In re Estate of John Kiptum Arap Bartilol (Deceased) [2023] KEHC 26476 (KLR)

In re Estate of John Kiptum Arap Bartilol (Deceased) (Succession Cause 17 of 2001) [2023] KEHC 26476 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26476 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 17 of 2001

RN Nyakundi, J

December 14, 2023

IN THE MATTER OF THE ESTATE OF THE LATE JOHN KIPTUM ARAP BARTILOL

Between

Dinah Jepkemboi Bartilol

1st Applicant

Japheth Kiprotich Bartilol

2nd Applicant

and

Hillary Kipruto Bartilol

Respondent

High Court orders the Deputy Registrar to execute transfer and transmission documents on behalf of an non-compliant co-administrator

The applicants sought orders for the court to direct the Deputy Registrar to execute the necessary documents to facilitate the transfer and transmission of the estate. The respondent opposed the application, citing errors in beneficiary names, unclear acreage of the estate, and unresolved issues related to costs of the survey. The court dismissed the respondent's application for review, noting that the errors had been corrected and the respondent's refusal to sign the transmission documents lacked merit. The court further invoked its jurisdiction under section 47 of the Law of Succession Act and rule 73 of the Probate and Administration Rules, directing the Deputy Registrar to execute the necessary documents to conclude the estate’s distribution.

Reported by John Ribia

Law of Succession– distribution – mode of distribution – where the court provided the mode of distribution in an intestate estate - whether the decision of a succession court to advance the mode of distribution of an intestate estate was a departure from the spirit of the Law of Succession Act – Law of Succession Act sections 35 and 38. Law of Succession– grant – confirmed grant in an intestate estate – review of the decision of a court that issued the grant – grounds – burden of proof - what were the grounds in which a succession court could review its own decision - what were the principles of equitable distribution under the Law of Succession Act - who bore the burden of proof of challenging a confirmed grant – Constitution of Kenya, 2010 article 27 (4); Law of Succession Act (cap 160) sections 35, 38, 36, 40, 47, and 83; Probate and Administration rules (cap 160 sub leg) rule 73. Law of Succession– intestate succession – delay in distribution of an estate – where a succession matter was in court for over two decades – where an administrator was not willing to comply with the orders of the court on distribution of an estate - whether in succession proceedings, the court could compel the Deputy Registrar to execute transfer and transmission documents on behalf of an uncompliant co-administrator - Law of Succession Act (cap 160) sections 35, 38, 36, 40, 47, and 83; Probate and Administration rules (cap 160 sub leg) rule 73.

Brief facts The estate of the late John Kiptum Arap Bartilol has been under litigation for over two decades. The applicants, as co-administrators, sought to finalize the distribution of the estate following the confirmation of the grant on September 28, 2023. The applicants sought orders for the court to direct the Deputy Registrar to execute the necessary documents to facilitate the transfer and transmission of the estate. The respondent opposed the application, citing errors in beneficiary names, unclear acreage of the estate, and unresolved issues related to costs of the survey.

Issues

Whether in succession proceedings, the court could compel the Deputy Registrar to execute transfer and transmission documents on behalf of an uncompliant co-administrator.

What were the grounds in which a succession court could review its own decision?

Who bore the burden of proof of challenging a confirmed grant?

Whether there being no agreement on survey and transmission costs were valid grounds to delay the distribution of an estate.

What were the principles of equitable distribution under the Law of Succession Act?

Whether the decision of a succession court to advance the mode of distribution of an intestate estate was a departure from the spirit of the Law of Succession Act.

Held

Review of decisions of a probate court was governed by rule 63 of the Probate and Administration Rules. For an application of review to succeed, the applicant must show that there was discovery of new and important evidence which was not within the knowledge of the applicant at the time of the decision, that there was a mistake or error apparent on the face of the record or for any other sufficient reason.

An applicant alleging discovery of new and important evidence must demonstrate that he had discovered it since the passing of the order sought to be reviewed. The applicant claimed that the acreage of Illula settlement scheme plot No.4 was higher on the ground than what was indicated on the title. That allegation was founded on the personal knowledge of the applicant. He who alleged must prove. In order to prove that the allegation, the applicant would have tabled a survey of his own or any evidence on the same that was discovered after the decision was delivered. He had elected to rely on personal knowledge which failed to meet the evidentiary standard in any legal forum whatsoever. To pass the test, it must be demonstrated that the applicant was prevented by circumstances beyond his control from tendering the evidence to the court at the time when the judgment sought to be reviewed was delivered against him. The instant application could not pass that test.

The formulation on distribution tended to tilt the scale likely to violate the right to equal protection and benefit of the law on inheritance. On the equality clause certain key observations were pertinent: Did the impugned decision differentiate between people or categories of people of the same lineage? If so did the differentiation bear a rational connection to a legitimate purposive interpretation of the Succession Act? Did the differentiation amount to unfair discrimination in the distribution of the estate? That required an analysis as to whether the grievance by the objectors was on a specified ground catalogued in article 27 (4) of the Constitution, then if the answer was in the affirmative discrimination would have been established. However, if on an unspecified ground unfairness would have to be established by the complainant.

The test of unfairness focused primarily on the impact of the discrimination on the complainant and others in his or her situation. That was a threshold test which demanded of the objectors to pass to show that the impugned decision was in violation of the Law of Succession. One first ought to consider whether there had been a violation of the right to equality before the law and then considered whether there was a fair discrimination. It was difficult for a probate court to satisfy each heir.

The fallacy of supposing that the general language in section 35, 36, 37, 38 and 40 of the Succession Act must have a single objective meaning. One must give expression to the underlying spirit of the law specifically to give content and effect to the constitutional rights on inheritance. Under the circumstances, the court was unable to come to the aid of the objectors to grant a remedy under the review jurisdiction. The appropriateness of the proceedings required the court looked at the suitability of the law as measured by the extent to which a particular form of relief vindicated the enabling statute on distribution and to deter any further violations of inheritance rights.

Review of a ruling, order or judgement must had its basis on various grounds including  an error of law apparent in the face of the record. One may attach a broader sense of facts to agitate for a remedy under review jurisdiction but reading of section 80 of the Succession Act and order 45 rule 1 of the Probate and Administration Rules the bar had been set very high. There must be an end to litigation and it would be intolerable and could lead to great uncertainty if courts could be approached to reconsider final orders made in judgements declaring a particular paragraph or order to be invalid. A party wising the court to make such an order must provide it with reliable information to justify it doing so. The requisite information necessarily depended on details on the nature of the law in question and the character of the defect to be corrected.

Parties were bound by their pleadings and equally so were the courts. There was no order or ruling that the court delivered on January 21, 2019 and therefore the court could not review a ruling that did not exist. The prayer was unmerited.

The names of the beneficiaries were rectified and a rectified grant issued and confirmed. The allegations on acreage were baseless and unfounded. The issue of costs of transmission and survey could not suffice as a reason to neglect the duty of an administrator in the transmission and distribution of the estate. After issuance of the certificate of confirmation of grant the nature and scope of distribution remains entirely within the province of administrators. The power by administrators had to be exercised within a period of 6 months. Section 83 of the Law of Succession Act laid out the duties of a personal representative. The provision was wide enough to apply in the event the jurisdiction of the court ought to be invoked. It may be well be found that in the area under coverage required the services of a surveyor was work cut out for the administrators.

The court had to step in to ensure that the administration of the estate was completed. The powers to do so were donated by section 47 of the Law of Succession Act and rule 73 of the Probate and Administration Rules.

The administrators appointed by the court under section 66 of the Law of Succession Act held that office to the extent of complying with the oath in the petition in form P&A 80.

The long perpetuation of an unlawful scheme some of the administrators to abdicate their duties to distribute the estate in conformity with certificate of confirmation of grant was unfortunate. The proper implication was for the court to exercise its inherent jurisdiction under rule 73(1 )of the Probate and Administrative Rules to bring formal order by revoking appointments of administrators who had circumvented the law on substantive justice. That would be designed to protect or advance the rights of the category of persons disadvantaged by unfair discrimination of the administrator duly appointed by the court to oversee overall administration of the intestate estate.

The estate risked being undistributed for the very reason of abstinence to act and sign the instruments on distribution by one of the administrators who had shown such signs of non-cooperation. The administrators may be removed from their duties where, due to wrangles and disagreements amongst themselves, it was impossible for them to proceed diligently with the administration of the estate. The administrators were unable to properly administer the estate due to their disagreements, nothing stopped the court from removing them from the administration and appointing new administrators notwithstanding the issue of priority or preference. Section 66 of the Law of Succession Act provided that when a deceased had 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.

Application allowed

Orders

The Deputy Registrar do execute all the appropriate and necessary documents to effect sub divisions, transfer and transmission of the properties to the estate of the beneficiaries.

By reason of the appointment of the Deputy Registrar to work in conjunction with the other Principle Administrators an order was made that there be direct and continuous contact with all the beneficiaries in the discharge of her duties as an officer of the court. That the Deputy Registrar endevours to file an interim report on implementation of the certificate of confirmation of grant to the intestate estate of the deceased within 90 days from the instant ruling.

The motion on review jurisdiction of the court was lost.

Each party was to bear its own costs.

Citations Cases In re Estate of the Late Kubuta Kamara Nguuro alias Pharis Njegegu (Deceased) (Succession Cause 13 of 2003; [2021] KEHC 9235 (KLR)) — Mentioned

In re Estate of William Nzioka Mutisya (Deceased) (Succession Cause 646 of 2009; [2018] KEHC 2962 (KLR)) — Mentioned

Statutes Civil procedure rules (cap 21 sub leg) — order 45 rule 1; order s v, x, xi, xv, xviii, xxv, xliv and xlix — Cited

Constitution of Kenya, 2010 (const2010) — article 27 (4) — Cited

High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg) — Cited

Law of Succession Act (cap 160) — section 47; section 40; section 35 & 38; section 36; section 83 — Cited

Probate and Administration rules (cap 160 sub leg) — rule 73 — Cited

AdvocatesMr. Owuor for Applicants

Ruling

1. There are two applications pending in this matter. In the interest of expediency, the court shall rule on the two applications in this ruling. The Applicants approached this court vide an application dated 17th October 2023 seeking the following orders;a.Spentb.That the court does issue an order to the effect that the Deputy registrar do execute all the appropriate and necessary documents to effect sub divisions, transfer and transmission of the properties to the estate of the beneficiaries.

2. The application is premised on the grounds on the face of the record and the contents of the supporting affidavit sworn by the 1st Applicant.

3. The applicant averred that letters of the administration of the estate were issued to the administrators, the applicants herein and amended on 28th September 2023. On the same date, the grant of letters of administration was confirmed. However, due to past acrimony between the deceased and the 3rd Administrators’ family, Hilary Kiptum Bartilol, he has refused to fill and append his signature to the transfer forms to enable the transfer and distribution as per the certificate of confirmed grant. As such, the applicants saw it fit to approach the court for the orders prayed.

4. The respondent did not directly respond to the application but addressed some of the issues raised in his supporting affidavit to the application dated 24th October 2023. He averred that some of the names of the beneficiaries were erroneously typed and further , that the acreage of the estate is not clear. Of his own knowledge, he alleges that the acreage does not tally with what is on the ground. Additionally, that it is important that parties agree on the costs of survey and transmission. He stated that for these reasons, it is clear that the application to have the registrar execute the documents is unnecessary and misinformed. He prayed that the application be dismissed and the application for review be heard.

5. The applicants filed submissions on the application on 14th November 2023. They reiterated the contents of the supporting affidavit and invoked the provisions of section 47 of the Law of Succession Act and rule 73 of the Probate and Administration rules on the jurisdiction of this court to grant the orders sought. They maintained that the reasons that the administrator refused to sign the documents are baseless for various reasons. Firstly, that on the issue of typographical errors of the names, the same was sorted out and there is a rectified certificate of grant which the respondent himself has annexed as HKB3. Further, that if the respondent does not agree with the judgement on distribution he is at liberty to file an appeal. Lastly, that the respondent has made unsubstantiated claims about the acreage without annexing any evidence of the same. The allotment letter indicates the acreage is 50 acres which is within his knowledge.

6. The applicants urged that the issue of costs for transmission cannot be a reason to refuse to sign documents as it had been agreed upon. Additionally, that by refusing to sign the documents the respondent is abdicating his duties as a co administrator. The cause has been in court for more than two decades and the respondent is intent on delaying the conclusion of the same. the applicants urged the court to intervene in order to enable distribution.

Application dated 24th October 2023 7. The Respondent/Applicant approached this court vide an Application dated 24th October 2023 seeking the following orders;a.Spentb.The court to order the county surveyor Uasin Gishu County to conduct a survey on Land Parcel No. Illula settlement scheme plot No. 4 to establish the total acreage and file a report in court.c.The court be pleased to stay execution/transmission/review its mode of distribution issued on 28/9/2023 taking into consideration the directions given in the ruling dated 21/01/2019 on distribution.d.The court be pleased to order amendment of the certificate of confirmation of grant.e.Costs of the application be provided for.

8. The application is based on the grounds set out therein and the contents of the affidavit in support of the same sworn by Hillary Kipruto Bartilol.

Applicant’s case 9. The applicant’s case is that on 21st January 2019, Justice Hellen Omondi directed at paragraph 29 as follows;

10. What I infer is a refusal to disclose exactly how much the 1st petitioner has been receiving I am thus inclined to use the figures presented by the applicant which will act as a guide on determining what portions each of the beneficiaries will get.

11. The applicant averred that the objector had demonstrated to the court, which evidence was not disputed, that the respondent had leased out Ndalat farm Kitale LR No. 5 since the demise of the deceased to an approximate Kshs. 14,400,000 by 2019 and also leased out the plot at Soy LR No. 15074 to Diesel power Petrol station at approximately Kshs. 3,888,000/- by 2019. Further, that it was only fair that any acreage after survey is done, on top of the already distributed 50 acres in Illula Settlement Scheme be allocated to Hillary Kipruto Bartilol, Winnie Chebet Bartilol, Alice Jerono Bartilol and Joyce Jemtai Bartilol.

12. The applicant urged that the court made an equitable distribution to beneficiaries but failed to consider that the beneficiaries from the petitioners’ side have benefitted more by leasing out and earning from the bigger part of the estate as noted in the ruling dated 21st January 2019. He averred that the beneficiaries from the petitioners’ side have established homesteads on parcel no. Kakamega/sergoit/147 which has been allocated to the 1st petitioner and it is fair that they have legitimate expectation not to be evicted and ultimately inherit from their mother and thus, they will have extra acreages from their mother’s side.

13. The applicant deponed that on the contrary, the objector’s side have lost more than ¾ of the parcel Illula settlement scheme plot No.4 which they have called home all their lives and allocated the same to the petitioners and taking into consideration the distribution in Sergoit land and Soy plot, will ultimately have smaller shares.

14. It is the applicant’s case that upon confirmation of grant they instructed their advocates on record to deliberate and agree with the petitioners on a few issues to ensure smooth and conclusive transmission of the estate to the beneficiaries. The petitioner positively respondent to some issues while presenting a strong stand on other issues and they then instructed their advocates to file a notice of appeal but they continued engaging the petitioners. They also instructed their advocates to prepare a consent on the agreed issues but the before that was concluded, the petitioners filed the present application.

15. The applicant urged that they also pointed out the typing errors and forwarded the correct version to the petitioners but even the draft had erroneous names. Further, that it is only prudent that the above issues are sorted first before he signs the transmission forms. The reason for filing the application for review is because the judgement is silent on the orders made by Justice Hellen Omondi in the ruling dated 21st January 2019.

16. The applicant maintained that he knows of his own personal knowledge that the acreage captured on the title documents do not tally the acreage on the ground especially on Illula parcel and he is advised that it is important that a survey be done before final distribution is done. Further, that in the event that there is a change of acreages being less or more it is important that parties present their proposal on further distribution. It is also important that parties agree on the costs of survey and transmission for an amicable settlement of the estate. The applicant stated that the application compelling the deputy registrar execute the transmission documents is unnecessary and misinformed and should be dismissed.

Respondent’s case 17. The respondent opposed the application and submitted that the applicant has not made any allegation or purported to have discovered any evidence that he could not have discovered during the 23 years of litigation even after conducting due diligence that he could not produce before this honourable court made its final decision. Further, that in paragraph 18 of the supporting affidavit, the applicant put it to the court that he knew of his own personal knowledge that the acreage on the title does not tally the acreage on the ground but failed to provide any evidence to buttress this allegation.

18. The respondent submitted that the title of the said property is yet to be given and the only document exhibiting the same is the allotment letter and documents from agricultural settlement fund that shows the property has been fully paid and the acreage is 20. 23 Hectares. Further, that the acreage of the suit property has never been in question.

19. The respondent submitted that the applicant’s allegations at paragraph 15 of his affidavit that he is yet to sign the transmission forms because the names as captured are not correct does not hold water as the same was corrected and a rectified certificate of confirmation of grant reflecting the names as captured by him at paragraph 12 of his supporting affidavit and his annexure, HKB-3. Therefore, the same cannot pass as an error apparent on the face of the record to warrant a review of the judgment. Additionally, even if the same were true, the correction of names cannot change the judgment dated 28/09/2023 as it will remain undisturbed.

20. The respondent submitted that the applicants have failed to meet the requirements of order 45 of the civil procedure rules which lays down the grounds for review. The Respondent urged the court to dismiss the application and invoke its inherent powers under rule 73 of the probate and administration rules to make an order directing the co administrator to sign the transmission forms within 7 days if the ruling, failing which the deputy registrar be ordered to sign, on his behalf, all the necessary conveyance forms.

21. The 1st respondent filed a replying affidavit on 14th November 2022 urging that the application is an appeal disguised as a review application. That despite acknowledging that the distribution of the estate was equitable at ground iv of the application he has come back to throw tantrums through a frivolous application purporting that there is extra acreage available for distribution. She maintained that the application does not meet the requirements of order 45 rule 1 of the Civil procedure rules and the grounds upon which the application is grounded are grounds for appeal.

22. The respondent deposed that the main ground of the application is an express call to the court to sit on appeal on its own decision. Further, that the applicant acknowledged at paragraph 18 that he knew for a fact that the acreage of Illula property as indicated is erroneous but failed to bring to the attention of the court exhibits on fraud and material non-disclosure on his part and the same cannot amount to new evidence to warrant a review. She maintained that the applicant has failed to produce any evidence of extra acreage.

23. In reply to paragraph 12, the respondent urged that the respondent has made baseless allegations with regards to the names as there is a rectified grant which he himself has attached as annexure HKB3 which bares their names as per their birth certificates and names stated by themselves at paragraph 12 of their supporting affidavit. Further, that Illula settlement scheme plot No.4 is 20. 23 which when converted is 49. 989 acres approximately 50 acres as indicated on the allotment documents and no contrary evidence to the same has been produced.

24. The respondent reiterated that the applicant has not met the threshold under Order 45 Rule 1 and thus the application should be dismissed with costs.

25. The 1st respondent filed a further affidavit dated 17th November 2023 urging that the applicants have abandoned their arguments on acreage and submitted on issues that were not in their application and had been dealt with in the decision of Justice Hellen Omondi and therefore, the same are res judicata. Further, that this court has pronounced itself twice on the ruling dated 21st January 2020 and the judgement dated and delivered on 28th September 2023 and therefore the court is functus officio on the issue of distribution. The respondent deponed that the applicants have decided to reopen the litigation on issues that had already been determined. The Applicants are insisting on redistribution under section 40 of the Law of Succession Act when the same has been dealt with conclusively.

Analysis & Determination 26. Upon considering the applications, responses thereto and the submissions on record, the following issues arise for determination; Whether the application for review is merited

Whether orders for the Deputy registrar to execute the transfer forms should issue

Whether the application for review is merited 27. Review of decisions of a probate court is governed by Rule 63 of the Probate and Administration Rules, which provides as follows: -“63. Application of Civil Procedure Rules and High Court (Practice and Procedure) Rules(1)Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Orders v, x, xi, xv, xviii, xxv, xliv and xlix (Cap. 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules.(2)Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased persons shall be those existing and in force immediately prior to the coming into operation of these Rules.”

28. The substantive provisions of Order 45, state as follows:“1. (1)Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.(2)…”

29. It follows that for an application of review to succeed, the applicant must show; There is discovery of new and important evidence which was not within the knowledge of the applicant at the time of the decision.

There is a mistake or error apparent on the face of the record

For any other sufficient reason

Whether there is discovery of new and important evidence which was not within the knowledge of the applicant at the time of the decision 30. The expression discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made would refer only to a discovery made since the order sought to be reviewed was passed. An applicant alleging discovery of new and important evidence must demonstrate that he has discovered it since the passing of the order sought to be reviewed. In the present application, the applicant claims that the acreage of Illula settlement scheme plot No.4 is higher on the ground than what is indicated on the title. This allegation is founded on personal knowledge by the applicant. It needs no belabouring that he who alleges must prove. Further, in order to prove this allegation, the applicant would have tabled a survey of his own or any evidence on the same that was discovered after the decision was delivered. He has elected to rely on personal knowledge which fails to meet the evidentiary standard in any legal forum whatsoever. To pass the test, it must be demonstrated that the applicant was prevented by circumstances beyond his control from tendering the evidence to the court at the time when the judgment sought to be reviewed was delivered against him. The instant application cannot pass this test.

Whether there is a mistake or error apparent on the face of the record 31. The applicant alleges that there is an error apparent on the face of the record. The said errors he refers to are typing errors referring to the names of the beneficiaries to wit, Hillary Kipruto, Winny Jebet, Joyce Jemtao and Alice Jerono. I have considered the rectified grant annexed to the application as HKB3 and it indicates the names of the above beneficiaries as Hillary Kipruto Bartilol, Winnie Chebet Bartilol, Joyce Jemutai Bartilol and Alice Jerono Bartilol. The court is therefore at a loss as to what error the applicant alludes to when by virtue of his own annexure it is clear that the errors were corrected by way of rectification of grant. The application has failed this test.

32. The applicants have also alleged that the allocation of Kakamega/sergoit/147 to the 1st petitioner means that the beneficiaries from the petitioners’ side will have more acreage. I find this allegation to be in utterly bad taste as the applicants are already looking to divide the property of the 1st petitioner as she is alive. In essence, they are pre-empting the distribution of her property in anticipation of her demise yet she is the beneficiary of said property and has not chosen what to do with it. As it stands, that share of the estate belongs to her, what she chooses to do with it and whether it shall be available to be allocated to the petitioners on her demise is an issue to be handled during her own succession cause.

33. The truism that no right is to be considered absolute, implies that from the outset of interpretation each right is always already limited by every other right accruing to another citizen. The stage of inquiry is whether by the court advancing the mode of distribution touching on the intestate estate of the deceased there was a departure from the spirit of the law in terms of Section 35 & 38 of the Law of Succession Act. It is implicit from the arguments put forth by the objector that the formulation on distribution tended to tilt the scale likely to violet a right to equal protection and benefit of the law on inheritance. On this equality clause certain key observations are pertinent: Does the impugned decision differentiate between people or categories of people of the same lineage? If so does the differentiation bear a rational connection to a legitimate purposive interpretation of the Act? Does the differentiation among to unfair discrimination in the distribution of the estate This requires on analysis as to whether the grievance by the objectors is on a specified ground catalogued in art 27 (4) of the constitution, then if the answer is in the affirmative discrimination would have been established. However, if on an unspecified ground unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation. This is a threshold test which demanded of the objectors to pass to show that the impugned decision was in violation of the Law of Succession. One first ought to consider whether there has been a violation of the right to equality before the law and then considers whether there is a fair discrimination. It is difficult for a probate court to satisfy each heir once and need for each to qualify within the characteristics of equality before the law and freedom from non-discrimination. I am aware of the fallacy of supposing that the general language in section 35, 36, 37, 38 & 40 must have a single objective meaning. One must give expression to the underlying spirit of the law specifically to give content and effects the constitutional rights on inheritance. Considered in context this court is unable to come to the aid of the objectors to grant a remedy under the reviewed jurisdiction. The appropriateness of this proceedings requires the court looks at the suitability of the law as measured by the extent to which a particular form of relief vindicates the enabling statute on distribution and to deter any further violations of inheritance rights. It should be clear by now that review of a ruling, order or judgement must be apparently simple is an error of law apparent in the face of the record. One may attach a broader sense of facts to agitate for a remedy under review jurisdiction but reading of section 80 & Order 45 Rule 1 the bar has been set rather very high. Why do I say so? There must be an end to litigation and it would be intolerable and could lead to great uncertainty if courts could be approached to reconsider final orders made in judgements declaring a particular paragraph or order to be invalid. A party wising the court to make such an order must provide it with reliable information to justify it doing so. The requisite information will necessarily depend for its detail on the nature of the law in question and the character of the defect to be corrected.

34. With regards to prayer (c), the applicant has implored the court to stay execution and review the mode of distribution taking into consideration the directions given in the ruling dated 21st January 2019. Parties are bound by their pleadings and equally so are the courts. There is no order or ruling that this court delivered on 21st January 2019 and therefore the court cannot review a ruling that does not exist. It follows that this prayer is unmerited.

35. The application dated 24th October 2023 is therefore without merit and is dismissed in its entirety. Each party shall bear its own costs.

Whether orders for the Deputy registrar to execute the transfer forms should issue 36. The court has already determined the veracity of the reasons that the respondent/applicant sought to rely on as informing his reason not to sign the transfer forms. It is clear that the names of the beneficiaries were rectified and a rectified grant issued and confirmed. It is also clear that the allegations on acreage are baseless and unfounded. On the issue of costs of transmission and survey, the same cannot suffice as a reason to neglect the duty of an administrator in the transmission and distribution of the estate. It is at once obvious that after issuance of the certificate of confirmation of grant the nature and scope of distribution remains entirely within the province of administrators. The court recognises the gravitas of the matter on transmission of the estate and pronounce itself that the power by administrators has to be exercised within a period of 6 months. This provision is wide enough to apply in the event the jurisdiction of the court ought to be invoked. It may be well be found that in the area under coverage requires the services of a surveyor that indeed is work cut out for the administrators. Section 83 of the Law of Succession Act lays out the duties of a Personal Representative as follows;

37. Personal Representatives shall have the following duties;a.to provide and pay, out of the estate of the deceased, the expenses of a reasonable funeral for him;b.to get in all free property of the deceased, including debts owing to him and moneys payable to his personal representatives by reason of his death;c.to pay, out of the estate of the deceased, all expenses of obtaining their grant of representation, and all other reasonable expenses of administration (including estate duty, if any;d.to ascertain and pay, out of the estate of the deceased, all his debts;e.within six months from the date of the grant, to produce to the court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;f.subject to section 55, to distribute or to retain on trust (as the case may require) all assets remaining after payment of expenses and debts as provided by the preceding paragraphs of this section and the income therefrom, according to the respective beneficial interests therein under the will or on intestacy, as the case may be;g.within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the court a full and accurate account of the completed administration.h.to produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;i.to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration.

38. The court therefore has to step in to ensure that the administration of the estate is completed. The powers to do so are donated by section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules.

39. Section 47 of the Law of Succession Act provides;The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient

40. Rule 73 of the Probate and Administration Rules provides;Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

41. In Embu High Court Succession Cause No. 13 OF 2003; Re Estate of the late Kubuta Kamara Nguuro Alias Pharis Njegegu (Deceased) [2021] eKLR, the court expressed itself as follows;“However, this court being a succession court has ample powers donated to it by Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules to resort to, in order to meet the ends of justice. The task of administering the estate is still on the shoulders of the respondent (administrator). As I have already noted, despite the grant having been confirmed in the year 2007 and even after the subsequent amendment by Muchemi J (which included the Wang’uru Plot in the certificate), the respondent has nonetheless failed to administer the estate. I believe that court orders ought not to be issued in vain but must be complied with. Further, the office of administrator of estate of a deceased person is an office which is built on the foundation of trust and goodwill. Where such is seen to be lacking, then the court ought to invoke its powers to ensure that justice is done to the beneficiaries more so where the administrator puts the beneficiaries in an unenviable position.26. In the instant case, the administrator having failed to distribute the estate and without any valid reason, the Deputy Registrar of this court ought to be ordered to sign all the relevant documents to effect the transfer of the properties to the beneficiaries. As such I allow prayer 5 of the application………”

42. In my considered view, the administrators appointed by the court under Section 66 of the Law of Succession Act hold that office to the extent of complying with the oath in the petition in form P&A 80 which decrees as follows: I will faithfully administer according to law all the estate which by law devolves upon and vests in his personal representative of the deceased and I will render a just and true account of such estate whenever required by law so to do and I will when required by this court deliver up thereto the said grant. However, the jurisprudence of the court more specifically on administrators is not particularly encouraging for some of them have been holding other beneficiaries, heirs and dependants duly entitled to an inheritance under Section 29 of the Act at ransom. The long perpetuation of an unlawful scheme some of the administrators to abdicate their duties to distribute the estate in conformity with certificate of confirmation of grant is admittedly unfortunate. The proper implication in this context is for the court to exercise its inherent jurisdiction under Rule73 (1 )of the Probate and Administrative Rules to bring formal order by revoking appointments of administrators who have circumvented the law on substantive justice. This will be designed to protect or advance the rights of category of persons disadvantaged by unfair discrimination of the administrator duly appointed by the court to oversee overall administration of the intestate estate. In the context of this application it is clear that the estate risks being undistributed for the very reason of abstinence to act and sign the instruments on distribution by one of the administrators who has shown such signs of non-cooperation, I concur with the decision by Odunga J as he then was in William Nzioka Mutisya (Deceased) (2018) Eklr “It is however my view that the administrators may be removed from their duties where, due to wrangles and disagreements amongst themselves, it is impossible for them to proceed diligently with the administration of the estate ... In my view if the Court finds that the administrators are unable to properly administer the estate due to their disagreements, nothing steps the Court from removing them from the administration and appointing new administrators notwithstanding the issue of priority or preference. This must be so because section 66 of the Law of Succession Act provides that:“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.”

43. As far as these two applications are concerned and to dispel any doubt in this regard the following orders shall abide, I find that this is an appropriate case to exercise the powers conferred upon this court by section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules. I hereby order that;i.The Deputy registrar do execute all the appropriate and necessary documents to effect sub divisions, transfer and transmission of the properties to the estate of the beneficiaries.ii.By reason of this appointment of the Deputy Registrar to work in conjunction with the other Principle Administrators an order is hereby made that there be direct and continuous contact with all the beneficiaries in the discharge of her duties as an officer of the court. That the Deputy Registrar endeavours to file an interim report on implementation of the certificate of confirmation of grant to the intestate estate of the deceased within 90 days from today’s ruling.iii.That the motion on review jurisdiction of this court is lost.iv.Each party shall bear its own costs

DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 14TH DAY OF DECEMBER 2023R. NYAKUNDIJUDGEIn the presence ofMr. Owuor for the Applicants (1st House)