[2022] KEHC 14897 (KLR)

In re Estate of Agnes Mumbi Joseph Njau (Deceased) (Succession Cause 1102 of 2016) [2022] KEHC 14897 (KLR) (Family) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14897 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 1102 of 2016

MA Odero, J

October 7, 2022

IN THE MATTER OF THE ESTATE OF AGNES MUMBI JOSEPH NJAU (DECEASED)

Ruling

1. Before this court for determination is the notice of motion application dated December 9, 2021 by which the objector/applicant Stephen Karanja Ngure seeks the following orders:-1. That the objector/applicant Stephen Karanja Ngure be included in the petition for letters of administration intestate dated May 19, 2021 as a liability.2. That costs of the application be provided for.”

2. The application which was premised upon sections 1A, 1B and 3A of the Civil Procedure Act, sections 67, 68, 69 and 70 of the Law of Succession Act and rule 17(1) of the Probate and Administration Rules was supported by the affidavit of even date and the further affidavit dated May 27, 2022 both sworn by the applicant.

3. The respondent opposed the application through the replying affidavit dated May 6, 2022 sworn by the 1st respondent Joy Muthoni Mumbi. The application was canvassed by way of written submissions. The applicant filed the written submissions dated May 27, 2022 whilst the respondents relied upon their submissions dated April 13, 2022.

Background 4. This succession cause relates to the estate of the late Agnes Mumbi Joseph Njau (hereinafter ‘the deceased’) who died in Nairobi on December 29, 2012. A copy of the death certificate serial number xxxxxxx is annexed to the petition for grant of letters of administration Intestate dated May 19, 2021.

5. Following the demise of the deceased, no family member filed for a grant. The applicant herein then took out a citation dated July 6, 2015 seeking to have the daughters of the deceased accept or refuse letters of administration.

6. The applicants position is that he is the rightful owner of the property known as LR Muguga/Kanyariri/2187 (hereinafter the ‘suit land’) being 0. 25 acres of the original parcel of land being LR Muguga/Kanyariri/216. The applicant avers that he purchased the suit land at a price of Kshs 410,000 pursuant to a sale agreement which he entered into with the deceased during her lifetime. The applicant states that he paid the deceased an amount of Kshs 370,000 leaving a balance of Kshs 40,000.

7. According to the applicant the deceased had transferred the suit property to him before her demise but she unfortunately died before the transfer was registered. That he has been in possession and occupation of the suit land and has been tilling the same without interruption since September 2008. The applicant contends that although the suit land is still registered in the name of the deceased the same does not form part of her estate and is not available for distribution to the beneficiaries.

8. Following service of the citation, the 1st respondent Leah Joy Muthoni a daughter of the deceased filed in court a petition for letters of administration intestate in respect of the estate of the deceased. In her affidavit in support of the petition, the 1st respondent listed the suit land as one of the assets belonging to the estate.

9. The applicant challenges the inclusion of the suit land as part of the estate. He submits that the respondent in her petition failed to disclose a material fact to wit that the deceased had already sold the suit land to him before her demise. The applicant asserts that he is the bona fide owner of the suit land and is apprehensive that his non inclusion in this succession cause may occasion him financial loss and irreparable harm. He prays that he be included as a liability of the estate.

10. As stated earlier the respondents opposed the application. In their replying affidavit dated April 13, 2022 the respondents categorically deny that the deceased entered into agreement with the objector for the sale of LR Muguga/Kanyariri/2187. It is denied that the objector ever paid any monies at all to the deceased for purchase of the said parcel of land.

11. The respondents assert that the suit land is registered in the name of the deceased and has never been subdivided. That there is no evidence of any consent obtained from the Land Control Board for sale of the suit land. The respondents deny the objector’s claim that he took up possession of the suit land. They state that the objector infact invaded part of the land in question sometimes in the year 2015.

12. According to the respondents this matter has been mischievously filed by the objector with the ulterior motive of using the court process to sanitize his trespass onto the suit land. They urge the court to dismiss the application in its entirety.

Analysis and Determination 13. I have carefully considered the application before this court, the affidavit filed in reply as well as the written submissions filed by both parties.

14. It is not in contention that the applicant is not a beneficiary to the estate of the deceased. The applicants claim is as a purchaser of the suit land, which he alleges the deceased sold to him prior to her demise. The Title to the suit land (as conceded by the objector) still indicates the name of the deceased Agnes Mumbi Joseph Njauas proprietor. The objector cannot claim to have a liability over the estate of the deceased when such claim has not yet crystalized. The property in question has not yet been transferred to the objector. In the case of Alexander Mbaka v Roy Ford Muriuki Rauni & 7 others [2016] eKLR, the court held as follows:-“It is only where one has an established claim against the estate that has already cyrstalised that he can litigate it before a family court. The claim is to be considered as a liability to the estate. This court, in my view, cannot be called upon to ascertain whether or not one has a right to an estate of the deceased where such right has not yet crystalised. The right must be shown to have crystalized before the family court can entertain it.” (own emphasis)

15. It is manifest that the dispute herein relates to the question of ownership of the suit land. The objector claims to be the bona fideowner of the land whilst the respondents insist that the suit land belongs to the Deceased and her estate.

16. Matters relating to the ownership use and occupation of land have now under article 162 of theConstitution of Kenya 2010 been mandated to be determined by a specialized court being the Environment and Land Court (‘ELC’).

17. Section 13 of the Environment and Land Court Act provides for the jurisdiction of that court as follows:-"13. Jurisdiction of the court(1)The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.(2)In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes―(a)relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;(b)relating to compulsory acquisition of land;(c)relating to land administration and management;(d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and(e)any other dispute relating to environment and land. [Rev. 2012] No. 19 of 2011 Environment and Land Court 9 [Issue 1]

18. Therefore, the correct and proper forum before which the objector ought to ventilate his claim to the suit land is the ELC. The Environment and Land Court is the only court exclusively mandated by law to determine the question of ‘ownership’ of the suit land.

19. In Re Estate of Stone Kathubi Muinde(Deceased) [2016] eKLR Hon Justice William Musyoka held that:-“Such claims to ownership of alleged estate property, as between the estate and a third party, should be resolved through the civil process in a civil suit properly brought before a civil court in accordance with the provisions of theCivil Procedure Actand the Civil Procedure Rules. This could mean filing suit at the magistrates’ courts, or at the Civil or Commercial Divisions of the High Court, or at the Environment and Land Court. If a decree is obtained in such suit in favour of the claimant then such decree should be presented to the probate court in the succession cause so that that court can give effect to it.” (own emphasis)

20. Therefore the remedy for this objector lies in the Environment and Land Court. If and when the applicant obtains judgment in his favour from the Environment and Land Court then he is at liberty to present the decree to this court for implementation.

21. Finally, I find no merit in this application. The notice of motion dated December 9, 2021 is dismissed in its entirety. Costs are awarded to the respondents.

DATED IN NAIROBI THIS 7TH DAY OF OCTOBER, 2022. …………………………………..MAUREEN A ODEROJUDGE