Introduction
1. This ruling pertains to the Preliminary Objection raised by the Respondent, ARITA ANYONJE MILENGO, against the Applicant’s application dated 16th May 2023, filed in relation to the estate of the late PETER ARUNGA INDALO (Deceased). The Respondent, through her advocates, WTT Lichuma Advocates LLP, has raised objections on points of law, challenging the jurisdiction of the court and the validity of the Applicant’s prayers.
Background
2. The Applicant, ACHIANDO ANNE INDALO, and the Respondent are co-administrators of the estate of the deceased, whose grant of letters of administration was confirmed on 15th July 2015. The Applicant’s application seeks various orders, including the revocation of the grant, removal of the Respondent as co-administrator, issuance of fresh letters of administration to the Applicant, amendment of the schedule of assets to include copyright fees and proceeds from the book titled ‘Man with the Lion Heart’, and other related reliefs.
3. The Respondent has raised a Preliminary Objection on the following grounds:
a. The court lacks jurisdiction to entertain the application as the matter is spent, having been determined by the issuance of the certificate of confirmation of grant on 31st July 2015, and its administration has been diligently undertaken by the joint administrators.
b. There is no pending asset from the approved schedule by the court that has not been fully settled, and there is no basis for revocation of the grant.
c. The application is defective and not founded on any known provision of Kenyan succession law.
d. The proper legal procedure for addressing the discovery of a new asset is through an application for review of the orders made at the confirmation of the grant, not revocation or removal of a co-administrator.
Issues for Determination
4. I have identified the following issues for determination:
i. Whether the preliminary objection dated meets the threshold for preliminary objections
ii. Whether the court has jurisdiction to entertain the application.
iii. Whether the application is defective and not founded on any known provision of the law.
iv. Whether the applicant is entitled to the prayers sought under the Law of Succession Act.
Analysis
Threshold for preliminary objections.
5. The threshold for preliminary objections in East Africa was set out in the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 and the case of Oraro -versus Mbai (2005) 1 KLR 141, where Ojwang J. (as he then was) defined a preliminary objection as follows:
‘’A Preliminary Objection correctly understood is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a Preliminary Objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true Preliminary Objection which the Court should allow to proceed ‘’.
Jurisdiction of the Court
6. The Respondent argues that the court lacks jurisdiction to entertain the application as the matter is spent, given that the grant was confirmed on 31st July 2015 and the estate has been fully administered. However, the Applicant contends that the discovery of a new asset, the copyright fees and proceeds from the book ‘Man with the Lion Heart’, necessitates the amendment of the schedule of assets and further action against alleged infringers. Section 47 of the Law of Succession Act, it has jurisdiction to entertain disputes arising from the administration of estates. Furthermore, Rule 63 of the Probate and Administration Rules provides for the application of Order 45 of the Civil Procedure Rules, which allows for the review of orders or decrees where new and important evidence is discovered. Therefore, the court has jurisdiction to entertain the application, provided it is properly framed and supported by law.
Defectiveness of the Application
7. The Respondent submits that the application is defective and not founded on any known provision of Kenyan succession law. The Applicant has invoked Sections 47, 76(d), and 83 of the Law of Succession Act, as well as Rules 44, 49, and 73 of the Probate and Administration Rules. I have carefully considered the preliminary objection and the application and I find that Section 76(d) of the Law of Succession Act provides grounds for revocation or annulment of a grant, including failure to proceed diligently with the administration of the estate. However, the Respondent has demonstrated that the administration of the estate was completed in accordance with the confirmed grant, and there is no evidence of non-compliance with Section 83(b) of the Act.
23. The Applicant’s reliance on Section 76(d) to seek revocation of the grant and removal of the Respondent as co-administrator is therefore misplaced. The discovery of a new asset does not constitute grounds for revocation under Section 76(d). Instead, the proper legal procedure for addressing the discovery of a new asset is through an application for review of the orders made at the confirmation of the grant, as established in the case of In Re Estate of Charles Kibe Karanja (Deceased) [2015] eKLR. where it was held that ‘’ The proper approach ought to be an application for review of the orders made at the confirmation of the grant. The remedy of review of court orders is not directly provided for in the Law of Succession Act and the Probate and Administration Rules, but it is imported into probate practice by Rule 63 of Probate and Administration Rules, which has adopted a number of procedures from the Civil Procedure rules. Among the imported procedures is the device of review under the Civil Procedure Rules. In the relevant rules on review under the Civil Procedure Rules, an order of the court can be revised on the grounds of an error on the face or the record or discovery of new and important evidence that was not available at the time of the making of the order sought to be reviewed or for any other sufficient reason.
‘’and also in the case of RE; ESTATE OF GEOFFREY KINUTHIA NYAMWINGA (DECEASED) [2013] KEHC 3745 (KLR) where it was held that ‘’A court order made by a civil court can only be amended through a review application, and not through an application for amendment of pleadings. The Law of Succession Act does not provide for amendment of pleadings in succession causes, but it does provide amendment of grants. This is through either Section 74 of the Law of Succession Act to the extent provided in that provision, or through a review application through Order 44 of the Civil Procedure Rules. Order 44 was formerly Order XLV, which is one of the provisions of the Civil Procedure Rules imported into succession practice through Rule 63 of the Probate and Administration Rules.
Where a proposed amendment of a grant cannot be dealt with under the provisions of section 74 of the Law of Succession Act, the applicant ought to approach the court under order 44 of the Civil Procedure Rules. A review under order 44 of the Civil Procedure Rules may be sought upon discovery of new and important matter or on account of some mistake or error apparent on the face of the record, or for any sufficient reason. The applicant in this case should have moved the court under this provision – order 44 of the Civil Procedure Rules on account of some mistake or error apparent on the face of the record and on the ground that there exists a sufficient reason for review of the certificate of the confirmation of the grant – the omission of the two properties from the confirmation application and the certificate of grant respectively.’’
Whether the applicant is entitled to the Prayers Sought
9. The Applicant seeks multiple reliefs, including revocation of the grant, removal of the Respondent as co-administrator, issuance of fresh letters of administration, and amendment of the schedule of assets. The Respondent argues that these prayers are not tenable under Kenyan succession law. The court concurs with the Respondent’s submission that the discovery of a new asset does not warrant the revocation of a confirmed grant or the removal of a co-administrator. The proper remedy, as established in the case law cited by the Respondent, is to apply for a review of the orders made at the confirmation of the grant to include the newly discovered asset in the schedule of assets.
The Applicant’s prayer to revoke the grant and remove the Respondent as co-administrator is not supported by the provisions of the Law of Succession Act. Additionally, the Applicant’s prayer to amend the schedule of assets and include the copyright fees and proceeds from the book ‘Man with the Lion Heart’ can only be addressed through an application for review, not through the current application.
Conclusion
In light of the foregoing analysis, the court finds that the Preliminary Objection raised by the Respondent is merited. The Applicant’s application dated 16th May 2023 is defective, lacks merit, and is not founded on any known provision of Kenyan succession law.
Orders
1. The Preliminary Objection raised by the Respondent is hereby upheld.
2. The Applicant’s application dated 16th May 2023 is struck out in its entirety.
3. Each party to bear his own costs.
T.A ODERA
JUDGE
10.2.26
DELIVERED VIRTUALLY MISS MUGAZO HOLDING BRIEF FOR MR NYAMORI FOR THE APPLICANT /CA – KIPCHIRCHIR .ACHOLLA HOLDING BRIEF FOR LICHUMA AND 4TH INTERESTED PARTY .
1. This ruling pertains to the Preliminary Objection raised by the Respondent, ARITA ANYONJE MILENGO, against the Applicant’s application dated 16th May 2023, filed in relation to the estate of the late PETER ARUNGA INDALO (Deceased). The Respondent, through her advocates, WTT Lichuma Advocates LLP, has raised objections on points of law, challenging the jurisdiction of the court and the validity of the Applicant’s prayers.
Background
2. The Applicant, ACHIANDO ANNE INDALO, and the Respondent are co-administrators of the estate of the deceased, whose grant of letters of administration was confirmed on 15th July 2015. The Applicant’s application seeks various orders, including the revocation of the grant, removal of the Respondent as co-administrator, issuance of fresh letters of administration to the Applicant, amendment of the schedule of assets to include copyright fees and proceeds from the book titled ‘Man with the Lion Heart’, and other related reliefs.
3. The Respondent has raised a Preliminary Objection on the following grounds:
a. The court lacks jurisdiction to entertain the application as the matter is spent, having been determined by the issuance of the certificate of confirmation of grant on 31st July 2015, and its administration has been diligently undertaken by the joint administrators.
b. There is no pending asset from the approved schedule by the court that has not been fully settled, and there is no basis for revocation of the grant.
c. The application is defective and not founded on any known provision of Kenyan succession law.
d. The proper legal procedure for addressing the discovery of a new asset is through an application for review of the orders made at the confirmation of the grant, not revocation or removal of a co-administrator.
Issues for Determination
4. I have identified the following issues for determination:
i. Whether the preliminary objection dated meets the threshold for preliminary objections
ii. Whether the court has jurisdiction to entertain the application.
iii. Whether the application is defective and not founded on any known provision of the law.
iv. Whether the applicant is entitled to the prayers sought under the Law of Succession Act.
Analysis
Threshold for preliminary objections.
5. The threshold for preliminary objections in East Africa was set out in the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 and the case of Oraro -versus Mbai (2005) 1 KLR 141, where Ojwang J. (as he then was) defined a preliminary objection as follows:
‘’A Preliminary Objection correctly understood is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a Preliminary Objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true Preliminary Objection which the Court should allow to proceed ‘’.
Jurisdiction of the Court
6. The Respondent argues that the court lacks jurisdiction to entertain the application as the matter is spent, given that the grant was confirmed on 31st July 2015 and the estate has been fully administered. However, the Applicant contends that the discovery of a new asset, the copyright fees and proceeds from the book ‘Man with the Lion Heart’, necessitates the amendment of the schedule of assets and further action against alleged infringers. Section 47 of the Law of Succession Act, it has jurisdiction to entertain disputes arising from the administration of estates. Furthermore, Rule 63 of the Probate and Administration Rules provides for the application of Order 45 of the Civil Procedure Rules, which allows for the review of orders or decrees where new and important evidence is discovered. Therefore, the court has jurisdiction to entertain the application, provided it is properly framed and supported by law.
Defectiveness of the Application
7. The Respondent submits that the application is defective and not founded on any known provision of Kenyan succession law. The Applicant has invoked Sections 47, 76(d), and 83 of the Law of Succession Act, as well as Rules 44, 49, and 73 of the Probate and Administration Rules. I have carefully considered the preliminary objection and the application and I find that Section 76(d) of the Law of Succession Act provides grounds for revocation or annulment of a grant, including failure to proceed diligently with the administration of the estate. However, the Respondent has demonstrated that the administration of the estate was completed in accordance with the confirmed grant, and there is no evidence of non-compliance with Section 83(b) of the Act.
23. The Applicant’s reliance on Section 76(d) to seek revocation of the grant and removal of the Respondent as co-administrator is therefore misplaced. The discovery of a new asset does not constitute grounds for revocation under Section 76(d). Instead, the proper legal procedure for addressing the discovery of a new asset is through an application for review of the orders made at the confirmation of the grant, as established in the case of In Re Estate of Charles Kibe Karanja (Deceased) [2015] eKLR. where it was held that ‘’ The proper approach ought to be an application for review of the orders made at the confirmation of the grant. The remedy of review of court orders is not directly provided for in the Law of Succession Act and the Probate and Administration Rules, but it is imported into probate practice by Rule 63 of Probate and Administration Rules, which has adopted a number of procedures from the Civil Procedure rules. Among the imported procedures is the device of review under the Civil Procedure Rules. In the relevant rules on review under the Civil Procedure Rules, an order of the court can be revised on the grounds of an error on the face or the record or discovery of new and important evidence that was not available at the time of the making of the order sought to be reviewed or for any other sufficient reason.
‘’and also in the case of RE; ESTATE OF GEOFFREY KINUTHIA NYAMWINGA (DECEASED) [2013] KEHC 3745 (KLR) where it was held that ‘’A court order made by a civil court can only be amended through a review application, and not through an application for amendment of pleadings. The Law of Succession Act does not provide for amendment of pleadings in succession causes, but it does provide amendment of grants. This is through either Section 74 of the Law of Succession Act to the extent provided in that provision, or through a review application through Order 44 of the Civil Procedure Rules. Order 44 was formerly Order XLV, which is one of the provisions of the Civil Procedure Rules imported into succession practice through Rule 63 of the Probate and Administration Rules.
Where a proposed amendment of a grant cannot be dealt with under the provisions of section 74 of the Law of Succession Act, the applicant ought to approach the court under order 44 of the Civil Procedure Rules. A review under order 44 of the Civil Procedure Rules may be sought upon discovery of new and important matter or on account of some mistake or error apparent on the face of the record, or for any sufficient reason. The applicant in this case should have moved the court under this provision – order 44 of the Civil Procedure Rules on account of some mistake or error apparent on the face of the record and on the ground that there exists a sufficient reason for review of the certificate of the confirmation of the grant – the omission of the two properties from the confirmation application and the certificate of grant respectively.’’
Whether the applicant is entitled to the Prayers Sought
9. The Applicant seeks multiple reliefs, including revocation of the grant, removal of the Respondent as co-administrator, issuance of fresh letters of administration, and amendment of the schedule of assets. The Respondent argues that these prayers are not tenable under Kenyan succession law. The court concurs with the Respondent’s submission that the discovery of a new asset does not warrant the revocation of a confirmed grant or the removal of a co-administrator. The proper remedy, as established in the case law cited by the Respondent, is to apply for a review of the orders made at the confirmation of the grant to include the newly discovered asset in the schedule of assets.
The Applicant’s prayer to revoke the grant and remove the Respondent as co-administrator is not supported by the provisions of the Law of Succession Act. Additionally, the Applicant’s prayer to amend the schedule of assets and include the copyright fees and proceeds from the book ‘Man with the Lion Heart’ can only be addressed through an application for review, not through the current application.
Conclusion
In light of the foregoing analysis, the court finds that the Preliminary Objection raised by the Respondent is merited. The Applicant’s application dated 16th May 2023 is defective, lacks merit, and is not founded on any known provision of Kenyan succession law.
Orders
1. The Preliminary Objection raised by the Respondent is hereby upheld.
2. The Applicant’s application dated 16th May 2023 is struck out in its entirety.
3. Each party to bear his own costs.
T.A ODERA
JUDGE
10.2.26
DELIVERED VIRTUALLY MISS MUGAZO HOLDING BRIEF FOR MR NYAMORI FOR THE APPLICANT /CA – KIPCHIRCHIR .ACHOLLA HOLDING BRIEF FOR LICHUMA AND 4TH INTERESTED PARTY .