'
(FORMERLY AT MACHAKOS NO. 353 OF 2008)
IN THE MATTER OF THE ESTATE OF KYULE NGOLIA KITING’A (DECEASED)
JOSEPH WAMBUA KYULE
RAYMOND MUTHOKA KYULE
STEPHEN MUTAVA KYULE...ADMINISTRATORS /RESPONDENTS
VERSUS
PHILOMENA COSMAS NDOLO………….OBJECTOR/APPLICANT
PATRICK MUTINDA KYULE………………OBJECTOR/APPLICANT
MIRRIAM WANDIA KYULE ………………OBJECTOR/APPLICANT
AUGUSTINE MUENDO KYULE……………OBJECTOR/APPLICANT
JUDGMENT
1. Kyule Ngolia Kiting’a died on 25th February, 2004.
2. Bernard Kivuva Kyule had applied for Grant of letters of administration intestate on 25th February 2008 in Machakos 353/2008. Grant of letters of administration intestate was issued to Cosmas Ndolo Kyule on 15th June, 2009.
3. According to form P&A 5 dated 18th October, 2010 the deceased was survived by 15 children and one widow Esther Mbeke Kyule as his 1st wife was already deceased. The estate was made up of Makueni/KAKO/502.
4. The administrator filed Summons for Confirmation of Grant on 26th October, 2010 seeking that the estate be transferred to Cosmas Ndolo Kyule and Raymond Muthoka Kyule ‘to have life interest and hold in trust for all the beneficiaries in equal shares’.
5. The matter was transferred to High Court at Makueni on 17th February, 2017 and acquired the number HC Succession Cause 45 of 2017 .
6. According to an affidavit sworn on 21st February, 2015 by Philomena Cosmas Ndolo, her husband Cosmas Ndolo Kyule committed suicide on 18th December, 2015.
7. Just before that on 31st July, 2014 Raymond Muthoka Kyule and Joseph W. Kyule filed an affidavit of protest against grant of letter of administration/confirmation . The issue was stated thus:- that there were 2 parcels of land – Makueni/Kako/502 & Nguu Settlement Scheme. That before his demise, their father allocated the 10 acres at Nguu Settlement Scheme to his two youngest sons and instructed his elder son Cosmas Ndolo on how to subdivide Makueni/Kako/502 ; that Cosmas proceeded to subdivide the land as per their father’s instructions and boundaries were drawn. This was in 2002, and that everyone settled on their respective portions. That Bernard Kivuva the eldest brother now deceased sold his portion of land and moved to Mang’elete as per the sale agreement they attached. Further that Cosmas subdivided his own portion to his 6 sons. That upon the demise of their father, their brother Bernard filed Succession cause no. 353/08 on 25th February, 2005 but without the knowledge of the family. That the family later appointed Cosmas Ndolo and Raymond Muthoka to be the administrators but that Cosmas conspired with the lawyer and became the only administrator.
8. Joseph Wambua Kyule swore an affidavit on 9th August, 2016 stating that he and other Applicants sought that the administrator be substituted with Joseph Wambua Kyule, Raymond Muthoka Kyule and Stephen Mutava Kyule and upon the substitution that the estate be distributed thus:
1) That Makueni/Kako/502 (18.98 Ha) be registered in the name of Joseph Wambua Kyule, Raymond Muthoka Kyule and Stephen Mutava Kyule.
2) Nguu Settlement Scheme 10 Acres be registered in the name of Festus Amin Kyule and Augustus Muendo Kyule.
3) This request culminated in the issuance of Certificate of Confirmation of Grant made by Justice C. Kariuki on 6th October, 2017 in the exact terms herein above where the schedule of ‘share of heirs’ states Makueni/Kako/502 (18.98 Ha) to be registered in the names of Raymond Muthoka Kyule, Joseph Wambua Kyule, and Stephen Mutava Kyule: Nguu Settlement Scheme 10 Acres to be registered in the names of Festus Amin Kyule and Augustus Muendo Kyule.
9. Through summons dated 9th November, 2021, Philomena Cosmas Ndolo sought the revocation of grant under Section 76(b) of the Law of Succession Act and Rule 44(1) on the ground that, the grant made on 5th October, 2017 to the respondents was obtained fraudulently by the making of false statement and by misrepresentation and concealment of material facts .The summon was supported by the affidavit of the objector. The main ground was that the administrators “maliciously, fraudulently misled the court by failing to include the beneficiaries of the late Cosmas Ndolo Kyule as listed in the letter of the chief dated 29th October, 2021”.
10. The Administrators filed a document headed “Revocation of grant” whose reading reveals that it is a reply to the Summons for Revocation of Grant; the three deny that the grant was obtained fraudulently or that there was any concealment of material facts . The affidavit is sworn on 25th March, 2022. They state that Philomena sold her entire husband’s share to other people, bought land and relocated to Kilisa.
11. On 18th April, 2023, another Summon for Revocation of Grant was filed by Patrick Mutinda Kyule, Miriam Wandia Kyule, Augustine Muendo Kyule on the grounds that:
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 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 administrators herein who are the children of the deceased have proceeded to file these succession proceedings and obtain the grant of letters of administration intestate issued on 6th October, 2017.
e. That the other beneficiaries did not consent to the administrators filing this succession cause.
12. It is supported by the affidavit sworn by Patrick Mutinda Kyule on his and on behalf of the other two applicants/objectors.
13. Patrick depones that the deceased herein was his father and out of his 13 children, 10 of them did not consent to the filing of this cause and that the administrators shared the whole estate among themselves leaving out the rest of the beneficiaries. He annexed the certificate of confirmation of grant made on 6th October, 2017 to the three administrators.
14. The administrators swore an affidavit “Rejecting the revocation/amendment of grant” filed on 26th April, 2023 but sworn on 23rd April, 2023.
15. In this response the administrators introduced a will they state that their father made a will dated 26th September, 2004. They depone that Augustus and Festus Kyule were settled on Nguu Settlement in the early 1990s. They reiterated their response to the 1st summons for revocation of grant. It is their position that upon being issued with the certificate of confirmation, Justice C. Kariuki gave each party 14 days, to appeal – that they served all the family members with the certificate of confirmation of grant and that this “appeal” has come 5 years later.
16. They deny that they have shared the property among themselves, and call the allegations by the objectors –
“Totally misleading false, unsafe and inciting as the boundaries remain as were marked by our late father”.
17. They deny that the other beneficiaries did not consent this cause/the confirmation. They urge the court to dismiss the Summons for Revocation of Grant , and uphold the Certificate of Confirmation of Grant.
18. On 7th July, 2023, the administrators filed something headed
“Summons for separation of hearing” where they urged the court to separate the two summonses for revocation of grant. At paragraph 9 they depone that “we are very much scared of our father; curse and the consequences should anybody move to change or even temper with our father’s will bearing in mind that befell our elder brothers for violating the same”. They depone further that they demand for compensation for the resources they have expended since 2008 and feel unappreciated, embarrassed by the acts of their younger brothers and sisters for acts done in good faith.
19. Philomena swore a further affidavit on 25th September, 2023. She reiterated her objection, and denied selling her entire husband’s share of the estate and put the administration to proof. She also filed a replying affidavit opposing the application for separation of hearing.
20. The administrators filed a further affidavit on 31st October, 2023 reiterating that their elder brother Bernard Kivuva Kyule and Cosmas Ndolo Kyule’s deaths were suicides emanating from their “violation” of the deceased’s will herein.
21. Philomena swore a further affidavit and a supplementary affidavit she stated that the father in law had 2 wives – her mother in law (deceased) and the mother of the administrators that both Bernard and Cosmas came from the 1st house and Bernard had insisted that the properties shared equally between the 2 houses; that this cause was based on the fact that the deceased died intestate, there was no will; she concedes selling part of her husband’s share to one Sarah Katanu Munguti who filed a citation.
22. To the application for separation, she deponed that the administrators had not demonstrated any reason for the separation of the two summons for revocation of grant dated 9th November, 2021, and 17th April, 2023 respectively.
23. On 1st December, 2023 the administrators filed a chamber summons seeking that the Certificate of Confirmation of Grant issued on 6th December, 2017 be upheld. They filed yet another chamber summons on 21st February, 2024 objecting to the application by Philomena in light of the 2nd summons for revocation of grant .
24. There was a document “Notice of objection to making and confirmation of grant of letters of administration” filed by one Sarah Katanu Munguti through the firm of R. M. Matata & Co Advocates on the ground that she had purchased a portion of the share of Cosmas Ndolo from Philomena and that Philomena had hoodwinked her that she would fast track the proceedings, herein and ensure that she Sarah, was the registered proprietor of the portion she had bought. Now she wants to be included in the distribution of the estate of the deceased.
25. I took over the matter from Hon Dulu J on 15th June, 2023.
26. Noting that the matter was family centered and the obvious evidence on the face of the Certificate of Confirmation of grant that other beneficiaries were not included – I was of the view that it could be settled through an out of court settlement. Parties sought time to appear before elders. I allowed it on 27th July, 2023.
27. When the matter came back for mention the court was informed that the meeting never took place and the administrators told the court that they would not be able to discuss the matter, and sought that the matter be heard.
28. I refused the application to separate the two Summons for Revocation of the grant.
29. The matter proceeded by way of oral evidence. The matter proceeded for hearing on 18th April, 2024.
30. Philomena testified and confirmed that the deceased had 2 wives. The 1st wife was her mother in law, mother to Bernard and Cosmas both deceased. Each had attempted the administration of the estate before they died.
31. She denied selling the whole share of her husband but said that she sold 1½ acres to pay medical bills. She denied having any land at Mang’elete. She confirmed that her father in law left her and her family on a parcel of land within Makueni/Kako/502. When some sale agreements alleging the sale of her husband’s share to three other people were shown to her, she told the court that the administrators made those agreements so as to deny her claim to the estate of her father in law. She confirmed that her father in law shared his land between his wives when he was alive. She said at that time the 1st Administrator was in prison. She denied that her father in law wrote any will.
32. Patrick Mutinda Kyule testified with regard to the 2nd summons for revocation of grant. He testified that deceased is his father, the administrators his elder brothers, and his co-applicants are his brother and sister. He named his mother’s children – 13 of them, and also named the children of his step mother, the 1st wife of his father. He said his father distributed his land among his sons, not wives. That his father directed that 4 to 5 acres be set aside for the girls and the 5 acres were left for the homestead, while each son got a share. He said 2 brothers – Festus and Augustus got the Nguu ranch and the others got land in Kako.
33. On cross examination he confirmed that the issue was the grant, that the grant showed that the estate was distributed among the three administrators.
34. Augustine Muendo Kyule testified. He said that the Nguu plot that was assigned to him and his brother was sold a long time ago. That though he was settled in Nguu, it was not on their father’s parcel of land but on land he had bought himself. He told the court that Esther Mbeke and the deceased each had one share at Nguu Settlement.
35. Festus Amin Kyule told the court that their father had sold the land in Nguu, and what they did was to refund the money for their father’s land and then they each shared their mother’s share of the Nguu land. They said they had one sister who was not married.
36. The objectors closed their case.
37. The administrators testified – Joseph Wambua Kyule testified that he and his co-administrators were brothers. He told the court that he is a pastor of the ACK church. He named his other brothers as Augustine, Patrick, Festus, Justus, Muange (deceased) Bernard (deceased) , Cosmas(deceased) , Sisters Josphine, Berita, Milka, Faith, Miriam, Jecinta. He said that Philomena was his sister in law and he understood why she had filed the objection; that she was disputing the distribution of the estate of his father. He also testified that the objection by Patrick, Augustine and Miriam was based on the claim that they were not included in the grant.
38. He made reference to all the affidavits they had filed in response, including two affidavits on 31st October 2023, summons for separation filed on 24th July 2023, an application dated 21st February 2023 , supporting affidavit dated 1st February 2023, and all were adopted as their evidence and the annexures therewith as exhibits.
39. He made reference to a will dated 26th September, 2002 and testified how Philomena was assigned her husband’s share as per the said will and proceeded to sell it to namely Samson Njuguna, Atanasios Kivindu and another, that together with her son they sold the homestead where their (the administrators) late father , her daughter in law and her own daughter were buried ; that she demolished her homestead, took away the water tank and moved to Kilisa Mulau. That she later sold Kilisa Mulau and moved in with her son at Nthangu.
40. He told the court how when her husband was alive, she and her husband were given land and cattle by the deceased to settle in Nthongoni in 1974 and that the deceased paid for it with proceeds from his work constructing Kaiti Bridge. That this land was known as Springs of Waters . That their step mother died and was buried on this land. That when their father was alive, she never raised any concerns and they did not trust her at all as she was not being truth full.
41. Regarding the objection by Augustus and the others, he testified that they were witnesses of what their father had done. That they(administrators) called them but they never consented. That Augustine and his brother confirmed sharing their father’s land in Nguu. That their father demarcated 5 acres as the homestead and for the daughters who may divorce and come home with their children. That this land was there and nobody had tampered with it.
42. He urged the court to sustain the grant so that those on their pieces of land could stay.
43. On cross examination he confirmed that he did not have any document to confirm that Cosmas was given land in Nthongoni and that it belonged to him saying that by then it was not demarcated. Nor did he have any sale agreements between Philomena and the alleged buyers. Asked whether he would call the alleged buyers as witnesses he said they were there and he did not need to call them to testify.
44. He also sated that Philomena’s daughter reported the demolishing of the house by the mother to the Police but she would not come to testify because she was afraid
45. Shown the Certificate of Confirmation of grant and asked to point out what was allocated to Philomena he stated that she was allocated. Asked for the evidence his response was ‘I leave it to court’ , he could not point out the names of the Philomena despite insisting that she had bene allocated her husband’s share.
46. It was put to him that he had produced the alleged will after the confirmation of the grant , attached to their affidavit of 31st October 2023, his response was that he did not agree as the grant was done fraudulently by Bernard. He stated that it was the court that substituted them as administrators and that they had now brought their father’s will. He said the ‘will’ provided for a portion of the land as the rest his father had allocated prior to recording the ‘will’ and died before giving further instructions. He said the rest he was leaving to the court.
47. One Simon Kitavi Nduto testified that the mother of the petitioners and his mother were sisters. He testified that the deceased was his cousin for the reason that their mother and his mother were sisters. That Philomena was the wife of the son of his cousin. That he knew deceased had a will because the deceased invited him to his home to tell him how he wanted to distribute his property. This was sometime in 2000. That he told him he was to be a witness in the event of future protests among the children
48. He stated that Kyule Ngolia told him that that the late Cosmas had sold his land in Nthongoni and had returned home landless but he was going to give him another parcel of land, that 10 acres in Nguu had been given to Augustine and Festus .
49. He urged the court to admit the ‘will’
50. On cross examination said that deceased told him how he wanted his property distributed. He produced a document, a letter he claimed he wrote to Kyule accepting his invitation to the meeting where he was going to distribute his estate. He said the meeting was just between him and deceased and that there was no one else. Shown the ‘will’ he testified that he did not know whether Kyule had left a will and that he was seeing that document for the first time.
51. On further cross examination he told the court that Kyule Ngolia told him he had distributed his property among his children not his wives. That he did not show him the written will. That he told him he had left some 5 acres for his daughters.
52. The Petitioners closed their cases and parties took time to file written submission.
53. The administrators’ submissions are dated 2nd December, 2024. The objector Philomena’s are dated 10th December, 2024. The other objectors did not file any.
54. I have carefully considered the submissions and the oral and affidavit evidence, and the entire record, the issues for determination are:
1) Whether the deceased had a will?
2) Whether the 2 summons for revocation for grant have merit.
3) What orders to issue.
55. On the 1st issue, this cause was first filed at Machakos as Succession Cause 353/2008. The deceased was said to have died intestate and no will was produced at the time of filing.
56. When the administrator Cosmas died, and the current administrators applied for substitution nowhere in their application did they bring it to the attention of the court that the deceased had a will. In fact, the document being referred to as a will literally showed up out of the blue and none of the other parties that ever heard that the deceased had left a will. PW2 who testified that he was invited by the deceased to witness the distribution of the estate stated that he never saw a written will
57. The document referred to is dated 26th September 2002 is in Kikamba language and is headed ‘Wendi wa Nau’ meaning : The wishes of our father . It describes the demarcations of some land , the need to have access paths . The parcel of land is not named but present are Stephen, Cosmas and Patrick Kyule, and Kyule Ngolia is present as the owner, there are persons described as ‘avandi ma makonge ta atumia ma Nau’ ‘Those who planted the sisals and also witnesses of Nau’ . literally those persons who planted the sisal plants to demarcate boundaries.
58. Does this document answer to the will as described by the LOSA?
59. Section 2 defines a "will" as the legal declaration by a person of his wishes or intentions regarding the disposition of his property after his death, duly made and executed according to the provisions of Part II, and includes a codicil.
60. Section 11 describes the how a written will should look like
No written will shall be valid unless
(a) the testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator;
(b) the signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will;
(c) the will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
61. Section 11 clearly describes what would answer to a valid will. The document presented does not state that it is a will. It does not state it is the will of Kyule Ngolia , he is merely one of those persons who are present and described as the owner of the land. Those present have been described to be some of the beneficiaries of the estate.
62. Evidently the document does not answer to a will.
63. If they are wishes of the deceased, what were these wishes? The document is not written in the first person by the deceased, it is written as a record of something that happened in his presence, and which he also witnessed. It is my conclusion that document presented by the administrators cannot does not answer to a will as envisaged by the law.
64. On whether the two summons for revocation of grant are merited, Section 76 of the LOSA 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 any interested party or of its own motion
65. The submissions by the administrators that the objectors had only 14 days from the date of the grant to appeal and had failed to do so does not hold water. This is not an appeal. This is an application for revocation of the grant and as can be read from the law it can be brought any time for the reasons set out in the Act Section 76. These are ;
(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;
(iii) or 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.
66. It becomes the duty of the court to determine whether or not the grant falls within the grounds set out under Section 76 of the LOSA to warrant its revocation. It is the dusty of the applicant to establish these grounds, and the administrators to demonstrate that they complied with the law. The objectors relied on Re Estate of L A K (deceased) [2014] eKLR, Jamleck Maina Njoroge vs Mary Wanjiru Mwangi [2015] eKLR and Albert Imbuga Kisigwa vs Recho Kavai Kisigwa HC P&A No. 158/2000.
67. The power to revoke a grant is discretionary but must be guided by the la. AS stated under s. 76 there must wrongdoing on the part of the administrators. The evidence must be there and the court must consider the interests of all the parties, those beneficially entitled to the estate of the deceased, and the interests of justice.
68. In obtaining the grant, and in seeking its confirmation the administrator has an obligation to disclose all material facts to the court and to comply with the provisions of the law. see Re Estate of Wachira Kimotho (deceased) [2009] eKLR, Re Estate of Matangi Obuki (deceased) [2020] eKLR.
69. From the record it is clear from the application for substitution filed by the administrators and the Summons for Confirmation of grant that they did not have the consent of all the those who were entitled to be administrators.
70. Section 66 of the LOSA states as follows
Preference to be given to certain persons to administer where deceased died intestate
When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference
(a) surviving spouse or spouses, with or without association of other beneficiaries;
(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;
(c) the Public Trustee; and
(d) creditors:
71. In this case the spouses of the deceased were all deceased hence the applicable section would be 66 (c ) . Meaning that all the beneficiaries are on an equal footing as provided by s. 38 which states;
72. Where intestate has left a surviving child or children but no spouse
Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.
73. Which brings to the fore the provisions of Rule 26 of the P&A Rules
Grants of letters of administration
(1) Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.
74. Whether or not the applicants were seeking substitution they were seeking a grant of representation and they were required to obtain the consent of all the other beneficiaries. The record shows that they did not have that consent and they did not disclose to the court that the other beneficiaries had not given their consent. The testimony but the 1st administrator that they invited the other beneficiaries but they refuse to come or to participate was not supported by any evidence but more importantly that fact was not disclosed to the court.
75. The above anomaly rendered proceedings to obtain the grant were defective in substance for failure to comply with the requisite procedure;
76. Secondly, they did not disclose to the court all the beneficiaries of the estate when they applied for confirmation of the grant.
77. Section 71 of the LOSA provides for the Confirmation of grants thus
(1) After the expiration of a period of six months, or such shorter period as the court may direct under subsection (3), from the date of any grant of representation, the holder thereof shall apply to the court for confirmation of the grant in order to empower the distribution of any capital assets.
78. There is a proviso
Provided that, in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled; and when confirmed the grant shall specify all such persons and their respective shares.
79. Rule 40 (4) of the P&A Rules furthers states that
Where the deceased has died wholly or partially intestate the applicant shall satisfy the court that the identification and shares of all persons beneficially entitled to the estate have been ascertained and determined.
80. What this means is that the administrator is to provide to the court the list of persons beneficially entitled to the estate, and their respective shares of that estate. In this case the administrators misled the court, concealed from the court the names of all those beneficially entitled to the estate and their share . In fact, they tabled before court only 5 names as the only persons entitled to inherit from the estate and obtained a certificate of confirmation of grant that would enable them to distribute the estate in that manner. They simply put their three names for the Kako land the names of 2 other brothers for the Nguu land leaving out 10 others beneficiaries including the families of their deceased brothers, one of them represented by Philomena. It was really difficult to listen to the administ
[...truncated]
(FORMERLY AT MACHAKOS NO. 353 OF 2008)
IN THE MATTER OF THE ESTATE OF KYULE NGOLIA KITING’A (DECEASED)
JOSEPH WAMBUA KYULE
RAYMOND MUTHOKA KYULE
STEPHEN MUTAVA KYULE...ADMINISTRATORS /RESPONDENTS
VERSUS
PHILOMENA COSMAS NDOLO………….OBJECTOR/APPLICANT
PATRICK MUTINDA KYULE………………OBJECTOR/APPLICANT
MIRRIAM WANDIA KYULE ………………OBJECTOR/APPLICANT
AUGUSTINE MUENDO KYULE……………OBJECTOR/APPLICANT
JUDGMENT
1. Kyule Ngolia Kiting’a died on 25th February, 2004.
2. Bernard Kivuva Kyule had applied for Grant of letters of administration intestate on 25th February 2008 in Machakos 353/2008. Grant of letters of administration intestate was issued to Cosmas Ndolo Kyule on 15th June, 2009.
3. According to form P&A 5 dated 18th October, 2010 the deceased was survived by 15 children and one widow Esther Mbeke Kyule as his 1st wife was already deceased. The estate was made up of Makueni/KAKO/502.
4. The administrator filed Summons for Confirmation of Grant on 26th October, 2010 seeking that the estate be transferred to Cosmas Ndolo Kyule and Raymond Muthoka Kyule ‘to have life interest and hold in trust for all the beneficiaries in equal shares’.
5. The matter was transferred to High Court at Makueni on 17th February, 2017 and acquired the number HC Succession Cause 45 of 2017 .
6. According to an affidavit sworn on 21st February, 2015 by Philomena Cosmas Ndolo, her husband Cosmas Ndolo Kyule committed suicide on 18th December, 2015.
7. Just before that on 31st July, 2014 Raymond Muthoka Kyule and Joseph W. Kyule filed an affidavit of protest against grant of letter of administration/confirmation . The issue was stated thus:- that there were 2 parcels of land – Makueni/Kako/502 & Nguu Settlement Scheme. That before his demise, their father allocated the 10 acres at Nguu Settlement Scheme to his two youngest sons and instructed his elder son Cosmas Ndolo on how to subdivide Makueni/Kako/502 ; that Cosmas proceeded to subdivide the land as per their father’s instructions and boundaries were drawn. This was in 2002, and that everyone settled on their respective portions. That Bernard Kivuva the eldest brother now deceased sold his portion of land and moved to Mang’elete as per the sale agreement they attached. Further that Cosmas subdivided his own portion to his 6 sons. That upon the demise of their father, their brother Bernard filed Succession cause no. 353/08 on 25th February, 2005 but without the knowledge of the family. That the family later appointed Cosmas Ndolo and Raymond Muthoka to be the administrators but that Cosmas conspired with the lawyer and became the only administrator.
8. Joseph Wambua Kyule swore an affidavit on 9th August, 2016 stating that he and other Applicants sought that the administrator be substituted with Joseph Wambua Kyule, Raymond Muthoka Kyule and Stephen Mutava Kyule and upon the substitution that the estate be distributed thus:
1) That Makueni/Kako/502 (18.98 Ha) be registered in the name of Joseph Wambua Kyule, Raymond Muthoka Kyule and Stephen Mutava Kyule.
2) Nguu Settlement Scheme 10 Acres be registered in the name of Festus Amin Kyule and Augustus Muendo Kyule.
3) This request culminated in the issuance of Certificate of Confirmation of Grant made by Justice C. Kariuki on 6th October, 2017 in the exact terms herein above where the schedule of ‘share of heirs’ states Makueni/Kako/502 (18.98 Ha) to be registered in the names of Raymond Muthoka Kyule, Joseph Wambua Kyule, and Stephen Mutava Kyule: Nguu Settlement Scheme 10 Acres to be registered in the names of Festus Amin Kyule and Augustus Muendo Kyule.
9. Through summons dated 9th November, 2021, Philomena Cosmas Ndolo sought the revocation of grant under Section 76(b) of the Law of Succession Act and Rule 44(1) on the ground that, the grant made on 5th October, 2017 to the respondents was obtained fraudulently by the making of false statement and by misrepresentation and concealment of material facts .The summon was supported by the affidavit of the objector. The main ground was that the administrators “maliciously, fraudulently misled the court by failing to include the beneficiaries of the late Cosmas Ndolo Kyule as listed in the letter of the chief dated 29th October, 2021”.
10. The Administrators filed a document headed “Revocation of grant” whose reading reveals that it is a reply to the Summons for Revocation of Grant; the three deny that the grant was obtained fraudulently or that there was any concealment of material facts . The affidavit is sworn on 25th March, 2022. They state that Philomena sold her entire husband’s share to other people, bought land and relocated to Kilisa.
11. On 18th April, 2023, another Summon for Revocation of Grant was filed by Patrick Mutinda Kyule, Miriam Wandia Kyule, Augustine Muendo Kyule on the grounds that:
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 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 administrators herein who are the children of the deceased have proceeded to file these succession proceedings and obtain the grant of letters of administration intestate issued on 6th October, 2017.
e. That the other beneficiaries did not consent to the administrators filing this succession cause.
12. It is supported by the affidavit sworn by Patrick Mutinda Kyule on his and on behalf of the other two applicants/objectors.
13. Patrick depones that the deceased herein was his father and out of his 13 children, 10 of them did not consent to the filing of this cause and that the administrators shared the whole estate among themselves leaving out the rest of the beneficiaries. He annexed the certificate of confirmation of grant made on 6th October, 2017 to the three administrators.
14. The administrators swore an affidavit “Rejecting the revocation/amendment of grant” filed on 26th April, 2023 but sworn on 23rd April, 2023.
15. In this response the administrators introduced a will they state that their father made a will dated 26th September, 2004. They depone that Augustus and Festus Kyule were settled on Nguu Settlement in the early 1990s. They reiterated their response to the 1st summons for revocation of grant. It is their position that upon being issued with the certificate of confirmation, Justice C. Kariuki gave each party 14 days, to appeal – that they served all the family members with the certificate of confirmation of grant and that this “appeal” has come 5 years later.
16. They deny that they have shared the property among themselves, and call the allegations by the objectors –
“Totally misleading false, unsafe and inciting as the boundaries remain as were marked by our late father”.
17. They deny that the other beneficiaries did not consent this cause/the confirmation. They urge the court to dismiss the Summons for Revocation of Grant , and uphold the Certificate of Confirmation of Grant.
18. On 7th July, 2023, the administrators filed something headed
“Summons for separation of hearing” where they urged the court to separate the two summonses for revocation of grant. At paragraph 9 they depone that “we are very much scared of our father; curse and the consequences should anybody move to change or even temper with our father’s will bearing in mind that befell our elder brothers for violating the same”. They depone further that they demand for compensation for the resources they have expended since 2008 and feel unappreciated, embarrassed by the acts of their younger brothers and sisters for acts done in good faith.
19. Philomena swore a further affidavit on 25th September, 2023. She reiterated her objection, and denied selling her entire husband’s share of the estate and put the administration to proof. She also filed a replying affidavit opposing the application for separation of hearing.
20. The administrators filed a further affidavit on 31st October, 2023 reiterating that their elder brother Bernard Kivuva Kyule and Cosmas Ndolo Kyule’s deaths were suicides emanating from their “violation” of the deceased’s will herein.
21. Philomena swore a further affidavit and a supplementary affidavit she stated that the father in law had 2 wives – her mother in law (deceased) and the mother of the administrators that both Bernard and Cosmas came from the 1st house and Bernard had insisted that the properties shared equally between the 2 houses; that this cause was based on the fact that the deceased died intestate, there was no will; she concedes selling part of her husband’s share to one Sarah Katanu Munguti who filed a citation.
22. To the application for separation, she deponed that the administrators had not demonstrated any reason for the separation of the two summons for revocation of grant dated 9th November, 2021, and 17th April, 2023 respectively.
23. On 1st December, 2023 the administrators filed a chamber summons seeking that the Certificate of Confirmation of Grant issued on 6th December, 2017 be upheld. They filed yet another chamber summons on 21st February, 2024 objecting to the application by Philomena in light of the 2nd summons for revocation of grant .
24. There was a document “Notice of objection to making and confirmation of grant of letters of administration” filed by one Sarah Katanu Munguti through the firm of R. M. Matata & Co Advocates on the ground that she had purchased a portion of the share of Cosmas Ndolo from Philomena and that Philomena had hoodwinked her that she would fast track the proceedings, herein and ensure that she Sarah, was the registered proprietor of the portion she had bought. Now she wants to be included in the distribution of the estate of the deceased.
25. I took over the matter from Hon Dulu J on 15th June, 2023.
26. Noting that the matter was family centered and the obvious evidence on the face of the Certificate of Confirmation of grant that other beneficiaries were not included – I was of the view that it could be settled through an out of court settlement. Parties sought time to appear before elders. I allowed it on 27th July, 2023.
27. When the matter came back for mention the court was informed that the meeting never took place and the administrators told the court that they would not be able to discuss the matter, and sought that the matter be heard.
28. I refused the application to separate the two Summons for Revocation of the grant.
29. The matter proceeded by way of oral evidence. The matter proceeded for hearing on 18th April, 2024.
30. Philomena testified and confirmed that the deceased had 2 wives. The 1st wife was her mother in law, mother to Bernard and Cosmas both deceased. Each had attempted the administration of the estate before they died.
31. She denied selling the whole share of her husband but said that she sold 1½ acres to pay medical bills. She denied having any land at Mang’elete. She confirmed that her father in law left her and her family on a parcel of land within Makueni/Kako/502. When some sale agreements alleging the sale of her husband’s share to three other people were shown to her, she told the court that the administrators made those agreements so as to deny her claim to the estate of her father in law. She confirmed that her father in law shared his land between his wives when he was alive. She said at that time the 1st Administrator was in prison. She denied that her father in law wrote any will.
32. Patrick Mutinda Kyule testified with regard to the 2nd summons for revocation of grant. He testified that deceased is his father, the administrators his elder brothers, and his co-applicants are his brother and sister. He named his mother’s children – 13 of them, and also named the children of his step mother, the 1st wife of his father. He said his father distributed his land among his sons, not wives. That his father directed that 4 to 5 acres be set aside for the girls and the 5 acres were left for the homestead, while each son got a share. He said 2 brothers – Festus and Augustus got the Nguu ranch and the others got land in Kako.
33. On cross examination he confirmed that the issue was the grant, that the grant showed that the estate was distributed among the three administrators.
34. Augustine Muendo Kyule testified. He said that the Nguu plot that was assigned to him and his brother was sold a long time ago. That though he was settled in Nguu, it was not on their father’s parcel of land but on land he had bought himself. He told the court that Esther Mbeke and the deceased each had one share at Nguu Settlement.
35. Festus Amin Kyule told the court that their father had sold the land in Nguu, and what they did was to refund the money for their father’s land and then they each shared their mother’s share of the Nguu land. They said they had one sister who was not married.
36. The objectors closed their case.
37. The administrators testified – Joseph Wambua Kyule testified that he and his co-administrators were brothers. He told the court that he is a pastor of the ACK church. He named his other brothers as Augustine, Patrick, Festus, Justus, Muange (deceased) Bernard (deceased) , Cosmas(deceased) , Sisters Josphine, Berita, Milka, Faith, Miriam, Jecinta. He said that Philomena was his sister in law and he understood why she had filed the objection; that she was disputing the distribution of the estate of his father. He also testified that the objection by Patrick, Augustine and Miriam was based on the claim that they were not included in the grant.
38. He made reference to all the affidavits they had filed in response, including two affidavits on 31st October 2023, summons for separation filed on 24th July 2023, an application dated 21st February 2023 , supporting affidavit dated 1st February 2023, and all were adopted as their evidence and the annexures therewith as exhibits.
39. He made reference to a will dated 26th September, 2002 and testified how Philomena was assigned her husband’s share as per the said will and proceeded to sell it to namely Samson Njuguna, Atanasios Kivindu and another, that together with her son they sold the homestead where their (the administrators) late father , her daughter in law and her own daughter were buried ; that she demolished her homestead, took away the water tank and moved to Kilisa Mulau. That she later sold Kilisa Mulau and moved in with her son at Nthangu.
40. He told the court how when her husband was alive, she and her husband were given land and cattle by the deceased to settle in Nthongoni in 1974 and that the deceased paid for it with proceeds from his work constructing Kaiti Bridge. That this land was known as Springs of Waters . That their step mother died and was buried on this land. That when their father was alive, she never raised any concerns and they did not trust her at all as she was not being truth full.
41. Regarding the objection by Augustus and the others, he testified that they were witnesses of what their father had done. That they(administrators) called them but they never consented. That Augustine and his brother confirmed sharing their father’s land in Nguu. That their father demarcated 5 acres as the homestead and for the daughters who may divorce and come home with their children. That this land was there and nobody had tampered with it.
42. He urged the court to sustain the grant so that those on their pieces of land could stay.
43. On cross examination he confirmed that he did not have any document to confirm that Cosmas was given land in Nthongoni and that it belonged to him saying that by then it was not demarcated. Nor did he have any sale agreements between Philomena and the alleged buyers. Asked whether he would call the alleged buyers as witnesses he said they were there and he did not need to call them to testify.
44. He also sated that Philomena’s daughter reported the demolishing of the house by the mother to the Police but she would not come to testify because she was afraid
45. Shown the Certificate of Confirmation of grant and asked to point out what was allocated to Philomena he stated that she was allocated. Asked for the evidence his response was ‘I leave it to court’ , he could not point out the names of the Philomena despite insisting that she had bene allocated her husband’s share.
46. It was put to him that he had produced the alleged will after the confirmation of the grant , attached to their affidavit of 31st October 2023, his response was that he did not agree as the grant was done fraudulently by Bernard. He stated that it was the court that substituted them as administrators and that they had now brought their father’s will. He said the ‘will’ provided for a portion of the land as the rest his father had allocated prior to recording the ‘will’ and died before giving further instructions. He said the rest he was leaving to the court.
47. One Simon Kitavi Nduto testified that the mother of the petitioners and his mother were sisters. He testified that the deceased was his cousin for the reason that their mother and his mother were sisters. That Philomena was the wife of the son of his cousin. That he knew deceased had a will because the deceased invited him to his home to tell him how he wanted to distribute his property. This was sometime in 2000. That he told him he was to be a witness in the event of future protests among the children
48. He stated that Kyule Ngolia told him that that the late Cosmas had sold his land in Nthongoni and had returned home landless but he was going to give him another parcel of land, that 10 acres in Nguu had been given to Augustine and Festus .
49. He urged the court to admit the ‘will’
50. On cross examination said that deceased told him how he wanted his property distributed. He produced a document, a letter he claimed he wrote to Kyule accepting his invitation to the meeting where he was going to distribute his estate. He said the meeting was just between him and deceased and that there was no one else. Shown the ‘will’ he testified that he did not know whether Kyule had left a will and that he was seeing that document for the first time.
51. On further cross examination he told the court that Kyule Ngolia told him he had distributed his property among his children not his wives. That he did not show him the written will. That he told him he had left some 5 acres for his daughters.
52. The Petitioners closed their cases and parties took time to file written submission.
53. The administrators’ submissions are dated 2nd December, 2024. The objector Philomena’s are dated 10th December, 2024. The other objectors did not file any.
54. I have carefully considered the submissions and the oral and affidavit evidence, and the entire record, the issues for determination are:
1) Whether the deceased had a will?
2) Whether the 2 summons for revocation for grant have merit.
3) What orders to issue.
55. On the 1st issue, this cause was first filed at Machakos as Succession Cause 353/2008. The deceased was said to have died intestate and no will was produced at the time of filing.
56. When the administrator Cosmas died, and the current administrators applied for substitution nowhere in their application did they bring it to the attention of the court that the deceased had a will. In fact, the document being referred to as a will literally showed up out of the blue and none of the other parties that ever heard that the deceased had left a will. PW2 who testified that he was invited by the deceased to witness the distribution of the estate stated that he never saw a written will
57. The document referred to is dated 26th September 2002 is in Kikamba language and is headed ‘Wendi wa Nau’ meaning : The wishes of our father . It describes the demarcations of some land , the need to have access paths . The parcel of land is not named but present are Stephen, Cosmas and Patrick Kyule, and Kyule Ngolia is present as the owner, there are persons described as ‘avandi ma makonge ta atumia ma Nau’ ‘Those who planted the sisals and also witnesses of Nau’ . literally those persons who planted the sisal plants to demarcate boundaries.
58. Does this document answer to the will as described by the LOSA?
59. Section 2 defines a "will" as the legal declaration by a person of his wishes or intentions regarding the disposition of his property after his death, duly made and executed according to the provisions of Part II, and includes a codicil.
60. Section 11 describes the how a written will should look like
No written will shall be valid unless
(a) the testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator;
(b) the signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will;
(c) the will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
61. Section 11 clearly describes what would answer to a valid will. The document presented does not state that it is a will. It does not state it is the will of Kyule Ngolia , he is merely one of those persons who are present and described as the owner of the land. Those present have been described to be some of the beneficiaries of the estate.
62. Evidently the document does not answer to a will.
63. If they are wishes of the deceased, what were these wishes? The document is not written in the first person by the deceased, it is written as a record of something that happened in his presence, and which he also witnessed. It is my conclusion that document presented by the administrators cannot does not answer to a will as envisaged by the law.
64. On whether the two summons for revocation of grant are merited, Section 76 of the LOSA 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 any interested party or of its own motion
65. The submissions by the administrators that the objectors had only 14 days from the date of the grant to appeal and had failed to do so does not hold water. This is not an appeal. This is an application for revocation of the grant and as can be read from the law it can be brought any time for the reasons set out in the Act Section 76. These are ;
(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;
(iii) or 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.
66. It becomes the duty of the court to determine whether or not the grant falls within the grounds set out under Section 76 of the LOSA to warrant its revocation. It is the dusty of the applicant to establish these grounds, and the administrators to demonstrate that they complied with the law. The objectors relied on Re Estate of L A K (deceased) [2014] eKLR, Jamleck Maina Njoroge vs Mary Wanjiru Mwangi [2015] eKLR and Albert Imbuga Kisigwa vs Recho Kavai Kisigwa HC P&A No. 158/2000.
67. The power to revoke a grant is discretionary but must be guided by the la. AS stated under s. 76 there must wrongdoing on the part of the administrators. The evidence must be there and the court must consider the interests of all the parties, those beneficially entitled to the estate of the deceased, and the interests of justice.
68. In obtaining the grant, and in seeking its confirmation the administrator has an obligation to disclose all material facts to the court and to comply with the provisions of the law. see Re Estate of Wachira Kimotho (deceased) [2009] eKLR, Re Estate of Matangi Obuki (deceased) [2020] eKLR.
69. From the record it is clear from the application for substitution filed by the administrators and the Summons for Confirmation of grant that they did not have the consent of all the those who were entitled to be administrators.
70. Section 66 of the LOSA states as follows
Preference to be given to certain persons to administer where deceased died intestate
When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference
(a) surviving spouse or spouses, with or without association of other beneficiaries;
(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;
(c) the Public Trustee; and
(d) creditors:
71. In this case the spouses of the deceased were all deceased hence the applicable section would be 66 (c ) . Meaning that all the beneficiaries are on an equal footing as provided by s. 38 which states;
72. Where intestate has left a surviving child or children but no spouse
Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.
73. Which brings to the fore the provisions of Rule 26 of the P&A Rules
Grants of letters of administration
(1) Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.
74. Whether or not the applicants were seeking substitution they were seeking a grant of representation and they were required to obtain the consent of all the other beneficiaries. The record shows that they did not have that consent and they did not disclose to the court that the other beneficiaries had not given their consent. The testimony but the 1st administrator that they invited the other beneficiaries but they refuse to come or to participate was not supported by any evidence but more importantly that fact was not disclosed to the court.
75. The above anomaly rendered proceedings to obtain the grant were defective in substance for failure to comply with the requisite procedure;
76. Secondly, they did not disclose to the court all the beneficiaries of the estate when they applied for confirmation of the grant.
77. Section 71 of the LOSA provides for the Confirmation of grants thus
(1) After the expiration of a period of six months, or such shorter period as the court may direct under subsection (3), from the date of any grant of representation, the holder thereof shall apply to the court for confirmation of the grant in order to empower the distribution of any capital assets.
78. There is a proviso
Provided that, in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled; and when confirmed the grant shall specify all such persons and their respective shares.
79. Rule 40 (4) of the P&A Rules furthers states that
Where the deceased has died wholly or partially intestate the applicant shall satisfy the court that the identification and shares of all persons beneficially entitled to the estate have been ascertained and determined.
80. What this means is that the administrator is to provide to the court the list of persons beneficially entitled to the estate, and their respective shares of that estate. In this case the administrators misled the court, concealed from the court the names of all those beneficially entitled to the estate and their share . In fact, they tabled before court only 5 names as the only persons entitled to inherit from the estate and obtained a certificate of confirmation of grant that would enable them to distribute the estate in that manner. They simply put their three names for the Kako land the names of 2 other brothers for the Nguu land leaving out 10 others beneficiaries including the families of their deceased brothers, one of them represented by Philomena. It was really difficult to listen to the administ
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