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JudgmentIN THE MATTER OF ESTATE KIRANDI OLE MATURA15 min read

IN THE MATTER OF ESTATE KIRANDI OLE MATURA

High Court at Kajiado High Court · · Stella Mutuku

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

SUCCESSION CAUSE NO. 67 OF 2016

IN THE MATTER OF THE ESTATE OF KIRANDI OLE MATURA (DECEASED)

MOSES MESENKA MATURA……………………………………………..1ST APPLICANT

JOSHUA SAYO OLE KIRANTI…………………………………………….2ND APPLICANT

MOAH OLE MATURA………………………………………………………3RD APPLICANT

MOIPARO OLE MATURA…………………………………………………..4TH APPLICANT

TITAS ISAAC KIRANTI OLE MATURA…………………………………..5TH APPLICANT

JACKSON KANKANO MATURA…………………………………………..6TH APPLICANT

TIANTA KIRANTI…………………………………………………………….7TH APPLICANT

AGNES MEREU SAITAGA…………………………………………………8TH APPLICANT

DANCAN NTIARRABAL KIRANTI…………………………………………9TH APPLICANT

SHADRACK KAMAKIA……………………………………………………10TH APPLICANT

SAMUEL KAETUAI KIRANTI…………………………………………….11TH APPLICANT

JOHN KIPUKEL MATURA……………………………………………….12TH APPLICANT

TOPIARR OLE KIRANTI MATURA………………………………………13TH APPLICANT

JULIUS SALASH KIRANTI……………………………………………….14TH APPLICANT

KIPARISHO ENE MATURA………………………………………………15TH APPLICANT

JECINTA RIRO ENE KIRANTI MATURA………………………………16TH APPLICANT

VERSUS

JEREMIAH OLE MATURA……………………………………………..1ST RESPONDENT

MICHAEL OLE KIRANTI……………………………………………….2ND RESPONDENT

JUDGMENT

Background

  1. This is an old matter. The deceased died on 27th November 2001. Court records show that the deceased had four wives whose particulars are given as follows:
  2. Nanyukai Torimao Rurua (Deceased)
  3. Letiek Ene Kiranti (Deceeased)
  4. Kiparisho Ene Matura
  5. Jecinta Riro Ene Kiranti Matura
  6. The particulars of each household is shown below follows:

A. Letiek Ene Kiranti (deceased) household has the following children:

  1. Jeremiah Ole Matura Nkoitiko
  2. John Kipukel Matura
  3. Noah Kiranti Ole Matura
  4. Titas Isaac kiranti ole matura
  5. Kiparisho Ene Matura household has the following children:
  6. Maiko Kiranti
  7. Moiparo ole Matura
  8. Jackson Kankano Matura
  9. Kateria Matura House
  10. Jecinta Riro Ene Kiranti Matura household has the following children:
  11. Joshua Sayo Ole Kiranti
  12. Agnes Mereu Saitaga
  13. Tianta Kiranti
  14. Toppiarr Ole Kiranti Matura
  15. Nanyukai Torimao Rurua household has the following children:
  16. Moses Mesenka Matura
  17. Julius Salash Kiranti
  18. Dancan Ntiarrabal Kiranti
  19. Shadrack Kamakia Kiranti
  20. Samuel Kaetuai Kiranti
  21. The deceased left two properties, namely Kajiado/Kipeto.18 and Kajiado/Kipeto/945. I have also noted that the documents filed in court show that the deceased owned shares at Keekonyokie Society Company Ltd No. 325. This latter property is not captured in the Supplementary Affidavit filed in court on 17th February 2020 which the court relied on in confirming the grant and the mode of distribution of the estate.
  22. According to a consent dated 13th February 2016, the family agreed to have four of the children to be granted letters of administration in respect of the estate of the deceased. These are the first-born sons in each of the four households, namely:
  23. Jeremiah Ole Matura Nkoitiko
  24. Michael Ole Kiranti
  25. Joshua Sayo Ole Kiranti
  26. Moses Serenka Matura
  27. On 16th June 2016, a Grant of Letters of Administration Intestate of the estate of Kirandi Ole Matura was issued to two of the administrators. The Grant was rectified on 23rd October 2019 to include all the four administrators. On 22nd November 2016, the administrators of the estate brought a Chamber Summons seeking orders of the Court to issue letters of administration intestate and grant orders limited to allowing the four administrators to enter into an easement agreement with Kipeto Wind Energy Project in respect of Kajiado/Kipeto/18. This application was allowed.
  28. On 17th February 2020 the Grant was confirmed. The Court (Mwita, J) stated as follows during the proceedings of confirming the Grant:

“I have seen the beneficiaries and their IDs whose names and numbers are contained in the separate sheet attached. I am satisfied that they have agreed on the mode of distribution. Consequently, the Grant issued on 10th June 2016 is hereby confirmed. The deceased’s estate be shared out as per the Supplementary Affidavit filed today 17th February 2020.”

  1. It is against that background that this Court has been moved in Summons dated 18th July 2022, the subject of this judgment.

Summons for Revocation of Grant

  1. This application is dated 18th July 2022 and was filed by the 16 applicants who are beneficiaries of the estate of the deceased. The applicants include two of the administrators of the estate, Moses Menseka Matura and Joshua Sayo Ole Kiranti. The two respondents are the other two of the administrators. They are asking the court to revoke the grant and all subsequent proceedings and orders made pursuant to the said grant, maintenance of status quo prior to the confirmation of the grant pending the hearing and determination of this application and costs.
  2. The applicants have supported the application with grounds on the face of the application and the supporting affidavit sworn by the 1st applicant, Moses Mesenka Matura. My understanding of the grounds in support of the application is that the applicants claim that the mode of distribution ought to have been according to households in that the estate of the deceased should have been distributed in four equal parts so that each household would get their share. They also want the two properties forming the estate of the deceased to be amalgamated into one parcel of land so that the four equal shares to each of the four households would get a share on the area they occupy.
  3. The respondents, through their legal counsel, filed Notice of Preliminary Objection dated 27th February 2023. They have stated that the application is res judicata the same having been directly and substantially in issue in Summons dated 23rd October 2020 which summons were dismissed. It is further stated that the Summons dated 18th July 2022 is misconceived, incompetent and incurably defective, bad in law and an abuse of the court process and ought to be dismissed with costs.
  4. This court directed that both the application and PO be canvassed together through viva voce evidence. The applicants called Titus Isaac Kiranti Matura, Jecinta Riro Ene Kiranti Matura, Moses Mesenka Matura and Agnes Mereu Saitaga. I have read their oral evidence. It is the applicant’s case that the family met and agreed to have the property of the deceased subdivided into four equal portions, each portion to go to each household. It is their case that the Respondents were opposed to that mode of distribution preferring that each beneficiary to get each share of the estate.
  5. The applicants further stated that the family wanted to set aside 35 acres for the purposes of a borehole, church, market, school and dispensary for the benefit of every beneficiary. Moses, Agnes and Titus admitted that they attended court during the confirmation of the grant and that the judge asked to see their identity cards before confirming the grant. They stated that they thought the confirmation of the grant was in respect of the money paid by Kipeto Power. They, however, admitted that none of them raised a complaint about the confirmation of the grant and the mode of distribution.
  6. Jeremiah Ole Matura, Kiparisho Ene Matura and Michael Ole Kiranti testified on behalf of the Respondents. It is their case that the beneficiaries agreed to share the property equally and not by households. It is their case that the administrators have finalized the administration of the estate.

Submissions

  1. The applicants have filed submissions dated 18th April 2024. The Respondents have not filed submissions. There is no copy of submissions either in the court file or in the CTS.
  2. The applicants have raised two issues for determination:
  3. Whether the Applicants application meets the threshold for the revocation of a grant within the meaning of Section 76 of the Law of Succession Act.
  4. Whether the Preliminary Objection dated 27th of February, 2023 constitutes a Preliminary Objection.
  5. On the first issue, it is submitted that the grant was obtained by concealment of material facts and that the  grant has become useless and inoperative; that the power of the court to revoke the grant is discretionary but that discretion ought to be exercised judiciously by considering the interests of all the beneficiaries and that the applicants have made out a case persuading this court to grant the orders sought and revoke the grant.
  6. On the second issue, the applicants relied on Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited (1969) EA. 696 and Oraro v, Mbaya (2005) 1 KLR 141 on what amounts to a preliminary objection and submitted that there is no evidence tendered to the effect that the issues before the court have been heard and determined before. It was submitted that the PO raised in this matter does not meet the threshold of a PO and ought to be dismissed.

Analysis and determination

  1. I have considered the issues raised in the application under determination. This court will adopt the issues identified by the applicants as the issues arising for determination. The law under section 76 of the Law of Succession Act provides when the court can revoke the grant in the following terms:

“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—

(a) that the proceedings to obtain the grant were defective in substance;

(b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;

(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

(d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either—

(i) to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or

(ii) to proceed diligently with the administration of the estate; or

(iii) to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or

(e) that the grant has become useless and inoperative through subsequent circumstances.”

  1. In this judgment I have given the background of this matter. By the time the administrators sought limited grant to allow them to enter into an easement agreement with Kipeto Energy and to receive money from Kipeto Energy, a grant of letters of administration had already been issued following satisfaction of all pre-requisites to issuance of a grant including gazettement. The record shows that the Grant was issued on 16th June 2016 in Nairobi. The grant, however, inadvertently listed one administrator but this was rectified by the court as shown in this judgment. It is clear to me therefore that the Summons seeking to have the administrators enter into an easement agreement with Kipeto dated 22nd December 2016 and filed on 23rd December 2016, was so filed after the grant had been issued.
  2. On 15th April 2019, the administrators filed summons for confirmation of the grant. The mode of distribution proposed in that application shows that each household was to get an equal share of the two properties and the money from Kipeto was to be shared equally between all the beneficiaries. That mode of distribution was changed through a Supplementary Affidavit of the four administrators filed in court on 17th February 2020. In the Supplementary Affidavit signed by all the four administrators, each beneficiary was to get equal share of the property, that is, 33.50hectares each in respect of Kajiado/Kipeto/18; 20 acres each in respect of Kajiado/Kipeto/945 and Kshs 1,659,961.76 each in respect of the proceeds from the easement agreement with Kipeto Energy,
  3. There is on record a consent to the confirmation of the grant and consent to the mode of distribution as captured in the Supplementary Affidavit. Both consents have been signed by all the beneficiaries. Incidentally, there are five daughters of the deceased listed as Kenyeketa Sekendo Kayianga, Sintuma Ene Josiah, Sarapanei Taliani, Pokahsa Rimin Leshinga and Leah Ene Marias. I have read their respective affidavits sworn on 20th November 2019 in which each of them has relinquished their right to inherit from the estate of the deceased citing Maasai customs and culture that as married daughters they did not wish to inherit from the estate of their late father.
  4. The orders of the court (Mwita, J) dated 17th February 2020 confirming the grant relied on the mode of distribution proposed in the Supplementary Affidavit.
  5. I have considered the case for the applicants that they wished to have the estate distributed into four equal portions to each of the four households. They dis not raise any complaint that the signatures appended on the consents for confirmation and mode of distribution are not theirs. The only excuse some of them presented was that they thought they were signing in respect of the sharing of the money from Kipeto Energy.
  6. However, the applicants who testified on behalf of all the applicants admitted that they did not complain to the court on the issue of the mode of distribution during the hearing of the summons for confirmation of the grant. They also admitted to all the beneficiaries displaying their national identity cards to the court upon request by the court to do so.
  7. After the grant was confirmed and the distribution granted by the court as proposed in the Supplementary Affidavit and consented to by all the beneficiaries, the applicants returned to Court through a summons dated 23rd October 2020 seeking to review the orders confirming the grant dated 17th February 2020 and adopt distribution according to the households and seeking to amalgamate the two parcels of land into one parcel for ease of distribution.
  8. This application was filed by Joshua Sayo Ole Kiranti and Moses Mesenka Matura against Jeremiah Ole Matura Nkotiko and Michael Ole Kiranti. Two of the administrators took out this summons against the other two of the administrators. The Court (Mwita, J) after hearing the application rendered his ruling on 24th September 2021 dismissing the application for lack of merit.
  9. The grounds advanced in that application in support of the same were that the administrators had failed to give effect to the certificate of confirmation which inadvertently omitted provision for other utilities, to wit, setting aside 35 acres for purposes of a school and other public utilities including borehole and that the distribution of the property into smaller units was expensive. The application was opposed by the respondents who mainly argued that the applicants had fully participated in the process of obtaining the grant and its confirmation. The court found in paragraph 13 that:

“As I have already stated, the grant of representation intestate was confirmed on 20th February 2020 after the beneficiaries had agreed on the mode of distribution of the estate. The administrators who include the 1st applicant and the 1st respondent, filed supplementary affidavit filed in court on 17th February 2020 giving the mode of distribution. The beneficiaries signed a consent on the mode of distribution and were in court when summons for confirmation was heard. They were represented by counsel who also confirmed to the court that the beneficiaries had agreed on the mode of distribution before the court confirmed the grant and issued a certificate of confirmation. The applicants are not, therefore, candid that the family has agreed to review the mode of distribution from equal sharing to shares according to houses.”

  1. Justice Mwita went further to state as follows in respect to that application:

“Luckily, however, the beneficiaries decided on how to distribute the estate and, therefore, no one, not even the court, could stand in their way. If the applicants have a different view or have come up with a different mode of distribution, they must engage and persuade all the other beneficiaries to agree with them but cannot impose their will or view on the other beneficiaries. it must be by consensus and not coercion. The court, having confirmed the grant as the beneficiaries wished, the cause was concluded and dusted. It cannot be reopened at the applicants’ whims and on flimsy grounds that have no legal basis.”

  1. The orders of the court as contained in the ruling of 24th September 2021 still stand. They have not been set aside, reviewed or appealed against. It seems that the beneficiaries regrouped and came to court this time seeking to revoke the grant and to have the two parcels amalgamated. Further, they seek to set aside all subsequent proceedings and orders made pursuant to the grant of letters of administration. I am not sure they are aware of the implications of this order. The grant has been confirmed and the mode of distribution confirmed by this court. I wonder how many of them still hold the money from Kipeto that went to each of the beneficiaries. The order confirming the grant and distribution of the estate including the money shares out is one of the orders they want set aside!
  2. Have the applicants met the threshold for revocation of grant? I have read with care, considered and analyzed all the evidence tendered orally and through documents filed in court. I have not found evidence demonstrating that the proceedings to obtain the grant were defective in substance; or that the grant was obtained fraudulently by making of a false statement or by concealment from the court of something material to the case; or 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 or that the administrators failed to take any action as contemplated under section 76 (d).
  3. The only ground the applicants seems to emphasize is section 76 (e) of the Law of Succession Act that the grant has become useless and inoperative through subsequent circumstances. The applicants seem to rely on the argument that the administrators cannot work together harmoniously to finalize the administration of the estate. This court be the case, and the culprits could be any of the administrators, not necessarily the respondents. Each pair of the administrators seem to hold a hardline stand on the issues.
  4. As observed by Justice Mwita, the parties (beneficiaries) came to this court and consented to confirmation and distribution without a problem and the court agreed with them. The grant was confirmed and distributed by the consent of all the beneficiaries. None of them informed the court that they had an issue with either confirmation or mode of distribution. If they have changed their mind, there is nothing to stop them meeting as family and have a consensus of mind to undo their earlier consent and agree on another mode of distribution. This is what Justice Mwita alluded to in the paragraphs I have reproduced in this judgment.
  5. To conclude this issue, I find no evidence that supports the grounds in support of revocation of the grant. The applicants have fallen short of persuaded this court that they have complied with section 76 of the Law of Succession Act.
  6. On the second issue as to whether the PO dated 27th February 2023 is meritorious, I have considered the arguments of the applicants. A matter is res judicata when the matter under directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
  7. After two of the administrators failed to obtains orders sought in their application dated 23rd October 2020, they seem to have mobilized the other beneficiaries and returned to court with a summons seeking revocation of the grant among other reliefs not dissimilar to the ones sought in the application of 23rd October 2020. The grounds relied on in the instant application are the same as the earlier grounds relied on in the earlier application. A keen reading of the instant application shows that save for the prayer for revocation of the grant, the other prayer sought is to amalgamate the two parcels of land to make distribution easier. The evidence in court portrays similar grounds that the distribution did not take into account the wishes of the beneficiaries to distribute the estate equally to the four households and to provide for public utilities.
  8. The applicants have forgotten that they attended court during confirmation, displayed their identity cards to the judge and confirmed their consent to the confirmation and mode of distribution. They have forgotten that they all consented to both confirmation and mode of distribution. There is nothing that has changed from the time they argued their earlier application and the current one. It is the same grounds clothed differently through an application seeking revocation of the grant.
  9. To my mind, the PO is merited. The same issues are being canvassed in this application.
  10. The parties herein are members of the same family. They are able to engage and come up with a solution that benefits all of them. This seems like a good case that can benefit everyone if only all of the beneficiaries could discuss the matter and agree to change their mode of distribution to one that benefits everyone. This is what Justice Mwita alluded to in his ruling.
  11. In conclusion, the Summons for revocation of grant is hereby dismissed for lack of merit. The applicants and the respondents shall bear own costs for this application. Orders shall be issued accordingly.

Dated, signed and delivered this 24th day of January 2025


    IN THE MATTER OF ESTATE KIRANDI OLE MATURA IN THE MATTER OF ESTATE KIRANDI OLE MATURA