Isabella Gichugu Matheka & 1 other v Erick Muthui Matheka

who having considered all that was urged before him stated as follows in his ruling delivered on 27th October, 1999:“ The Court has a formal discretion to decide to whom the grant should be given subject to the general guide in section 66 of the Law of Succession Act. It is not disputed that the first petitioner was the widow of the deceased. Under the general guide in section 66 of the Law of Succession Act a widow has priority over everybody else to get a grant. 3. Even assuming that objector is a son of the deceased but not a child of the first petitioner that would not entitle him to a grant as a legal right. 4. Having allowed the petition and given the grant to the two appellants (petitioners in the superior court) the learned judge concluded his ruling thus:“ Upon service of the application for confirmation of the grant the objector to file an affidavit of protest pursuant to rule 40(1) of P & A Rules and thereafter Court to determine the dispute on distribution which may emerge on the merit.” 5. 6. According to the court records, the respondent lodged objection to the petition on 26th July, 1990 and on 13th November 1990 he filed a “petition by way of cross application for a grant”. The appellants petitioned for confirmation of the grant and the respondent filed an affidavit of protest to confirmation of the grant. It would appear that the respondent also took out a Chamber Summons application under rule 45(1) of the Probate and Administration Rules of the Law of Succession Act in which he sought the following:1. The administrators of the Estate of George Musau Matheka do give and supply to this honourable Court detailed and complete accounts since 1996 to date. 2. That such reasonable provision be now made for the applicant/objector of the deceased namely Eric Muthui Matheka as a dependant of the deceased out of his estate as the Court thinks fit. 3. That the costs of this application be provided for”. It would appear from the record that the objection by the respondent, his cross-application, application for detailed accounts and reasonable provision and protest for confirmation were all placed before Aluoch, J for consideration. The learned judge considered all that was placed before her, the arguments in support of rival contentions and in the end delivered her ruling on 27th June, 2002. In her ruling, she stated inter alia:The totality of the evidence I have considered shows that the deceased was the father of Eric. It is on record that Eric has cross petitioned for the grant to the deceased’s estate. He has prayed that his name be included in the grant of letters of administration to the deceased’s estate that is why he protested to confirmation of the grant which has the names of Isabella and her daughter only. 7. Since I have found the deceased was Eric’s father and in order to grant Eric’s request I have decided out of my own motion under section 76 of the Succession Act, Cap 160 Laws of Kenya to revoke the grant of letters of administration intestate issued to Isabella Gichugu Matheka jointly with her daughter Rita Mueni Ndinda Matheka on 27th October, 1999. https://new.kenyalaw.org/akn/ke/judgment/keca/2005/316/eng@2005-04-15 2

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8. The order for the revocation of this grant of letters of administration should be served on the officer in charge of securities Barclays Bank Ltd, East Nairobi Group of Branches Moi Avenue Business Centre PO Box 30116 Nairobi Kenya. 9. The order should also be served on any other bank from which the 2 petitioners might have been withdrawing money belonging to the deceased’s estate. 10. I now direct that a new grant of letters of administration intestate to the estate of the late George Musau Matheka be issued to Isabella Gichugu Matheka jointly with Rita Mueni Matheka and Eric Muthui Matheka.” 11. It was the above ruling by Aluoch, J that provoked this appeal in which the appellants set out the following grounds of appeal:- 12. “ 1. The learned judge erred in law and fact in revoking the letters of administration given to the appellants on 27th October, 1999 and issuing a new grant when there was not jurisdiction to do that under the proceedings which were before the Court. The application before Court was summons for provision for a dependent by the respondent. 2. The learned judge erred in law and fact in granting the orders it did which resulted in overturning the orders/ ruling of the Court of 27th October, 1999 (Hon Mr Justice Githinji) which had concurrent jurisdiction thereby sitting on appeal of a decision of a fellow judge. 3. The learned judge erred in law and fact in entertaining arguments and evidence leading to the revocation of the grant when dealing with a protest to confirmation of grant and an application for provision for a dependant which merely entitled the protestor to be included as dependant/beneficiary to the estate of the deceased. 4. The learned judge erred in law and fact in considering extraneous matters and arriving at a wrong decision. 5. The learned judge erred in law and fact in considering the cross-petition of the respondent which had been considered and disallowed by the Court by virtue of the decision of 27th October, 1999 (Hon Mr Justice Githinji) when the petition by the appellants and cross petition by the respondent were all dealt with. 6. The learned judge erred in law and fact by misdirecting herself to the protest by the respondent to the confirmation of grant to the appellants by assuming jurisdiction of re-opening matters relating to the grant which had been determined on 27th October, 1999 thus arriving at a wrong decision. 7. The learned judge erred in law and fact in failing to consider the relevant facts and law thus arriving at a wrong decision.” Mr K’Opere, the learned counsel for the appellants submitted that what was before Aluoch J was a protest to confirmation of the grant on the ground that the respondent had not been included as a beneficiary. It was Mr K’Opere’s contention that the grant had been given to the appellants by Githinji https://new.kenyalaw.org/akn/ke/judgment/keca/2005/316/eng@2005-04-15 3

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J (as he then was) and that the cross-petition had been disallowed. It was further argued that it was wrong for Aluoch J to have revoked the grant which had been given by Githinji, J. 13. Finally. Mr K’Opere submitted that Aluoch. J entertained extraneous matters by going back to what had been determined earlier by Githinji, J. For those reasons. Mr K’Opere asked us to set aside the orders of Aluoch, J and then remit the matter to the High Court for hearing of the protest by the respondent. 14. Mr Thangei. the learned counsel for the respondent, was of the view that Aluoch, J was right in revoking the grant since there had been material concealment of assets of the deceased by the appellants when they applied for the grant. Mr Thangei asked us to uphold Aluoch J’s ruling and allow his client (the respondent) to take part in the administration of the estate of the deceased. 15. The main complaint in this appeal is that Aluoch J was wrong when she proceeded to revoke the grant which had been issued to the appellants. 16. The learned judge stated that she had decided on her own motion under section 76 of the Succession Act to revoke the Grant of Letters of Administration intestate issued to the appellants. Section 76 of the Law of Succession Act (Cap 160 Laws of Kenya) provides:“ 76. Agrant of representation, whether or not confirmed. may at any time be revoked or annulled if the Court decided either on application by any interested party or of its own motionla) 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 die 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 has ordered or allowed; or (ii) to proceed deligently 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 https://new.kenyalaw.org/akn/ke/judgment/keca/2005/316/eng@2005-04-15 4

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(e) that the grant lias become useless and inoperative through subsequent circumstances.” 17. From the foregoing, it is clear that a grant may be revoked either by application by an interested party or on the Court’s own motion. But even when revocation is by the Court upon its 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 allegation of facts essential in point of law or that the person named in the grant has failed to apply for confirmation or to proceed diligently with the administration of the estate. 18. The grant may also be revoked if it can be shown to the Court that the person to whom the grant has been issued has failed to produce to the court such inventory or account of administration as may be required. 19. Mr Thangei submitted that the grant was properly revoked on account of concealment of assets of the deceased. But what was the position before the learned judge? The protest by the respondent was that he was the son of the deceased and hence a beneficiary. He however, went further by insisting that he be made one of the administrators. We have carefully considered what was before the learned judge and it would appear that the respondent’s main objection was that as he was a beneficiary as the son of the deceased with another woman he should have been included as an administrator. On the issue of grant of letters of administration, we would refer to section 66 of the Law of Succession Act which provides:“ “ 66. When a deceased has died interstate, the Court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference(a) surviving spouse or spouses, with or without association of other beneficiaries; (b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by part V: (c) the public trustee; and (d) creditors Provided that, where there is partial intestacy, letters of administration in respect of the interstate estate shall be granted to any executor or executors who prove the will.” 20. In view of the provisions of section 66 and 76 of the Law of Succession Act and the facts of this case which do not appear to be in any dispute as relates to the status of the respondent vis-a-vis the deceased, we are satisfied that the learned judge (Aluoch, J) was in error when she proceeded to revoke the grant. We hasten to add that the learned judge had the noble intention of protecting the interest of the respondent who, in her view, was a beneficiary of the deceased’s estate, but that noble intention could not, in our view, be achieved by revoking the grant. All the matters upon which the respondent relied before Aluoch, J for the revocation of the grant issued by Githinji, J had been placed before the latter judge and had been considered by him. Nothing new was brought before Aluoch, J to warrant the revocation. https://new.kenyalaw.org/akn/ke/judgment/keca/2005/316/eng@2005-04-15 5

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21. For the foregoing reasons, we allow this appeal and set aside the High court order given on 27th June, 2002 and remit the cause for hearing in the superior court as to the respondent’s protest for inclusion and provision as a beneficiary/dependant of the deceased. We further order that the grant of letters of administration given on 27th October, 1999 do proceed to confirmation showing the assets identities and shares of those beneficially entitled. Costs shall be borne by the estate of the deceased. These shall be our orders. DATE AND DELIVERED AT NAIROBI THIS 15TH DAY OF APRIL 2005. ……………………….. OMOLO JUDGE OF APPEAL …………………………. O’KUBASU JUDGE OF APPEAL ……………………………………… ONYANGO OTIENO JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2005/316/eng@2005-04-15 6

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