John Gituma M’raiji & Stanley Murega M’raiji v Elizabeth Kamwitu [2017] KEHC 2309 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 419 OF 2006

THE MATTER OF THE ESTATE OF M’RAIJI KITHIANO (DECEASED)

JOHN GITUMA M’RAIJI ………………………………..1ST PETITIONER

STANLEY MUREGA M’RAIJI …………………….........2ND PETITIONER

-Versus-

ELIZABETH KAMWITU.....................................APPLICANT /OBJECTOR

RULING

[1] This court has been called upon through Summons for Revocation of Grant application dated 21st July 2009 to order:

1. Stay of any further proceedings in this matter pending the hearing of this application.

2. That inhibition placed by the Applicant upon L. R NO.NTIMA/IGOKI/146 in respect of the civil suit No. 148 of 1995 to remain in force pending the hearing of this application.

3. Annulment and revocation of the grant of letters of administration made to the Petitioners herein on 5th day of August 2008 and the confirmed grant issued on 15th January 2009.

4. Grant of leave to the Applicant to file an objection, cross petition and answer to petition out of time.

5. Costs of this application.

The application is expressed to be brought under Rule 17 (2), 44 and 73 Probate and Administration Rules and Section 68 & 76 of the Law of Succession Act CAP 160 Laws of Kenya and is based on the following grounds inter-alia:

1. THAT the Applicant is the widow of the son of the Deceased

2. THAT the Petition was filed secretly and clandestinely without involving or obtaining the Applicant’s consent.

3. THAT the proceedings to obtain the grant were defective in substance and meant to defraud and disinherit the Applicant.

[2] The Application is also supported by the affidavit of the ELIZABETH KAMWITU (The Applicant). The 2nd Petitioner opposed the application and filed a replying affidavit dated 28th August 2009 stated that the Applicant has no just cause of bringing the instant application for revocation of the grant since she participated in the whole succession cause and attended court sessions for the hearing. He states inter alia that the Applicant was the one coordinating and contributing fare to enable other beneficiaries to attend court. Oral evidence was also adduced by the parties.

DETERMINATION

[3] From the way parties have proceeded on this application, they seem to have obfuscated two processes; the one for revocation and distribution. But in the interest of justice and good order, I propose to deal with revocation first and depending on the outcome thereof, I will determine the question of distribution of the estate at a later date on the basis of the evidence adduced and pleadings filed in court. In so far as revocation is concerned, I need not reinvent the wheel. The applicable law here is Section 76 of the Law of Succession Act CAP 160 of the Laws of Kenya. Applying the test of the law to the arguments by the Applicant, I should ask whether:-

(a) The proceedings to obtain the grant were defective in substance; or

(b) 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; or

(c) 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

[4] The Applicant argued that this cause was filed secretly and clandestinely without involving her or obtaining her consent. And that she learnt of the cause when she was served with the application seeking to remove the inhibition she had placed on the land following case No 148 of 1995. The Petitioner gives a different opinion; that she attended court hearings and even provided transport to some beneficiaries to attend court. I have checked the record and nowhere is it indicated that the Applicant attended court during confirmation hearing. She was a person of equal priority with the other petitioners and her consent ought to have been sought in the filing of the cause and the application for confirmation. In fact, her consent was not sought or obtained as required in law For instance she did not sign the requisite FORM 38- Consent to Making of a Grant of Administration Intestate to Person of Equal or Lesser Priority. I did not also see any formal consent from her in respect of confirmation of grant. The objectors who were attending court were the other sons of the deceased who were initially opposed to the petition but it seems they agreed to drop their objections at some stage. What does the law say about a grant obtained in such manner? The law the way I conceive it is that such grant is a perfect candidate for revocation. On this I am content to cite the case of SAMUEL WAFULA WASIKE vs. HUDSON SIMIYU WAFULA CA NO.161 OF 1993 (Kwach, Omolo and Tunoi JJA) where it was held that:-

“A grant obtained on the strength of false claims, without obtaining the consent of persons who had prior right to the grant and on the basis of facts concealed from the court, is liable to revocation.”

See also what Koome J (as she then was) stated in THE MATTER OF THE ESTATE OF NGARI GATUMBI ALIAS JAMES NGARI GATUMBI (DECEASED NAIROBI HIGH COURT SUCCESSION CAUSE NO.783 of 1993(persuasively) that:

“A grant will be revoked where a person who is entitled to apply is not notified by the petitioner of their intention to apply and that person’s consent to the petitioner’s application is not sought’’.

Accordingly, the grant was issued without notice to a person of equal priority and is defective in substance and should be revoked.  I revoke it.

[5] Having so held, one little thing requires settlement. It was argued in this case that following the death of the 1st Petitioner who was a joint administrator of the estate, the 2nd Petitioner cannot deal with the estate until a fresh grant was made to him. The law is that; upon the death of one or more of several executors or administrators to whom a grant of representation has been made, all the powers and duties of the executors or administrators shall become vested in the survivors or survivor of them.Except, where there has been a grant of letters of administration which involve any continuing trust, a sole surviving administrator who is not a trust corporation shall have no power to do any act or thing in respect of the trust until the court has made a further grant to one or more persons jointly with him.See the full text of section 81 of the Law of Succession Act that:

81. Powers and duties of personal representatives to vest in survivor on death of one of them

Upon the death of one or more of several executors or administrators to whom a grant of representation has been made, all the powers and duties of the executors or administrators shall become vested in the survivors or survivor of them:

Provided that, where there has been a grant of letters of administration which involve any continuing trust, a sole surviving administrator who is not a trust corporation shall have no power to do any act or thing in respect of the trust until the court has made a further grant to one or more persons jointly with him.

Therefore, as there is no continuing trust, the surviving administrator is possessed with all powers and authority upon the estate and shall so exercise them. He does not need to apply for a fresh grant to be made to him. He should simply apply to have the name of the deceased administrator deleted from the grant as a matter of simple rectification of grant under section 74 of the Law of Succession Act and the grant shall be amended accordingly.

Final orders

[5] Based on the conclusions above, I hereby grant the application dated 21st July 2009 to the extent of the following specific orders:

1. The inhibition placed by the Applicant upon L. R NO.NTIMA/IGOKI/146 in respect of the civil suit No. 148 of 1995 shall remain in force pending the determination of this cause.

2. The grant of letters of administration made to the Petitioners herein on 5th day of August 2008 and confirmed on 15th January 2009 is revoked.

3. In the circumstances of this case and in exercise of my discretion under section 66 of the Law of Succession Act, I hereby appoint the Applicant and the 2nd Petitioner as joint administrators of the estate.

4. I will determine distribution of the estate on the basis of the submissions filed herein and the oral evidence adduced in court by parties. And accordingly confirm the grant herein.

5. This being a matter involving close family members, costs of this application shall be in the cause.

Dated, signed and delivered in open court at Meru this 3rd October 2017

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F. GIKONYO

JUDGE

In the presence of:

Mr. Munene advocate for Objector

Mrs.Ntarangwi for petitioner –absent

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F. GIKONYO

JUDGE