REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

SUCCESSION CAUSE NO. 543 OF 2002

IN THE MATTER OF ESTATE OF JOSHUA MUNYI (DECEASED)

KIRIGI NJERU NJOKA..............................................PETITIONER/RESPONDENT

VERSUS

SEPHETH JOSHUA.........................................................................1ST APPLICANT

ANDREW MUCHIRI MUNYI........................................................2ND APPLICANT

RULING

A. Introduction

1. Before this court is an application filed by the applicants herein and wherein they seeks for orders that;-

a. That the confirmed grant issued on 14.05.2015 in respect of the estate of Joshua Munyi herein be revoked/ annulled.

b. That the resultant land parcel No. Kyeni/Kigumo/7875, 7876, 7877, 7878, 7879, 7880 and 7881 be cancelled to revert back to the original land parcel No. Kyeni/Kigumo/1592.

c. That the costs be awarded to the applicants.

2. The application is premised on the grounds on its face and further supported by the affidavit sworn by the 1st applicant. In a nutshell, the applicants’ case is that they are the sons of the deceased herein. That despite their mother one Naomi Muia Munyi and their brother Kilonzo Munyi having filed protest in this cause, the grant was confirmed before the said protests were heard and determined. Further that the respondent herein filed for substitution of her deceased husband (David Munyi Kamande) who was the initial administrator and applied for confirmation of the grant and which application was allowed and the estate shared between the respondent and her children.

3. It was deposed further that the respondent did not disclose to the court that the deceased had other sons who were entitled to the estate of the deceased. That she was able to have the land parcel No. Kyeni/Kigumo/1592 (the only remaining estate of the deceased) and which she was able to sub-divide into land parcel No. Kyeni/ Kigumo/7875, 7876, 7877, 7878, 7879, 7880 and 7881 and which she shared with her children. Further that the grant was obtained by making of false allegations with the intentions of gaining unlawfully whereas they are entitled to a share of the estate. As such they prayed the said grant be revoked so that the resultant titles can be cancelled and the land to revert back to the original title number.

4. The application is opposed vide a replying affidavit sworn on 18.01.2018 and wherein the respondent deposed that she was the legal representative of one David Munyi Kamande who was in conduct of the instant matter and the administrator of the estate herein. The synopsis of the replying affidavit is basically that the applicants herein through their deceased father (the deceased herein) were given other land parcels with land parcel No. Kyeni/Kigumo/ 204 going to the 1st applicant, land parcel No. Kyeni/ Kigumo/1558 going to the 2nd respondent and one Timothy Joshua got land parcel No. Kyeni/Kigumo/1577. That the suit land herein was left for her family as the legal representative of the applicants’ deceased husband who was living with the deceased herein.

5. Directions were initially given that the application be canvassed by way of viva voce evidence and in compliance therewith, the applicants filed their witness statements. However, further directions were taken by consent that the application be canvassed by way of affidavits and submissions and wherein each of the parties herein submitted in support of the rival positions thereof in the pleadings.

6. The applicants reiterated that the respondent did not disclose to the court that she had brothers in law who were beneficiaries of the estate herein and who ought to have been present during the confirmation of the grant. As such, there was nothing to stop the applicants from challenging the said grant since it was confirmed in their absence. Further, the fact that the applicants have land elsewhere does not mean that they were not entitled to a share of their father’s estate who died intestate and that it is not disputed that the respondent shared the estate as between herself and the grandchildren of the deceased and left out the applicants who were the sons of the deceased.

7. On her part, the respondent maintained that the applicants had benefited from other land parcels which belonged to the deceased and that the suit land herein was reserved for her deceased husband. That, it is pursuant to this, that she was able to have the same sub-divided and given to her sons and a fact which the applicants were aware of and that there was no fraud or concealment of material facts. Further that as a result of the said sub-division, the suit land herein is non-existent and not available for distribution.

8. I have considered the application herein together with the respondents’ replying affidavits on record. I have also considered the rival written submissions.

9. The said application is brought under Section 76 of the Law of Succession Act Cap 160 Laws of Kenya and Rule 44 of the Probate and Administration Rules 1980. Section 76 (a)- (d) provides for revocation of grant and the circumstances under which a grant of representation may be revoked. However, from the perusal of the application herein, the applicant’s ground for seeking the revocation is mainly that the respondent did not disclose as to their existence as the sons of the deceased.

10. As such, it is clear that the application is premised on the provision of section 76(c) and which provides that a grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by an interested party or of its own motion on the grounds either that the grant was obtained fraudulently by making of a false statement or by the concealment from the court of something material to the case.

11. It is trite, however, that the power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds but not to be exercised whimsically or capriciously. (See Albert Imbuga Kisigwa –vs- Recho Kavai Kisigwa, Succession Cause No.158 OF 2000). As such, for a grant to be revoked/annulled, the grounds as provided for under section 76 ought to be proved with evidence. Even when revocation is by the court upon its own motion, there must be evidence to satisfy the grounds for revocation of grant (See Matheka and Another –vs- Matheka [2005] 2 KLR 455). As such, any party making an application for revocation or annulment of a grant has a statutory duty to demonstrate the existence of any, some or all the ground(s) which he relies on in challenging the grant.

12. It is not disputed that the applicants are the sons of the deceased. The respondent did not dispute the same but only asserted that they had already benefitted from the deceased during his lifetime. The date of the death of the deceased herein (6.07.1991) is further not disputed. The deceased having died on 6.07.1991 and which was after the coming into effect of the Law of Succession Act Cap 160 of the Laws of Kenya, it therefore means that the said Act is the applicable law in the instant matter by virtue of section 2(1) therein.

13. As I have already noted, the ground in support of the applicant’s application is that the applicants were never involved in the succession cause and as such the respondent was able to have the whole of the suit land herein transmitted to herself and her sons. (They deposed that the respondent herein was able to substitute her deceased husband as the administrator and proceeded to sub-divide the estate without involving them). As such, the applicants’ case is premised on the process of confirmation of the grant herein. In fact, prayer No. 1 in the application is couched in the terms that “the confirmed grant issued on 14.05.2015 in respect of the estate of Joshua Munyi herein be revoked/ annulled.” The cited date is the date of confirmation of the grant.

14. As I have regularly opined and which position I will still take, from the reading of section 76, the same allows for revocation of grant before or after confirmation. However, the conditions under which revocation can be done are clearly limited to obtaining of the said grant (where the proceedings to obtain the grant were defective in substance; and/or where 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; and/ or where 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).

15. What is clear from the above analysis is that revocation proceedings can only be limited to the process of up to issuance of the grant such that even where non-disclosure of material facts or where fraud is alleged, the same can only be limited up to the stage of issuance of the grant. As the Learned Judge in re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR; -

“16. Section 76 of the Law of Succession Act has nothing to do with confirmation of grants. It carries no provisions which relate to what a court should do with confirmation orders or certificates of confirmation of grant. Indeed, the provision says nothing about the powers prescribed in it being used for the purpose of the court intervening in the confirmation process, once orders are made on a confirmation application. The only connection between confirmation of grants and revocation of grant is that set out in section 76 (d) (i) of the Law of Succession Act. It has nothing to do with a grant having been confirmed, rather it deals with situations where a personal representative or holder of a grant or administrator has failed to apply for confirmation of their grant. Section 76 of the Act relates to confirmation of grants to that very limited extent, not with confirmation itself, but the failure to apply for confirmation. A person who is aggrieved by the orders made with respect to a confirmation application, which are encapsulated in the certificate of confirmation of grant, has no remedy under section 76 of the Law of Succession Act, for that provision does not envisage revocation of certificates of confirmation of grants.

I have very closely perused through the provisions of the Law of Succession Act, and I have not come across any provision that provides a remedy to a person who is aggrieved by confirmation orders. Sections 71, 72 and 73 of the Law of Succession Act, which deal with confirmation of grants, do not address the question of redress for parties who are unhappy with the confirmation process, nor do they deal generally with flaws in the confirmation process. As stated above, section 76 has nothing to do with the confirmation process, and provides no relief at all to any person unhappy with the confirmation process. In the absence of any provision in the Law of Succession Act, for relief or redress for persons aggrieved by such orders, the aggrieved parties have only two recourses under general civil law, that is to say appeal and review, to the extent that the same is permissible under the Law of Succession Act. I would believe that one can also apply for the setting aside or vacating of confirmation orders, where the same are obtained through abuse of procedure…….”

16. The Learned Judge In re Estate of Juma Shitseswa Linani (Deceased) [2021] eKLR held that where a person is unhappy with the process of confirmation of grant, such a person ought not to move the court under section 76 for revocation of grant. Instead, the person should file an appeal against the orders made by the court on distribution or apply for review of the said orders. This is because the court confirming a grant largely becomes functus officio so far as confirmation of the grant is concerned, and cannot revisit the matter unless upon review.

17. In the instant case, it appears that the applicants premised their application on the process of confirmation of the grant. That being the case, it therefore means that the grant herein cannot be revoked on the said grounds. The applicants ought to have applied for review of the orders confirming the grant.

18. However, the above notwithstanding, this court notes that the applicants raises a weighty issue as to whether they were entitled to inherit the deceased’s estate herein. This court is bestowed with jurisdiction to determine any dispute which comes before it in relation to an estate of the deceased (see section 47 of the Law of Succession Act) and further the inherent powers to make orders so as to make the ends of justice meet or to prevent abuse of the process of the court. (See Rule 73 of the Probate and Administration Rules 1980). 

19. In my view, if the issues raised herein can amount to grounds for review of the orders of 14.05.2015, the court cannot give a blind eye to the same and proceed to dismiss the application herein just because the applicants did not expressly seek review of the said orders. Then what can this court do in the circumstances?

20. I will seek refuge in the Court of Appeal’s decision in Kenya Power & Lighting Company Limited –vs- Benzene Holdings Limited t/a Wyco Paints [2016] eKLR. In this case, the Learned Judges of Appeal held that; -

“The extent of inherent powers of the court was eloquently explained by the authors of the Halsbury’s Laws of England, 4th Edn. Vol. 37 Para. 14 as follows;

“The jurisdiction of the court which is comprised within the term “inherent” is that which enables it to fulfil itself, properly and effectively, as a court of law. The overriding feature of the inherent jurisdiction of the court is that it is part of procedural law, both civil and criminal, and not part of substantive law; it is exercisable by summary process, without plenary trial; it may be invoked not only in relation to the parties in pending proceedings, but in relation to anyone, whether a party or not, and in relation to matters not raised in litigation between the parties; it must be distinguished from the exercise of judicial discretion; it may be exercised even in circumstances governed by rules of court. The inherent jurisdiction of the court enables it to exercise control over process by regulating its proceedings, by preventing the abuse of the process and by compelling the observance of the process … In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.” See also Meshallum Waweru Wanguku (supra)

This inherent jurisdiction is a residual intrinsic authority which the court may resort to in order to put right that which would otherwise be an injustice…”

21. Where a party abuses the procedure/process of the court this court ought to invoke the inherent powers so as to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between the parties. The said powers can be invoked even in relation to matters not raised in litigation between the parties. In the circumstances of the case herein, it is my view that this court can to invoke its inherent powers and review the orders of 14.05.2015 as it has jurisdiction to review confirmation orders in succession as was recognized by the court in re Estate of Prisca Ong’ayo Nande (Deceased) (supra) and in re Estate of Juma Shitseswa Linani (Deceased) [2021] eKLR.

22. The question therefore is whether the applicants have made a case for review of the confirmation orders of 14.05.2015.

23. Review of decisions of a probate court is governed by Rule 63 of the Probate and Administration Rules, which imports Order 45 of the Civil Procedure Rules in probate matters. An application for review in succession proceedings can be brought by a party to the proceedings, a beneficiary to the estate or any interested party. However, the application must meet the substantive requirements of an application brought for review set out in the said Order 45 of the Civil Procedure Rules (See John Mundia Njoroge & 9 Others vs. Cecilia Muthoni Njoroge & Another [2016] eKLR).

24. The requirements under Order 45 are to the effects that, to be successful, the applicant must demonstrate to the court that; -

a. There has been discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed; or

b. That there has been some mistake or error apparent on the face of the record; or

c. That there is any other sufficient reason.

25. In the instant case, the applicants did not demonstrate as to there being discovery of new and important matter or evidence which, after the exercise of due diligence, was not within their knowledge or could not be produced by them at the time when the decree was passed. There was no deposition in that respect. The applicant’s case is however premised on their non- involvement in the process yet they are sons of the deceased. They blamed the respondent for failing to disclose their existence to the court. Can this be said to be “some mistake or error apparent on the face of the record” and/ or “any other sufficient reason”?

26. The Court of Appeal in Muyodi vs. Industrial and Commercial Development Corporation & Another (2006) 1 EA 243 considered what constitutes a mistake or error apparent on the face of the record, and stated as follows:

“In Nyamogo & Nyamogo vs Kogo (2001) EA 174 this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal.”

27. Mativo J in Paul Mwaniki v National Hospital Insurance Fund Board of Management [2020] eKLR) while determining an application for review and which had been filed in the ordinary civil suit (and which decision I agree with) held that;-

“37. The term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Act. Put it differently an order, decision, or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision.

The wisdom flowing from jurisprudence on this subject is that no error can be said to be apparent on the face of the record if it is not manifest or self-evident and requires an examination or argument to establish it. In the instant case therefore, I find and hold that there is no error apparent on the face of the record.

Review is impermissible without a glaring omission, evident mistake or similar ominous error. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by an order or review…”

28. To start with, the respondent filed an application dated 25.11.2014 seeking substitution on behalf of her husband David M Kamande (as he was deceased) having died on 30.12.2013. The application was allowed vide the orders of 8.12.2014 by Hon. Muchemi J. The orders of the court were to the effect that; -

“Application dated 25.11.2014 is hereby allowed that the applicant substitute the deceased petitioner.”

29. What the above orders mean is that the respondent stepped into the shoes of her deceased husband as the administrator of the estate of the deceased herein. She did not become the administrator of the estate of her husband. It therefore means that she ought to have served the application for confirmation of grant upon the applicants herein (being the beneficiaries of the estate of the deceased) just like her husband would have been required to do. This is a legal requirement by dint of Section 71 of the law of Succession Act and Rule 41 of the Probate and Administration Rules.

30. However, the record reveals and in fact it is not disputed that the applicants herein did not attend court on the day of the confirmation of the grant. What is clear from the record is that the respondent’s husband had filed an application dated 18.09.2012 seeking confirmation of grant. From the record, it appears that the matter was on 11.01.2013 fixed for confirmation and the confirmation date being 27.07.2013. However, nothing proceeded on the said date. What followed was the fixing of the hearing date for the application dated 25.11.2014 seeking substitution of the respondent on behalf of her deceased husband. On 26.01.2015, the application of 18.09.2012 was fixed for hearing on 4.05.2015. The proceedings for the said date indicate that a Mr. Mwai appeared for the applicant and the court made an order that;-

“There being no objection, the grant is hereby confirmed in terms of the further affidavit sworn on 26.10.2015 by Kangi Njeru Njoka. Certificate to issue.”

31. In the further affidavit, the estate was distributed amongst the beneficiaries listed therein and who it was deposed, were children of the respondent’s husband (deceased). The said beneficiaries benefitted from the estate of their grandfather whereas the children of the deceased (applicants herein included) were still alive. It is trite that grandchildren of the deceased intestate can only inherit where their parents are deceased. Further, such grandchildren can only inherit their parent(s)’ share. As such, despite the respondent having been substituted as administrator in the place of her husband, she took over the office of administration of the estate of her father-in-law and whose beneficiaries were the applicants herein. She definitely had to involve them and inform them when distributing their father’s estate.

32. The respondent deposed as to the applicants having benefitted from their deceased father. She attached green cards for land parcel No. Kyeni/Kigumo/1557 and land parcel No. Kyeni/Kigumo/1577 in support of these deposition. I have perused the said green cards and indeed it is clear that the same were registered in the year 1961 and neither of them was issued to the deceased herein and later transferred to the applicants. As such, there is no evidence as to the applicants having been given land by the deceased herein so as disentitle them of the deceased’s estate. Further, even if that were the case, the respondent had the legal duty of informing the applicants of the application for confirmation of grant.

33. It is my considered view that there was indeed an error apparent on the face of record by the court allowing the distribution of the estate of the deceased herein to his grandchildren without involving the applicants herein yet they are the immediate beneficiaries. The said error was on a substantial point of law which stares this court in its face. As such a clear case of error apparent on the face of the record is definitely conspicuous. As such, the orders made confirming the grant by this court are a candidate for review.

34. It is also worth noting that the respondent obtained the letters of administration by substituting her deceased husband. The said deceased husband had become the administrator after substituting his mother (spouse to the deceased herein). The said spouse of the deceased was a sole administrator of the estate of the deceased herein. It is trite law that where there is a sole administrator, his or her death makes the grant made to such administrator becomes useless and inoperative, and only exists for the purpose only of being revoked. Such grant is revocable under section 76 of the Law of Succession Act. In John Karumwa Maina –vs- Susan Wanjiru Mwangi [2015] eKLR the Court (A.O Muchelule J) held;

“In the case of Florence Okutu Nandwa & Another Vs John Atemba Kojwa, Court of Appeal Civil Appeal in Civil Appeal No. 306 of 1998 at Kisumu where it was held that a court should not issue a grant to a person who has not sought for it. The judge stated as follows:-

“A grant of representation is made in personam. It is specific to the person appointed. It is not transferable to another person. It cannot therefore be transferred from one person to another.

The issue of substitution of an administrator with another person should not arise. Where the holder of a grant dies, the grant made to him becomes useless and inoperative, and the grant exists for the purpose only of being revoked. Such grant is revocable under section 76 of the Law of Succession Act. Upon its revocation, a fresh application for grant should be made in the usual way, following procedures laid down in the Law of Succession Act and the Probate and Administration (Rules). I agree with the respondent that there cannot be a substitution of the dead administrator by his wife in the manner proposed by the applicant.”

35. In Julia Mutune M’mboroki v John Mugambi M’mboroki & 3 others [2016] eKLR the Court held;

There is absolutely no room of substitution of the deceased administrator under the Law of Succession Act.  In my view, therefore, where the sole administrator is a natural person, and he or she dies, the grant becomes useless or inoperative by reason of subsequent event of his demise…..

Accordingly, in such case, the proper procedure is to apply for revocation of grant of letters of administration under section 76(e) of the Law of Succession Act on the reason that the grant has become useless and inoperative through subsequent circumstances and a grant to be made to another person named in the application.

(See also In re Estate of Popp Hans Joachim Ernst Gustav (Deceased) [2018] eKLR and In the Matter of the Estate of Mwangi Mugwe alias Elieza Ngware (Deceased) [2003] eKLR).

36. What the above authorities (and which I find persuasive) mean is that there can be no substitution of an administrator by way of filing an application for substitution.  For one to be appointed an administrator, he or she must follow the process under the Law of Succession Act and the Probate and Administration Rules. An administrator coming on record through an application for substitution will not be properly on record and grant issued would easily be revoked as the proceedings to obtain it were defective in substance. (See In re Estate of Muroko Kimitu - (DCD) [2019] eKLR).

37. It therefore means that the respondent herein could not have been substituted as an administrator of the estate of the deceased and neither could her husband have been. There was therefore an error apparent on the face of the record by the court proceeding to confirm the grant which was non-existence in law.

38. I believe that I have said enough to prove that indeed there was an error apparent on the face of the record in the sense that there was no valid grant which was capable of being confirmed and further that the applicants herein were never involved in the process of confirming the said grant yet they were beneficiaries of the estate herein. As such, the confirmation proceedings are a candidate for review and thus the said orders ought to be reviewed and be set aside.

39. Further, having found that the respondent did not hold the grant lawfully (as there was no grant to be transferred to her), the court hereby invokes its inherent powers and proceeds to revoke the same for the reasons that the process of obtaining the same was defective in substance. This is in recognition of the fact that the court has jurisdiction to revoke a grant suo moto under section 76 of the Law of Succession Act.

40. In exercise of the discretion bestowed upon this court under section 66 of the Law of Succession Act, the Court ought to issue a new grant to the respondent.

41. The respondent should then proceed to file for confirmation of grant serve the application upon all the beneficiaries of the estate of the deceased herein (including the applicants).

42. The applicants and all the other beneficiaries should then file their protest (if any) within 30 days upon service of the application after which the application should be fixed for hearing.

43. The confirmation orders being a subject of review and/ or setting aside and further the grant issued to the respondent having been obtained in a process defective in substance and thus having been revoked, it therefore means that any title obtained pursuant to the said confirmation orders and as a result of the said grant are null and void and have no legal force. As such, the titles to the said resultant sub-divisions being land parcel No. Kyeni/Kigumo/7875, 7876, 7877, 7878, 7879, 7880 and 7881 are cancelled and the land to revert back to the original land parcel No. Kyeni/ Kigumo/1592.

44. The applicants further prayed for the costs of the application. However, I note that the respondent is a sister-in-law to the applicants and as such, the dispute involves family members. In exercise of the discretion bestowed upon this court in awarding costs, and in the circumstances of the case, each party should bear his or her own costs.

45. As such and in conclusion, considering all the above, the court makes the following orders; -

1. That the orders of 4.05.2015 be and are hereby reviewed and/ or set aside.

2. That the orders of 8.12.2014 substituting the respondent in place of David Kamande Munyi (deceased) be and are hereby set aside.

3. That the grant made to the respondent on 8.12.201 be and is hereby revoked

4. That a fresh grant be and is hereby issued to the respondent herein

5. That the respondent be and is hereby ordered to file for confirmation of grant and serve the said application upon all the beneficiaries of the estate of the deceased herein (including the applicants).

6. That the applicants and/ or all the other beneficiaries shall be at liberty to file their protest within 21 days upon service of the application.

7. That upon the expiry of the said thirty (21) days the respondent shall fix the application for confirmation of grant for hearing.

8. That the resultant land parcel No. Kyeni/ Kigumo/ 7875, 7876, 7877, 7878, 7879, 7880 and 7881 be and are hereby cancelled and the land to revert back to the original land parcel No. Kyeni/ Kigumo/1592.

9. That each party to bear his or her own costs.

46. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 29^TH DAY OF SEPTEMBER, 2021

L. NJUGUNA

JUDGE

.................................................for the Applicant

..............................................for the Respondent