In the Estate of betty wambui radovan

1. By Summons dated 27th April 2023 and presented under Sections 70,71 & 76 of the Law Succession Act and Rules 40,44,49 and 73  of the Probate and Administration Rules the Applicant seeks the following orders -

1. Spent

2. The Grant of Letters of Administration issued in this Succession Cause of BETTY WAMBUI RADOVAN herein on 15th January 2007  and confirmed on 5th March 2014 by a Certificate of Confirmed Grant dated 11th March 2014 to the Respondents LEMMY HOBSON, BRUCE KAMAU RADOVAN AND KEN HOBSON be forthwith revoked, and annulled pursuant to Section 76 (b) of the Law of Succession Act, Cap 160 Laws of Kenya.

3. Spent

4. The Chief Land registrar be directed to cancel any and all transfers of land parcel No. L.R. KJD/KAPUTIEI-NORTH/6744, L.R. NO. 1/637, NAIROBI in Kilimani , Nairobi County, and Taita Hills L.R. No. 176 1-10 ( Kahaki) and the same to forthwith revert to, and restored in the name of BETTY WAMBUI RADOVAN, (deceased)

5. The Objectors SYLVIA MABUSSI, JIMMY RADOVAN & LINDA HOBSON in conjunction with all other beneficiaries of the deceased BETTY WAMBUI RADOVAN (deceased) be granted leave ( and be at liberty) to apply for fresh Grant of Letters of Administration of BETTY WAMBUI RADOVAN deceased’s estate within thirty (30) days of the making of this Order, and upon the issuance of Order Number 2 herein.

6. Spent

7. The Respondents do provide a full and accurate account of all the income due to the Estate of the deceased BETTY WAMBUI RADOVAN, received by them. Either by themselves or through their advocates or any other agent from the issuance of the Grant in the succession cause , up to the making of this order.

8. The sale of any of the deceased’s properties ( BETTY WAMBUI RADOVAN) made pursuant to the Grant issued on 15th January 2007 and confirmed on 5th March 2014 be nullified , revoked and cancelled.

9. The Succesion Cause be mentioned on such expedient date to confirm compliance with the Orders issued herein.

10. The costs of this Summons be borne by the Respondents.

2. The Application is supported by the Supporting Affidavits of the 3 Applicants/ Objectors all sworn on the 27th April 2023  and Supplementary Affidavit of the Applicant sworn on 3rd July 2023 and 26th October 2023 respectively. The Respondents oppose the Application vide replying  and supplementary Affidavits of HOBSON BRIAN LEMMY sworn on 8th June 2023 and 8th September 2023 respectively.

3. Directions were given that the Summon be canvassed through written submissions, both parties complied. The Applicant’s submissions are dated 26th August  2023, while those of the Respondents are dated 18th September 2023.

SUMMARY OF APPLICANTS’/ OBJECTORS’ CASE AND SUBMISSIONS

4. The Objectors are children of the Deceased. The 1st  Objector SYLVIA MABUSSI, who resides in the UK, avers that she was not aware of this petition and the proceedings leading to confirmation of grant, until notified by the 3rd Objector/  Applicant.

5. She denies having signed any documentation that is on the Court record. She further avers that the Respondents have not been forthcoming with information related to the Estate. She contends that the Petition for letters of Administration by the Respondents is tainted by fraud. She further avers that the Grant as confirmed has denied her entitlement to the property KILIMANI/ L.R. NO.11637. NAIROBI.

6. She further contends that the proposed distribution of KITENGELA KJD/KAPUTIEI NORTH/6744 and LR TAITA HILLS LR 176 11-10 is irrational.

7. The 1st Objector also points out certain inconsistencies in the supporting documentation, such as the description of the Petitioners, failure to date affidavit of proposed administrators, the dates provided as 2003 and submits that all these combined have the  effect of invalidating the Petition.

8.  The 2nd Applicant/ Objector is a son to the deceased. He contends that the signatures appended to the Petition and alleged to be his are not his. He is aggrieved that on account of this he has been denied his fair share of his mother’s estate.

9. He further contends that the Administrators have not included all the assets of the deceased to wit, her personal effects, money held in bank accounts, jewellery and shares with Kenya Breweries.

10. The 3rd Applicant/ Objector is a daughter to the deceased. Like the 1st and 2nd Applicants/ Objectors she avers that the Petition was prosecuted without their knowledge and/ or participation.

11. That she became aware of these proceedings when through her Counsel she made inquiries at the registry, her concern having been triggered by strangers who were making inquiries about the Kajiado property.

12. She like her co- Applicants denies having executed any documents in relation to the Petition. She sets out the particular acts of fraud at paragraph 20 of her affidavit.

13.  Further in her supplementary affidavit she conteds that the Affidavit of Mr. Emmanuel Kenga , Forensic Document Examiner establishes that the signatures on the affidavits in support of the Petition and confirmation of Grant were in fact not those of the 3 Applicants as evidenced by his report.

14. Emanuel Kenga has sworn an affidavit in support of the Objectors. He states that on the instructions of Counsel for the Applicants he undertook a forensic analysis of the purported signatures of the 3 Objectors with a view of establishing their authenticity.

15. It is his submission that the signatures on the documents in support of the Petition are not those of the Applicants.

16. In their Submissions the Applicants identify the following as the issues for determination

1.  Whether the grant herein issued and confirmed to the Respondents / Administrators was lawfully obtained;

2. Whether the distribution of the estate of the deceased herein as set out in the schedule was unfair to the Applicants entitling revocation

3. Whether the Summons for revocation of grant dated 27th April 2023 is meritedy

4. What orders sought in the summons dated 27th April 2023 should be granted

17. On the 1st issue, the Applicants submit that the Application is hinged on Section 76 (a)-(c) of the Law of Succession Act. It is submitted that the allegations of fraud are uncontroverted. Reliance is placed on the decision of Gikonyo J in Re Estate of M’Ngarithi M’Miriti [2017] eKLR on legal limits to dealing with assets of a deceased person.

18. On the 2nd Issue it is submitted that the Applicants having established fraud, the grant is for revocation and reliance placed on the decisions in Nelson Muchangi Wachira v Dadson Githinji Wachira & Anor [2006] eKLR and Re Estate of Mati Njeru (Deceased) [2020] eKLR

19. The Applicants ask that any transactions based on the impugned Grant ought to be invalidated and rely on the decisions in Re Estate of Christopher Jude Adela ( Deceased) [2009] eKLR and in  Monica Odhiambo vs Maurice Odero Koko [2016] eKLR; Jane Gachoki Gathecha vs Priscilla Nyawira Gitungu & Anor [2008] eKLR

20. It is submitted that the Respondents have intermeddled with the Estate notwithstanding that they are Administrators and their actions have contributed to the wastage of the estate, for instance in relation to LR KJD/ KAPUTIEI- NORTH/6744,  reliance is placed on the decision in Virginia Mwaura Thuranira vs. Purity Nkirote Thuranira [2017] eKLR

21. The applicant further submits that the defective affidavits are incurable and therefore the Petition is defective and for revoking.

SUMMARY OF THE RESPONDENTS’/ ADMINISTRATOR’S CASE

22. In his replying Affidavit, the 1st Respondent avers that the documents were signed by his siblings and avers that the signatures are not fraudulent as is alleged.

23. It is his contention that the estate has been distributed in accordance with the wishes of the deceased. It is his submission that he kept the Respondents informed of the progress of the Petition at every stage. He avers that contrary to the submissions of the Applicants he in fact has acted to defend the Estate.

24. In his supplementary affidavit the 1st Respondent/ Administrator reiterates that the Estate was administered in accordance with the wishes of the deceased.

25. In their submissions the Respondents define the following as the issues for determination

1. Did the Applicants sign the Consent forms No. R 2612 attached to the Application for the grant dated 24th February, 2023 (sic)

2. If the answers to No 1 is in the affirmative what is the legality of the grant issued herein and subsequently confirmed on the 11th March 2014

3. What is the status of the properties forming the estate.

26. The Respondent relies on the decisions in Rachel Miami v Stanley Kipkurui Kinduiywo & Others HC Misc Succ. Cause No. 10 of 2021  and Jacob Gichuhi Wang’ang’a v Hannah Wanjiru Wang’ang’a HC Succ Cause 56 of 1995 in support of the contention that the Applicants having  failed to establish fraud, the summons ought to be dismissed.

ANALYSIS AND DETERMINATION

27. I have carefully considered the pleadings and submissions filed herein and guided by the applicable law and judicial precedent I discern the following as the issues for determination

1. Whether the Grant herein should be revoked?

2. What are the appropriate orders the Court should make to safeguard the estate

3. Who should meet the costs of this Application

28. The Applicant herein seeks to revoke the grant on the basis of alleged fraud. The specific act of fraud is the presentation of forged signatures to support both the Petition and the confirmation of grant.

29. The 1st Adminstrator contends that the documents were executed by the Applicants in his presence. The 1st Applicant avers that she was in the UK at the material time. There is a document examiner who has submitted a report that concludes that the signatures on the Affidavits do not belong to the Applicants.

30. The findings of this report are unchallenged by the Respondent. The other discrepancies highlighted by the 3rd Applicant are also not sufficiently explained, for instance the misrepresentation of  her age as indicated on the affidavit and the description of the Petitioners.

31. From the above it is evident that a basis has been laid for revocation of the grant. The power to revoke or uphold a grant is a discretionary one. This principle was enunciated in the persuasive decision in Albert Imbuga Kisigwa vs Recho Kavai Kisigwa Succession Cause No. 158 of 2000 where Mwita J stated:-

“Power to revoke a grant is a discretionary power that must  be exercised judiciously and only on sound grounds. It is  not discretion to be exercised whimsically or    capriciously.  There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”

32. In re Estate of the Late Mwaura Makuro (Deceased) [2021] eKLR, Ogola J, reiterated that the overarching duty of the Court is to uphold substantive justice and invoked rule 73 of the Probate and Administration Rules.

33.  Likewise, in the instant case it is not denied that all 6 parties herein are the children of the deceased.  It is my view that the interest of justice will be served by revoking the grant and issuing a fresh grant. Accordingly I make the following Orders

1. The grant herein is revoked and fresh grant to issue to JIMMY RADOVAN, LINDA HOBSON, LEMMY HOBSON AND BRUCE KAMAU RADOVAN

2. The Certificate of Confirmed Grant issued on the 11th March 2014 is accordingly cancelled

3. The sale of any of the deceased’s properties ( BETTY WAMBUI RADOVAN) made pursuant to the Grant issued on 15th January 2007 and confirmed on 11th March 2014 be nullified , revoked and cancelled.

4. The Chief Land registrar is directed to cancel any and all transfers of land parcel No. L.R. KJD/KAPUTIEI-NORTH/6744, L.R. NO. 1/637, NAIROBI in Kilimani , Nairobi County, and Taita Hills L.R. No. 176 1-10 ( Kahaki) and the same to forthwith revert to, and restored in the name of BETTY WAMBUI RADOVAN, (deceased)

5. The Administrators to identify a valuer to value the assets of the Estate within 30 days and the said valuer to submit valuation report within 21 days. The fees of the valuer to be paid out of the Estate. In the event that the Administrators are unable to agree on a valuer the Counsel for the parties shall identify a valuer within 14 days and the valuer shall submit report within 30 days of Appointment. If the Counsel shall not agree then Counsel for the Applicants shall identify a valuer who shall submit report within 14 days of Appointment.

6. The Administrators to file summons for confirmation within 60 days. If the Administrators are unable to agree any one of them can file the summons of the Confirmation and those not in agreement to file affidavits of protest within 14 days of service.

7.  The Administrators to open a joint account within 14 days in which all the rental income from the property KILIMANI/ L.R. NO.11637. NAIROBI will be deposited effective 28th February 2024.

8. With respect to order 7 above In the event any of the parties fails to comply by signing the requisite documents, the Deputy Registrar Family Division to sign the same on their behalf

9. The matter will be mentioned on 24th April 2024 before the Deputy Registrar  to confirm compliance and take further directions

It is so ordered