Mayamba Faizo and Others v Aisha Cheboi and Others (Civil Suit No. 1 of 2023)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court found that the plaintiffs fraudulently procured a certificate of no objection by presenting forged family minutes containing the signature of a beneficiary who was in prison at the time of the alleged meeting. The court held that the defendants were justified in lodging caveats to prevent the grant of letters of administration. The court declared that the three widows of the deceased, being surviving spouses, have statutory preference under the Succession Act to administer the estate and are the most fit and proper persons to do so jointly with selected representatives from children whose mothers are not among the legally recognized widows. The suit was dismissed with each party bearing its own costs.

Outcome

Suit dismissed. Certificate of no objection annulled. Three widows declared proper administrators with selected representatives from other children to join them in administration.

Facts

The late Hajji Ali Cheboi died intestate in 2021, survived by three widows and over forty children from polygamous Islamic marriages. The plaintiffs, being some of his biological children, sought letters of administration to administer his estate. They convened family meetings and obtained a certificate of no objection from the Administrator General based on family minutes dated 13 November 2021. The defendants, who are also children and one widow of the deceased, lodged caveats against the grant, alleging they were excluded from the process and that the family minutes were fraudulent. Evidence revealed that the attendance list for the 13 November 2021 meeting contained the signature of Sabira Yasin, who was in prison at the time. The first plaintiff also sold part of the estate land before obtaining letters of administration. The defendants claimed certain properties were wrongly included or excluded from the estate inventory.

Issues

1. Whether the Plaintiffs procured the certificate of no objection from the Administrator General fraudulently and illegally using forged family minutes?
2. Whether the caveats lodged by the Defendants forbidding the grant of the letters of administration to the Plaintiffs are malicious, baseless, and therefore untenable?
3. Whether the properties comprised in FRV MBA69 Folio 7, Plot 38B Wanale Road at Wanale Cell and in Plot 3, FRV MBA 72 Folio 17 situate at Central Road Lwakhakha Cell, Mbale city form part of the Estate of the late Hajji Ali Cheboi?
4. Whether the Plaintiffs are the most fit and suitable persons to administer the estate of late Hajji Ali Cheboi?
5. What remedies are available to the parties?

Orders

• The certificate of no-objection procured by the Plaintiffs in respect of the estate of the late Haji Ali Cheboi is annulled on grounds of fraud.
• The Defendants were justified in lodging the caveats forbidding the Plaintiffs from being granted the letters of administration in respect of the estate of the late Hajji Ali Cheboi.
• The land comprised in Plot 38B Wanale FRV MBA69 Folio 7 was erroneously included among the estate of Cheobi Ali Hajji since it is a property owned under a joint tenancy.
• The estate of the late Hajji Ali Cheboi is only entitled to 50% in the land comprised in Plot 3 FRV MBA 72 folio 17, situate at Central Road, Lwakhakha Cell, as it was owned under a tenancy in common.
• The three widows of the deceased are declared to be the most fit and proper persons to jointly administer the estate and shall jointly apply for letters of administration together with a selected number of representatives from among the children of the deceased whose mothers are not among the three legally recognized widows.
• Each party to bear its own costs.

Rules and key headnotes

Legislation cited (16)

• Administrator General's Act Cap. 264 s.4(1)
• Administrator General's Act Cap. 264 s.5(1)
• Succession Act Cap. 268 s.22
• Succession Act Cap. 268 s.188
• Succession Act Cap. 268 s.197
• Succession Act Cap. 268 s.199(1)
• Succession Act Cap. 268 s.199(2)
• Succession Act Cap. 268 s.249
• Registration of Titles Act Cap. 240 s.56
• Marriage and Divorce of Mohammedans Act Cap. 147 s.3
• Marriage and Divorce of Mohammedans Act Cap. 147 s.6(1)
• Marriage and Divorce of Mohammedans Act Cap. 147 s.17(a)
• Evidence Act Cap. 8 s.103
• Civil Procedure Rules SI 71-1 Order 15 Rule 5(1)
• Civil Procedure Act Cap. 282 s.27(1)
• Civil Procedure Act Cap. 282 s.27(2)

Cases cited (9)

• Zaabwe v Orient Bank Ltd and 5 Others (Civil Appeal No. 4 of 2006)
• Kithende Kalibogha and 2 Others v Eleanora Wilsmer (Civil Appeal No. 3 of 2019)
• Kabali and Another v Attorney General (Civil Appeal No. 50 of 2007)
• Miller v Minister of Pensions [1947] 2 All ER 372
• Olum v Bongomin & 4 Ors (Civil Application No. 120 of 2015)
• Wamulima v Wamale (Civil Suit No. 3 of 2022)
• Amina Rose Nakaye v Haji Juma Achikule (Civil Suit No. 29 of 1993)
• Hon. Nze Herbert Osuji & Anor V. Anthony Isiocha (1989) 3 N.W.L.R. (Pt. 111) 623 at 636
• Francis Butagira v Deborah Mukasa (Supreme Court Civil Appeal No. 6 of 1989)

The original judgment as reported. Read the original PDF before relying on any passage.