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Court of AppealDismissedKisumu Civil Appeal No. 11 of 2018· [2020] KECA 299 (KLR)

Meshack Otieno Aidah & another v Sharon Atieno Aidah & 7 others [2020] KECA 299 (KLR)

Court of Appeal
9 October 2020
WKW. KaranjaHOHannah OkwenguASAsike-Makhandia
2,826 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed that Kenyan courts can revoke a grant of administration based on affidavits alone when beneficiaries were deliberately left out of a succession petition.

What this practically means

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Executive summary

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The Court of Appeal dismissed the 1st appellant's challenge to a High Court ruling revoking a grant of letters of administration in the estate of Eli Enoka Aidah. The 1st to 5th respondents, grandchildren of the deceased whose father Samuel Imbo Aidah had been excluded from the distribution, successfully applied for revocation on the ground that the grant was obtained through concealment of material facts, as they were neither named nor disclosed in the petition. The appeal raised three issues: whether the 1st appellant was denied a fair hearing because the application was determined on affidavit evidence rather than viva voce; whether alleged non-service of the 6th to 8th respondents invalidated the proceedings; and whether failure to substitute the deceased 7th respondent vitiated the process. The Court held, first, that Rule 44 of the Probate and Administration Rules permits revocation applications to proceed by affidavit, with viva voce evidence discretionary, and since it was conceded that beneficiaries had been omitted, oral evidence could not have altered the outcome. Second, an affidavit of service existed on the record, the parties were one extended family, and no prejudice was demonstrated; indeed, the Court noted it could have revoked the grant suo motu given the undisputed omission. Third, under section 81 of the Law of Succession Act, the deceased administrator's powers vested in the survivors, making substitution unnecessary, and succession matters are governed by the Probate and Administration Rules rather than the Civil Procedure Rules. The Court affirmed the revocation of the grant, noted the 2nd appellant's appeal had been withdrawn, and dismissed the appeal with no order as to costs.

Key legal issues

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01

Whether determination of a revocation-of-grant application on affidavit evidence without viva voce hearing denies a party a fair hearing

Holding

No. Rule 44 of the Probate and Administration Rules permits the application to proceed by affidavit evidence, and the court may proceed in any manner it deems fit, including calling viva voce evidence where necessary. Since there was concession that the grandchildren were not listed as beneficiaries, viva voce evidence would not have changed the outcome.

Reasoning

Rule 44(4) empowers the court, once persons directed to be served have been served, either to determine the application or make such other order as it sees fit. The issue before the trial judge was simple and factual: were all beneficiaries included in the list of survivors? That fact was conceded, so oral testimony was unnecessary and the fair-hearing complaint was devoid of substance.

p. 3
02

Whether alleged non-service of the 6th to 8th respondents with the revocation application invalidated the trial proceedings

Holding

No. There was an affidavit of service on record, the parties were members of the same extended family and thus aware of the proceedings, and in any event the failure to raise non-service before the trial court, coupled with absence of demonstrated prejudice, meant the proceedings were not invalidated.

Reasoning

The record disclosed an affidavit of personal service dated 18th July 2017. Judicial notice was taken that all parties belong to the same extended family, making it implausible that the administrators were unaware of the proceedings. Had they wished to object, they could have filed a protest. The court also observed it could have revoked the grant suo motu given the undisputed omission of beneficiaries, and no prejudice was shown.

p. 4
03

Whether failure to substitute the deceased 7th respondent invalidated the revocation proceedings

Holding

No. Under section 81 of the Law of Succession Act, the powers and duties of a deceased administrator vest in the surviving administrators, so substitution was unnecessary; Rule 63 of the Probate and Administration Rules governs such applications rather than the Civil Procedure Rules.

Reasoning

Section 81 provides that upon the death of one or more of several administrators, all powers and duties vest in the survivors. The 7th respondent's powers therefore vested in the remaining administrators, and this being a succession matter, the Civil Procedure Rules on substitution (Order 24) did not apply. Substitution was accordingly not necessary in the circumstances.

p. 4

Legal principles established

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  • An application for revocation of a grant under section 76 of the Law of Succession Act may proceed by way of affidavit evidence; the court has discretion whether to call viva voce evidence, so a party is not denied a fair hearing merely because the application is determined on affidavits.
  • Upon the death of one of several administrators, all powers and duties of the administrators vest in the survivors under section 81 of the Law of Succession Act; substitution of a deceased administrator is therefore not necessary in succession proceedings.
  • Where it is not disputed that some persons required to be listed as survivors in a petition for letters of administration were left out, the court may suo motu revoke the grant; a party complaining of non-service must demonstrate prejudice.
  • Grandchildren of a deceased person, though not direct heirs, become entitled to inherit directly upon the death of their parent by virtue of the principle of representation and ought to be named in the petition for letters of administration with their consent sought.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Law of Succession Actsection 51
  • Law of Succession Actsection 76
  • Law of Succession Actsection 81
  • Probate and Administration RulesRule 44
  • Probate and Administration RulesRule 63
  • Civil Procedure ActOrder 24
  • Constitution of KenyaArticle 50(1)
  • Court of Appeal RulesRule 96(5)

Cases cited (2)

  • Christine Wangari Gachigi v Elizabeth Wanjiru Evans and 11 Others
    NKU CA Civil Appeal No. 221 of 2007 [2014] eKLR
  • Kiai Mbaki & 2 Others v. Gichuhi Macharia & Another
    Nairobi Civil Appeal No. 178 of 2002
On appeal from
High Court of Kenya at Kisumu
H.C. Succ. Cause No. 143 of 2008
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act over an appeal from the High Court in a succession cause; the ruling was delivered by W. Korir, J. (the cause being H.C. Succ. Cause No. 143 of 2008)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Meshack Otieno Aidah & another v Sharon Atieno Aidah & 7 others [2020] KECA 299 (KLR)", Case Analysis (2020). Kisumu Civil Appeal No. 11 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/299/eng@2020-10-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.