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JudgmentPETER MURATI ABUKO14 min read

PETER MURATI ABUKO

High Court at Kakamega High Court · · P. J. Otieno

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

SUCCESSION CAUSE NO. 194 OF 1988

IN THE MATTER OF THE ESTATE OF PETER MURATI ABUKO (DECEASED)

JOSEPH TINDI ABUKO………………………………………………………. PETITIONER

VERSUS

ACHANDO MURATI……………………………………….…………...…..OBJECTOR

RULING

  1. Before the court are two applications one seeking to revoke the grant and another seeking to have the grant confirmed. I will in this decision refer to the applicant in the first application as the objector and the second as the petitioner.
  2. The first application, Summons for Confirmation of grant dated 14.3.2018, seeks that the grant issued to the administrator be confirmed. In the proposed mode of distribution, the administrator proposes that the entire land goes to him in whole. It is noted that even though there are disclosed lady grandchildren of the deceased, only male grandchildren are disclosed in the list of those entitled. The Affidavit is support of the summons gives no explanation why the land ought to go to the administrator and if all the persons named as entitled come from one or the two houses of the two sons the administrator contends entitled to the land.
  3. When served with the Affidavits of protest and the application for revocation of grant, the administrator then filed not only a replying affidavit but also the Affidavit in reply to the Affidavit of protest. Both were sworn on 4.3.2019.  In the replying Affidavit, the administrator reiterates that the deceased had given to his first and last sons parcels of land, which were transferred and so registered, but did not give any to the second and third sons who were then entitled to the suit land in this cause. He said the said two sons, Vincent Tindi Murati and Ambechi Murati, had six children each and gave the names of such children. The list includes girls. He added that after the demise of the two sons to the deceased, who had filed this cause, his siblings and cousins unanimously nominated him to substitute the deceased petitioners. He pointed out that when his father and uncle presented the petition, none of the objectors expressed any discomfort adding that the two have no right to make any claim in the current estate having received their share during the life of the deceased. He contended that the participation of the objectors in the cause will not change the fact that they got their shares which they were utilizing as at the time of bringing the objection. He in particular singled out the first objector as unfit to administer the estate for harbouring ulterior motives and prayed that the objection be dismissed.
  4. In the Affidavit in response to the Protest, he asserts that the parcel of land was and remain occupied by the two brothers as their inheritance and that it had been unanimously agreed that that it be equally distributed between the two and that each of the families would thereafter share out same in accordance with the wishes of the deceased parents. He added that even daughters, including Pamela Khaoya, will be entitled to share from the entitlement of the respective fathers.  Lastly, he asserts that the property has been demarcated on the ground between the two families then exhibited a sketch plan of such demarcation.
  5. The affidavit of protest sworn and filed by Pamella Khahoya Musotso asserts that the administrator was never given a consent by her and her siblings and that no professional services of a surveyor was employed in the demarcations. She stressed that the daughter of the two sons of the deceased deserve a share in the estate and there had never been a family sitting to agree on how the land be shared. The deponent asserted that both Joseph Abuko and Julius Omutach had sold portions of the estate and that one Janet Akinyi should be properly identified with the estate urging that the court needs to issue directions on how the same should be handled. There was also a supplementary affidavit sworn by the same protester which basically regurgitated the fact that her family and siblings were never consulted to concur with the administrator being the administrator, that portions of the parcel had been sold and the need for fairness and gender equality.
  6. On his part, the objectors swore and filed a joint Replying Affidavit they denied that the initial petitioner acted with their knowledge or concurrence but admitted that the deceased had in fact shared out his land among the four sons with each getting 4 acres but only then pursued and obtained titles but the other two did not. Their only contention is that the suit land was not to solely belong to the 2nd and 3rd son but that the deceased also retained a share in it which share should be shared equally among the four brothers. They denied having sold any part of the estate and asserted that it was the administrator who sold two portions to two different people who have since developed same. He reiterated that the administrator being a grandson stands in inferior position to him and should not proceeds with the cause without his participation insisting that the two sons who had not got their titles are only entitled to 4 acres each with the remainder of the land being shared between the four brothers. Unfortunately, the objectors give no regard to the possibility of ladies getting any shares. They all the same urge that the grant be revoked or annulled and the same be issued to the 1st objector Francis Nduku Abuko and not both objectors as would have been expected.
  7. There is evidence that Francis Nduku Abuko died on 5.12.2019 as a consequence of which the second objector applied that he be substituted for the deceased. The court views that application for substation to be superfluous because the 2nd Objector is already a party and no meaning purpose would be served by him substituting the deceased co-objector.
  8. The second application is the objector’s summons for revocation of grant dated 23rd November, 2018 and brought pursuant to section 76(a)(b) and (c) of the Law of Succession Act and rule 73 of the Probate & Administration Rules seeking orders that the grant of letters of administration intestate issued to the petitioner as per the order of Hon. J. Njagi J be annulled and that a new grant be issued in the name of the objector.
  9. The application is premised on the grounds that the petitioner is a grandson of the deceased while the objector is a son of the deceased and that the petitioner fraudulently substituted himself as the petitioner in this cause without consulting the general family and by concealing material facts from the court.
  10. The application is supported by the affidavit of Francis Nduku Abuko (who is since deceased and was substituted by the current objector herein) sworn on 23rd November, 2018 in which he reiterated the grounds of the application and further stated that the petitioner had excluded him and his brother (Achando Murati) from the subject proceedings.
  11. In another affidavit sworn by Achando Murati on 24th February, 2022 and shown to be in support of the summons for revocation of the grant, the deponent avers that the deceased was survived by seven children namely a) Francis Abuko Nduko (Deceased); b) John Ambechi Mutsotso(Deceased); c) Vincent Tindi (Deceased); d) Achando Murati; e) Prisca Ayuma Lutta; f) Everlyne Were Juma and g) Rosebella Ombiso Nawate. He claims that the deceased was the proprietor of BUTSOTSO/ESUMEYIA/87 which was subdivided as follow;
  12. BUTSOTSO/ESUMEYIA/1730 measuring 12 acres registered in the name of the deceased
  13. BUTSOTSO/ESUMEYIA/88 measuring 4 acres and registered in the name of Francis Abuko Nduko; and
  14. BUTSOTSO/ESUMEYIA/1731 measuring 11 acres registered in the name of Achando Murati.
  15. He further avers that from the 12 acres in BUTSOTSO/ESUMEYIA/87, the deceased allocated four acres each to Vincent Tindi and John Ambechi though they did not process title deeds. To the court, this affidavit is important for disclosing that the suit land was intended by the deceased to be shared between his two sons to whom he had given no land.
  16. The application is opposed by the replying affidavit of Joseph Tindi Abuko sworn on 4th March, 2019 in which he asserts that the deceased was survived by four sons namely Vincent Tindi Murati, Ambechi Murati, Francis Nduku Abuko and Achando Murati and that following his demise, the subject petition was initiated by Ambechi Murati with the blessings of Vincent Murati in order to succeed his estate which comprised of property known as BUTSOTSO/ESUMEYIA/1730. He affirms that the deceased owned parcel of land known as BUTSOTSO/ESUMEYIA/87 after allocating BUTSOTSO/ESUMEYIA/88 to his sons including Achando Murati who registered himself as the proprietor during the adjudication process. The deceased subsequently subdivided BUTSOTSO/ESUMEYIA/87 into BUTSOTSO/ESUMEYIA/1730 and BUTSOTSO/ESUMEYIA/1731 and that BUTSOTSO/ESUMEYIA/1731 which measured 26 acres was transferred to Francis Nduku who later subdivided it into several portions some of which he sold and is currently registered as the owner of BUTSOTSO/ESUMEYIA/2481 from the sub division. He claims that BUTSOTSO/ESUMEYIA/1730 is to be shared between Vincent Tindi Murati and Ambechi Murati and that he took conduct of these proceedings following the demise of the two.
  17. In the affidavit of protest to the confirmation of grant sworn by Pamela Khahoya Mutsoso sworn on 29th October, 2018 in her capacity as the daughter of Ambechi Murati, she avers that the petitioner did not seek her consent on the distribution which she contests should consider the daughters as well.
  18. In response to the replying affidavit of the petitioner, the objector has filed an affidavit sworn on 21st March, 2019 in which he agrees that the deceased subdivided BUTSOTSO/ESUMEYIA/87 amongst his four sons with each getting 4 acres each. That Francis Nduku Abuko obtained a title deed for BUTSOTSO/ESUMEYIA/88 which was also owned by the deceased. He claims that the deceased subdivided BUTSOTSO/ESUMEYIA/87 into BUTSOTSO/ESUMEYIA/1730 and BUTSOTSO/ESUMEYIA/1731 and that the latter which measures 11 acres and not 26 acres was given to Achando Murati. He claims that BUTSOTSO/ESUMEYIA/1730 is to be shared among the four sons of the deceased.
  19. Both parties filed submissions in arguing only the summons for revocation of grant even though the court by its orders of 7.6.2022 directed that the objection be treated as protests to the application for confirmation of grant. The court has dutifully perused the said papers, submissions and several affidavits including the affidavit by one Pamela and will give the same due regard in this decision.

  1. It is their submission; the objectors contend that the petitioner who is a grandchild of the deceased had no locus standi to represent the estate of the deceased and wholly allocate himself BUTSOTSO/ESUMEYIA/1730 to the exclusion of other beneficiaries and that this action amounts to concealment of material facts hence the grant should be revoked as off course.
  2. As said before the petitioners maintain in the two replying affidavits and the submissions filed on the 17.01.2023 that even though he is a grandchild to the deceased, his two uncles, the objectors, had got their shares of the deceased’s estate by gifts inter-vivos. He also maintained that his father, Vincent Tindi Murati, and another son to the deceased, Amechi Murati, never got any land from the deceased by transfer but were to share the suit land equally and that when the said two sons of the deceased petitioned for grant, no objection was raised by the current objectors.

Issues Analysis and Determination

  1. From the subject application, the responses thereto and the submissions by the parties, the only issue that arises for determination by this court is whether the application for revocation is merited.

  1. The background to the subject application is that following the death of Peter Murati Abuko (“Deceased”) on the 9th day of January, 1988, Ambichi Murati and Vincent Murati in their capacity as sons of the deceased petitioned this court for a grant of letters of administration intestate for the estate of the deceased. In the said petition, the petitioners candidly disclosed that the deceased was survived by Ambichi Murati, Vincent Tindi Paslita Mukoshi, Godfrey Mutachi Ambachi, Patrick Abuko Mutsotso and Rodgers Chirade Ambachi.
  2. The grounds for revocation of a grant as set out in section 76 of the Law of Succession Act have been interpreted to serve the purpose of ensuring that the order of priority set under section 66 of the Act is respected and that the administration of the estate is done justly and for the benefit of those entitled. were elucidated in the case of In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR where it was stated that;

“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. The objector contends that the petitioner is a grandson of the deceased and him being a son of the deceased, he is the rightful person to administer the estate of the deceased. He further argues that the petitioner obtained the grant to administer the estate of the deceased through concealing some facts.
  2. I have analyzed the case as presented by both parties and noted that indeed the petitioner did disclose all the children of the deceased including the girls but advanced the argument that of the children of the deceased, the two sons had been allocated their inheritance by the deceased save for Vincent Tindi Murati and Ambechi Murati who he claims are the rightful heirs to BUTSOTSO/ESUMEYIA/1730.
  3. Ther ought to be no gain saying that the mandate of a probate court is to; ascertain what constityutes the estate, the identities of those entitled in the estate and to distribute the estate to those entitled while taking into account previous benefits given by a deceased to any beneficiary during his lifetime in terms of section 42 of the Law of Succession Act.
  4. The obligation of a petitioner on the other hand is to present all the information regarding a deceased person which information includes his survivors, assets and liabilities for the court to distribute accordingly. In this matter, even though the deceased had seven children, four sons and three girls, none of the girls have come forth to lay a claim unlike the grandchildren.
  5. It cannot be in contention that the objector, as son to the deceased, sits in priority over the petitioner who is a grandson of the deceased, for purposes of the administration of the estate under section 66 of the Law of Succession Act. That however, in the circumstances of this case should not the only and obvious ground to revoke the grant. Taking into account the tenure this cause has had in court, some 27 years, this matter must be brought to a close, at least before the High court.
  6. The court appreciates the parties for the concession that only the 2nd and 3rd sons of the deceased never got any land from the deceased and that the families of the two have been in occupation of the suit land. The court further appreciates that the 1st and last sons of the dec4eived concede having got parcels of land ad that the deceased had intended and wished that the suit land belong to the said 2nd and 3rd sons. The dispute is whether in the suit land the deceased intended that a portion be remain in his name to be shared later between the four sons.
  7. The court having analysed the entire evidence finds that the first and last sons of the deceased received gifts inter-vivos which was an adequate inheritance. The same is taken into account and found to militate against the two getting additional shares in the suit property. For that reason and the fact that they never objected to the petition by their two brothers, waiting until after the death of the 2nd and 3rd sons to present the current objection, make it unjust to revoke the grant and therefore delay the matter further.
  8. The court thus determines that as at the date of the deceased’s death, his wishes were that the property be inherited in equal shares between Ambechi Murati and Vincent Murati. Those wishes ought to be respected and obeyed. In their death, the said property shall go to their respective estates to be shared equally between their respective children. In that scheme, Akhoya, the only lady to lay a claim on the estate must be accommodated.
  9. In conclusion, the court elects to give purposive orders that will move the cause towards closure. The summons for revocation of grant is allowed to the limited extent the second, (now the only objector), Achand Murati, is appointed a co administrator with the current administrator, Joseph Tindi Abuko.
  10. However, the court is unable to finally distribute the estate to the specific grandchildren entitled, because of insufficient information on their identities. It is thus ordered that within 60 days from the date the grant shall have been issued and collected by them, the two administrators shall file affidavits to disclose all the children of the two sons of the deceased, Ambechi Murati and Vincent Murati, supported with copies of identity cards and propose what each individual gets.

Rendition And Final Orders

  1. For the reasons, discussions and conclusions set out above, the court makes the following orders;
    1. The grant issued to Joseph Tindi Abuko is hereby revoked and in its place substituted a fresh grant to be issued in favour of Ambechi Murati and Joseph Tindi Abuko as co-administrators.
    2. The two administrators shall file affidavits to disclose all the children of the two sons of the deceased, Ambechi Murati and Vincent Murati, supported with copies of identity cards, and propose what each individual gets.
    3. Being a family matter, there shall be no order as to costs.

Dated, signed and delivered Virtually this 14th day of February, 2023

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