[2022] KEHC 14539 (KLR)

In re Estate of Bakari Ombayo Manya (Deceased) (Succession Appeal 16 of 2021) [2022] KEHC 14539 (KLR) (1 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14539 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Appeal 16 of 2021

PJO Otieno, J

November 1, 2022

Between

Mohammed Manya Ombayo

Appellant

and

Rukiya Omusula Manya

1st Respondent

Musa Alwang’a Manya

2nd Respondent

(Being an appeal from the decision of Hon F Makoyo (PM) in Butere PM’s Court Succession Cause No 417 of 2018 delivered on 8th December 2021)

Judgment

1. By its ruling dated December 8, 2022 the court upon evaluation of the evidence taken from the parties by oral evidence towards the determination of an application dated May 17, 2015, seeking revocation of the grant, allowed the application and revoked the grant.

2. In coming to its conclusion of revoking the grant, the trial court held:-“From the minutes dated July 26, 2018 relied on by the petitioner and objectors in equal measure, the bone of contention is made crystal clear. The parties herein descend from the late Manya Okongo who was polygamous and had several parcels of land to his name. From the said minutes, it would appear that that there was consensus within the family that the suit land Marama/Inaya/34 was held by the deceased herein Bakari Ombayo Manya in trust. The petitioner attempts to hide behind an obvious typographical error and failure to punctuate minute 3 bullet 1 of the said minutes liberally interpret the said minutes but the message is clear that the deceased herein held the suit land in trust.Having found so, and having found the objectors and their witnesses to have been truthful and consistent in every material element of other testimonies, I am satisfied that the objectors have on a balance of probabilities established that the deceased herein held the suit land Marama/Inaya/34 in trust for the beneficiaries of the late Manya Okongo which includes the objectors herein. That being the case, the threshold for setting aside revoking grant has been established thus this Court makes the following orders.”

3. That decision aggrieved and dissatisfied the Appellant who then preferred the current appeal an challenged the decision by the three grounds of appeal.

4. Even though set out as three grounds, the appeal challenges the decision for having been made in excess of jurisdiction in that the court sought to inquire into and proceeded to determine the existence of a trust outside the limited jurisdiction of the court sitting as a Probate Court.

5. I have perused the proceedings before the trial including the Affidavits filed and the Judgment in line with the submissions filed before this court. That appraisal points to the court that the sole issue for determination is whether the court was clothed with jurisdiction to entertain and determine the dispute disclosed in the summons for revocation of grant dated May 17, 2019.

6. In the said application for revocation, the grounds put forth to premise the request for revocation were that in petitioning for the grant, the Petitioners had concealed from court the fact that the Objectors were beneficiaries to the estate and that the Petitioners were not blood relatives to the deceased and thus not entitled to have applied for the grant being not entitled to any interest in the estate. To the Objectors the deceased suffered both mental illness, epilepsy and impotence and was thus unable to sire any children. Consequently, the Petitioner could not, in the opinion of the Respondent, be a child of the deceased.

7. In response, the Petitioner denied that inability of the deceased to sire children and contended that the deceased indeed married two wives and sired four children who are alive to date. He added that the 1st Objector was indeed a wife to his grandfather who was also given a parcel of land but was moved out onto the estate land because the said grandfather intended to grow sugarcane on the land registered in the 1st Objector’s name.

8. It is clear to the court that while the petitioner was asserting the rights of a heir to the deceased, the Objectors were not asserting such rights but were making a claim against the estate of the deceased. The Objectors/Respondents claim was a claim to title and occupation of land. That is an exclusive jurisdiction for the Environment and Land Court under article 162 (2). It was not the mandate of the Probate Court to execute. It is of note that in making the said claim, the Objectors admit that the deceased had blood brothers who stood in priority over them.

9. One need not dig so deep because it is enough to cite Re Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR where the court said:-“Clearly, disputes as between the estate and third parties need not be determined within the succession cause. The legal infrastructure in place provides for resolution elsewhere, and upon a determination being made by the civil court, the decree or order is then made available to the probate court for implementation. In the meantime the property in question is removed from the distribution table. The presumption is that such disputes arise before the distribution of the estate, or the confirmation of the grant. Where they arise after confirmation, then they ought strictly to be determined outside of the probate suit, for the probate court would in most cases be functus officio so far as the property in question is concerned. The primary mandate of the probate court is distribution of the estate and once an order is made distributing the estate, the court’s work would be complete. The proposition therefore is that not every dispute over property of a dead person ought to be pushed to the probate court.”

10. The claim by the Respondent as Objector before the trial court was clearly outside the jurisdiction of the court and in determining it as it did, the court abrogated to itself a mandate it possessed not. The decision thus reached without jurisdiction is a nullity. It calls for rectification which this court does by setting aside the decision and its place, is substituted an order dismissing the summons for revocation of grant dated May 17, 2019.

11. Having dismissed the summons, it is directed that the file be remitted back to the trial court for purposes of determining any outstanding issues and towards its closure.

12. Being a family dispute, it is ordered that each party shall bear own costs.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 1ST DAY OF NOVEMBER 2022. PATRICK J O OTIENOJUDGEIn the presence of:Ms Nafuye for the AppellantNo appearance for Wangatia for the RespondentsCourt Assistant: Polycap Mukabwa