Songwa v Makwingwi & another; Simiyu & 24 others (Interested Parties) [2023] KEHC 24251 (KLR)

Songwa v Makwingwi & another; Simiyu & 24 others (Interested Parties) (Probate & Administration 14 of 2022) [2023] KEHC 24251 (KLR) (19 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24251 (KLR)

Republic of Kenya

In the High Court at Bungoma

Probate & Administration 14 of 2022

REA Ougo, J

October 19, 2023

Between

George Wakhungu Songwa

Petitioner

and

Patrick Barasa Makwingwi

1st Respondent

Armstrong Simiyu Songwa

2nd Respondent

and

Jane Khisa Simiyu

Interested Party

Beatrice Naliaka Wanyama

Interested Party

Rispah Nasimiyu Namukoa

Interested Party

Bernard Juma Saulo

Interested Party

Dina Nakhungu Wanyonyi

Interested Party

Rosoa Nasimiyu Makhanu

Interested Party

Elizabeth Synovia Wiwa

Interested Party

Joseph Mwangi Macuku

Interested Party

Amston Patrick Simiyu

Interested Party

Peter Kwete Saulo

Interested Party

Samson Makwingwi Songwa

Interested Party

Leonard Wanami

Interested Party

Beatrice Nabukwangwa Wanami

Interested Party

Victoria Masinde

Interested Party

Barasa Wanyimbi

Interested Party

Ben Nangami Masika

Interested Party

David Simiyu Lukorito

Interested Party

Mary Naliaka Mkhone

Interested Party

Gladys Wakwoma Songwa

Interested Party

Caroline Naliaka Wanjala

Interested Party

John Wanyama

Interested Party

Margaret Nafula Khaemba

Interested Party

Fredrick Makwingwi Songwa

Interested Party

Rael Nakhumicha Namaswa

Interested Party

Rose Namachanja Wenani

Interested Party

Ruling

1. George Wakhungu Songwa, the petitioner herein, filed a chamber summons dated 7th September 2022 seeking the following orders;a)Pending the hearing and determination of the instant application inter parte, conservatory orders do issue staying the implementation and/or execution of the confirmed grant issued on 30th July 2021 by restraining the Respondents their servants, agents and/or persons acting under their instructions from in any way distributing the Estate of the late Saul Makwingwi Songwa (Deceased) whether by alienating, transferring, selling, disposing, sub-dividing or in any other way dealing with the property/assets of the estate of the deceased in general and in particular Land reference no. Kimilili/Kamukuywa/875. b)Pending the hearing and determination of the instant application conservatory orders do issue staying the implementation and/or execution of the confirmed grant issued on 30th July 2021 by restraining the Respondents their servants, agents or persons acting under their instructions from in any way distributing the Estate of the late Saul Makwingwi Songwa (Deceased) whether by alienating, transferring, selling, disposing, sub-dividing or in any other way dealing with the property/assets of the estate of the deceased in general and in particular Land reference no. Kimilili/Kamukuywa/875. c)This Honourable Court do and hereby issue an order revoking and/or annulling the Grant of Letters of Administration Intestate granted on 14th May 2020 to George Wakhungu Songwa, Patrick Barasa Makwingwi and Armstrong Simiyu Songwa and confirmed on 6th May 2021 and issues a fresh grant name George Wakhungu Songwa, Patrick Barasa Makwingwi and Armstrong Simiyu Songwa.d)Costs of the application to be borne by the Respondents herein.

2. The application was opposed by the respondents Patrick Barasa Makwingwi and Armstrong Simiyu Songwa. I have read the supporting affidavit dated 7th September 2022 and a further affidavit dated 16th November 2022 filed by the applicant and the respondents’ affidavits sworn by Armstrong Simiyu Songwa, a replying affidavit dated 31st October 2022, and a supplementary affidavit to the further affidavit dated 19th December 2022.

3. This matter has a long history from the year 2014. The deceased Saul Makwingwi Songwa died on 28th July 1982. He left one asset parcel of land namely Kimilili/ Kamukuywa/875 measuring 17. 26Ha ( about 42. 6 acres). The petitioner filed for letters of administration intestate of the deceased and a grant was issued on the 4th February 1994 by the High Court at Eldoret. This grant was confirmed on the 31st January 2017 at Eldoret and according to the petitioner the estate was distributed to the beneficiaries of the estate ( see paragraph 6 of his supporting affidavit). The petitioner claims after the grant was confirmed new titles have been issued ( see paragraphs 8 of the supporting affidavit). He avers that he caused the mutation to be done and filed mutation forms on 8th November 2019 and thereafter what was pending was the issuance of titles which were issued on 15th June 2020.

4. According to the petitioner the respondents' application to revoke the grant dated 12th November 2018 was struck out vide a court Ruling dated 7th June 2019 by Justice Olga Sewe. That he was not aware that the respondent filed another application dated 18th October 2019 seeking to revoke the grant and that in a ruling dated 14th May 2020 Justice Sewe revoked the grant of letters of administration intestate and ordered that a fresh grant be issued in his name and the respondent. This was issued on the 30th of July 2021. The Petitioner claims that he was not served with the order dated 14 May 2020, that revoked the grant he had been issued earlier. Thereafter an application to confirm the grant dated the 7th October 2020 was filed by the respondent on the 28th October 2020 and the same was confirmed on the 6th May 2021 . The application to confirm the grant too was not served on him and he did not participate in the said proceedings. He claims that the new summons to confirm the grant was shrouded in secrecy it targeted beneficiaries of the estate excluding other beneficiaries of the estate who already had titles in their respective names. That the new confirmation of grant dated 30th July 2021 was given in total disregard and without full disclosure of the actual state of distribution of the estate sate of distribution of the estate which had been already concluded when the titles were issued in the names of the respective beneficiaries of the estate who are the interested parties herein.

5. The petitioner, therefore, seeks revocation of the grant issued on the 14th May 2020 and confirmed on the 6th May 2021 for reasons that the proceedings to obtain the grant were defective in substance, the grant was obtained fraudulently by making a false statement or by the concealment from the court of something material to the case and that the grant was obtained by means of untrue allegations of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently. He therefore seeks that conservatory orders be issued against the respondents staying the implementation of the confirmed grant issue on the 30th July 2021, restraining the respondents/ their agents’ servants or persons acting under their instructions from distributing the estate of the deceased for reasons that there is likelihood of claims by interested parties to the estate and that there is looming risk of revocation of titles issued to the beneficiaries on the 15th June 2020. That the beneficiaries will suffer irreparable loss and damage and that the balance of granting the orders is in favor of granting the said orders. That it is in the interest of justice that the orders sought to be granted and that respondents will not be prejudiced by the granting of the orders.

6. The respondents contend that the applicant is his younger brother. That the applicant without disclosure or consent of the other family members fraudulently filed for letters of administration of their late father’s estate in Eldoret in 1987 being cause no. 21 of 1987. The applicant was issued with a grant on the 4th of February 1994 and he was paid for compulsory acquisition of part of their father’s land to the tune of Kshs. 3. 5 million. He forged consents of family members who had died and had the grant confirmed. He discovered in 2019 that the applicant had filed a succession cause in Eldoret in 2019. That thereafter he moved to court and had the grant revoked. That the applicant through his lawyer was properly served and the grant was revoked. The Judge ordered that the matter be transferred to Bungoma and a fresh succession cause was carried out. The applicant left their home over 30 years ago and has never appeared. He has always not attended any of the family meetings at their home. They all appeared in court during the confirmation of the grant and only the applicant chose to stay away for his own reasons and cannot now purport to reverse the cause. The applicant has not explained why it took him all those 30 years to carry out a proper administration. That there are no cogent reasons or causes have been shown to justify the order for revocation. All the papers to revoke the initial fraudulent succession were served upon both advocates Kiarie and Bororio who acted for the applicant in different matters hence he cannot feign ignorance. When they revoked the grant and got fresh shares with all the children and beneficiaries fully participating the applicant changed tactics and filed the application. That all the beneficiaries, purchasers, and alleged grandchildren in the applicant’s schedule are unknown to all of them and do not exist.

Analysis And Determination 7. Parties filed written submissions. I have read and considered the said submissions together with the affidavits filed by the parties together with the provisions of section 76 of the Law of Succession Act that empowers this court to revoke or annul a grant if the conditions stated therein are proved by the party invoking the said section. The issue for determination is whether this court should revoke the grant of letters of administration granted on the 14th of May 2020 and confirmed on the 6th of May 2021.

8. As stated earlier this matter has had a long history. It was first filed in Eldoret and in a ruling dated Justice Sewe ordered that the file be transferred to Bungoma.

9. I have carefully perused the pleadings and court records. After the applicant was issued with a grant on the 4th February 1994 the said grant was confirmed on the 31st January 2017. The respondent sought to have the said grant revoked vide their application dated 18th October 2019. In a ruling dated the 14th May 2020, Justice Sewe revoked the grant that was issued on the 4th of February 1994 and confirmed on the 31st of January 2017. The applicant claims that he was not aware of the said application. I do note that in 2017 the applicant was represented by the firm of Kiarie & Company Advocates. There is a notice hearing notice dated 15th January 2020 filed by the firm of Sichangi and Advocates for the respondents on 4th March 2020, indicating that the firm of Kaire and Company was served with the hearing notice for the hearing of the application dated 18/10/2019. There is a stamp of the firm Kiarie & Company, acknowledging receipt of the said hearing notice. The Affidavit of Service sworn by Charles Alumasa dated 3rd March 2020, court process server indicates that he traveled to Kitale town on the 20th January 2020 and served the secretary of the said firm who accepted service and stamped the hearing notice. The applicant cannot now claim that he was not aware of the application. He had an advocate on record who accepted service of the hearing notice. There is no affidavit from his former counsel that his firm was not served with the hearing notice.

10. Further Justice Sewe in her ruling dated the 14th May 2020 acknowledged the court record showed that the application was served on the petitioner ( the current applicant) and that the applicant opted not to file a response thereto and also that the Affidavit of Service sworn by Charles Alumasa and filed on 4th March 2020 also showed that a Hearing Notice was also served on counsel for the petitioner. Neither the petitioner nor his counsel attended court for the hearing on the 4th of March 2020.

11. The said Ruling has not been set aside. The grant was revoked and a fresh grant be issued in the names of George Wakungu Songwa, Partrick Barasa Makwingwi and Amstrong Simiyu Songwa as Administrators of the deceased’s estate. The applicant has failed to persuade this court that the grant issued on the 14th of May 2020 should be revoked. His counsel was properly served and there was no response to the application. The ruling has not been set aside nor has the applicant filed an appeal. I decline to revoke the grant of letters of administration intestate granted on the 14th of May 2020 to the 3 administrators.

12. Thereafter the respondents filed an application to confirm the grant that was issued after the ruling dated 14th May 2020. The application was filed on the 7th of October 2020. There is nothing in the court file to show that the said application was served on the applicant. After it was filed the court record shows that the application was fixed for hearing at the registry on 2/11/2020 for a hearing on 1/3/2021. On the 1/3/2021Mr. Sichangi appeared before Justice Riechi and informed the court that the beneficiaries were in court. Thereafter the court noted the presence of the beneficiaries and their acknowledgement of their shares of the estate. This happened on 1/3/2021 and the 6th of May 2021 when Judge Riechi confirmed the grant that was issued on the 14th of May 2020. It is clear to me that the applicant was not notified of this application nor the date to appear in court for confirmation of the grant. The applicant or his counsel should have been served with the application and the hearing notice indicating the date when the parties were to present themselves in court to give consent to the mode of distribution. Failure to do so was wrong and unprocedural. The applicant was denied a chance to be heard as he was not given an opportunity to present his mode of distribution. Therefore, in the interest of justice and for the benefit of all parties and to help the parties conclude this matter, I will give the applicant a chance to be heard on his mode of distribution. I, therefore, set aside the confirmed grant and certificate of grant issued on the 30th of July 2021. The respondent shall not use the grant issued on the 6th of May 2021 to distribute or transfer the estate of Saul Makwingwi Songwa. The applicant too shall not if the grant of February 2014 is in his possession use it to distribute the estate of the deceased as the said grant was revoked.

13. There is an application on record to confirm the grant which the applicant was not served with. Parties can proceed with the said application. The respondents shall serve the applicant with the said application forthwith or after considering what is deponed therein any of the parties can file another application to confirm the grant, with their proposed mode of distribution, only if their counsels are in agreement that there is a need to do so after considering the application on record which was filed by the respondents. The court will give directions once the application is filed if need be. If they are not in agreement on the mode of distribution and the administrators opt to proceed with the application on record, parties are at liberty to file only their respective modes of distribution within 30 days from the date of this Ruling. This being a family matter there shall be no order as to costs.

DATED, SIGNED,AND DELIVERED AT BUNGOMA VIA MICROSOFT TEAM THIS 19TH DAY OF OCTOBER 2023. R.E OUGOJUDGE