Mutiso Kisini v Kyengo Kisini & David Mutua Kisini [2016] KEHC 3506 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 366 OF 2013

IN THE MATTER OF THE ESTATE OF NGINA KISINI NGATI(DECEASED)

MUTISO KISINI………..……………….OBJECTOR/APPLICANT

VERSUS

KYENGO KISINI

DAVID MUTUA KISINI ……….……PETITIONERS/RESPONDENTS

RULING

The Summons

The Petitioners herein petitioned for, and was issued with a grant of letters of Administration Intestate by this Court on 9th July 2013 with respect to the estate of  Ngina Kisini Ngati (hereinafter referred to as “the deceased”), who died on 8th August 1993. The Objector is the Petitioners’ brother  and the deceased their mother, while the subject of the succession proceedings is land parcel number L.R Nzaui/Kilili/31 which had been acquired by the deceased prior to her death.

The Petitioners subsequently filed a summons for confirmation of the said grant on 11th November 2014, but before the said summons could be heard, the Objector moved this Court through an application by way summons dated 15th July 2015 for revocation of the said grant, which summons is the subject of this ruling. The Court directed that the said summons be heard by way of affidavit evidence and written submissions.

The grounds for the application as set out in the said summons and Objector’s affidavit in support sworn on 15th July 2015 are that the grant was obtained through concealment of material facts, namely that the Petitioners left out other beneficiaries who had an interest in the deceased’s estate by virtue of having purchased plots in the estate,  and did not recognize the interest of their deceased brother, Maweu Kisini who was survived by a wife and children. Further, that the Objector did not sign the consent form and the Petitioners forged his signature, which act is illegal and is meant to defraud the other beneficiaries.

A.M. Mbindyo & Company Advocates, the Objector’s learned counsel, filed written submissions dated 24th May 2016 wherein the above arguments were reiterated, and wherein it was alleged that the Objector being an elderly man cannot write and prints his signature with his thumb finger and could not therefore have signed the consent forms. It was prayed that a viva voce hearing be held to establish some vital facts about distribution of the deceased’s estate.

The Response

The Petitioner’s response to the application is found in a replying affidavit sworn by the 2nd Respondent on 3rd November 2015. The Petitioners denied lodging the petition for grant of representation in secrecy or leaving out the Objector in the said proceedings as he is included as a beneficiary. Further, that they do not intend to lock out other beneficiaries or creditors,  since the affidavit in support of their summons for confirmation filed in Court on 11th November 2014 shows that the mode of distribution is to have the Objector registered jointly with the other three beneficiaries as proprietors of the deceased land, and then transfer the portions that were sold to the creditors. The Petitioners denied forging the signature of the Objector, and claimed that he signed the consent to the making of grant and only declined to sign the consent to the application for confirmation of grant.

The Petitioners’ learned counsel, D.M Mutinda & Co Advocates filed written submissions dated 2nd February 2016 wherein it was urged that the Petitioners complied with Rule 26(1) of the Probate and Administration Rules  as regards giving notice to the Objector, who signed the consent forms. Reliance was placed on the decisions In Re Micheal Mwangi Githinji (Deceased), (2009) e KLR  and InRe the Estate of P.W.M. (Deceased),(2013) e KLR for the  position that the burden was on the Objector to prove that his signature was a forgery, and that he had not tendered any forensic evidence from a document examiner in this regard, particularly since the allegation bordered on an accusation of commission of a criminal offence.

The Determination

I have read and carefully considered the pleadings, evidence and submissions made by the parties. The issue to be determined is whether the Petitioners   grant of letters of administration should be revoked. This court has jurisdiction to revoke or annul the grant as is clearly set out in section 76 of the Law of Succession Act (Chapter 160 of the Laws of Kenya) which provides 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;

(d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either-

(i) to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court has ordered or allowed; or

(ii) to proceed diligently with the administration of the estate; or

(iii) to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or

(e) that the grant has become useless and inoperative through subsequent circumstances.”

In the present application the Objector seeks to revoke the said confirmed grant issued to the Petitioner on the ground that his  consent to the Petition for the said grant was a forgery, and that there are beneficiaries and creditors who are not included in the petition. At the outset I agree with the Petitioners’ arguments that insufficient evidence was brought by the Objector to prove his allegations that his signature on consent to the making of a grant to the Petition for letters of administration filed herein on 24th May 2013 was a forgery, which allegations must be strictly proved as they impute criminal conduct on the part of the Petitioners.

I have  perused the Petition for Letters of Administration Intestate and the affidavit in support of the said Petition filed herein by the Petitioner on 24th May 2013. The Objector and Maweu Kisini (Deceased) are listed therein as beneficiaries of the estate of the deceased. Likewise, the summons for confirmation of grant dated and filed herein on 11th November 2014 also includes the name of the Objector and the said Maweu Kisini (Deceased)  as beneficiaries.

However, no creditors are included in the said Petition and summons for confirmation, and if indeed there were creditors of the deceased, they ought to be included as their interests are recognised by section 66 of the Law of Succession Act. In addition section 41 of the Law of Succession Act provides that where a child of an intestate predeceases the intestate, then their issue shall take in equal shares, the share which their parent would have taken had he not predeceased the intestate. The correct beneficiary to be included therefore should be the issues of Maweu Kisini (Deceased) or wife of the deceased under section s39 of the Act.

It is my view that the appropriate remedy with regard to the non-inclusion of beneficiaries and creditors is not revocation of the grant to the Petitioners, but amendment of the summons for confirmation of the same to include all the proper beneficiaries and creditors.  It is also evident that this appears to be the main grievance of the Objector.

I  accordingly order  as follows pursuant to sections 47 of the Law of Succession Act:

1. The prayer in the Objector’s Summons dated  15th July 2015 for revocation of the grant of letters of Administration Intestate to the Petitioners on 9th July 2013 with respect to the estate of  Ngina Kisini Ngati is hereby denied.

2. The Petitioners shall within 60 days of the date of this ruling file a further affidavit to the summons for confirmation listing all the beneficiaries and creditors of the deceased and their consent to the proposed distribution of the deceased estate.

3. There shall be no order as to costs as this dispute concerns family members.

Orders accordingly.

Dated, signed and delivered in open court at Machakos this 12th day of July 2016.

P. NYAMWEYA

JUDGE