Introduction
1. This is an appeal from the Ruling of the lower court in the Thika CMCC No. 449 of 2006: In the matter of the Estate of Benny Mwangi Kagira alias Ben Mwangi Kagira in which the trial magistrate allowed an application dated 10th February 2020 by the Respondents seeking partial revocation of grant of letters of administration which had been confirmed on 3rd December 2019 in respect of the deceased estate.
2. The deceased in this case had two houses, the first house being that of Edith Muthoni Mwangi and her children while the second house had Jane Wanjiku Mwangi and the wife and her children. The dispute in the lower court which has resulted into this appeal is amongst the children of the second house.
3. By an application dated 10th February 2020, the Respondents who are all members of the 2nd house moved to court against their brothers, John Njuguna Mwangi (Appellant herein) and Solomon Kagira Mwangi (who for some reason is not a party in this Appeal) seeking partial revocation of the grant of letters of administration made to David Njoroge Kagiri, Kepha Ndegwa Mwangi and John Njuguna Mwangi on 19th July 2017 and confirmed on 3rd December 2019.
4. The basis of the application was that the Respondents were not present in court on 3rd December 2019 when the grant was confirmed. That the failure cy the Respondents to attend court was due to misrepresentation and trickery by the Appellant and Solomon Kagira Mwangi (then the 2nd Respondent) who told them that the matter was not to proceed on 3rd December 2019.
5. It was the Respondents’ further position at the lower court that they had not consented to the mode of distribution as appearing in the certificate of the confirmed grant.
6. Additionally, the Respondents alleged in the lower court that the mode of distribution proposed in the summons for confirmation of grant dated 28th November 2019 was at variance with the certificate of confirmed grant dated 3rd December 2019.
7. By a Ruling dated 27th July 2021, the lower court allowed the Respondents’ application for partial revocation of grant and directed that all the children of the deceased’s second wife be granted equal shares of the part of the estate allocated to their house.
The appeal
8. Aggrieved by the lower court’s decision, the Appellant (1st Respondent in the lower court) filed the instant Appeal vide his Memorandum of Appeal dated 8th August,2021 on the grounds that: -
i. The learned magistrate erred in law and misdirected himself by issuing orders for partial revocation of the certificate of confirmation of grant, a concept not known in law.
ii. The learned magistrate erred in law by ordering a new mode of distribution of the estate without notice to the other beneficiaries of the estate or obtaining consents from all the beneficiaries.
iii. The learned magistrate erred in fact and in law by finding that the deceased’s Will which was uncontested and fully acknowledged by all the beneficiaries of the deceased could not guide the court in the distribution of the estate of the deceased amongst his beneficiaries, thus totally misdirecting himself.
iv. The learned magistrate erred in Law by arbitrarily and unprocedurally interfering with the testamentary freedom of the deceased even when the will was uncontested.
v. The Ruling of the learned magistrate was tainted with bias as it discriminated against the Appellant, by disinheriting him off property bequeathed to him by the deceased, and in particular, PLOT NO. 3/KANUNGA MARKET which was specifically bequeathed to him, while all other beneficiaries have been allocated their rightful property in accordance with the will of the deceased.
vi. The learned magistrate erred in Law in finding that the burden of proving that the grants were procedurally acquired lay with the Respondents, yet it is a cardinal rule in law that “he who alleges must prove.”
vii. The learned magistrate erred in law by finding that the consent to the mode of distribution signed by the Respondents, which were not contested as having been fraudulently acquired, were not sufficient to prove that the Respondents were aware of the mode of distribution and had consented to it.
viii. The learned magistrate erred both in law and in fact by failing to find that the Application dated 10th February 2020 instituted by the Respondents herein was an afterthought, and instituted out of malice.
ix. The learned magistrate erred in law by failing to find that the Application dated 10th February 2020 was defective for not enjoining ALL the Administrators of the Estate of the deceased.
9. Directions were given by this court that the appeal be canvassed by way of written submissions. The Appellant filed his submissions dated 31st May 2024 whilst the Respondents’ is dated 6th June 2024.
Appellant’s submissions
10. In his submissions, the Appellant argued that the order of ‘partial revocation of grant’ issued by the trial court is an order not known in law. That Section 76 of the Law of Succession Act Cap. 160 laws of Kenya and Rule 44 of the Probate and Administration Rules under which the Application was brought does not envisage a situation where a confirmed grant would be revoked partially. According to the Appellant, the only options that were available for the court was either to revoke a grant fully or decline the invitation and maintain the grant. That there is no midway.
11. The second argument by the Appellant was that the trial court erred in redistributing the estate of the deceased despite the grant having been revoked by the court. The Appellant asserted that once revoked, the only option available would have been for a fresh application for confirmation of grant. The case of In re Estate of Muroko Kimitu - (DCD) [2019] eKLR was cited by the Appellant in support of this argument.
12. It was further the Appellant’s submissions that in any event, the Respondent’s application of 10th February 2020 did not propose any mode of distribution and therefore, taking into account the legal principle that parties are bound by their own pleadings, the court erred in redistributing the estate of the deceased despite there having been no prayer for that order in the application dated 10th February 2020 by the Respondents.
13. It was further the Appellant’s position that by redistributing the estate of the deceased, the trial court unduly interfered with the testamentary freedom of the deceased since there was will which was uncontested. That Appellant cited the case of In re Estate of Ngaulo Arap Tanui alias Mgaulo Arap Tanui (Deceased) [2022] eKLR in support of this argument.
14. According to the Appellant, the action of redistributing the deceased’s estate by the trial court had the effect of unlawfully depriving him of the PLOT NO. 3/KANUNGA MARKET which had been by will, bequeathed to him by the deceased.
15. The Appellant further submitted that the trial court unlawfully shifted the burden of proof from the Respondent’s herein to the Appellant when the court stated at paragraph 12 of the Ruling that the Appellant had not satisfactorily shown that the Respondents were aware that the grant was coming up in court on 3rd December 2019 for confirmation. According to the Appellant, the burden was on the Respondents to demonstrate that they did not actually attend court despite court records indicating that they were in fact present in court.
16. Finally, the Appellant argued that the Respondents’ application dated 10th February 2020 as presented before the trial court was defective for the reason that the other two administrators of the deceased estate were not enjoined to the proceedings.
17. The Appellant therefore prayed for a judgment and order of this court that: -
a) The Appeal be allowed
b) The Ruling of the trial magistrate be set aside and substituted with an order that the confirmed grant dated 3rd December 2019 be reinstated;
c) In the alternative to prayer (b) above, the Ruling of the magistrate’s court be set aside and be substituted with an order that the status quo ante the Ruling of 27th July 2021 be maintained.
d) This Honorable Court be at liberty to issue any further orders as may be required to meet the ends of justice.
e) The cost in this Appeal and in the Subordinate Court be borne by the Respondents.
Respondents’ Submissions
18. On their part, the Respondents supported the lower court’s Ruling and stated that their application dated 10th February 2020 for partial revocation of the confirmed grant was informed by the fact that the only issue they had with the grant is the mode of distribution within their house, the 2nd house. That they did not have any problem with the portion of the grant that related to the 1st house.
19. According to the Respondent’s the dispute was on the distribution only in the 2nd house where they all belong, the Appellant included. The Respondents therefore submitted that it was only fair and just that they did not interfere with the distribution of the deceased estate in respect of the 1st house, since the members of that house did not have any problem with the mode of distribution of the deceased estate allocated to them.
20. On the Appellant’s argument that the trial court erred by ordering a new mode of distribution of the estate without notice to the other beneficiaries of the estate or obtaining consents from all the beneficiaries, the Respondents submitted that their application was restricted to the distribution of the deceased estate within the 2nd house and it was therefore not necessary to have those from the 1st house enjoined to the proceedings.
21. In answer to the Appellant’s submissions that the trial court unlawfully interfered with the testamentary freedom of their deceased father, the Respondents submitted that the primary Succession cause in this matter being the Thika CMCC No. 449 of 2006: In the matter of the Estate of Benny Mwangi Kagira alias Ben Mwangi Kagira proceeded as an intestate succession as no grant of probate was issued. Instead, the respondents asserted that it is the Appellant who unlawfully altered the mode of distribution.
22. It was further the Respondents submissions that despite the fact that that the matter proceeded in an intestate manner, the distribution of his estate, as agreed in the affidavit is support of summons for confirmation of the grant, was largely in accordance with the deceased will which was not brought to the attention of the court. The Respondents asserted that the only problem is that the Appellant, apart from taking his portion of the estate, also took over the portion of the estate apportioned to their mother, who died before distribution.
23. On the claim by the Appellant that the ruling by the trial court had the effect of disinheriting him of PLOT No. 3 KANUNGA MARKET which had been by will, allocated to him by the deceased, the Respondents stated that that argument is not correct. First, the Respondents reiterated their position that the will was not used as the basis of succession. Second, and assuming the alleged will were to be followed, the said asset was not allocated to the Appellant solely.
24. The Respondents further submitted that they proved to the required standards before the trial court that they had been deceitfully kept away from attending court on 3rd December 2019 by their brother Solomon Kagira Mwangi (2nd Respondent in the lower court) who called them a day before the hearing of the summons for confirmation and told not to attend court. That the no evidence was adduced by the Appellants at trial controverting that position.
25. The Respondents asserted that they were not present in court 3rd December 2019 for the confirmation hearing despite the entry in the proceedings that all beneficiaries were present in court.
26. It was further their position that that consent on mode of distribution as contained in the affidavit in support of the summons for confirmation was altered by the Appellant when the summons was eventually filed in court. Consequently, the resultant mode of distribution as per the confirmed grant did not reflect their position as per the affidavit in support of the summons.
27. On the argument by the Appellant that the application as presented in the lower court was defective for the reason that the other two administrators of the deceased estate were not enjoined to the proceedings, the Respondents submitted that it was the Appellant herein who represented the interest of the 2nd house and therefore any issue regarding distribution within the 2nd house was well within his mandate and he could therefore be sued as such by the other beneficiaries of the estate from their house, the 2nd house.
28. Consequently, the Respondents urged this court to dismiss the appeal with costs in their favour.
Analysis and determination
29. As this is a first appeal, this court is duty bound to reassess and reevaluate the evidence presented in the subordinate court, considering both points of law and facts, and to reach its own findings and conclusions. This is the principle in Peters v Sunday Post Limited [1958] EA 424. In doing so, this court is expected to acknowledge the fact that it did not have the opportunity to hear or observe witnesses firsthand, and therefore must make appropriate allowances for that limitation. This principle was set in Pandya v Republic [1957] EA 336, where the Court stated that: -
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.”
30. The principle was again restated in Selle & Another v Associated Motor Boat Co. Ltd & Another (1968 (E.A. 123), where the court observed that; -
“...I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial court ......is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..." [emphasis mine]
31. After reviewing the memorandum of appeal, the pleadings and proceedings from the lower court, and after considering the submissions by both parties in support of their respective positions, this court notes that the main grounds for Respondents’ application dated 10th February 2020 before the lower court was that they were not present at the confirmation hearing and that the distribution of the estate as per the confirmed grant, differed from the mode of distribution as proposed by the Petitioners in the affidavit in support of the summons for confirmation.
32. The question for this court therefore is whether the Respondents presented sufficient evidence in their application dated 10th February 2020 in support of the two allegations so as to warrant the revocation of the certificate of confirmed grant issued on 3rd December 2019 in respect of their deceased father’s estate. If yes, whether the trial court was justified in law to order for ‘partial revocation’ of the certificate of grant in the manner that it did.
33. The law governing revocation of grant is found at Section 76 of the Law of Succession Act. The provision gives courts the powers to revoke a grant provided the conditions stipulated thereunder have been met. It states that: -
“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.
34. From the above it is evident that a grant may be revoked either on an application of a person interested in the estate, or by the court, suo motto upon the conditions stipulated under Section 76 of the Act being met. The circumstances in which a grant can be revoked were discussed in the case of Jamleck Maina Njoroge –vs- Mary Wanjiru Mwangi (2015) eKLR where the court stated that; -
“11. The circumstances that can lead to the revocation of grant have been set out in Section 76 Law of Succession. For a grant to be revoked either on the Application of an interested party or on the court’s own motion there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of false statement, or by concealment of something material to the case, or that the grant was obtained by means of untrue allegations of facts essential in point of law.”
35. It is however critical to note that 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.”
36. In the instant case, Appellant and the Respondents are from the 2nd house of Benny Mwangi Kaira alias Ben Mwangi Kagira (deceased) who died on 13th August 2022. Letters of administration to the estate of the deceased was issued on 10th July to David Njoroge Kagira, Kepha Ndegwa Mwangi and John Njuguna Mwangi and confirmed on 3rd December 2019. The deceased had two houses.
37. In the confirmed grant, evidence on record indicates that each house was allocated their respective shares of the deceased estate. It is common ground that it is the distribution of the portion of the deceased estate allocated to the 2nd house which has given rise to these proceedings.
38. Following the confirmation, the Respondents, being the female children in the deceased 2nd house moved to court via an application dated 10th February 2020 seeking for orders for partial revocation of the confirmed grant of 3rd December 2019 on the basis that the distribution of the deceased estate in the 2nd house as per the confirmed grant was at variance with the mode of distribution as proposed in the summons for confirmation of grant dated 28th February 2019 and the affidavit of even date in support thereof.
39. The Respondents further alleged in their application for revocation before the lower court that they were not in court on 3rd December 2019 when the grant was confirmed due to acts of deceit from their brother Mr. Solomon Kagira Mwangi (the 2nd Respondent in the lower court) who had called them on 2nd December 2019 and told them that the matter was not to proceed for the confirmation hearing on 3rd December 2019.
40. I have examined the proceedings in the lower court and note that Milka Njeri Mwangi testified thereat as Applicants Witness No. 1 and told court that the distribution of the portion of the deceased estate that was allocated to their house, the 2nd house, was to be equal. While admitting that she voluntarily signed a consent dated 28th November 2018, it was however her case that the ultimate distribution as per the confirmed grant was at variance with the consent she signed.
41. On re-examination, Ms. Njeri told court that she did not attend court on 3rd December 2019 for the confirmation hearing since her brother (Solomon) had called her a day prior to the hearing with the information that the matter was not to proceed on 3rd December 2019.
42. Beth Wanjiru Mwangi also testified before the trial court as Applicants Wetness 2 and told court that she also did not attend court on 3rd December 2019 for the confirmation hearing due to the fact that her brother Solomon had called her and advised her not to attend court since the matter was not to procced for hearing on 3rd December 2019.
43. Ms. Wanjiru also stated that the distribution of the deceased state within the 2nd house as per the confirmed grant was different from the mode of distribution as proposed in summons for confirmation as well as her consent of 28th November 2019. According to her, the distribution of the deceased estate within their house was to be equal.
44. In opposing the Respondents’ application of 10th February 2020, the Appellant herein, John Njuguna Mwangi testified as Respondents witness No. 1 and told court that he had the authority of his brothers, Slomon Kagira Mwangi (who was the 2nd Respondent in the Application for revocation) and Kephas Ndegwa Mwangi to oppose the Respondents’ application. He told court that the deceased died testate and that the deceased estate was to be shared as per his will.
45. Regarding the Respondents’ claim that they were deliberately kept away from attending court on 3rd December 2019 due to acts of deception by the Solomon Kagira Mwangi, the Appellant’s response was that; - “I don’t know why other beneficiaries didn’t appear in court on 3/12/2019 for confirmation of the grant and distribution of the deceased estate.” [emphasis added].
46. It is interesting that the Appellant who was one of the administrators to their deceased father’s estate was not aware that some of the beneficiaries to the estate were not in court on 3rd December 2019 when the grant came up for confirmation. In his capacity as an administrator, it was within his mandate to not only to ensure that all the beneficiaries to the estate are present in court, but also ensure that the mode of distribution of the estate is agreed and appropriate consents, where necessary, are signed.
47. From the above, it is clear that the Respondents proved to the required standards that they were indeed not in court on 3rd December 2019 for the confirmation hearing. The two witnesses who testified for the Respondents in support of their application both told court that they were called by Solomon Kagira Mwangi a day before the confirmation hearing and told that the matter was not to proceed on that date. This evidence by the Respondents was not controverted. The Appellant who was one of the administrators told court in his evidence that he did not know why the Respondents didn’t appear in court. Further, Mr. Solomon Kagira Mwangi who allegedly called the Respondents did not testify at trial.
48. It is not enough that the court record indicated that all beneficiaries were present in court for the confirmation hearing. Where a beneficiary alleges and produces some evidence that he was not present in court, as the case herein, the evidentiary burden then shifts to an administrator to adduce evidence to the contrary. In this case, no evidence was adduced by the Appellant. Instead, he simply court that he did not know why some of the beneficiaries did not attend court. In my view, this alone is enough to bring to question the integrity of the grant as confirmed.
49. In their affidavit dated 10th February 2020 in support of their application for revocation of the grant, the Respondents deponed at paragraph 17 thereof that the mode of distribution proposed in the summons for confirmation of grant dated 28th November 2019 was at variance with the distribution as per the confirmed grant of 3rd December 2019. The Respondents annexed to the said affidavit as annex “MNM 2 (a) and MNM 2(b)” copies of the summons for confirmation of grant and the confirmed grant respectively.
50. First, I note from the proceedings that the Appellant did not respond to the Respondents’ allegation in their application dated 10th February 2020 that there was a variance between the summons for confirmation of grant dated 28th November 2019 and the confirmed grant of 3rd December 2019.
51. Further, I have not seen any evidence in the record appeal to that effect that the Appellant attempted to explain the variance. Be that as it may, I will still proceed and examine the two documents with a view of verifying the Respondents allegations.
52. In their application dated 10th February 2020 for revocation of the grant, the Respondents stated they had issue on the distribution of the following assets which had been allocated to their house, the 2nd house; -
i. PLOT NO. 3/KANUNGA MARKET
ii. MUTHANDI (B) SHARES
iii. KENYA COMMERCIAL BANK SHARES A/C - M00138681
iv. ELBURGON/ELBURGON - BLOCK 3/379
v. ELBURGON/ELBURGON BLOCK - 3/202
vi. ELBURGON/ELBURGON BLOCK 3/149
vii. SHAWA/RONGAIBLOCK 1/162
viii. SHAWA/ RONGAI BLOCK 1/141
ix. SHAWA/ RONGAI BLOCK 1/140
x. SHAWA/ RONGAI BLOCK 1/139
53. I have carefully reviewed the summons for confirmation of grant dated 28th November 2019, Annex “MNM 2(a)” to the Respondents’ affidavit of 10th February 2020 against the confirmed grant dated 3rd December 2019 and agree with the Respondent’s position that the two were indeed at variance.
54. While the mode of distribution as proposed at paragraph 7 of the affidavit dated 28th November 2019 in support of the summons, proposed that the assets were to be distributed equally amongst all the children of the 2nd house, the confirmed grant read a different thing, with some of assets (such as PLOT NO. 3/KANUNGA MARKET) being allocated to the Appellant as the sole beneficiary.
55. From the record, it appears that there must have been some alteration on the mode of distribution. The information on page 74 of the record of appeal (summons for confirmation) as it relates to the distribution of the disputed assets, is at variance with the information on page 81 of the Record of Appeal in relation to the same assets. For instance, whereas in the application for confirmation it was proposed that Muthandi B shares was to be shared equally amongst all the eight (8) children of the 2nd house, the asset was in the confirmed grant allocated to one Cephas Njuguna Mwangi as the sole beneficiary.
56. The same applies to Kenya Commercial Bank Shares in A/C No. M00138681 which was allocated to Solomon Kagira Mwangi as the sole beneficiary in the confirmed grant of 3rd December 2019 despite the affidavit on the mode of distribution as per the summons of 28th November 2018 indicating that the asset was to be distributed equally.
57. In his submissions, the Appellant argued that the deceased had left a valid Will and that that Will needed to be respected. I have perused the proceedings and note that the confirmation of grant was obtained pursuant to an application dated 28th November 2019. I also note that in the summons the proposed mode of distribution was clearly spelt at paragraph 7 of the affidavit dated 28th November 2028 in support thereof. It therefore follows that the alleged will was not the basis of the mode of distribution as proposed in the summons. The Appellant being one of the Administrators to the deceased estate ought to have known better.
58. In the circumstances, I hold and find, as the trial court did, that from the evidence availed by the Respondents at trial, there exists a good ground under section 76 of the Law of Succession Act for revocation of the confirmed grant of 3rd December 2019.
59. Based on the evidence on record, I find that the grant, as far as it relates to the distribution of the estate within the deceased 2nd house was obtained fraudulently by presenting a false affidavit in support of the summons for confirmation.
60. Having found that the mode of distribution within the 2nd house was fraudulently obtained, the next issue for consideration by this court is whether to revoke the confirmed grant of 3rd December 2019 in respect of the whole of deceased’s estate, or to revoke only that portion of the grant relating to distribution of the deceased estate within the 2nd house, which is the subject of these proceedings.
61. The Appellant in his submissions argued that the concept of partial revocation of grant is not known in law. Citing the decision in the case of In re Estate of Muroko Kimitu - (DCD) [2019] eKLR the Appellant argued that the trial court committed an error of law in revoking the grant partially.
62. According to the Appellant, where a certificate of confirmation of grant is revoked, the only option is to have fresh summons for confirmation of grant made under section 71 of the Law of Succession Act.
63. It is indeed true that section 76 of the Law of Succession Act does not refer to partial revocation of a grant. It is the view of this court that where upon trial it is established that there exists any of the circumstances enumerated under section 76 of the Act that warrants the revocation of a grant, then the proper procedure for the court to do is to have the grant wholly revoked and either immediately issue a fresh one in place of the one revoked, or have the parties take up fresh summons for confirmation under section 71 of the Act.
64. In the instant case, the direction which commends itself to this court in view of my findings above, is to revoke the summons wholly and immediately issue a fresh one, to the same administrators, with the direction that the estate of the deceased by distributed strictly as per the Paragraph 7 of the Affidavit dated 28th November 2019 in support of the Summons for confirmation of the grant of event date.
65. For the avoidance of doubt, the applicable affidavit on the mode of distribution is that appearing on pages 72 to 77 of the record of appeal.
66. The next issue to be addressed by this court is the argument by the Appellant that the Respondents’ application dated 10th February 2020 was incompetent for failing to enjoin all the three administrators.
67. While I agree with the position as expressed by the Appellant that the proper procedure would have been for the Respondents to have all the three Administrators of the deceased estate enjoined to these proceedings, I am equally cognizant of the fact that the primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries (see Musyoka J. In Re Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR) and that in doing so the court is not to give undue regard to procedural technicalities as directed under Article 159 (2) (d).
68. Further it is critical to note that Rule 73 of the Probate and Administration Rules gives this court power to issue orders which ensures that the ends of justice are met. The provision states that; -
“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.
69. In this case, the Respondents have demonstrated that the certificate of confirmed grant dated 3rd December 2019 in respect of the deceased estate was at variance with the summons for confirmation grant dated 28th November 2019 and the affidavit of even date support thereof. That the variance only affected the distribution of the assets of the deceased allocated to the 2nd house where one of the administrators, the appellant herein is a member.
70. To the extent that the revocation of the certificate of grant confirmed on 3rd December 2019 will only affect the distribution of the deceased estate amongst the children of the 2nd house, and also taking into account that one of the administrators of the estate, the Appellant herein is a child of the 2nd house, I do not think the failure by the Respondents to enjoin the rest of the administrators is fatal as alleged by the Appellant herein.
71. In any event Order 1 Rules 9 of the Civil Procedure Rules, 2010 is clear that misjoinder or non-joiner of parties is not fatal. The provision states that: -
“Misjoinder and non-joinder [Order 1, rule 9.]
No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.”
72. In the circumstances, I find the appeal is partially merited, but only to the extent that that the trial court erred in issuing an order for ‘partial revocation of grant’, a concept not known in law. The rest of the trial court’s finding on the dispute is however sustained.
Disposition
73. In view of the foregoing observations, the Ruling of the trial court dated 27th July 2021 is hereby set aside and replaced with a judgment and order of this court allowing the Respondents’ Application dated 10th February 2020 in the following terms: -
i. That the grant of letters of administration issued on 10th July 2017 in the Estate of Benny Mwangi Kaira alias Ben Mwangi Kagira (deceased) to David Njoroge Kagira, Kepha Ndegwa Mwangi and John Njuguna Mwangi and subsequently confirmed on 3rd December 2019 be is hereby revoked.
ii. That a fresh grant in the Estate of Benny Mwangi Kaira alias Ben Mwangi Kagira (deceased) is hereby issued to David Njoroge Kagira, Kepha Ndegwa Mwangi and John Njuguna Mwangi.
iii. That the mode of distribution in respect of the deceased estate in the fresh grant is hereby directed to be in line with Paragraph 7 of the Affidavit dated 28th November 2019 in support of the Summons for confirmation of the grant, as appearing at pages 72 to 79 of the record of appeal.
iv. The grant is hereby confirmed.
74. The Appeal having been found to be partially merited, I direct that each party is to bear their own costs.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
24TH DAY OF OCTOBER 2024
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
Mwangi…….. for the Appellant.
Oseko h/b for Karungu………. for the Respondent.