IN THE MATTER OF THE ESTATE OF JOSEPH KIBIY KIMWAREY

1. The applicant Geoffrey Kimutai Kibii approached this court vide a Summons for Revocation of Grant dated 29^th September 2016 seeking the following orders;
2. That the Grant of Letters of Administration dated 7^th May 2014 issued to Peris Jepkoech Kimwarey, Benard Kiptum Kimwarey and Emmy Jeruto Lagat be cancelled.
3. That the Grant of Letters of Administration dated 12^th February 2002 and issued to Peris Jepkoech Kimwarey and Geoffrey Kibii be reverted to and confirmed.
4. That the properties sold at the time of removal of the name of Geoffrey Kibii from the initial Grant be audited and declared before the court.
5. That a full distribution of the Estate be done thereafter before the court and each beneficiary’s entitlement be determined.
6. That costs of this application be determined.
7. The application is premised on the grounds set out on the face of it and the contents of the affidavit sworn on 29^th September 2016 in support of the application by the Applicant.

    Applicants’ Affidavit

1. The applicant deposed that he is the 1^st born son of the deceased and was bestowed all the fatherly responsibilities for the entire family including the welfare of all his siblings and more specifically his now deceased grandmother. That at the time of his father’s death he was in the United States of America for further studies and he flew back for his funeral. That for 27 years since the purchase of their Kapngetuny Farm he stayed with his father and he grew up with his father’s differences with his mother on the one hand and all his children except 2 or 3 including himself on the other hand.
2. That of all their children he knew his mother more than them and that his other siblings cannot and have never to resisted their mother’s ways and their mother too knew that. He deposed that being the only child on his father’s side and a Reverend he was able to balance issues. That it is because of these and other issues that the Grant issued on 17/02/2002 was to him and his mother as the Administrators of his late father’s Estate. He annexed the said grant as GK1. That as such, he was to be kept abreast of and was alive to every detail of what was going on at home regarding the Estate.
3. He deposed that he was asked to accept to sell some properties allegedly to pay debts which he was not aware of. He asked his mother to wait for his return and if need be he could fly back to justify and rectify the same but his mother went silent, only for him to realise “the other day” that he had been removed without notice from being an administrator.
4. He deposed that much has happened to the detriment of the Estate since his removal because those that replaced him are conformists to the way the Estate is being administered. He deposed that his removal was without his input “by a Court of Law” because he ought to have given his go ahead to be removed through an Affidavit duly notarized.
5. He protested that his removal by way of a simple affidavit was dishonest and fraudulent, he has sought answers to the issue severally but in vain. He therefore prays that the Grant dated 7^th May 2014 be cancelled ant the Grant dated 17^th February 2002 be reinstated.

Replying Affidavit

1. The Petitioner filed a Replying affidavit dated 14/06/2018 in response to the application. She deposed that indeed the Applicant is her 1^st born. That upon the demise of her husband Joseph Kibiy Kimwarey, Geoffrey Kimutai Kibiy applied for a grant of letters of administration without the consent of the family members and the same was turned down as he did not include her as the widow. That he then approached the Respondent and she was enlisted as one of the Administrators and Grant of Letters of Administration was issued in both names on 6^th March 2002.
2. That thereafter, the applicant went abroad and hence, it was difficult to administer the Estate and they therefore had to amend the Grant of Letters of Administration to remove his name and replace it with those of his sister and brother who were in the country for ease of the administration of the Estate. She stated that the orders of amendment were granted in the presence of all the Advocates on record including the Advocate for the Applicant. Further, that the family meeting was held in the presence of the Chief and it was agreed that the Applicant be replaced by Benard Kiptum Kimwarey and Amy Jeruto Lagat and that the applicant never raised any objection to the appointment of the new administrators and he too appended his signature to the said minutes.

    Hearing of the application

1. The parties were directed to canvass the application vide written submissions. The applicant filed submissions through the firm of Chemwok & Company Advocates.

    Applicants submissions

1. Learned counsel for the applicant cited Section 76 of the Law of Succession Act which states the requirements for a grant to be revoked. Further, he cited the case of in re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR where the court expressed itself on revocation of grant under section 76 of the act.
2. Counsel submitted that from the proceedings before this court none of the above scenarios where presented. The applicants filed an application dated 7^th May 2014 which application sought rectification purportedly under Rule 43 (1) of the Probate and Administration Rules He urged that Rule 43 (1) states; -

Where the holder of a grant seeks pursuant to the Provisions of Succession 74 of the Act rectification of an error in the grant as to the names or descriptions of any person or thing or as to the time or place: of the death of the deceased or, in the case of a limited grant, the purpose for which the grant was made, he shall apply by Summons in Form 110. for such rectification through the registry and in the cause in which the grant was made.

1. Further, he stated that if it is apparent that there was an open misleading of the court to get the subject orders as at the said time the applicant was abroad and there was indeed reason why he was made a grant holder. No service was ever made and or a return of service justifying service to the applicant and neither did the Law anticipate a replacement as part of Rule 43 (1), as there was no error in the grant.
2. It is the applicants’ case that as a consequence, an illegality was committed by admission as deposed by Peris Jepkoech Kimwarey, a co-grant holder. Further, that the court ought to cancel the. grant of Letters, of Administration dated 7^th May 2014 for the said reasons. Counsel reiterated that it is apparent that none of the circumstances provided under Section 76 were prevalent in the initial letters of administration granted.
3. Counsel submitted that the duties of personal representatives are clearly stipulated in the Law of Succession Ac and include the production of accounts. He cited Section 83 of the act and the case of re Estate of Julius Mimano (Deceased) [2019] eKLR where Musyoka J expounded on the role of a personal representative. He urged that personal representatives hold the estate of the deceased in trust for the beneficiaries. Further, that the sale of the property of the deceased in this case, reeks of obscurity and underhanded dealing. Therefore, to correct this, what is needed is a detailed audit of the sold properties in the spirit of accountability,
4. Counsel urged that in order to effectively and exhaustively deal with the estate of the deceased, it is necessary that each beneficiary's entitlement be determined as this will pave way for an ease in distribution which will facilitate expeditious disposal of this case. That this is in line with the overriding objective of the court. Additionally, he stated that this principle was well explained in the case at Judicial Review 2 of 2017 Republic -vs- National Government Constituency Development Fund Board & another (2017) eKLR. Counsel urged the court to allow the application dated 29^th September, 2016

     Respondents submissions

1. The Respondents submissions were not on record at the time of writing this decision.

Analysis & Determination

1. Section 76 of the Law of Succession Act states as follows:

“76. Revocation or annulment of grant

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 re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR the court expressed itself on section 76 as follows;

“Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the Applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.”

1. In Justice Mwita in the case Albert Imbuga Kisigwa vs Recho Karai Kisigwa (2016) eKLR he stated as follows with regards to the discretionary power to revoke a grant: -

“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 wrongdoing 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.” (emphasis mine)

1. It is common ground that the initial grant was issued to the Applicant and the Respondent. It is also not in dispute that subsequently, the Applicant was removed as an administrator and replaced with his sister and brother. The Respondent in her Replying Affidavit explained the circumstances that necessitated this change and deposed that it was done with the full knowledge and participation of the Applicant who even appended his signature to the minutes of the deliberations that were done before the Chief over the matter. I note that these assertions by the Respondent were not at all contradicted and/or controverted by the Applicant by way of a Further Affidavit. They therefore remain as a true testimony of what transpired.
2. Further to the above, I have perused the record of proceedings herein. The record of 26^th September 2002 is of special significance and relevance. On this date, before the Hon Mr Justice Etyang (as he then was) the attendance was Mr. Ruto for the Petitioners. The Respondent was present as the Applicant/Petitioner. At that point in time the Applicant and the Respondent were the Co-Administrators of the Estate and Mr. Ruto was their lawyer. Mr. Ruto made the following application;

“We have agreed that two children be Co-Administrators of the Estate with the Petitioner Peris Jepkoech. These two children; (a) Bernard Kimwarey, (b) Amy Jeruto Lagat (Mrs)…….”

1. Two points to note from the above is that one, the parties had agreed and two the Applicants Advocate was present and in actual fact he is the one who addressed the court on what had been agreed upon. This only goes to confirm the deposition of the Respondent in her uncontroverted Replying Affidavit. In light of the above, I am very well satisfied that contrary to the assertion by the Applicant that his name was removed fraudulently as a Co- Administrator with the Respondent, he was very well aware of and informed of all that was taking place with the Estate at all times (---as indeed he himself did state in his Supporting Affidavit as herein summarised---) and he did in fact participate in the deliberations on the need to change the Administrators by dint of the fact that he appended his signature to the proceedings before the Chief
2. The Applicant seeks for an audit alleging mismanagement and fraudulent dealings with the Estate wherein properties were allegedly sold to pay debts which he was not aware of and his offer to come and assist were spurned. He seeks that the properties that were sold at the time of removal of the name of his name from the initial Grant be audited and declared before the court. Of note however is that the Confirmation of Grant that is part of the record of the Court has clearly listed all the properties that are the subject matter of the Estate.
3. The Applicant has not only not pointed out which ones of these properties have been fraudulently disposed of nor has he availed any evidence to court to support his allegation of the fraudulent disposa; of these properties. In this regard, I fully associate myself with the holding of Mwita J in the above case of Albert Imbuga Kisigwa vs Recho Karai Kisigwa (2016) eKLR that the Power of the court to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds.  It is not a discretion to be exercised whimsically or capriciously.  There must be evidence of wrongdoing for the court to invoke section 76 and order to revoke or annul a grant.   In this case, I am satisfied that no evidence of wrongdoing on the part of the Respondent has been availed to Court at all to warrant the exercise of this discretion in favour of the Applicant
4. On prayer that a full distribution of the Estate be done thereafter before the court and each beneficiary’s entitlement be determined, I note that the Grant was already confirmed and a Certificate of Confirmation of Grant issued wherein the entire Estate is held in trust by the Administrators for the benefit of all the beneficiaries. Let that Applicant make the appropriate application under the relevant provisions of the law if he wishes to pursue this limb of his Application.
5. Lastly, the law provides that the Court may revoke a grant of letters of administration under the provisions of Section 76 herein reproduced for the reasons therein given. These reasons have been very ably and exhaustively expounded in the herein above cited case of re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR and I need not belabour this point any further. What is of note is that the reasons advanced by the Applicant herein in seeking that the grant be revoked does no fall within any of the scenarios listed under Section 76.
6. Going by my above summation of and analysis, it is my finding that the Applicant’s Application lacks merit and the same is dismissed in its entirety. This being a succession cause, costs shall be in the cause.

Read dated and Signed at ELDORET on 19^th February 2025

E. OMINDE

JUDGE