[2022] KEHC 1047 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

SUCCESSION CAUSE No. 1056 OF 2012

B E T W E EN:

EVANS OMEGA ERABUTSA .............................................................................. OBJECTOR

AND

WILSON KAHI MUSA.................................................................................1ST RESPONDENT

HERBERT KALI NANG’AME ................................................................2ND RESPONDENT

R U L I N G

1. The Court has before it an application for revocation of the Certificate of Confirmed Grant issued by this Court on 28th October 2014 in the Estate of MUSA UBAGO KIBANDA (hereinafter referred to as the Deceased) who passed away on 10th April 2004 aged 82 years. The Dispute relates specifically to the Land Parcel L.R. No KAKAMEGA LUSIOLA/813. The Death Certificate shows that the Deceased was a resident of Lusiola and a decision of the Vihiga Land Disputes Committee dated 10/12/2002.

2. The Application is brought under Summons for Revocation of Grant and seeks the following Orders:-

(a) That the Certificate of Confirmation of Grant dated 3/11/2014 and letters of administration intestate dated 18/12/2017 issued in favour of the Petitioner/Respondent be revoked and/or annulled.

(b) That a fresh grant of letters of administration intestate be issued in the name of EVANS ERABUTSA OMEGA.

(c) That this honourable Court issues an order directing the Land Registrar Kakamega to nullify the subsequent ownership of the 2nd Respondent HERBET KALINANG’ANE for contravening the award by Vihiga Land Disputes Committee dated 10/12/2002.

(d) That the names of MUSA UBAGO KIBANDA be restored as the registered owner of LR. KAKAMEGA/LUSIOLA/813pending re-distribution.

(e) That this honourable Court makes a further order awarding the Applicant LR. KAKAMEGA LUSIOLA/813which was bestowed to him by Vihiga Land Disputes Tribunal award dated 10/12/2002.

(f) That cost of this application in the cause.

3. The Petitioners have filed Replying Affidavit. The First Petitioner Respondent says;

1. ……

2. That the deceased MUSA UBAGO KIBANDA the subject of this proceedings which were concluded upon confirmation was my father who died on the 10th day of May 2004.

3. That having been served with amended summons for revocation of grant dated 14th December 2020 I shall oppose the same and set forth the following grounds.

4. That the process in this matter was transparent, whereby this cause was advertised in Kenya Gazette as required by the law and thereafter grant was issued on 18th December 2015 and confirmed on the 3rd November 2014 by this Honourable Court after all the due process having been followed and complied. The Kenya Gazette Notice, Grant of Letters of Administration Intestate and Certificate of Confirmed Grant are hereto annexed and marked WKM-1, 2 AND 3.

5. That I never filed the Succession herein secretly as alleged by the Objector/Applicant as all the beneficiaries were aware and duly gave me consent. A copy of the consent was duly certified by the Area Chief is hereto annexed and marked as WKM-4.

6. That the Objector/Applicant is a stranger and not a deceased beneficiaries or whatsoever to be entitled to the deceased estate as alleged or at all.

7. That this succession matter was concluded and the family duly sold the parcel of land to the 2nd Respondent herein HERBERT KALI NANG’AME who paid me the whole agreed consideration and I went with him to the land control board for consent of transfer which was granted.

8. That the title deed one HERBERT KALI NANG’AMEobtained after transfer of the suit parcel from me to him is legal documents, transparency procedures having been followed.

9. That the title deed one HERBERT KALI NANG’AMEobtained after transfer of the suit parcel from me to him is legal documents, transparency procedures having been followed.

10. That in the event there could be a genuine award by the Vihiga Land Disputes Committee dated 10th December 2002 which the Objector/Applicant alleges should have been obeyed, the land control board could not have given me the consent to transfer the suit land to HERBERT KALI NANG’AMEas it did.

11. That all the transactions and procedures in this matter were transparent and there is no error on face of record to warrant the orders sought in the amended summons for revocation of grant herein by the Objector/Applicant.

12. That I humbly apply for this Honourable Court to dismiss and or strike out the amended summons for revocation of grant dated 14th December 2020 with costs.”.

4. The Second Respondent says:

1. That…..

2. That I am holder of national identification card number 5174146 a copy of which is hereto annexed and marked as HKN-1.

3. That having been served with amended summons for revocation dated 14th December 2020, I shall oppose the same and apply for the Honourable Court to dismiss the same with costs on the grounds that:-

(a) That the family of the deceased herein approached me for sale of land parcel known as KAKAMEGA/LUSIOLA/813which offer I accepted and purchased the whole of the said parcel at a consideration of Kenya Shillings Two Hundred and Seventy Thousand Only (Kshs. 270,000. 00). The copy of the agreement is hereto enclosed and marked as HKN-2.

(b) That I took possession of the suit parcel and the Petitioner herein commenced succession proceedings to ensure the same is transferred to me.

(c) That the copy of register to prove that all the transaction were legally is hereto annexed hereto and marked HKN-3.

(d) That I followed due and legal process to acquire the aforesaid parcel of land by booking and paying at the land control board consent, the receipt is hereto annexed and marked HKN-4, the application for land control board consent, the consent, the transfer form, stamp duty payments receipts, land payment receipt and copy of title deed registered in my names are hereto annexed and marked as HKN-5, 6, 7, 8 (a) & (b), 9and10.

(e) That the allegations that I contravene the Vihiga Land Dispute Committee award dated 10/12/2002 are untrue and strange to me.

(f) That I am reliably informed by the Petitioner that he followed the due process when he petitioned the letters of administration before this Court and all the procedures were transparent before he transferred to me the suit land.

4. That I have been advised by my lawyer on record and which advice I verily believe to be true that seeking to cancel a title deed based on a conclude and confirmed grant can only be canvassed through a substantive suit and not through an interlocutory application for revocation like the one in question and the prayers sought therein are therefore not available to the applicant.

5. That I have further been advised by my lawyers on record and which advice I verily believe to be true that matters relating to land other than those confined to transmission through succession proceedings can only be handled in a Land and Environment Court by operation of the law and by reason whereof this Honorable Court has no jurisdiction to deal with the matter in issue.

6. That I am an innocent purchaser for value the suit parcel which I hold a genuine title deed to the same.

7. That the application by way of amended summons for revocation of grant and the prayers sought therein should be dismissed and or struck out with costs….@.

5. In summary therefore the allegation is that before the Deceased passed away he was fully aware that he was holding the Land Parcel on Trust for KEFA OMEGA ASINGIRA by reason of an Award of the Vihiga Land Disputes Tribunal dated 14th July 1994. A copy of that award and Proceedings were sent to the SRM at Vihigia Law Courts by the District Officer for Vihiga Division as long ago as 14th January 2003. The Proceedings demonstrate that a Kefa Omega Asingila of Lusiolo Sub-Location, South Maragoli Location accused the Deceased had taken his ancestral land when his Father was away. The decision of the Land Disputes Tribunal was that the Parcel of Land/Farm be transferred back to Kega Omega Asingila. It appears that even as late as 18th May 2012 that had not been done because the Land Parcel was included in the Estate of the Deceased. There was a restriction against the title registered on 21 May 2010 but the Respondents appear to have got around that.

6. The First Respondent Wilson Kahi Musa Petitioned for Letters of Administration in the Estate of the Deceased on 9th October 2012. Before that he conducted a Search of the Properties registered in the name of the Deceased. The Certificate of Search in relation to the land parcel the subject of this dispute was listed but had a caution against it. It is clear therefore that the Petitioner was actually aware that there was a dispute in relation to the land. He also had notice of the Decision of the Tribunal because the award was published.

7. Therefore when the Respondents now say that the process of obtaining a Certificate of Confirmed grant was transparent and all family members were notified, it is clear there was an intention to mislead the Court and de-fraud Kefa Omwega and/or his Estate.

8. The Second Respondent raises arguments about the correct court for resolution of land disputes. It is correct land disputes go to the Environment and Land Court. It is equally correct that succession disputes go to the High Court. The property owned – legally and or beneficially by a deceased person immediately before his death are fully within the preserve of the High Court hearing succession disputes. In the circumstances this Court is satisfied that it has jurisdiction to hear the issue of whether or not the land Parcel 813 was properly included as within the Estate of the Deceased.

9. Having considered all the Evidence in the Court file, the Court is satisfied that Land Parcel 813 was not owned beneficially by the Deceased. Immediately after the decision of the Land Disputes Tribunal, he was holding the Legal Title for Kefa Omwega on trust. The Beneficial owner was Kefa Omwega and NOT Musa Ubago Kibanda.

10. The Petition and in particular the list of beneficiaries/dependants and/or liabilities omitted the name of Kefa Omwega. In the circumstances, the Letters of Administration and as a consequence the Certificate of Confirmed Grant were issued on the basis of incorrect and deliberately falsified information. The Farm was distributed to the First Respondent who then sold it to the Second Respondent.

11. Both Respondents claim they followed a transparent process yet neither one explains how he got around the restrictions against the title.

12. In the circumstances the Certificate of Confirmed Grant is revoked and/or cancelled. Secondly all actions taken on the basis and/or strength of the Certificate of Confirmed Grant are also cancelled and/or reversed and deemed to have no effect in law. Thirdly, the Letters of Administration issued to Wilson Kahi Musa are revoked and/or cancelled.

13. It is further ordered and directed that a copy of this Ruling be provided to the DCIO Vihiga and a copy to Land Registry to consider whether to bring a criminal prosecution.

Order accordingly,

FARAH S. AMIN

JUDGE

DELIVERED IN OPEN COURT IN KAKAMEGA ON THIS THE 3RD DAY OF MARCH 2022.