Muyumbu & another v Egesa & another [2022] KEHC 12710 (KLR)

Muyumbu & another v Egesa & another (Succession Cause 133 of 2005) [2022] KEHC 12710 (KLR) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12710 (KLR)

Republic of Kenya

In the High Court at Busia

Succession Cause 133 of 2005

JR Karanja, J

June 9, 2022

Between

Dr Amos Josiah Muyumbu

1st Petitioner

Stella Achieng Egesa

2nd Petitioner

and

Joseph Osinya Egesa

1st Objector

Benadette H Egesa

2nd Objector

Ruling

[1]The application dated January 30, 2013 is essentially for the revocation of the grant of letters of administration issued to the two petitioners i.e. Dr Amos Josiah Muyumbu and Stella Achieng Egesa, on the December 15, 2005. The two other prayers in the application are peripheral as they are dependant on the findings in the main prayer which is anchored on the grounds that the grant was obtained fraudulently and by concealment of material facts relating to the actual beneficiaries, consent of other family members and assets of the deceased. Further grounds are that the petitioners presented a forged Will and failed to confirm the grant in accordance with the law.These grounds were supported and enhanced by the applicants/interested parties averments contained in the affidavit dated January 30, 2013, deponed by Joseph Osinya Egesa.

[2]The second petitioner, Stella Achieng Egesa, opposed the application on the basis of the grounds contained in her replying affidavit dated March 18, 2013, in which it is disclosed that the first petitioner has since passed on and a supplementary affidavit dated April 8, 2013. The application was argued inter-parties by way of affidavit evidence and written submissions which were filed by the parties through their respective advocates i.e. messrs Owoge Onsongo & Co Advocates and Bogonko Otanga & Co Advocates.

[3]Having considered the application on the basis of the supporting grounds and the rival submissions, the court holds the opinion that the actual issue for determination is whether the subject grant was obtained fraudulently and by concealment of material facts especially in relation to the alleged Will of the deceased and availability of additional assets said to be the property of the deceased but omitted as forming part of the estate property.In that regard, the issue pertaining to the validity or otherwise of the Will and the alleged estate property would be premature without first and foremost a determination on whether or not the subject grant was properly and procedurally applied for and obtained.

[4]A perusal of the record would in that regard “clear the clouds”. Accordingly, it is worth of note that there being a will allegedly made by the deceased, the petition should have proceeded as a lestale rather than intestate succession. It was expected to be an application for grant of letters of administration with written will annexed pursuant to rule 7 of the Probate & Administration Rules, in which case Form 79 would apply i.e. petition for letters of administration with written will annexed together with Form 43 i.e. Grant of Letters of Administration with written will annexed.

[5]However, the record shows that the application dated October 28, 2005 by the petitioners was a petition for probate of written will annexed and the affidavit in support thereof was for probate or for letters of administration with written will annexed.The grant which resulted from the application was the disputed grant of letters of administration intestate dated December 16, 2005. Clearly, although this was apparently a lestate succession, it proceeded as if it was an intestate succession as confirmed and sealed by the issuance of the disputed grant.It would follow that whichever way one looks at it, the proceedings to obtain the grant were defective in substance and that alone would call for a revocation of the disputed grant in terms of s 76 (a) of the Law of Succession Act as the grant was not obtained properly and validly. This renders the aspect of fraud and concealment premature.

[6]Accordingly, the grant of letters of administration intestate issued to the petitioners on December 16, 2005, be and is hereby revoked forthwith with orders that the true beneficiaries of the estate of the deceased do petition afresh for grant of letters of administration or probate after agreeing on whether to treat the matter as a lestate or intestate succession and also who among themselves will be the administrators of the estate pending distribution. In that regard, the parties are given a period of four (4) months from this date hereof to take necessary steps.Matter be mentioned after the expiry of the four months on the way forward and/or further orders.

J R KARANJAHJ U D G EDATED & DELIVERED THIS 9TH DAY OF JUNE 2022