NICHASIO MWANKI NJERU AND EMILIO NJUE NGIRIRI VS DIONISIA NJOKI NJERU

Being an appeal arising from the decision of Hon. L. Ambasi CM, in Embu Chief Magistrate’s Court Succession Cause No. E237 of 2021 delivered on 20^th June 2023

1. The appellant has filed a memorandum of appeal dated 19^th July 2023, challenging the decision of the trial court and seeking that the confirmed grant be set aside and this succession cause be heard as earlier ordered. The appeal is premised on grounds that:
   1. The learned trial chief magistrate erred in law when she refused to give the appellant amongst others an opportunity to be heard as ordered by the honourable court (SPM Hon. Nyakweba) that the summons for confirmation of grant dated 05^th January 2023 be heard if the beneficiaries agreed; and
   2. The learned trial magistrate erred in law and facts by allocating extra shares to the respondents to the detriment of the appellant. 
2. The appellant and the 3^rd respondent petitioned for a grant of letters of administration in the estate of the deceased and it was issued. The matter came up for confirmation before HoN. Nyakweba SPM, who noted that some beneficiaries were left out and the deceased beneficiary had to be substituted. On 07^th March 2023, he noted that some of the beneficiaries are not in agreement with the proposed mode of distribution in the summons for confirmation. The court directed that the matter be heard on 09^th May 2023 and if by the said date the beneficiaries will not have agreed on a mode of distribution, those in disagreement should file a protest.
3. By the next hearing date as directed, Hon. Nyakweba had transitioned to retirement and the matter was placed before Hon. Ambasi, CM. The parties had their day in court and they stated their wishes, which were noted. The court then ordered that the grant be confirmed as prayed, with amendment on the names as co-signed. As at the time of this order, no protest had been filed.
4. The appeal herein was canvassed by way of written submissions.
5. The appellants submitted that the trial court’s order was baseless, given how the proceedings were recorded without clarity of the parties’ desires. That the beneficiaries who were opposing the mode of distribution were required to file their protests but they did not do so and their grievances were not clear to the court. That to this end, it was upon the court to guide the parties given the previous direction on filing of the grant to facilitate hearing of the protest. He also contended that the mode of distribution indicated in the certificate of confirmation of grant is different from the mode proposed in the summons for confirmation of grant. That the court did not indicate what changes had been made in the proposed mode and the reasons for those changes.
6. The respondent submitted that on record there is an amended summons for confirmation and the further amended summons for confirmation, both proposing different modes of distribution. That the appellant and any other disgruntled party did not protest against the confirmation order. They urged the court to dismiss this appeal
7. From the foregoing, the issue for determination is whether the trial court erred in confirming the grant before hearing of any protests.
8. This court is bound to re-examine the evidence adduced at the trial court and make its own findings. This was the sentiment in the case of Selle & Another v. Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the court stated thus:

\"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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...\"

1. The trial court was faced with summons for confirmation of grant dated 22^nd November 2022, amended summons for confirmation of grant dated 05^th January 2023 and further amended summons for confirmation of grant dated 08^th May 2023 all being filed by the appellant and 3^rd respondent as the administrators. When the court ordered that the grant be confirmed as prayed, the certificate of confirmation of grant indicated distribution according to the further amended summons for confirmation of grant.
2. The appellant told the trial court that he had an objection and then the court stated that “parties to discuss”. The matter was placed aside and at 11:49AM, the court records, “Nichasio- I want the extra 1 acre with Emilio share it out to all”. The record shows that Ireri said “its okay”, Madaline said “I want mine” and Njoki said “I want”. From these proceedings, it is evident that there was dissatisfaction with the mode of distribution and it would have been necessary to allow the opposing parties to file their protests which would have been heard. Before the matter was placed before the Hon. Ambasi, Hon. Nyakweba had directed thus, “some of the beneficiaries are not in agreement with the proposed mode of distribution. The summons for confirmation of grant dated 5.1.2023 be heard on 9.5.2023. If the beneficiaries would not have agreed by then, those in disagreement to file a protest.”
3. At this stage, the matter was going through confirmation hearing. The next prudent direction by the court, subsequent to the previous one, would have been for the protesting parties to file protests to be set down for hearing before confirmation of the grant. This was not the case here. At the point of confirmation of grant, there can only be 2 occurrences: either the beneficiaries agree on the mode of distribution and therefore they file a consent to such confirmation, or the beneficiaries or other persons not in agreement with the distribution can file a protest which will be taken through a hearing.
4. Rule 40(6) of the Probate and Administration Rules provides:

“Any person wishing to object to the proposed confirmation of a grant shall file in the cause in duplicate at the principal registry an affidavit of protest in Form 10 against such confirmation stating the grounds of his objection.”

Rule 40(8) provides:

“Where no affidavit of protest has been filed the summons and affidavit shall without delay be placed by the registrar before the court by which the grant was issued which may, on receipt of the consent in writing in Form 37 of all dependants or other persons who may be beneficially entitled, allow the application without the attendance of any person; but

where an affidavit of protest has been filed or any of the persons beneficially entitled has not consented in writing the court shall order that the matter be set down as soon as may be for directions in chambers on notice in Form 74 to the applicant, the protester and to such other persons as the court thinks fit.”

1. In this case, the court already ascertained that some of the beneficiaries were not in agreement with the proposed mode of distribution. Their disgruntlement was raised with the court verbally and no affidavits of protest were filed. It is my view that the court should have guided the parties during the next hearing as to how to proceed since it had already noted the disagreement. It was also erroneous for the court to consider and confirm the grant based on summons that were not accompanied by a consent form signed by all the beneficiaries as provided under section 40 of the Law of Succession Act. 
2. It is my considered view that the appellant makes a valid claim in this appeal. However, as regards the second ground of appeal, this court will not endevour to review the mode of distribution since the order sought herein is to enable hearing of the summons for confirmation of grant and any protests.
3. Therefore, I find that the appeal has merit and it is hereby allowed with the following orders issuing:
   1. The certificate of confirmation of grant issued on 20^th June 2023 is hereby set aside;
   2. The appellant and any other party contesting the proposed mode of distribution in the further amended affidavit in support of summons for confirmation of grant dated 08^th May 2023, to file their affidavit(s) of protest; and
   3. Each party to bear its own costs of the appeal. 
4. It is so ordered.

Delivered, dated and signed at Embu this 9^th day of October, 2024.