In re Estate of Samwel Rioba Bwahi (Deceased) [2022] KEHC 3271 (KLR)

In re Estate of Samwel Rioba Bwahi (Deceased) (Succession Cause 610 of 2014) [2022] KEHC 3271 (KLR) (19 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3271 (KLR)

Republic of Kenya

In the High Court at Migori

Succession Cause 610 of 2014

RPV Wendoh, J

July 19, 2022

(Formerly Kehancha SRM’s Court Succession No. 13 of 2013) IN THE MATTER OF THE ESTATE OF SAMWEL RIOBA BWAHI (DECEASED) AND IN THE MATTER OF AN APPLICATION FORE REINSTATEMENT OF CAUSE BY

In the matter of

Joseph Mwikwabe Nyamburi

Applicant

Ruling

1. This cause relates to the estate of Samwel Rioba Bwahi (Deceased) who died intestate on 5/6/1975. The applicant, Joseph Mwikwabe Nyamburi filed an application dated 4/4/2022.

2. The application was filed pursuant to the provisions of the Law of Succession Act and Order 24 Rule 3 the Civil Procedure Rules. The applicant seeks the following orders: -1. That this court be pleased to set aside the orders issued on 10/5/2018 revoking the Grant of Letters of Administration Intestate dated 4/5/2015 and subsequently reinstate the same.2. That upon granting prayer 1 above, Summons for Confirmation of Grant dated 23/12/2015 be fixed for hearing on a priority basis.3. Costs be in the cause.

3. The application is hinged on the grounds on the face of it and the supporting affidavit of the applicant. The applicant’s case is that he is the lawful administrator of the estate of the deceased herein; that the succession cause was dismissed for want of prosecution on 10/5/2018 and the Grant of Letter of Administration Intestate dated 4/5/2015 was subsequently revoked; that the dismissal was because of the applicant’s financial hiccups and longtime illness; that the court issued the Letters of Administration Intestate in the names of the applicant on 4/5/2015 and nobody has challenged the same; that upon reinstatement, the applicant prays that the matter be fixed for hearing of the application for Confirmation of Grant within 30 days; that it is in the best interest of justice that the orders issued on 10/5/2018 revoking the Grant of Letters of Administration Intestate dated 4/5/2015 be set aside.

4. Further to the foregoing, the applicant filed a further affidavit dated 5/7/2022. This was in compliance with the court’s direction of 12/5/2022 for him to prove that he was unable to file the Summons for Confirmation on time. The applicant deponed that his brother and a beneficiary in respect of the estate fell ill and he took him to Tanzania for treatment. The applicant annexed “JMN2” being Joseph Mogore Rioba’s death certificate which shows that he died on 6/11/2020.

5. I have considered the application, supporting and further affidavit of the applicant dated 4/4/2022 and 5/7/2022 respectively. The applicant avers that the cause was dismissed for want of prosecution on 10/5/2018 and the Grant of Letters of Administration Intestate dated 4/5/2015 was subsequently revoked.

6. Section 76 (d) (i) of the Law of Succession Act gives the court powers to revoke or annul a grant for want of prosecution within one year from the date thereof or such long period as the court may allow.

7. I have carefully perused the court record. This cause was before Omondi J on 12/10/2016 for confirmation proceedings. The Judge directed the applicant to file a supplementary affidavit in respect to the estate of the deceased and all the beneficiaries to attend court. The applicant did not comply as directed for a period of two years prompting the court in exercise of its powers under section 76 (d) (i) of the Law of Succession Act to revoke the grant for want of prosecution.

8. I have read the supporting affidavit and supplementary affidavit filed by the applicant which I find to be contradictory as regards the reason why he failed to prosecute this cause. In his affidavit, he claimed to have been ailing, but in the further affidavit, he deponed that he took his brother for treatment to Tanzania where he ailed and died in 2018. He annexed a death certificate in regard to the death of one Joseph Mogore Rioba who died on 6/11/2020. There is no evidence that the person had been admitted in hospital in Tanzania. In fact the death certificate indicates that the person died at Iraha in his residence in Kuria District. He did not die in Tanzania as alleged. In my view, the applicant is not truthful as to why he delayed to prosecute this cause from 2016 when it was last adjourned to the date of this application in 2022, about six (6) years later. The applicant has been indolent and untruthful.

9. The above aside, I note from the Chief’s letter, West Bugumbe dated 26/3/2013 regarding the deceased’s estate, of which the applicant is the administrator, that there are 15 beneficiaries and 9 purchasers of LR Bungumbe Mabera / 25 which is the subject of these Succession proceedings. If the court does not allow this application, then all the 24 people stand to suffer prejudice. For the above reason alone, I allow the application.

10. From the application already on record, there is no consent signed by the survivors named therein. There is also no schedule on the proposed mode of distribution of the deceased’s estate filed. It is also noted that the purchasers have not been included as persons of interest in the estate of the deceased.

11. The applicant is hereby directed to file further affidavit to the Summons for Confirmation of Grant to include a schedule of distribution of the estate and all beneficiaries and purchasers be served with the summons.

12. I therefore issue the following orders: -a)The orders issued on 10/5/2018 are hereby set aside;b)The Succession Cause is hereby reinstated;c)The applicant is directed to file further affidavit to the Grant of Letters of Administration Intestate issued on 5/5/2015 within 30 days of this ruling indicating the mode of distribution of the estate;d)The Summons should also be accompanied by a proposed schedule of distribution signed by all the beneficiaries and purchasers;e)The application to be served upon all the beneficiaries and the purchasers;f)In the event of none compliance, the cause will be automatically dismissed.g)Costs shall be in the cause.h)Mention on September 27, 2022.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 19TH DAY OF JULY, 2022R. WENDOHJUDGERuling delivered in the presence ofPresent in person the Applicant.Evelyn Nyauke Court Assistant.