5.This is a first appeal. From the foregoing analysis, it is my view that the Appellant’s appeal is merited. The role of the first appellate court is stated in many authorities. In Kiilu and another vs. R (2005) 1 KLR 174 the court held that:
6.This cause relates to the estate of Marete Mwerebua (deceased) who died intestate on 8th April, 2004. A grant of letters of administration intestate in respect of the deceased’s estate was issued to the Appellant herein on 16th July, 2018. Consequently, vide Summons for Confirmation of Grant dated 11th May, 2021, the Appellant sought for the confirmation of the aforesaid grant issued to him in the following terms:and Parcel No. L.R. Mwimbi/Chogoria/3856 – 4.64 Hai.Miriti Marete - 2 Acresii.Gerald Kabii Marete - 2 ½ Acresiii.Gilbert Mugambi Marete - 2 Acresiv.John Mwenda Kithinji - 2 Acresv.Grace Igoji Marete - ½ Acresvi.Dores Jiomba Marete - ½ Acresvii.Agness Kanyua Marete - ½ Acresviii.Celina Wanja Kaaria - ½ Acresix.Kelvin Murimi Mbae - ½ Acresx.Joses Ndiga Mbae - ½ Acresxi.Catherine Muthoni Maretexii.Mercy Nkinga Maretexiii.Allison Gatune Marete jointly to get ½ Acresxiv.Fridah Nkirote Marete
7.The Respondent herein then filed an Affidavit of Protest sworn on by herself on 25th January, 2022. She protested against the mode of distribution proposed by the Appellant on the grounds that:a.No beneficiary of the estate of the deceased had consented to the said mode of distribution as proposed by the Appellant.b.The Appellant did not involve them during the filing of the summons of confirmation of grant.c.The said mode is discriminatory and biased in that some are getting a larger part of the deceased’s estate while others are getting a small piece.d.The consent filed by the Appellant dated 11th May, 2021 is not the correct consent for they did not have a chance to read the mode of distribution before signing the consent for the Appellant only brought the consent alone for them to sign.
8.The Respondent thus proposed the distribution of the subject estate as follows:Land Parcel No. L.R. Mwimbi/Chogoria/3856 – 4.64 Haxv.Miriti Marete - 1.50 Acresxvi.Gerald Kabii Marete - 1.50 Acresxvii.Gilbert Mugambi Marete - 1.50 Acresxviii.John Mwenda Kithinji - 1.50 Acresxix.Grace Igoji Marete - 0.50 Acresxx.Dores Jiomba Marete - 0.50 Acresxxi.Agnes Kanyua Marete - 0.50 Acresxxii.Celina Wanja Kaaria - 0.50 Acresxxiii.Kelvin Murimi Mbae - 0.50 Acresxxiv.Joses Ndiga Mbae - 0.50 Acresxxv.Catherine Muthoni Marete - 0.50 Acresxxvi.Mercy Nkinga Marete - 0.50 Acresxxvii.Allison Gatune Marete - 0.50 Acresxxviii.Fridah Nkirote Marete - 0.50 Acres
9.In this appeal, the Appellant states that he is aggrieved by the process of the confirmation of the grant by the subordinate court. The Appellant contends that the protest filed by the Respondent was not heard. The Appellant thus faults the trial court for adopting the Respondent’s proposal on the mode of the distribution of the estate and failing to consider that the deceased had prior to his demise distributed his estate to his children through inter vivos gifts.
10.It is not in dispute that the estate of the deceased is comprised of a single land parcel the same being L.R. Mwimbi/Chogoria/3856.
11.The procedure to be followed at the hearing of an application for confirmation of grant is provided under Rule 41 of the Probate and Administration Rules (the “Rules”). Sub-rules (1) and (2) of Rule 41 of the Rules provide as follows:
12.I have perused the record of proceedings before the lower court. I note after the summons for confirmation of grant were filed on 11th May, 2021, one of the beneficiaries of the deceased’s estate, Agnes Kanyua, indicated to the court on 8th November, 2021 that Mercy Nkunga, Gatua Marete, Grace Igoji and Doris Jiomba were all opposed to the distribution of the estate. The learned magistrate then directed that those opposed to the proposed mode of distribution to file their objections within 14 days and the matter was given a mention date on 26th January, 2022. The Respondent then filed her affidavit of protest on 25th January, 2022. The following day when the matter was set for a mention, the learned magistrate indicated that she had seen the affidavit of protest and proceeded to give a ruling date on 16th March, 2022. On 16th March, 2022, the learned magistrate then delivered the impugned ruling which is the subject of this appeal.
13.Without going into the merits of the summons application for confirmation of grant, it is clear from a reading of the provision of Rule 41(1) of the Rules that the subordinate court erred for failing to give the Appellant a chance to argue his case through a full hearing once the affidavit of protest was filed by the Respondent. It follows that the confirmation process was flawed as it did not follow the laid down legal procedure for hearing of applications for confirmation of grants and should therefore not be allowed to stand. It is clear from the impugned ruling that the trial magistrate found that the beneficiaries had not consent were not involved in filing of the summons and the proposed mode of distribution was discriminatory. The beneficiaries were not given an opportunity to be heard. It is important that the protest be heard on merits.