In re Estate of Josephine Magdalena Motion (Deceased) [2016] KEHC 2371 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 1679 OF 2008

IN THE MATTER OF THE ESTATE OF JOSEPHINE MAGDALENA MOTION (DECEASED)

RULING

1. An application dated 8th October 2013 was filed herein on the same date for revocation of the certificate of confirmation of grant issued to the administrator herein, and for orders relating to a property known as Mombasa/Mainland South/Block 1/340. The said application is founded on the ground that the said property did not form part of the estate of the deceased, and that grant obtained in the cause was therefore founded on a false allegation.

2. The administrator responded to the application by filing a notice of preliminary objection on a point of law, on the grounds that the same was founded on an allegation of fraud arguing that the same was time barred under the provisions of the Limitation of Actions Act, Cap 22, Laws of Kenya. He also pleads estoppel, on the ground that the applicant had consented to the confirmation of the grant and he could not back out at this stage.

3. It was directed on 27th July 2015 that the said preliminary objection be argued first, and it was set to be argued orally on 14th October 2015. Come 14th October 2015, the preliminary objection was urged orally by Mr. Mbaluto and opposed by Mr. Tebino.

4. The preliminary objection before is predicated on an application brought under section 76 of the Law of Succession Act, Cap 160, Laws of Kenya.

5. I have had occasion to look afresh at the provisions of section 76. The relevant portions of it for the purpose of these proceeding are section 76(a) (b) and (c). The said provisions state 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…’

6. My reading of this is that an application founded on section 76 of the Law of Succession Act can be made at any time. There is no limitation set by the provision for the making of the application. The provision is open-ended. Of course there is room for bringing in the test of reasonableness into the play. That, however, does not introduce time limitation; it merely requires the court to bring in to bear reasonableness in its exercise of discretion on whether or not to revoke a grant.

7. Section 76(b) is specific that one of the reasons that the court ought to take into account in revoking a grant is where the process of obtaining it was attended by fraud in the form of the making of false statements or concealment of matter from the court. To my mind the applicant can move the court at any time, subject to whether the time taken before the application was filed was reasonable in the given circumstances, whether that application is founded on fraud or any other ground within the stipulations in section 76 of the Law of Succession Act.

8. The Limitation of Actions Act prescribes periods for limitations of actions and arbitrations. My reading of the actions to which that statute applies is that it does not include succession causes, or, at any rate, causes or actions governed by the Law of Succession Act. It covers such matters as actions founded on contracts and torts, actions to recover land and rent, actions to recover money, actions in respect of trust property or movable property of a deceased person, and related causes. In short, it envisages ordinary civil suits brought within the framework of the Civil Procedure Act and Rules. It does not envisage the special proceedings governed by such statutes as the Law of Succession Act.

9. Even if the Limitation of Actions Act were to apply to the proceedings prescribed by the Law of Succession Act, which I hereby submit it does not, a summons such the one herein cannot be an action to which the Limitation of Actions Act applies, for it is an interlocutory application filed within a cause. An action in the context of the Limitation of Actions Act can only possibly refer to a cause or suit, not interlocutory applications within the cause or suit.

10. I am conscious that the Limitation of Actions Act does in some provisions provide for actions in respect of property of a deceased person. However, what these provisions envisage are ordinary suits, often referred to as administration suits, filed by administrators or beneficiaries in respect of estate property seeking a variety of reliefs. The Act sets time limitations for the bringing of such administration suits. Those provisions have nothing to do with reliefs that are created by the Law of Succession Act, and that are brought within the framework of the Law of Succession Act.

11. As indicated above, section 76 of the Law of Succession Act does not provide time limits for filing the applications envisaged by that provision. The office of personal representative is for life. The personal representative can therefore be called to account at any time during his lifetime. The account is not just about rendering a statement about how he has or had gone about managing or administering the estate, it can also about how he or she obtained the grant of representation in the first place, or how he got it confirmed.

12. In view of everything that I have said above, I have come to the conclusion that there is no merit in the preliminary objection raised by the administrator. It is accordingly overruled.

13. The application dated 8th October 2013 shall be determined on its merits. Directions were given on 8th October 2014 on its disposal. Parties were given timelines with respect to filing of written submissions. Matter shall be mentioned to confirm whether there was compliance. Date for mention to be given at the delivery of this ruling.

DATED, SIGNED and DELIVERED at NAIROBI this 26TH DAY OF OCTOBER, 2016.

W. MUSYOKA

JUDGE