Issues, Analysis and Determination
9.I have looked at the Memorandum of appeal, the proceedings taken before the trial court, the judgment and the submissions offered in this appeal and identify the sole issue for determination to be whether the trial court erred in revoking the grant issued on 19/1/2022.
10.The application for revocation of grant was premised on the ground that the input of the applicant, as a son to the deceased, was not sought and that persons who are not beneficiaries by reasons of being dependants were named as such beneficiaries.
11.A perusal of the file show that the Respondent was indeed acknowledged as a son to the deceased in both the petition and the letter of introduction by the area chief. That the chief is related to a person named as beneficiary does not deprive him the authority and legitimacy to author the letter in his capacity as the chief.
12.It is also the finding of the court that in disclosing the persons in actual occupation of the deceased’s estate to the court, the petitioner was not misleading the court but disclosing all facts that could emerge in the course of the cause. That act cannot be viewed as a concealment of material facts but indeed a full disclosure. In fact, the 7 persons are not listed in the petition as beneficiaries but rather as persons occupying the land and could have a claim thereon. The court finds that there was no nondisclosure of any material facts as to invite the annulment of the grant.
13.However, having been acknowledged by the petitioner to be a son to the deceased, he stood in pari passu with the petitioner, his consent was indispensable with. To the extent that the no consent was obtained from the respondent, the procedure by which the grant was obtained was defective in substance and in contravention of section 66 as read with Rules 7 and 26 of the probate and administration Rules hence the grant could not stand but called for revocation as the trial court did.
14.For the above reasons, the trial court cannot be faulted on the decision to revoke the grant.
15.However, following the revocation, the trial court was obligated to issue directions on how to proceed with the cause. It failed to do so.
16.It is the courts learning that once a grant has been issued, wherever it is faulted and revoked or annulled at the instance of a person interested in the estate, every effort needs to be made to ensure that there is not created a lacuna in the office of the administrator.
17.In this matter it was clear to all that the immediate heirs to the estate were the two disputants. The administrator had acknowledged the objector as a brother. It was desirable and necessary that the administration be concluded rather than stalled.
18.Considering the fact that the respondent is a person entitled to reasonable provisions, being a son to the deceased, the appropriate order should have been to revoke the grant and appoint the two feuding brothers as joint administrators.
19.It is on that basis that the court finds that while the trial court was apt and beyond fault for revoking the grant, it fell into error in leaving the estate unattended. For that error, this court being a first appellate court, proceeding by way of a retrial, makes the following orders:a.The order revoking the grant is upheld but the Court appoints Humphrey Muchibi Muyaya and Evance Otieno Muyaya as joint administrators.b.The two are directed to file fresh summons for confirmation of grant, either jointly or severally, within 30 days from today.c.The Respondent is declared a beneficiary to the estate entitled to participate in the distribution of the estate and to get his due shares.d.This being a dispute between brothers, there shall be no order as to costs.e.Let the trial court file be remitted back to that court within 7 days from today to enable the ordered proceedings be undertaken expeditiously.
20.The question on why and how the persons named in paragraph 6 of the Affidavit in support of Petition for Grant of Letters of Administration, sworn by the appellant, if not already determined elsewhere, may be determined by the trial court, if the same falls within its jurisdiction.