[2019] KEHC 5831 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

SUCCESSION CASE NO. 56 OF 2017

FORMERLY NAIROBI SUCCESSION CAUSE NO. 2514 OF 2006

IN THE MATTER OF THE ESTATE JULIUS WAINAINA MWATHI (DECEASED)

J U D G M E N T

1. Before me is the Summons for revocation of the grant issued to Rahab Nyambura Wainaina,and which was filed by John Kinuthia Makumion 25th July 2012. The Applicant deposed in his affidavit in support of the summons that he purchased a parcel measuring 1. 5 acres described as LR NO. KABETE/KIBICHIKU/675 (the suit property) in 1986 from one Ngugi Mwathi Wangige then the registered owner, but that the said vendor died before the transfer could be effected. That Nairobi Succession cause No.121 of 1988 was filed by the vendor’s siblings as the vendor was unmarried; that the appointed administrator Julius Wainaina Mwathi(the deceased herein) excluded him in the distribution of the estate. That subsequently, the said administrator undertook to transfer the property to the Applicant, but he too died before the process could be completed having transferred the entire land parcel to himself, and that the said deceased administrator’s wife has by this Petition evinced an intention to transfer the suit land to other beneficiaries, to the exclusion of the purchaser.

2. Rahab Nyambura Wainaina swore a Replying affidavit in opposition to the summons for evocation of grant. She asserts that the sale to the Applicant was rescinded by the vendor prior to his death and the purchase price paid back to him. Moreover, that the estate of Ngugi Mwathi Wangige (the vendor) was the subject of the judgment of the Court of Appeal in Civil Appeal No. 123 of 1992 which determined that the estate of the vendor was to devolve in the manner provided for under Kikuyu customary law, by which the deceased herein became the sole beneficiary in respect of the subject land parcel by dint of the subsequent confirmed grant issued on 6th February 1998 in High Court Nairobi Succession Cause No. 121 of 1988.

3. In a supplementary affidavit, the Applicant disputed the alleged rescission of the contract of sale of land or having received refund of the purchase price. He deposed that he was not a party in the appeal before the Court of Appeal. On 25th February 2013 Kimaru Jdirected that the question for trial was whether the subject land was sold to the Applicant by the deceased and that parties were to give viva voce evidence. The matter was heard before Musyoka J and transferred to this court on 21/9/16 after the evidence had been taken on both sides. At the hearing the Applicant and Respondent gave evidence which was in terms of their respective affidavits. Parties later filed submissions.

4. The court has considered the parties’ respective material. The undisputed facts of the case are that Ngugi Mwathi Wangige, was since 1983 the registered proprietor of the land parcel NO. KABETE/KIBICHIKU/675 measuring 1. 5 acres (the suit property).

5. By a series of agreements executed on 9th December 1986 and 22nd December 1986 between Ngugi Mwathi Wangige (vendor) and the present Applicant, the former sold the entire suit property to the Applicant for a total sum of KShs.210,000/=. However the vendor died on 9th March 1987, before he could effect transfer of the suit land to the Applicant. The said vendor had no wife or children, and Nairobi Succession Cause No. 121 of 1988 was filed at the High Court of Nairobi by his brother Julius Wainaina Mwathi (Julius) who is the deceased in the instant cause and late husband to the Respondent herein.

6. A certificate of confirmation of grant issued in the Cause No.121 of 1998 on 14th August 1992 by which Julius Wainaina Mwathi and his sisters Beth Mbene Mwathi and Grace Wanjiru Mwathi were to share the suit property in equal shares. This decision subsequently challenged by Julius in the Court of Appeal in Civil Appeal No. 123 of 1992. The appeal ultimately terminated in Julius’ favor and the court ordered that the property ought to devolve as provided at the time under Kikuyu customary law, to the brother of the deceased. Thus on 6th February 1998 a new certificate of grant issued in favour of Julius upon whom the entire suit property devolved. On 19th August 2004 the suit property was registered in the name of Julius.

7. Two years later on 22nd March 2006 Julius passed away. The Respondent therefore filed the present succession cause. The persons listed as beneficiaries surviving Julius are his wife Rahab Nyambura Wainaina (Petitioner/Respondent) his 7 daughters and a son. On 29th January 2007 a grant was issued to the Petitioner/Respondent. On 25th July 2012, the present Applicant filed the summons for revocation of the grant to Rahab Nyambura Wainaina.

8. From the only complete ground on the face of the application and in the Applicant’s affidavit, the Applicant’s complaint is that the present cause was filed secretly and that Julius obtained title to the suit land through fraud. Section 76 of the Law of Succession Act provides that:

“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—

(a) 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 the person to whom the grant was made has failed, after due notice and without reasonable cause either—

…….”

9. By alleging the secretive filing of the present cause, the Applicant appears to imply that he was entitled to be included, or his consent sought, prior to the filing of the cause, by virtue of his alleged purchase of the suit land from the deceased initial owner of the suit property. The deceased Julius died intestate. The requirement under Section 51 (2) (g) of the Law of Succession Act is that in cases of total or partial intestacy, the information concerning names and addresses of all surviving spouses, children, parents, brothers, sisters of the deceased and children of any child of his or her then deceased be supplied in the petition. The Applicant herein was not a relative of the deceased. Thus, there was no legal duty on the Petitioner/Respondent to include the Applicant’s name or particulars in this cause. Moreover, by dint of Section 66 of the Law of Succession Act, the spouse to the intestate deceased ranks highest in priority among those qualified to apply to be appointed as administrators of the estate of the intestate.

10. Similarly, the Applicant herein does not fall within in the category of persons in Rule 26 of the probate and Administration Rules whose consent must be sought by an Applicant to a grant. Besides, the record herein indicates that the Petition by the Petitioner/Respondent was duly gazetted as provided in Section 67 of the Law of Succession Act and Rule 7 (4) of the Probate and Administration Rules. In the circumstances, it cannot be said that the filing was secretive.

11. Further, from the material placed before the court, the deceased herein received the subject property through a proper grant issued in Nairobi Succession Cause No.121 of 1988, pursuant to the decision of the Court of Appeal in Civil Appeal No. 123 of 1992. It would appear from his deposition and evidence that the Applicant was aware of both causes but did not lay his claims therein in respect of the suit property which was also the subject of the two causes. Nor did he apply to set aside the final confirmed grant issued on 6th February 1998 in the intestate’s favor in Nairobi Succession Cause No. 121 of 1988.

12. Pursuant to the orders by Musyoka J made in this cause on 17th August 2016, and subsequently by Ngugi J on 1/2/18 the parties were able to furnish to the court a ruling in Kiambu Senior Resident Magistrate’s Land Cause No. 11 of 1988 between the Applicant and the deceased herein. The subject matter of the ruling is the suit property and the elder’s award delivered on 19. 7.88 in favor of the Applicant by a panel of elders, subsequent to the initial appointment of the deceased as a legal representative of the estate of Ngugi Mwathi Wangige, presumably, under the Magistrate’s jurisdiction Amendment Act. In its ruling, the court correctly declared the decision of the elders in awarding the suit property to the Applicant a nullity and advised any aggrieved party to file a suit in a court of competent jurisdiction.

13. Although the date of this ruling is not visible due to the age of the record, the ruling was apparently rendered prior to the Court of Appeal decision. There is no evidence that subsequent to the subordinate court’s ruling and the confirmed grant issued on 6th February 1998 in Nairobi Succession Cause No. 121 of 1988, the Applicant challenged the said grant or filed a suit against the deceased herein regarding the suit property. In asserting through the instant application that the said intestate obtained title to the subject property through fraud, the Applicant appears to ignore the history of this matter, and more particularly the outcome of various litigation.

14. In my view, the current cause is not the proper forum for the Applicant to bring his claim in respect of the suit property or to challenge the grant issued in Nairobi Succession Cause No. 121 of 1988. I would go further, without determining the point, to observe that the deceased vendor Ngugi Mwathi Wangige having failed to transfer the suit property to the Applicant, his siblings Beth Mbene Mwathi and Wanjiru Mwathi who were not his legal representatives could not, in the circumstances of this case, purport to apply for consent to the Land Control Board to transfer the property to the Applicant in 1989 as purported in the annexures JKM 4 and 5to the Applicant’s supporting affidavit.

15. Moreover, there is uncontroverted material in support of paragraph 7 of the Petitioner/Respondent’s affidavit that prior to his death, the deceased Ngugi Mwathi Wangigerepaid, at last part of the purchase price (shs.140,000/=) to the Applicant in January 1987 by a banker’s cheque issued in the name of the Applicant. In my considered view, it is too late in the day, and this is also the wrong forum for the Applicant to seek to enforce the contract of sale between him and the deceased vendor Ngugi Mwathi Wangige.

16. The applicant’s motion must fail for all the foregoing reasons and is dismissed with costs. In light of the age of this dispute I direct that the Petitioner/Respondent proceeds to file within 30 days the summons to confirm the grant issued to her on 29th January 2007.

DELIVERED AND SIGNED AT KIAMBU THIS 4TH DAY OF JULY 2019

....................

C. MEOLI

JUDGE

In the presence of:

Mr. Oyugi for Petitioner/Respondent

Applicant - No appearance