previous succession proceedings. The respondent procured letters of administration intestate dated 28/8/2019 which was confirmed on 13/11/2020 and proceeded to transfer the property in her name; that in the succession documents, the respondent together with their other siblings were not named as beneficiaries but instead the respondent named herself and her children as the beneficiaries.

6. The objectors further averred that they have already built homes in the said property. The land is valued at 30 million which is beyond the pecuniary jurisdiction of Kehancha law court. It was also stated that the respondent was a sister-in-law to the deceased; that The respondent was married to Ghati Nchama, an aunty to the deceased who paid her dowry. The marriage was to further the Ndonge’s lineage but it was not blessesed with any child; that the respondent was not a wife under the Kuria Customary Law.

7. In her replying affidavit, the respondent deponed that she is the widow of the deceased herein and annexed minutes of the meeting where her dowry was agreed to be paid; that the instant application is wrongly before this court and it ought to have been filed before the court in Kehancha. The Certificate of Confirmation of Grant in Mombasa which was confirmed on 3/8/2005, to one Anna Nyambiji Mwita has never been registered at the Kehancha Land Registry up until the year 2020 when she filed for Confirmation of Grant in Kehancha Succession Cause No. 33 of 2019.

8. The respondent further deponed that the said confirmed grant in the Mombasa Cause, was not issued to the objectors herein but to one Anna Nyambiji Mwita who is now deceased and no letters of administration have been taken out in regard to the estate.

9. The 1st objector filed a further affidavit dated 18/6/2021. He reiterated that in the succession cause in Kehancha, himself together with his siblings were not named as beneficiaries; that the said property devolved to Anna Nyambiji Mwita and should have been succeeded by her beneficiaries and the respondent is not one of them.

10. I have carefully considered the objectors’ application, the annexures thereto, the replying affidavit, further affidavit and the submissions of the objectors.

11. The uncontested fact is that the estate of Francis Mwita Kichere (Deceased) went through succession proceedings in Mombasa Succession Cause No. 46 of 1995. A Certificate of Confirmation of Grant was issued to Anna Nyambiji Mwita on 3/8/2005 (Annexures JFM 4 (a & b). I have done my best to read the not so visible court documents in the Mombasa Succession Cause. The beneficiaries named in the Mombasa Succession Cause and how the assets were distributed in the estate of the deceased herein was as follows: -i.Rebecca Mwita, Grace Mwita, Jane Mwita and Doris Mwita – Plot No. Mombasa 779/XVII in equal shares.ii.Joseph Mwita, John Mwita and Michael Mwita – Plot No. Mombasa 62/XVII in equal shares.iii.Anne Mwita - Plot No. 1/398/XV Mombasa, Motor Vehicle Registration Number KXV 876, Plot Title Bukira/Buhirimonono/59 and a Lorry KSZ 137.

12. The Certificate of Confirmation of Grant issued on 3/8/2005 has never been annulled and/or set aside. From the above list, the respondent was not named anywhere as a beneficiary.

13. The respondent claimed that she was a wife to the deceased. I have perused the minutes of the meeting dated 4/7/2008 (DMF1). The respondent lodged a complaint that she was not being recognized as the wife of the deceased. A resolution was passed that a certain parcel of land should be divided between three women. Be that as it may, such proceedings are not binding on this court.

14. If at all the respondent was aggrieved by the distribution in the Certificate of Confirmation of Grant issued in Mombasa, she ought to have filed an application for revocation and/or annulment of the grant as per the provisions of Section 76 of the Law of Succession Act before the court in Mombasa.

15. By admission, the respondent stated that her succession cause was in relation to the suit land which devolved to Anna Nyambiji Mwita. It therefore follows that the succession proceedings should have been in particular to the Estate of Anna Nyambiji Mwita.

16. The succession proceedings in the Kehancha court was in relation to grant of letters of administration intestate in the Estate of Francis Mwita Kichere (Deceased). The Certificate of Confirmation of grant was issued in the said estate on 13/11/2020. This is similar to the already existing Certificate of Confirmation of Grant issued in Mombasa dated 3/8/2005. It is not legally possible to have two confirmed grants in relation to the same estate.

17. Section 76 (b) of the Law of Succession Act provides that one of the grounds to annul a grant is when it was obtained fraudulently by making false statement or concealment of material facts from the court. The respondent cannot feign ignorance that she was not aware of the earlier succession cause filed in Mombasa. She deliberately filed succession proceedings in the estate of the deceased herein.

18. Had the objectors filed an objection before the Kehancha court, then the proceedings in the latter cause would not have proceeded, since it was never disclosed to the lower court that there is already an existing confirmed grant in the same estate. It therefore follows that the latter Certificate of Confirmation of Grant issued on 13/11/2020 in Kehancha Succession Cause No. 33 of 2019 must be revoked and/or annulled.

19. I am also compelled to address the issue of priority in filing of succession matters. PART V of the Law of Succession Act provides for intestacy. By dint of Section 39 of the Law of Succession Act, the parents, siblings, half - siblings and their respective children and relatives of close blood upto the sixth degree of consanguinity are considered the beneficiaries of the estate of the deceased in intestacy. In - laws of the deceased are not counted as beneficiaries. In the event the respondent would want to proceed and file any succession proceedings, she should clearly demonstrate her relationship to the deceased person.

20. In the end, I find that the objectors’ application for revocation and/or annulment of grant has merit and is allowed. I grant the following orders:-1. An order be and is hereby issued revoking and/or annulling the Grant of Letters of Administration intestate issued on 28/8/2019 and confirmed on 13/11/2020. 2.The respondent be and is hereby restrained by herself, her servants, agents, employees and/or anybody else deriving title from her in any way transferring, alienating, dealing in or with otherwise interfering with land parcel no. Bukira/Buhirimonono/59. 3.That any transfer and/or sub-division of the title to the land parcel no. Bukira/Buhirimonono/59 from the name of the deceased into the name of the respondent or to any other party be and is hereby cancelled, revoked and/or annulled.4. If the Respondent has any claim to the deceased’s estate, it must be made in this cause Mombasa Succession Cause No. 46 of 1995. 5.There shall be no orders as to costs.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 12TH DAY OF MAY, 2022. R. WENDOHJUDGERuling delivered in the presence ofNo appearance for the Petitioner / Respondent.Mr. Ouma for the Objector / Applicant.Evelyn Nyauke Court Assistant.*8