(Being an appeal from the Order arising from the Ruling and order of Hon. G. W. Kirugumi, Principal Magistrate, delivered on 12/9/2022 in Kerugoya Magistrates Court Succession Cause No. E125 of 2020)
Background
1. The appellants Grace Wamwerua Kinyenye, Agnes Wanjiru Kamanda and the respondent Johnson Wanjohi Kinyenye together with Francis Ndambiri Kinyenye and Josphat Gachoki Kinyenye (now deceased) are all children of the deceased herein Wakariti Kinyenye.
2. The appellants filed this appeal through a memorandum dated 12/10/2022. The record of appeal was filed on 15/3/2023. This appeal seeks to challenge the trial court’s ruling dated 12/9/2022 in which the appellant’s summons dated 11/4/2022 seeking revocation of grant issued in the succession cause before the trial court was dismissed. The order given on 25/1/2025 for stay of execution extracted and exhibited at page 71 of the record of appeal is not the correct order appealed from though.
3. Agnes Wanjiru Kamanda the 2nd appellant was not party to the application that led to the impugned ruling. However, she filed a replying affidavit therein as a beneficiary of the estate and I believe she appears herein as a person affected by the ruling.
Grounds of appeal
4. The appellants were dissatisfied with the decision of the trial court dismissing their summons and now appeal to this court on the following grounds:
a) the learned trial magistrate failed in law and in fact in dismissing the application for revocation of grant and not (sic) for failing to find that the grant was obtained fraudulently by making of a false statement or by concealment from the court of something material to the case.
b) the learned trial magistrate failed in law and in fact in not finding that 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.
c) the learned trial magistrate failed in law and in fact in not considering and evaluating the evidence of the applicant for the revocation of the grant.
5. The appellants therefore pray that this court allows the appeal, the ruling appealed from be set aside in its entirety and an order for revocation of the confirmed grant be issued and/or the application for revocation of the grant be allowed.
Submissions
6. The appeal was disposed of by way of written submissions. The appellants filed their submissions through their advocate but the respondent who was appearing in person informed the court during mention before the Hon. Deputy Registrar on 26/6/2024 that he had no advocate to write for him the submissions. He was given more time to file the submissions. When the mater came up next on 19/7/2024 he informed the Deputy Registrar that he will not be filing submissions. It appears however that the Deputy Registrar did not remember this when she directed the respondent on 21/3/2025 to file submissions. The matter was then fixed for compliance on 25/4/2025. However, the file was placed before this court under the Rapid Results Initiative on 10/4/2025. Given that the respondent had expressly indicated that he will not be filing submissions, I do not think that he was prejudiced in any way by the matter being placed before this court to give a date for judgment before the mention date of 25/4/2025.
7. Learned counsel for the appellants submits that the proceedings to obtain the grant were defective in substance for two reasons. First, that the appellants had not given their consent and second that the proceedings were done secretly. Learned counsel submits that the learned trial magistrate reached her conclusion without considering the evidence by the appellants who had raised serious allegations of not having signed the consent forms and the carrying out of the succession cause without their knowledge or thought coercion with respect to the distribution of the estate.
8. Learned counsel cited the case of In the Matter of L.A.K. (Deceased) [2014] eKLR to support his submissions. The said case basically reiterates the grounds for revocation of a grant as provided under section 76 of the Law of Succession Act (Cap. 160) Laws of Kenya.
Duty of appellate court on a first appeal
9. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
10. I am well guided by these principles in the consideration and determination of this appeal.
Case before the trial court.
11. The record of the trial court shows that the 1st appellant Grace Wamwerua Kinyenye and the respondent Johnson Wanjohi Kinyenye petitioned for letters of administration, intestate of the estate of Wakariti Kinyenye (deceased). Each of them signed the petition in the presence of two sureties Kibunja Muriuki and John Njeru Njagi. Each of them also signed the affidavit of justification and the 1st appellant also signed the affidavit in support of the petition. The other beneficiaries Agnes Wanjiru Kamanda, Josphat Gachoki Kinyenye and Francis Ndambiri Kinyenye signed the consent to the making of letters of administration to a person of equal or lesser priority. All the documents are dated 27/11/2020.
12. The grant was issued to the 1st appellant Grace Wamwerua Kinyenye and the respondent Johnson Wanjohi Kinyenye on 26/1/2021. On 7/2/2022, one year after the grant was issued, the respondent filed a summons for confirmation of grant. The 1st appellant did not sign the summons and the affidavit in support of the summons. The respondent and Francis Ndambiri Kinyenye signed the consent to confirmation of grant but the 1st appellant and Agnes Wanjiru Kamanda did not. A new name of Margaret Wakuthi Gacoki was introduced in the consent to confirmation of grant. It is not disputed that this was the wife of Josphat Gachoki Kinyenye who from the ensuing proceedings had passed on although this is not indicated in the affidavit in support of the summons which still bore the name of Josphat as one of the beneficiaries.
13. There is no dispute that the only estate of the deceased identified for distribution was land parcel No. Mutira/Kirimunge/863 measuring 0.640 Ha. The consent indicated the mode of distribution of the land as follows:
a) Grace Wamwerua Kinyenye and Agnes Wanjiru Kamanda 0.30 Ha jointly and,
b) Johnson Wanjohi Kinyenye, Margaret Wakuthi Gachoki and Francis Ndambiri Kinyenye 0.34 Ha jointly.
14. On 22/3/2022 the trial court issued a certificate of confirmation of the grant, being satisfied that the other administrator and other beneficiaries had been duly served with the summons for confirmation.
15. I should pause here and point out that the office of administrator of a deceased’s estate, where there is more than one administrator appointed by the court, is one of a joint enterprise. It would appear that there was some misunderstanding and therefore lack of cooperation between the two administrators, Grace Wamwarua Kinyenye and Johnson Wanjohi Kinyenye.
16. In that case, if either of them felt that the other was probably hindering the process of administering the estate effectively, he or she should have applied to court to remove the other so as to enable the remaining one to proceed with the administration of the estate, in the event the other beneficiaries and the court agreed with him or her about the removal. The court process of administration of the estate by way of application for the certificate of confirmation of grant and other subsequent steps could not proceed without such an order. The trial court therefore erred in proceeding to consider and subsequently issue the certificate of confirmation of grant at the instance of one administrator when there were two.
17. For that reason, the certificate of confirmation of grant issued herein has to be and is hereby set aside.
18. The other reason for setting aside the certificate of confirmation of grant is that although Margaret Wakuthi Gacoki may have been identified to take the place of her husband Josphat Gacoki Kinyenye, it is not clear whether she had been appointed administrator of his estate. I have seen a certificate of death for Josphat Gacoki Kinyenye given on 15/3/2022 indicating the date of death as 8/12/2021 and a letter from the chief of Kanyeke-Ini location dated 16/3/2022 for the said Josphat Gacoki Kinyenye (deceased) indicating Margaret Wakuthi Gachoki was the wife of Josphat and that they had three adult children Lucy Muthoni Kariuki, Denis Murage Gacoki and Virginia Wanjoki Gacoki. If the process of succession of the estate of Josphat Gacoki Kinyenye was completed and Margaret was appointed as the administrator then that should appear in the affidavit in support of the confirmation of grant. At the time the summons for confirmation of grant was heard, there was no such deposition in the supporting affidavit and there was no supplementary affidavit bearing such deposition.
19. But that does not rest the application under consideration.
20. On 11/4/2022, the Grace Wamwerua Kinyenye, one of the appointed administrators filed a summons for revocation and annulment of grant issued to Johnson Wanjohi Kinyenye and cancellation of all subsequent orders arising therefrom and that the same be issued to Grace Wamwerua Kinyenye. The grounds in support are that:
a. the grant was issued through concealment of material facts by the respondent;
b. that the respondent signed for and on behalf of the other beneficiaries without their consent or knowledge; and
c. that the respondent and other beneficiaries had benefitted from the residue estate which is composed of the resultant of Mutira/Kirimunge/145.
21. The application was supported by the affidavit of Grace Wamwerua Kinyenye sworn on 11/4/2022.
22. The applicant deposed that:
a. she is one of the beneficiaries of the estate of the deceased but her name as petitioner was inserted to this cause without her knowledge to defeat justice.
b. the deceased’s estate comprises of land parcel number Mutira/Kirimunge/863 to Mutira/Kirimunge/868 which is a resultant subdivision of land parcel No. Mutira/Kirimunge/145.
c. the 2nd respondent had benefitted from the deceased’s estate during her lifetime leaving the residual estate to Grace Wamwerua Kinyenye and Agnes Wanjiru Kamanda, the applicants herein.
d. Margaret Wakuthii Gachoki wife to their late brother Josphat Gachoki Kinyenye (deceased) had also benefitted from the deceased’s estate and does not have the locus standi as personal representative of their late brother’s estate.
e. They had been issued with a notice of mention for directions dated 28/2/2022 and coming up on 14/3/2022 but later realized that the matter was coming up for confirmation of grant.
23. She ended her deposition by saying that it is in the interest of justice that the grant be not confirmed as she had protested against it.
24. Agnes Wanjiru filed a replying affidavit sworn on 16/6/2022. She deposes that the process of obtaining the grant was conducted behind her back by the respondent and signed and altered the documents without her knowledge or authority and filed them in court. She only came to learn of it upon being served with the application by the applicant dated 11/4/2022.
25. She deposes that the proposed subdivision of land parcel No. Mutira/Kirimunge/145 did not adequately provide for the beneficiaries as provided for under the law of succession. Further that she never benefited from the deceased’s property nor was she provided for during the sub-division of land parcel No. Mutira/Kirimunge/863. Further that the respondent had his share known as land parcel No. Mutira/Kirimunge/868 and sold it to strangers of which she was not a party. He has not come back to claim the remaining parcel. He therefore came to court with unclean hands by concealing material facts.
26. In effect, Agnes supported the applicant’s application.
27. Margaret Wakuthi Gachoki, one of the beneficiaries as per the certificate of confirmation of grant also filed a replying affidavit sworn on 16/6/2022. I am however not satisfied that this affidavit was sworn by her for the following reasons apparent on the face thereof.
28. She deposed that she is one of the daughters of Wakariti Kinyenye (deceased) and that the applicant and respondent are her brother and sister respectively. That is not correct because, as stated herein above, there is a letter from the chief indicating that she is a wife of Josphta Gachoki deceased. The applicant also referred to her as wife of their late brother. It would appear that this was a copy and paste work replicating the affidavit of Agnes apart from paragraphs 7 and 8 which are claimimg that she has no interest in the deceased’s estate as she was already benefitted from the dece’sed's other property land parcel No. Mutira/Kirimunge/866 and she has no claim in Mutire/Kirimunge/863.
29. The respondent filed his replying affidavit sowrn on 26/5/2022 in which he opposed the application. He deposed that he had the authority of his other brother Francis Ndambiri Kinyenye to swear the affidavit on his behalf as well.
30. He deposes that the applicant was involved in the whole process of succession and that is why she is a co-administrator of the estate and it is not true that they signed on behalf of the other beneficiaries.
31. He deposes that the original parcel of land parcel No. Mutira/Kirimunge/145 was subdivided into six portions viz:
a. Mutira/Kirimunge/863 – Wakariti Kinyenye.
b. Mutira/Kirimunge/864 – Nicholas Muriuki Kinyenye
c. Mutira/Kirimunge/865 – Kinyenye Karaba
d. Mutira/Kirimunge/866 – Josphat Gachoki Kinyenye
e. Mutira/Kirimunge/867 – Francis Ndambiri Kinyenye
f. Mutira/Kirimunge/868 – Johnson Wanjohi Kinyenye
32. He concedes as deposed by his sisters the applicant Grace and Agnes that he was duped into selling his portion of land and lost all the money in the process.
33. He deposes that the land the subject of the grant herein Mutira/Kirimunge/863 measuring 0.640 Ha belonged to their late mother and he utilizes half of the land which he occupies since 2004 while the applicant occupies the other half and there had never been any problems until their mother died. That their late brother Josphat Gachoki Kinyenye had agreed with this mode of distribution and the same should be maintained.
34. He thus prayed that the application should be dismissed.
35. In addition to the sworn affidavits, the learned trial magistrate took viva voce evidence from the applicant and Agnes on the one hand, the respondent on the other and also summoned the area chief Gilbert Karimi Mureithi who testified.
Trial court’s decision
36. The trial court found the issue for determination to be whether the applicant had proved on a balance of probability that there was concealment of material facts to warrant revocation of the grant as provided for under section 76 of the LSA.
37. Upon evaluating the evidence, the trial court found that the applicant had failed to prove that the grant was obtained through concealment of material facts from the court to warrant its revocation. The learned trial magistrate found that the applicant and Agnes were duly involved in the succession process from the beginning. That they were informed by the area chief who summoned them to his office prior to the filing of the petition. That one of their brothers went to Nakuru and informed Agnes about the impending succession cause. That on the date of confirmation of the grant, they were served with a mention notice to attend court for the confirmation of the grant but they did not come.
Analysis
38. The issues for determination are whether the applicant established her case for revocation of the grant and whether the learned trial magistrate was right in her dismissal of the summons for revocation of grant filed by the applicant.
39. The circumstances under which a grant may be revoked are provided for under section 76 of the LSA as follows:
A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—
a) that the proceedings to obtain the grant were defective in substance;
b) that 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;
c) that 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;
d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either—
i. to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
ii. to proceed diligently with the administration of the estate; or
iii. to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or
e) that the grant has become useless and inoperative through subsequent circumstances.”
40. This section was considered by the High Court in the case of In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR) where the court stated that:
“Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.”
41. The summons for revocation herein is premised on the ground that the grant was obtained through concealment of material fact and that the respondent signed for and on behalf of other beneficiaries without their consent or knowledge.
42. The applicant and Agnes maintain in their respective affidavits that they were not at all involved in the process of obtaining the grant. Evidence by their area chief shows that they were in fact involved as he called them to his office and explained to them that the process was to be undertaken. Their only issue at the time was that they should not be made to bear the cost of the succession. The respondent says that he indeed had to bear the cost. I have no reason to doubt the evidence from the chief and I find that the applicant and Agnes were aware of the commencement of the succession process.
43. The question is, did they then participate in it by signing the documents?
44. The documents filed in court show that they participated as their signatures appear where they are required. But the appellants deny any such participation, each of them alleging that her signature to the respective document was forged. The trial court did not seek to establish the correctness of this allegation, for instance by requesting for their respective national identification cards to compare the signatures thereon and those appearing on the documents filed therein.
45. I have noted that in fact, copies of the national ID cards of the applicant and Agnes are not part of the documents annexed to the affidavit in support of the petition. That is an indication that they did not provide them. The question is why? The answer would be because they did not participate in the process. I have also noted that whereas a written signature appears on the petition and affidavit in support of the petition, as that of the appellant Grace, on the summons for revocation and the supporting affidavit, she appended her fingerprint and not written signature. That indicates that her way of authenticating her documents is by way of fingerprint and not written signature. In her case, Agnes Wanjiru Kamanda signed with only one name, “Agnes” but in her replying affidavit to the summons, she signed with two names Agnes Wanjiru. These discrepancies raise a doubt as to whether indeed the two appellants participated in the process and they support their contention that they did not. The fact that they were informed that the process was going to take place cannot be taken to mean that they participated as alleged by the respondent.
46. The appellants and the respondent are siblings who rank both in equality of priorities in the estate, with all their other siblings. None ranks above the other. Rule 26 of the Probate and Administration Rules requires consent from persons of equal degree or priority to the petitioner. By dint of this section, the consent of the appellants was mandatory. They are children of the deceased herein and thus were persons of equal priority whose consent was required as they had not renounced their rights to petition for the grant. I note that Francis does not contest the grant. I have said that I am not satisfied that the widow of Josphat known as Margaret Wakuthii Gachoki swore the affidavit in support of the application for revocation of the grant herein.
47. The respondent maintains that all his siblings including the appellants were in the know of the process of succession. I have found that they may have been in the know but the appellants have satisfied this court that they did not participate. They had not renounced their right to petition for the grant and neither did the respondent issue a citation to them. Instead, he went ahead to obtain the grant using false information depicting that they were participants in the process. That cannot be countenanced by the court. I find that the trial court was in error to find that the applicant and Agnes had voluntarily participated in obtaining the grant. That finding is hereby set aside.
48. The grant having been issued irregularly I find that the learned trial magistrate was in error to dismiss the summons for revocation of grant.
49. Consequently, I find that the grant issued to the 1st appellant and the respondent herein which was given without all the children of the deceased having consented to the same or even without citation having been issued to them was defective in substance and the same ought to be and is hereby revoked.
50. The applicant prayed that upon revocation of the grant, she be appointed as the administrator of the estate of the deceased. It is apparent that the real issue in controversy among the beneficiaries and which led to the summons for revocation of the grant is the manner of distribution of the deceased’s estate. I do not think that the applicant and Agnes had any serious objection to the grant being issued to the Grace and the respondent. The issue is as contained in their respective affidavits, that the respondent and the other beneficiaries were not entitled to inherit in the subject parcel of land.
51. The discretion on who to appoint as an administrator of a deceased’s estate lies with the court even as it gives priority to the beneficiaries. Where there is more than one person with equal entitlement rights such as children of the deceased, the court has a discretion as to which of those individuals to appoint as administrator. The law, section 56 of the LSA permits that a maximum of four individuals may be appointed as administrators of a deceased’s estate. In order to expedite the process of administration of the estate herein I will remit the case to the magistrate’s court in order to conclude it with the following directions:
a. The trial court to consider issuing a fresh grant to four of the beneficiaries, among them the applicant and the respondent or in case they are in agreement by consent, to any two or even one of them.
b. The administrator(s) so appointed to file summons for confirmation of grant with the proposed mode of distribution of the estate. If the parties are in agreement, then the certificate of confirmation of grant can issue at once but if not then, step (c) will follow.
c. The trial court to refer the parties to Court Annexed Mediation (CAM) to try and settle the issue of distribution of the estate equitably.
d. If CAM is successful, then the decision will be adopted by the court and a certificate of confirmation of grant issued. If not, then any party dissatisfied with the proposed mode of distribution can file a protest and the matter will proceed for full hearing of the protest.
52. In the final analysis find that the appeal herein has merit and the same is allowed. The ruling of the trial court is set aside and substituted with an order allowing the application for revocation of grant as was prayed in the summons.
53. This being a family matter and in view of the fact that the respondent had borne the costs of the proceedings alone and that the process has to be carried to proper conclusion which will mean incurring more costs, I order that each party will bear his or her costs.
54. Mention before the Chief Magistrate, Kerugoya Magistrates Court or duty court at Kerugoya on 1/7/2025 for implementation of the orders herein.
Dated, signed and delivered on the Virtual Platform, Teams this 16th of June 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Gor for Appellants.
Respondent present in person in court and on virtual platform.
Job: Court Assistant.
Background
1. The appellants Grace Wamwerua Kinyenye, Agnes Wanjiru Kamanda and the respondent Johnson Wanjohi Kinyenye together with Francis Ndambiri Kinyenye and Josphat Gachoki Kinyenye (now deceased) are all children of the deceased herein Wakariti Kinyenye.
2. The appellants filed this appeal through a memorandum dated 12/10/2022. The record of appeal was filed on 15/3/2023. This appeal seeks to challenge the trial court’s ruling dated 12/9/2022 in which the appellant’s summons dated 11/4/2022 seeking revocation of grant issued in the succession cause before the trial court was dismissed. The order given on 25/1/2025 for stay of execution extracted and exhibited at page 71 of the record of appeal is not the correct order appealed from though.
3. Agnes Wanjiru Kamanda the 2nd appellant was not party to the application that led to the impugned ruling. However, she filed a replying affidavit therein as a beneficiary of the estate and I believe she appears herein as a person affected by the ruling.
Grounds of appeal
4. The appellants were dissatisfied with the decision of the trial court dismissing their summons and now appeal to this court on the following grounds:
a) the learned trial magistrate failed in law and in fact in dismissing the application for revocation of grant and not (sic) for failing to find that the grant was obtained fraudulently by making of a false statement or by concealment from the court of something material to the case.
b) the learned trial magistrate failed in law and in fact in not finding that 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.
c) the learned trial magistrate failed in law and in fact in not considering and evaluating the evidence of the applicant for the revocation of the grant.
5. The appellants therefore pray that this court allows the appeal, the ruling appealed from be set aside in its entirety and an order for revocation of the confirmed grant be issued and/or the application for revocation of the grant be allowed.
Submissions
6. The appeal was disposed of by way of written submissions. The appellants filed their submissions through their advocate but the respondent who was appearing in person informed the court during mention before the Hon. Deputy Registrar on 26/6/2024 that he had no advocate to write for him the submissions. He was given more time to file the submissions. When the mater came up next on 19/7/2024 he informed the Deputy Registrar that he will not be filing submissions. It appears however that the Deputy Registrar did not remember this when she directed the respondent on 21/3/2025 to file submissions. The matter was then fixed for compliance on 25/4/2025. However, the file was placed before this court under the Rapid Results Initiative on 10/4/2025. Given that the respondent had expressly indicated that he will not be filing submissions, I do not think that he was prejudiced in any way by the matter being placed before this court to give a date for judgment before the mention date of 25/4/2025.
7. Learned counsel for the appellants submits that the proceedings to obtain the grant were defective in substance for two reasons. First, that the appellants had not given their consent and second that the proceedings were done secretly. Learned counsel submits that the learned trial magistrate reached her conclusion without considering the evidence by the appellants who had raised serious allegations of not having signed the consent forms and the carrying out of the succession cause without their knowledge or thought coercion with respect to the distribution of the estate.
8. Learned counsel cited the case of In the Matter of L.A.K. (Deceased) [2014] eKLR to support his submissions. The said case basically reiterates the grounds for revocation of a grant as provided under section 76 of the Law of Succession Act (Cap. 160) Laws of Kenya.
Duty of appellate court on a first appeal
9. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
10. I am well guided by these principles in the consideration and determination of this appeal.
Case before the trial court.
11. The record of the trial court shows that the 1st appellant Grace Wamwerua Kinyenye and the respondent Johnson Wanjohi Kinyenye petitioned for letters of administration, intestate of the estate of Wakariti Kinyenye (deceased). Each of them signed the petition in the presence of two sureties Kibunja Muriuki and John Njeru Njagi. Each of them also signed the affidavit of justification and the 1st appellant also signed the affidavit in support of the petition. The other beneficiaries Agnes Wanjiru Kamanda, Josphat Gachoki Kinyenye and Francis Ndambiri Kinyenye signed the consent to the making of letters of administration to a person of equal or lesser priority. All the documents are dated 27/11/2020.
12. The grant was issued to the 1st appellant Grace Wamwerua Kinyenye and the respondent Johnson Wanjohi Kinyenye on 26/1/2021. On 7/2/2022, one year after the grant was issued, the respondent filed a summons for confirmation of grant. The 1st appellant did not sign the summons and the affidavit in support of the summons. The respondent and Francis Ndambiri Kinyenye signed the consent to confirmation of grant but the 1st appellant and Agnes Wanjiru Kamanda did not. A new name of Margaret Wakuthi Gacoki was introduced in the consent to confirmation of grant. It is not disputed that this was the wife of Josphat Gachoki Kinyenye who from the ensuing proceedings had passed on although this is not indicated in the affidavit in support of the summons which still bore the name of Josphat as one of the beneficiaries.
13. There is no dispute that the only estate of the deceased identified for distribution was land parcel No. Mutira/Kirimunge/863 measuring 0.640 Ha. The consent indicated the mode of distribution of the land as follows:
a) Grace Wamwerua Kinyenye and Agnes Wanjiru Kamanda 0.30 Ha jointly and,
b) Johnson Wanjohi Kinyenye, Margaret Wakuthi Gachoki and Francis Ndambiri Kinyenye 0.34 Ha jointly.
14. On 22/3/2022 the trial court issued a certificate of confirmation of the grant, being satisfied that the other administrator and other beneficiaries had been duly served with the summons for confirmation.
15. I should pause here and point out that the office of administrator of a deceased’s estate, where there is more than one administrator appointed by the court, is one of a joint enterprise. It would appear that there was some misunderstanding and therefore lack of cooperation between the two administrators, Grace Wamwarua Kinyenye and Johnson Wanjohi Kinyenye.
16. In that case, if either of them felt that the other was probably hindering the process of administering the estate effectively, he or she should have applied to court to remove the other so as to enable the remaining one to proceed with the administration of the estate, in the event the other beneficiaries and the court agreed with him or her about the removal. The court process of administration of the estate by way of application for the certificate of confirmation of grant and other subsequent steps could not proceed without such an order. The trial court therefore erred in proceeding to consider and subsequently issue the certificate of confirmation of grant at the instance of one administrator when there were two.
17. For that reason, the certificate of confirmation of grant issued herein has to be and is hereby set aside.
18. The other reason for setting aside the certificate of confirmation of grant is that although Margaret Wakuthi Gacoki may have been identified to take the place of her husband Josphat Gacoki Kinyenye, it is not clear whether she had been appointed administrator of his estate. I have seen a certificate of death for Josphat Gacoki Kinyenye given on 15/3/2022 indicating the date of death as 8/12/2021 and a letter from the chief of Kanyeke-Ini location dated 16/3/2022 for the said Josphat Gacoki Kinyenye (deceased) indicating Margaret Wakuthi Gachoki was the wife of Josphat and that they had three adult children Lucy Muthoni Kariuki, Denis Murage Gacoki and Virginia Wanjoki Gacoki. If the process of succession of the estate of Josphat Gacoki Kinyenye was completed and Margaret was appointed as the administrator then that should appear in the affidavit in support of the confirmation of grant. At the time the summons for confirmation of grant was heard, there was no such deposition in the supporting affidavit and there was no supplementary affidavit bearing such deposition.
19. But that does not rest the application under consideration.
20. On 11/4/2022, the Grace Wamwerua Kinyenye, one of the appointed administrators filed a summons for revocation and annulment of grant issued to Johnson Wanjohi Kinyenye and cancellation of all subsequent orders arising therefrom and that the same be issued to Grace Wamwerua Kinyenye. The grounds in support are that:
a. the grant was issued through concealment of material facts by the respondent;
b. that the respondent signed for and on behalf of the other beneficiaries without their consent or knowledge; and
c. that the respondent and other beneficiaries had benefitted from the residue estate which is composed of the resultant of Mutira/Kirimunge/145.
21. The application was supported by the affidavit of Grace Wamwerua Kinyenye sworn on 11/4/2022.
22. The applicant deposed that:
a. she is one of the beneficiaries of the estate of the deceased but her name as petitioner was inserted to this cause without her knowledge to defeat justice.
b. the deceased’s estate comprises of land parcel number Mutira/Kirimunge/863 to Mutira/Kirimunge/868 which is a resultant subdivision of land parcel No. Mutira/Kirimunge/145.
c. the 2nd respondent had benefitted from the deceased’s estate during her lifetime leaving the residual estate to Grace Wamwerua Kinyenye and Agnes Wanjiru Kamanda, the applicants herein.
d. Margaret Wakuthii Gachoki wife to their late brother Josphat Gachoki Kinyenye (deceased) had also benefitted from the deceased’s estate and does not have the locus standi as personal representative of their late brother’s estate.
e. They had been issued with a notice of mention for directions dated 28/2/2022 and coming up on 14/3/2022 but later realized that the matter was coming up for confirmation of grant.
23. She ended her deposition by saying that it is in the interest of justice that the grant be not confirmed as she had protested against it.
24. Agnes Wanjiru filed a replying affidavit sworn on 16/6/2022. She deposes that the process of obtaining the grant was conducted behind her back by the respondent and signed and altered the documents without her knowledge or authority and filed them in court. She only came to learn of it upon being served with the application by the applicant dated 11/4/2022.
25. She deposes that the proposed subdivision of land parcel No. Mutira/Kirimunge/145 did not adequately provide for the beneficiaries as provided for under the law of succession. Further that she never benefited from the deceased’s property nor was she provided for during the sub-division of land parcel No. Mutira/Kirimunge/863. Further that the respondent had his share known as land parcel No. Mutira/Kirimunge/868 and sold it to strangers of which she was not a party. He has not come back to claim the remaining parcel. He therefore came to court with unclean hands by concealing material facts.
26. In effect, Agnes supported the applicant’s application.
27. Margaret Wakuthi Gachoki, one of the beneficiaries as per the certificate of confirmation of grant also filed a replying affidavit sworn on 16/6/2022. I am however not satisfied that this affidavit was sworn by her for the following reasons apparent on the face thereof.
28. She deposed that she is one of the daughters of Wakariti Kinyenye (deceased) and that the applicant and respondent are her brother and sister respectively. That is not correct because, as stated herein above, there is a letter from the chief indicating that she is a wife of Josphta Gachoki deceased. The applicant also referred to her as wife of their late brother. It would appear that this was a copy and paste work replicating the affidavit of Agnes apart from paragraphs 7 and 8 which are claimimg that she has no interest in the deceased’s estate as she was already benefitted from the dece’sed's other property land parcel No. Mutira/Kirimunge/866 and she has no claim in Mutire/Kirimunge/863.
29. The respondent filed his replying affidavit sowrn on 26/5/2022 in which he opposed the application. He deposed that he had the authority of his other brother Francis Ndambiri Kinyenye to swear the affidavit on his behalf as well.
30. He deposes that the applicant was involved in the whole process of succession and that is why she is a co-administrator of the estate and it is not true that they signed on behalf of the other beneficiaries.
31. He deposes that the original parcel of land parcel No. Mutira/Kirimunge/145 was subdivided into six portions viz:
a. Mutira/Kirimunge/863 – Wakariti Kinyenye.
b. Mutira/Kirimunge/864 – Nicholas Muriuki Kinyenye
c. Mutira/Kirimunge/865 – Kinyenye Karaba
d. Mutira/Kirimunge/866 – Josphat Gachoki Kinyenye
e. Mutira/Kirimunge/867 – Francis Ndambiri Kinyenye
f. Mutira/Kirimunge/868 – Johnson Wanjohi Kinyenye
32. He concedes as deposed by his sisters the applicant Grace and Agnes that he was duped into selling his portion of land and lost all the money in the process.
33. He deposes that the land the subject of the grant herein Mutira/Kirimunge/863 measuring 0.640 Ha belonged to their late mother and he utilizes half of the land which he occupies since 2004 while the applicant occupies the other half and there had never been any problems until their mother died. That their late brother Josphat Gachoki Kinyenye had agreed with this mode of distribution and the same should be maintained.
34. He thus prayed that the application should be dismissed.
35. In addition to the sworn affidavits, the learned trial magistrate took viva voce evidence from the applicant and Agnes on the one hand, the respondent on the other and also summoned the area chief Gilbert Karimi Mureithi who testified.
Trial court’s decision
36. The trial court found the issue for determination to be whether the applicant had proved on a balance of probability that there was concealment of material facts to warrant revocation of the grant as provided for under section 76 of the LSA.
37. Upon evaluating the evidence, the trial court found that the applicant had failed to prove that the grant was obtained through concealment of material facts from the court to warrant its revocation. The learned trial magistrate found that the applicant and Agnes were duly involved in the succession process from the beginning. That they were informed by the area chief who summoned them to his office prior to the filing of the petition. That one of their brothers went to Nakuru and informed Agnes about the impending succession cause. That on the date of confirmation of the grant, they were served with a mention notice to attend court for the confirmation of the grant but they did not come.
Analysis
38. The issues for determination are whether the applicant established her case for revocation of the grant and whether the learned trial magistrate was right in her dismissal of the summons for revocation of grant filed by the applicant.
39. The circumstances under which a grant may be revoked are provided for under section 76 of the LSA as follows:
A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—
a) that the proceedings to obtain the grant were defective in substance;
b) that 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;
c) that 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;
d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either—
i. to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
ii. to proceed diligently with the administration of the estate; or
iii. to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or
e) that the grant has become useless and inoperative through subsequent circumstances.”
40. This section was considered by the High Court in the case of In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR) where the court stated that:
“Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.”
41. The summons for revocation herein is premised on the ground that the grant was obtained through concealment of material fact and that the respondent signed for and on behalf of other beneficiaries without their consent or knowledge.
42. The applicant and Agnes maintain in their respective affidavits that they were not at all involved in the process of obtaining the grant. Evidence by their area chief shows that they were in fact involved as he called them to his office and explained to them that the process was to be undertaken. Their only issue at the time was that they should not be made to bear the cost of the succession. The respondent says that he indeed had to bear the cost. I have no reason to doubt the evidence from the chief and I find that the applicant and Agnes were aware of the commencement of the succession process.
43. The question is, did they then participate in it by signing the documents?
44. The documents filed in court show that they participated as their signatures appear where they are required. But the appellants deny any such participation, each of them alleging that her signature to the respective document was forged. The trial court did not seek to establish the correctness of this allegation, for instance by requesting for their respective national identification cards to compare the signatures thereon and those appearing on the documents filed therein.
45. I have noted that in fact, copies of the national ID cards of the applicant and Agnes are not part of the documents annexed to the affidavit in support of the petition. That is an indication that they did not provide them. The question is why? The answer would be because they did not participate in the process. I have also noted that whereas a written signature appears on the petition and affidavit in support of the petition, as that of the appellant Grace, on the summons for revocation and the supporting affidavit, she appended her fingerprint and not written signature. That indicates that her way of authenticating her documents is by way of fingerprint and not written signature. In her case, Agnes Wanjiru Kamanda signed with only one name, “Agnes” but in her replying affidavit to the summons, she signed with two names Agnes Wanjiru. These discrepancies raise a doubt as to whether indeed the two appellants participated in the process and they support their contention that they did not. The fact that they were informed that the process was going to take place cannot be taken to mean that they participated as alleged by the respondent.
46. The appellants and the respondent are siblings who rank both in equality of priorities in the estate, with all their other siblings. None ranks above the other. Rule 26 of the Probate and Administration Rules requires consent from persons of equal degree or priority to the petitioner. By dint of this section, the consent of the appellants was mandatory. They are children of the deceased herein and thus were persons of equal priority whose consent was required as they had not renounced their rights to petition for the grant. I note that Francis does not contest the grant. I have said that I am not satisfied that the widow of Josphat known as Margaret Wakuthii Gachoki swore the affidavit in support of the application for revocation of the grant herein.
47. The respondent maintains that all his siblings including the appellants were in the know of the process of succession. I have found that they may have been in the know but the appellants have satisfied this court that they did not participate. They had not renounced their right to petition for the grant and neither did the respondent issue a citation to them. Instead, he went ahead to obtain the grant using false information depicting that they were participants in the process. That cannot be countenanced by the court. I find that the trial court was in error to find that the applicant and Agnes had voluntarily participated in obtaining the grant. That finding is hereby set aside.
48. The grant having been issued irregularly I find that the learned trial magistrate was in error to dismiss the summons for revocation of grant.
49. Consequently, I find that the grant issued to the 1st appellant and the respondent herein which was given without all the children of the deceased having consented to the same or even without citation having been issued to them was defective in substance and the same ought to be and is hereby revoked.
50. The applicant prayed that upon revocation of the grant, she be appointed as the administrator of the estate of the deceased. It is apparent that the real issue in controversy among the beneficiaries and which led to the summons for revocation of the grant is the manner of distribution of the deceased’s estate. I do not think that the applicant and Agnes had any serious objection to the grant being issued to the Grace and the respondent. The issue is as contained in their respective affidavits, that the respondent and the other beneficiaries were not entitled to inherit in the subject parcel of land.
51. The discretion on who to appoint as an administrator of a deceased’s estate lies with the court even as it gives priority to the beneficiaries. Where there is more than one person with equal entitlement rights such as children of the deceased, the court has a discretion as to which of those individuals to appoint as administrator. The law, section 56 of the LSA permits that a maximum of four individuals may be appointed as administrators of a deceased’s estate. In order to expedite the process of administration of the estate herein I will remit the case to the magistrate’s court in order to conclude it with the following directions:
a. The trial court to consider issuing a fresh grant to four of the beneficiaries, among them the applicant and the respondent or in case they are in agreement by consent, to any two or even one of them.
b. The administrator(s) so appointed to file summons for confirmation of grant with the proposed mode of distribution of the estate. If the parties are in agreement, then the certificate of confirmation of grant can issue at once but if not then, step (c) will follow.
c. The trial court to refer the parties to Court Annexed Mediation (CAM) to try and settle the issue of distribution of the estate equitably.
d. If CAM is successful, then the decision will be adopted by the court and a certificate of confirmation of grant issued. If not, then any party dissatisfied with the proposed mode of distribution can file a protest and the matter will proceed for full hearing of the protest.
52. In the final analysis find that the appeal herein has merit and the same is allowed. The ruling of the trial court is set aside and substituted with an order allowing the application for revocation of grant as was prayed in the summons.
53. This being a family matter and in view of the fact that the respondent had borne the costs of the proceedings alone and that the process has to be carried to proper conclusion which will mean incurring more costs, I order that each party will bear his or her costs.
54. Mention before the Chief Magistrate, Kerugoya Magistrates Court or duty court at Kerugoya on 1/7/2025 for implementation of the orders herein.
Dated, signed and delivered on the Virtual Platform, Teams this 16th of June 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Gor for Appellants.
Respondent present in person in court and on virtual platform.
Job: Court Assistant.