In the Estate of wallance mbogo ngunyu

PROBATE AND ADMINISTRATION CAUSE NO. 2194 OF 2004

IN THE MATTER OF THE ESTATE OF WALLACE MBOGO ALIAS NGUNYI (DECEASED)

JUDGEMENT

1. The Objector herein DISHON KANAI MBOGO filed in Court the Summons for Revocation of Grant dated 16^th July 2004 seeking to have the Grant of Letters of Administration issued to PHYLLIS NYAMBURA MBOGO (the Administrator) revoked.
2. The Summons was brought under Section 76 of the Law of Succession Act Cap 160 Laws of Kenya and Rule 44 of the Probate and Administration Rules and was supported by the Affidavit of even date and the Further Affidavit dated 6^th November 2019 both sworn by the Objector.
3. The Respondent/Administrator opposed the Summons through his Replying Affidavit dated 16^th October 2019.  The Summons was canvassed by way of Vive Voce evidence.  The Objector called three (3) witnesses in support of his case whilst the Administrator called two (2) witnesses.

BACKGROUND

1. This succession cause relates to the estate of the late WALLACE MBOGO NGUNYI alias MBOGO NGUNYI (hereinafter, ‘the Deceased’) who died intestate on 11^th March 1996 at Nazareth Hospital.  A copy of the death certificate serial number 288690 is annexed to the Petition for letters of Administration dated 3^rd December, 1996.
2. The Deceased is said to have been survived by the following persons:-

(1) Phyllis Nyambura Mbogo    -   Widow (now also deceased)

(2)  David Ngugu Mbogo           -   Son

(3)  Wilfred Njuguna Mbogo     -   Son

1. Leonard Njoroge Mbogo   -  Son
2. Hottensia Ngonyo Mbogo -  Daughter
3. Lucy Wanjiru Mbogo         -  Daughter
4. The estate left behind by the Deceased comprised the following assets
5. Muguga/Kanyariri/359
6. Muguga/Kanyariri/T109
7. Shares with Kenya Commercial Bank
8. Shares with ICDC Investment Company Ltd
9. Account with Kiambu Dairy and Pyrethrum Co-operative
10. Following the demise of the Deceased the widow Phyllis Nyambura Mbogo applied for and obtained Grant of Letters of Administration Intestate vide Succession Cause No. 569 of 1996 filed at the Kiambu Law Courts.  A Grant was duly issued to her on 15^th May 1997 which Grant was thereafter confirmed on 23^rd September 1998.
11. The widow later passed away on 13^th March 2009 and was substituted by one LEONARD NJOROGE MBOGO a son of the Deceased.  A rectified Grant was issued on 17^th September 2019.
12. According to the Certificate of confirmed Grant all the assets left behind by the Deceased were to be transferred entirely to the widow Phyllis Nyambura Mbogo.

10. The Objector on 16^th July 2006 filed this Summons seeking to revoke

      the Grant which had been issued to his late Mother.  The Objector seeks

      to have the Grant revoked on the following grounds;-

(a) That the same was obtained fraudulently.

(b) That the same was obtained by misrepresentation and

      concealment of material facts.

           (c)  That the proceedings to obtain the said Grant were

                  defective.

THE EVIDENCE

11. The Objector Dishon Kanai Mbogo told the court that he was the third

      born son of the Deceased.  He told the court that he has filed this

      summons for revocation of Grant on behalf of himself and his three (3)

      siblings;-

• Anne Wangui
• David Ngugu Mbogo
• Charles Kinuthia Mbogo

12. The objector states that although the family had all agreed that the

      widow (his mother) would apply for and obtain Grant of Letters of

      Administration Intestate, he is aggrieved by the manner in which the

      Administrator proceeded to distribute the estate.

13. The Objector claims that neither he nor his siblings participated in the

      succession cause filed at the Kiambu Law Courts.  That his consent

      was never obtained and their signatures on the documents produced in  

      court were been forged by their brother Leonard Njoroge.  That this

      Grant was confirmed secretly and without his involvement.

14. The Objector states that he came to learn that one of the estate assets   

      being LR Muguga/Kanyariri/359 was sub-divided.  That he was not

     involved in the said subdivision and did not sign the mutation forms.  The

     Objector alleges that he has built his home and raised his family on Plot

359, which is now being proposed to be allocated to his sister Hottensia

Ngonyo.  That he has been given a notice of eviction from the said Plot

359 which property according to the Objector he had been given by his

     late father.

15. The Objector also takes issue with the LR Muguga/Kanyariri/ T-109

     whose fate he states has not been revealed to the beneficiaries.  The

Objector blames his brother Leonard Njoroge for misleading their aged 

mother and coercing her into making irrational decisions with respect to 

the property left behind by the Deceased.  He states that no explanation

has been given as to how or why their sister Hottensiah Ngonyo has

ended up with the largest share of the estate even though she resides in

the USA.

16.  PW2 CHARLES KINUTHIA MBOGO told the court that he is also a

       son to the Deceased whilst PW3 ANNE WANGARI NJUGUNA is the

       wife of the late WILFRED NJUGUNA MBOGO who was also a son of

       the Deceased. Therefore PW3 is a daughter-in-law of the Deceased. 

       Both PW2 and PW3 support the evidence given by the Objector.

17. The two witnesses state that they are still in occupation of the portions

      of Plot 359 which were allocated to them by the Deceased.  They

      complain that only the Administrator is aware of the fate of Plot T -109

      as well as the funds and the shares left behind by the Deceased.  They

      blame the Administrator for not sharing these assets with them.  They

      accuse the Administrator of converting Plot T-109 to his own use.

18.  The Administrator LEONARD NJOROGE MBOGO testified on his own

       behalf.  He denies that the Grant was obtained unprocedurally.

       He asserts the Objector was fully involved and was included in the

       Succession Cause filed at the Kiambu Law Court and that all

       beneficiaries signed the relevant consents.

19.  The Administrator states that all the children of the Deceased have been    

      catered for in the distribution of the estate and that all the beneficiaries

      save for the Objector have taken up possession of the portions of land

      allocated to them.

20. The Administrator urges the court to dismiss this summons for revocation

      of Grant.

21.  DW2 LUCY WANJIRU MBOGO is a daughter of the Deceased.  She

      supports the testimony of the Administrator and reiterates that all the

      beneficiaries were aware of and were included in the succession cause

      filed in respect of the estate of the Deceased.

22.  Upon conclusion of oral evidence the parties were invited to file and

      exchange their final written submissions.  The Objector did not file any 

      written submissions dated Whilst the Respondent/Administrator relied

      upon his written submissions dated 10^th August, 2023.

ANALYSIS AND DETERMINATION

23.  I have considered this summons for revocation of Grant, the reply filed

      thereto, the evidence adduced in court as well as the written

      submissions field by the parties.  The only issue for determination is

      whether there exists sufficient grounds to have the Grant revoked.

24.  The law governing revocation of Grants is to be found in Section 76 of

       the Law of Succession Act, Cap 160, Laws of Kenya, which provides

       as follows:-

“76. Revocation or annulment of grant

25. 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 -

1. that the proceedings to obtain the grant were defective in substance;
2. 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;
3. 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;
4. that the person to whom the grant was made has failed, after due notice and without reasonable cause either –
5. 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
6. to proceed diligently with the administration of the estate; or
7. 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 of has produced any such inventory or account which is false in any material particular; or
8. that the grant has become useless and inoperative through subsequent circumstances”

26. In this case it is not in dispute that the Deceased Wallace Mbogo alias

Ngunyi died away intestate on 11^th March 1996.  It is further not in dispute that with the consent of all the beneficiaries Grant of letters of Administration Intestate was on 15^th May 1997 made to the widow of the Deceased, Phyllis Nyambura Mbogo.  The said Grant was duly confirmed on 23^rd September 1998.  However following the death of the widow (who was the sole administrator of the estate), the Grant was rectified on 17^th September, 2019 substituting Leonard Njoroge Mbogo as the current administrator of the estate.

27. The objector claims that the initial Grant made to the widow was

      obtained fraudulently by his misrepresentation and by concealment of

      material facts.

28. The objector claims that he was not included in the Succession

      proceedings held in the magistrates court at Kiambu.

29. I do not find any evidence to support this allegation.  The Objector and

his witnesses were all named as beneficiaries in the Petition filed for 

Grant of letters of Administration.  In his evidence the objector concedes

that he and his siblings all agreed that their mother (the widow) file the

Petition for letters of Administration.  The record indicates that the

Objector had participated in the matter from its inception and has filed

     numerous applications.  The claim that he was unaware of the Succession

     Cause is clearly not truthful.

30. The Objector has also claimed that the initial Grant was obtained through

     misrepresentation and concealments of material facts.  What was the

     nature of misrepresentation and what were the material facts which were

     concealed?

31. I have carefully perused the Affidavit in support of Petition for letters of

     Administration Intestate which Supporting Affidavit was sworn by the

     widow on 3^rd December 1996.

32. The Petitioner described herself as the legal wife (widow) of the

     Deceased.  Neither the Objector nor any of his witnesses has disputed

     this.  They all confirm that the Petitioner Phyllis Nyambura Mbogo is

     their mother and the only widow of their late father.

33. The Affidavit lists the names of all the beneficiaries.  Indeed there is no

      claim by the Objector that any beneficiary was omitted and/or left out.

34.  Likewise the assets comprising the estate of the Deceased have all been

      listed in the Affidavit.  There has been no allegation by the Objector that

      any of the assets belonging to the Deceased was concealed.

35. In the circumstances there has been no demonstration of a specific

      incident of misrepresentation and/or concealment.  This ground has not

      been proved at all.

36. The objector and his witnesses further seek to have the Grant revoked

      on grounds that the signatures appearing in the consent annexed to -  

      the petition for Grant of letters of Administration Intestate were forged.

      There is in the file a consent dated 12^th February 1997 duly signed by

Dishon Kanai Mbogo (the Objector herein) which signature is

      purported to have been forged.

37.  It is not enough to merely bandy about allegations of forgery.  It is trite     

       law that “he who alleges must prove.”  In law the burden of proof

       lies upon the party who asserts the existence of a fact or set of facts.    

Section 107 of the Evidence Act Cap 80, Laws of Kenya provides

       as follows:

“Burden of Proof

     “107 (1) whoever desires any court to given judgment as to

      any legal or liability dependent on the existence of facts

      which he asserts must prove that those facts exist. 

     (2) When a person is bound to prove the existence of any fact

      it is said that the burden of proof lies on that person.”

38.  Forgery is a very serious allegation, one which if proved may lead to

      Criminal sanctions.  In the case of CHRISTOPHER NDARU KAGINA

       -VS- ESTHER MBANDI KAGINA & Another [2016] eKLR the court    

       stated as follows:-

        “It is trite law that he who alleges fraud must prove fraud. 

      Allegations of fraud must be strictly proved.  Great care

      needs to be taken in pleading allegations of fraud or

      dishonesty.  In particular, the pleader needs to be sure

      that there is sufficient evidence to justify the allegations.”

39. In the case of Central Bank of Kenya Ltd -vs- Trust Bank Ltd & 4 

others [1996] eKLR the Court of Appeal in considering the standard of proof required where fraud is alleged stated as follows:-

“The appellant has made vague and general allegations of fraud against the respondents.  Fraud and conspiracy to defraud are very serious allegations.  The onus of prima facie proof was much heavier on the appellant in this case than in an ordinary civil case” [Own emphasis]

40.  Further in the case of VIVOS ENERGY KENYA LIMITED -VS-

       MALOBA PETROL STATION LIMITED & 3 others [2015] eKLR the

       Court Appeal delivered itself thus;-

“Where fraud is alleged, it must be specifically pleaded

                    and particulars thereof given.  That is what is required

                    by order 2 Rule 10 of the Civil Procedure Rules

                    2010…………”

41.  Even in cases where fraud has been alleged the Applicant has a duty to

       prove the allegation beyond a mere balance of probability.

42.  In R. G. PATEL -vs- LALJI MAKANJI [1957] E. A the court of Appeal

      for Eastern Africa stated that;-

             “Allegations of fraud must be strictly proved, although the

              Standard of proof may not be so heavy as to require proof

beyond reasonable doubt.  Something more that a mere           balance of probability is required.

43.  The Objector has not adduced any tangible evidence in support of his

      allegations of fraud.  Although the Objector sought and obtained orders

      issued on 8^th March 2011 authorizing the investigation of the claims

      of forgery, no report made by the handwriting (forensic) examiner has

      been produced in court.  Thus the allegation of forgery remains

      unproven.

44.  In the circumstances the claims of forgery are dismissed.  The fact that

      the objector did sign the consent dated 12^th February 1997

      authorizing issuance and confirmation of the Grant has not been

      controverted.  He cannot now seek to renege on that consent.

45.  In the case of ALBERT IMBUGA KISIGWA -VS- RECHO KAVAI

       KISIGWA [2000] eKLR Hon Justice stated as follows:-

“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.”  [own emphasis]

46. Based on the above I find that none of the grounds set out in Section

76 for revocation of Grant have been proved.  The estate involves several

      beneficiaries who are all entitled to have the estate finalized.

47.  From the evidence of the Objector it is quite apparent that he does not

       have any real issue with the appointment of the Administrator.  The

       Objectors real gripe is the manner in which his mother (the

       Administrator) decided to divide the property known as

Muguga/Kanyariri/359.  It must be remembered that under the

       terms of the confirmed Grant the entire estate devolved to the widow, 

       There was no indication that she was to hold these assets ‘in trust’ for

       the other beneficiaries. 

48.  The mutation from Annexture ‘LM,-6’ shows that the properly known

       as Muguga/Kanyari/359 was registered in the name of the widow

       who then proceeded to sub-divide the land amongst her children.

49.  Therefore it was the widow who after inheriting the suit property from

       her late husband decided to subdivide and distribute the same.  This

       sub-division took place way after the estate of the Deceased had been

       settled by way of confirmation of the Grant.

50.   In the circumstances the objectors grievances over distribution is

       actually being raised in the wrong estate.  The property all devolved to 

       the widow, thus if the objector took issue with the mode of distribution

       then his complaint ought to be raised under the estate of his late

       mother.  The two estates are separate and distinct.  The distribution

       was done by his mother not under the estate of his late father.

51.   The Objectors claims of forgery have already been dismissed by this

        court.   Indeed this is an extremely old matter in which the Deceased

        died way back in 1996.  The Succession Cause has been alive in court

        since the year 2004.  There is no justification for dragging this case

        on any longer. 

52.    Finally I find no merit in this Summons for revocation of

         Grant.  The same is hereby dismissed in its entirety.  This being a

         family matter I make no orders on costs.

Dated in Nairobi this 14^th Day of August 2024.