[2021] KEHC 174 (KLR)

(Miscellaneous Succession Cause 727 of 2009) [2021] KEHC 174 (KLR) (2 November 2021) (Ruling)

Neutral citation number: [2021] KEHC 174 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Succession Cause No. 727 of 2009

MW Muigai, J

November 2, 2021

IN THE MATTER OF ESTATE OF MULEI MUTISYA MBUA (DECEASED)

Ruling

COURT RECORD 1. Benjamin Mutunga Kyula ID 14xxxxx, brother in law to the deceased, filed petition for letters of Administration of the deceased’s estate on 10th September 2009 as sole Administrator and beneficiary.

2. The petitioner annexed 2 Death Certificates;a.Death Certificate No 23xxxx- Mulei Mutisya Mbua who died on 6th May 1997 at 90 years old and it was issued at Makueni District.b.Death Certificate No 09xxx- Mukethe Mulei who died on 18th May 2007 at age of 75 years old and it was issued At Makueni District.

3. The Petition annexed the Assistant Chief’s letter, of 18th August 2008, Kavumbu Sub-Location, Masii Location that confirmed the deceased Mr. Mulei Mutisya and his wife Mrs Mukethe Mulei had no child and only the Petitioner a brother-in law who took care of them and is the rightful heir to LR No Masii/Kithangaini/508 & L.R No Masii/Kithangaini/504.

4. After gazettement, 16th October 2009, grant of letters of administration was issued on 7th December,2009 by Hon. I. Lenaola J (as he then was).

5. The grant was confirmed to the Petitioner, by Hon. H. P. G. Waweru J on 23rd August 2010.

6. Summons for Revocation /Annulment Application was filed on 22nd January 2019 by Mutua Mutinda the Applicant , who claimed to be the son of the deceased by his 2nd wife and was/is entitled to the estate of the deceased and not the Petitioner, brother-in -law.

7. Benjamin Mutunga Kyula filed Replying affidavit on 2nd April 2019 and deposed that the Applicant was /is not biological son of the deceased. The Petitioner’s late sister, Mukethe Mulei was sick for a long time, the Petitioner took care of her and settled her medical bills. A letter marked BMM-1was annexed, where the deceased’s wife’s last wishes that the estate would be taken over by the Petitioner were written.

8. The Court vide Ruling delivered on 4th December 2019, by Hon. D. K Kemei J the Application for revocation of grant was dismissed.

9. Another Application for Summons for Revocation /Annulment of grant was filed by the Applicant, Kativi Muli on 9th March 2020 and claimed that the grant and confirmed grant were obtained fraudulently as the Petitioner failed to cite the Applicant and instead secretly omitted other beneficiaries, namely Mutua Mutinda’s mother, Kativi Muli who was 2nd wife to the deceased.

APPLICATION 10. The Applicant, Mutua Mutinda filed yet another Application Summons for revocation /annulment of grant on 10th December 2020 and this time based on the ground that he obtained Death Certificate No 00xxxxx of Mulei Mutisya aged 83 years who died on 5th May 1997, issued from Machakos.

11. The Applicant, Mutua Mutinda sought investigations to be conducted by Police on the origin and authenticity of Death Certificate No 00xxxxx issued by Registrar of Births & Deaths in Machakos and Death Certificate No 23xxxx issued by District Registrar of Births & Deaths in Makueni related to one-person Mulei Mutisya and/or Mulei Mutisya Mbua.

12. The Applicant alleged forgery, fraud and/or illegality as there are 2 death certificates over the same person with different information as follows;a.Death Certificate No 00xxxxx issued by Registrar of Births & Deaths in Machakos is for Mulei Mutisya aged 83 years who died on 5th May 1997 at Kithangaini after he suffered from Cancer.b.Death Certificate No 23xxxx issued by District Registrar of Births & Deaths in Makueni related to Mulei Mutisya Mbua, aged 90 years who died on 6th May 1997 at Kalungu Sub-Location after he suffered from Malaria.

13. The Applicant took the view that the Court would not have undertaken any proceedings and/or issued any orders if the Court was made aware that the Death Certificate relied upon is a forgery which was/is an abuse of the Court process.

REPLYING AFFIDAVIT 14. The Respondent/Petitioner filed Replying Affidavit on 27th April 2021 and opposed the instant Application on the following grounds;a)The Applicant’s Application filed on 16th January 2019 for revocation of grant was dismissed vide a Ruling of this Court on 4th December 2019 and confirmed grant was upheld.b)The Court Ruling of 4th December 2019 was not reviewed, set aside or successfully appealed against.c)The prayer for revocation is res judicata as it was heard and determined.d)The Applicant’s mother filed a similar Application for revocation of grant on 9th March 2020 and was left pending to date.e)The Applicant obtained Death Certificate of Mulei Mutisya on 25th May 2017 and he is not a son of the deceased or dependent or beneficiary of the deceased’s estate.f)If the Applicant is of the opinion that a criminal offence was committed, he ought to lodge a complaint with the Police and to ask the Court to order the Police to conduct investigations in the absence of a complaint.g)At the time of filing Summons for Revocation/Annulment application of 16th January 2019, the Applicant did not raise any issue of authenticity of the death certificate by the Petitioner [nor did he produce the Death Certificate he has produced now] and the claim for forgery is an afterthought.

2NDAPPLICATION 15. The Applicant also filed yet another Application on 25th October 2021 and sought that this Court grants stay of proceedings in Tawa Senior Resident Magistrate’s Court Civil case 144 of 2018 where the Petitioner/Respondent filed based on the certificate of confirmed grant from this Court and he sought orders to evict the Applicant from LR Masii/Kithangaini 504 & 508 and he alleges that the Confirmed grant was issued pursuant to forged documents.The Respondent has not filed response.

SUBMISSIONS 16. The Applicant relied on the following case-law to fortify its position;a)Paul Kamau Ndungu vs Pamela Atieno Onyango [2016] eKLR referred to Moses Wachira Wamunyu vs Fredrick Kagio Kinyua & 4 Others HCC254 of 2001 Visram J ( as he then was) stated that;A party, as far as possible, ought not to be allowed to retain a position of advantage that it obtained through a planned and blatant unlawful act.See also Kamau Mucuha vs Ripples Ltd [1993] eKLR.c.Board of Trustees National Social Security Fund vs Michael Mwaloi C.A 293 of 2014relied on Ugandan C.A Makula International Ltd vs His Eminence Cardinal Nsubuga & Anor (1982) where the Court stated;A Court of law cannot sanction what is illegal and illegality once brought to the attention of the Court overrides all questions of pleadings including admissions made thereunder……

17. The Respondent reiterated the legal position outlined in the Replying Affidavit file on 27th April 2021.

DETERMINATION 18. The Court considered the pleadings and written and oral submissions and the issue for determination is whether the death certificate(s) is a forgery as both death certificates relate presumably one and the same person Mulei Mutisya- Mbua.

19. In the case of Central Kenya Ltd versus Trust Bank Limited & 4 others [1996] eKLRthe court observed; -“The appellant has made vague and very general allegations of fraud against the respondents. Fraud and conspiracy to defraud are very serious allegations. The onus of prima face proof was much heavier on the appellant in this case than in an ordinary civil case.”

20. In the case of Martin Maina Ndegwa vs Charles Thiongo Kanyoro & 3 Others, Succession Cause No. H.C. 121 of 2010, the Court pointed out thus;In the case of Assets Co Ltd vs Mere Roihi, Lord Lindley stated as follows:"......that by fraud in these Acts is meant actual fraud, i.e., dishonesty of some sort, not what is called constructive or equitable fraud-an unfortunate expression and one very apt misled, but often used, for want of a better term, to denote transactions having consequences in equity similar to those which flow from fraud."

21. The Court confirms that the Summons for Revocation/Annulment Application was heard and determined and the Ruling of 4th December 2019 delivered dismissing the Applicant’s claim that he was/is son of the deceased in the absence of cogent and tangible proof.

22. Presumably, the issue regarding revocation and/or annulment ought to end here as the issue was heard and determined by a Court of equal, concurrent and competent jurisdiction and the aggrieved party may apply for review and/or exercise the right of appeal.

23. However, the Applicant in the instant applicant raised the issue of alleged fraud, forgery and/or illegality with regard to now /recent production of death certificate(s) related presumably to the same and one - person the deceased Mulei Mutisya - Mbua. Both Death Certificates of interest have different details and circumstances of death of the deceased.

24. It is also curious to note that the Applicant in previous applications did not contest the authenticity of the Death Certificate produced by the Petitioner/Respondent nor did the Applicant disclose or produce the Death Certificate now produced until the filing of the instant Application.

25. It is also of concern, that the Applicant produced the Death Certificate issued on 25th May 2017, and the Applicant did not file Succession proceedings over the deceased’s estate nor produce and/or disclose the said Death Certificate during proceedings of the Application of 16th January 2019 that culminated with Ruling of after Ruling by this Court of 4th December 2019.

26. These recent unfolding events necessitate that the issue of death certificates relating to one-person ought to be interrogated and the Court be satisfied as to the genuine Death Certificate relating to the Deceased person herein.

27. I have considered the summons for revocation of grant and I am persuaded that it raises serious issues which need to be resolved by the court and in the event of the orders in question being enforced. The applicant in the said application has alleged fraud forgery and/or illegality with concealment of material facts. These are issues which need to be resolved at the hearing inter partes of the said application.

DISPOSITION: 28. After carefully examining the application for revocation of grant and the application before me, and upon analysing the law, authorities and submissions made by both parties, I find that the applicant has established sufficient grounds for the court to allow the application in the interests of justice as follows;(1)The Court shall maintain status quo and preserve the deceased’s estate as provided by Section 45 Law of Succession Act which provides:-“Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.”Until the hearing and determination of the Application in the exercise of verification and/or confirmation of the genuine Death Certificate of the deceased person herein.(2)Through Deputy Registrar Machakos High Court who shall issue Witness Summons to Registrar of Births & Deaths Machakos & Makueni to prepare Reports to present in Court as to the genuine Death Certificate in relation to the Deceased herein within 30 days.(3)Through Deputy Registrar Machakos High Court who shall issue Witness Summons to Chief Kavumbu Sub/Location Masii Location to prepare Report to confirm contents of letter of 18/8/2008 by Mr.Solomon M.Kimilu Assistant Chief -Kavumbu & Chief Kithangaini to confirm details of family/deceased Mulei Mutisya within 30 days.(4)No burial( of Applicant’s late mother) shall be held on the deceased’s estate until the hearing and determination of the alleged claims of forgery, fraud & illegality and proof that the applicant is son of the deceased/beneficiary of deceased’s estate vide Ruling of 4th December 2019. (5)No eviction shall take place until after ruling and determination of the matter of L.R. Masii/Kithangaini/508 and L.R. Masii Kithangaini/504

DELIVERED SIGNED & DATED IN OPEN COURT ON 2NDNOVEMBER 2021 (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGEIN THE PRESENCE OFMUTUA MBOYA & NZISSI ADVOCATES- FOR APPLICANTSILA & COMPANY ADVOCATES -FOR RESPONDENT