1.The Petitioner who is a widow of the deceased filed a petition date d September 6, 2017 for Letters of Administration to the estate naming herself and her four children Samuel Kithure M’Mujuri, Benson Kinyua Mujuri, Silas Kirimi M’Mujuri and Samson Kithinji M’Mujuri as the survivors. The record shows that the trial court made the Grant of Letter of Administration dated January 9, 2018 and on application dated July 1, 2018 confirmed the Grant in terms of the Consent dated 3July 1, 2018 signed by all the beneficiaries. Before the Confirmed Grant could be issued, the Appellant joined by his sister, both who claimed as children of the deceased by another wife made an application dated August 22, 2018 seeking primarily and Order for revocation of Grant together with ancillary orders, as follows:
2.The grounds of the application were set out in the application as follows:
3.The facts relied on by the Applicant (appellant herein) were set out in his supporting Affidavit of 28/8/20-18 as follows:
4.The Respondent field a Replying Affidavit sworn on 27th/2/2019 raising a principal defence that that the applicant’s family from the 1st wife of the deceased had been given their land during the life of the deceased and that the applicant had sold his portion, as follows:
5.The appellant filed a further affidavit of 7/3/2019 responding to the replying affidavit and stating as follows:
6.In support of the application, the 2nd applicant Monica Mwathimba filed an affidavit sworn on May 27, 2021 in support of the Application for revocation dated August 22, 2018 as follows:
7.Subsequently, Counsel for the appellant on 18/3/2021 moved and the Court so ordered as follows:-
8.In his report dated March 24, 2021 and filed on 25/3/2021, the Land Registrar Meru North gave an explanation as to the registration of the deceased’s land as follows:
9.The application never went to full hearing. After some unsuccessful attempt at settlement between the parties Counsel for the respondent on July 1, 2018 suggested and the court agreed and directed that “parties to file affidavits as mode of distribution of all the property left by the deceased within 7 days.”
10.The respective affidavits on mode of distribution filed by the applicants and the protestors were as follows:
11.When the matter next came up for hearing on 2/9/2021, the appellant unsuccessfully sought to cross-examine the petitioner in proceedings leading to reservation of the ruling on distribution, which is the subject of this appeal, set out in the record as follows:
12.The ruling of the court was to decline the equal sharing of the deceased’s estate as proposed by the appellant/protester on the ground that the beneficiaries had already well settled on their respective portions of estate land and therefore only to allow the accommodation of the applicants in estate by allocation given to them by the petitioner. The full text of the ruling is set out below:
15.In urging the appeal, the appellants’ Written Submissions dated March 8, 2023 addressed the principal questions whether there was sufficient evidence for the court to make the finding s of fact on which it based its decision and whether the distribution and the Confirmed Grant should be revoked as follows:
16.For the Respondent, by Written Submissions dated July 19, 2023 a case of convenience was set up that the court should not interfere with the distribution of the estate by the deceased’s second wife as the first wife’s children had been provided for during the life of the deceased and the respondent second wife had already shared the remaining estate to the children of her house, as follows:
17.The protestor Evangeline Kaaka Mwereria did not make any written submissions.
Issues for determination
18.What started as an application of revocation morphed by the conduct and consent of the parties into an application for distribution or confirmation of Grant with the petitioner filing the principal proposed mode of distribution and the applicant for revocation joined by the widow to one of the Petitioner’s children who supported the applicant’s application for revocation.
19.The only issue arising for the memorandum of appeal is whether the appellant was heard before the decision on distribution made in ruling of the trial court.
Duty of Succession Court on hearing of protest
20.Section 71 (2) of the Law of Succession Act mandates the succession court tohear and determine applications for confirmation of Grant as follows:
No opportunity to be heard
22.There were disputed and unclear matters of fact that the Court can only resolve upon hearing, with oral evidence and attendant cross-examination of the witnesses, namely:i.Whether the applicants had been provided for in the gifting inter vivos by the deceased, and consequently-ii.As alleged by the Respondent, whether the applicant had disposed his share of the land gifted to him by the deceased along with others.iii.As claimed by the 2nd applicant, as a female child of the deceased, no provision was made for her by the deceased inter vivos and upon his death in the succession proceedings before the court, and finally,iv.The entire size of the estate of the deceased, the beneficiaries and the respective shares of the beneficiaries, as required on an application for confirmation of grant, and taking into account the inter vivos gifts.
23.Rule 41 (2) of the Probate and Administration Rules, 1980 clearly require a hearing where, as here, there is conflicting allegations of fact, and the Court may “adjourn the hearing for further evidence to be adduced or make any other order necessary for satisfying itself as to the expediency of confirming the applicant as the holder of the grant or concerning the identities, shares and interests of the persons beneficially entitled and any other issue” including the issue, as here, of some beneficiaries gifted inter vivos.
24.The court declined the appellant’s request for cross-examination of the petitioner and, therefore, denied the appellant his right to be heard in accordance with Rule 41 of the Probate and Administration Rules and in further breach of the right to fair hearing under Article 50 (1) of the Constitution. Its decision was shocking, in view of the express request by the applicant’s counsel, and in contravention of the right to be heard under the applicable rules for the hearing of the application in the nature for confirmation of Grant before it and its decision on distribution must be set aside.
Distribution by way of accommodation of unprovided heirs unknown in law
25.Though convenient to make an order for the accommodation of missing or unprovided heirs, it is unknown in law that an heir entitled to inherit in equal shares with the other heirs to an estate may be required to accept to be accommodated by grant of a share less than equal to the other persons equally entitled to share in the estate. One child cannot be forced to accept a lesser share than his/her siblings. The mode of distribution of an intestate estate is clear under section 40 of the Law of Section Act to the children in equal shares with a share added for every surviving spouse who takes a life interest in the share.
Remand of case for trial most appropriate remedy
26.The court has been asked to distribute the estate, but it would suffer the same handicap that the trial court faced with evidence on the assets and the heirs and their respective portions occupied by them, whether by gift inter vivos, which ought to be taken into account in terms of section 42 of the Law of Succession Act or upon death of the deceased.
27.Consequently, the order that commends itself to this appellate court is to direct that the matter be fully heard before the trial court guided by the foregoing discussion and directions in the matter made herein. In view of this order, and so as not to prejudice the retrial, this court does not make any findings of fact on the disputed issues which shall be determined by the trial court in the rehearing.
28.Section 78 of the Civil Procedure Act provides for this course by direction for remand of the case to the trial court in terms as follows:
29.The Court shall also direct, pursuant to the overriding objective of the civil process under sections 1A and 1B of the Civil Procedure Act, that the proceedings in the trial court be had on priority basis in view of the time taken before this court on appeal.