[2021] KEHC 8152 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

SUCCESSION CAUSE NO. 1053 OF 2002

IN THE MATTER OF ESTATE OF CHARLES NJERU MURUA TETU

(DECEASED)

BENARD MURATHI CHARLES...........................ADMINISTRATOR/APPLICANT

ISAIAH MWANIKI...................................................ADMINISTRATIX/APPLICANT

VERSUS

SIMON NJIRU KARANGA...............................RESPONDENT/INTERMEDDLER

RULING

1. Before this court is an application dated 30. 10. 2019 and wherein the applicants seek for orders that: -

a)…spent

b) …spent

c) That the respondent Simon Njiru Karanga his agents, employees, servants and or anybody acting under his instructions be permanently restrained from intermeddling with the estate of Charles Njeru Muruatetu and specifically from entering upon, destroying the fence to the deceased’ homestead on Land parcel Number Gaturi/Nembure/56, occupying and/ or renting out the deceased’s house, cutting down trees, causing acts of wastage and destruction on the deceased’ homestead and land, erecting new structures on Land parcel Number Gaturi/ Nembure/56 carrying on a car wash business or any other business on the said land parcel and/ or in any way interfering with any part of the estate of Charles Njeru Muruatetu and/ or the applicants and their siblings access, use and occupation of the deceased’ home on Land parcel Number Gaturi/ Nembure/56 and the estate in general.

d) That the respondent Simon Njiru Karanga be ordered to restore the fence that was around the home of the late Charles Njeru Muruatetu which he removed, to remove all his properties from the Land parcel Number Gaturi/Nembure/56 and to compensate the estate of the deceased for the damage and/ or loss that has been unlawfully caused by the respondent that is destroying the fence, the damage to the house of the deceased, trees illegally cut down and any other damage as shall be assessed, within the time that the court will order.

e) That the costs of this application be to the applicants/ administrators.

2. The application is premised on the grounds that the respondent is a stranger to the estate of the deceased herein but he is intermeddling with the same and causing wastage and degradation and he should be stopped from interfering and/ or intermeddling with the said estate as the acts are illegal. The applicants’ deposed that the respondent in August 2019 unlawfully and without any colour of right forcefully entered into the deceased’s homestead, took possession of the same and started felling trees, brought down the gate and removed the fence around the homestead and went ahead to start a car wash business on the suit land. That he further forced his entry in to the deceased’s house which he has converted into his office and rented out the other rooms. That the respondent’s actions are threatening peace to the administrators of the estate herein and other family members as they are not able to access the deceased’s homestead which is part of the estate due to the acts of the respondent who is a stranger to the estate.

3. The application is opposed by the respondent vide a replying affidavit sworn on 4. 11. 2019. In a nutshell, the respondent deposed that the estate herein was shared amongst the 6 beneficiaries and wherein each got 2¼ acres and that the youngest beneficiary one David Kivuti Charles was given his share which included the homestead and the said David Kivuti sold a plot measuring 50 x 100ft therefrom to the respondent and that the applicants never complained of the respondent’s occupation until after the death of the said David Kivuti. That the 1st applicant filed an application and a plaint dated 30. 07. 2015 in Embu CMCC No. 205 of 2015 and despite him getting interim orders, the suit was dismissed vide the judgment of 27. 05. 2019 as such the application herein is a duplication of what was dealt with in the lower court and thus invalid and res judicata. That the applicants herein do not have the locus standi as they are not the administrators of the estate of David Kivuti Charles but the rightful administrator is the wife to the said David Kivuti- one Beth Karimi Kivuti who holds a grant for the said estate and who is entitled in law to administer the estate. Further that the respondent rented the house from the widow/administrator and the same is not his but only the plots and the applicants know that he rented the house from the said widow.

4. The court gave directions that the application herein be heard together with the respondent’s application dated 19. 11. 2019 and wherein the respondent (applicant in the application) seeks for orders that the interim orders issued on 30. 10. 2019 be set aside and that the application dated 30. 10. 219 and his application of 19. 11. 2019 be heard together. The application is premised on the grounds that the respondent herein (applicant in the application) was never involved in the application. He further deposed that he bought the plot he is using to operate his business from the administrator of the estate of David Kivuti Charles. Essentially the respondent repeated the depositions contained in his replying affidavit to the application dated 30. 10. 2019 in support of the application dated 19. 11. 2019.

5. Despite the directions that the two applications be heard together, the applicants herein did not oppose the application. Though the parties proceeded and filed written submissions in relation to the two applications, it is my considered view that as a trite law, submissions are not one of the ways in which an application can be opposed. The applicants herein ought to have filed either grounds of opposition and/or replying affidavit and/or preliminary objection on a point of law. However, this does not mean that the same ought to be allowed only for that reason. The court has a duty to consider the same and see whether it is merited.

6. As I have already indicated, the court directed that the two applications be canvassed together and subsequent to the said directions, both parties filed their respective submissions.

7. The applicants essentially stressed on the grounds in support of their application of 30. 10. 2019 and further submitted that the family homestead and the grave yard holding the remains of the deceased needs to be respected. Further, they submitted that David Kivuti who is one of the beneficiaries to the estate did not have a title to his share in land parcel Gaturi/ Nembure/56 and that the said land had not been sub-divided and as such it was impossible for him to sell a plot out of his share when the same had not been determined on the ground. Further that the respondent did not present a title document to the said plot and as he is an intermeddler/stranger to the estate of the deceased herein and he ought to be stopped. Relying on Section 24, 25 and 26 of the Land Registration Act of 2012 it was submitted that the respondent herein is not the registered owner of the plot he allegedly bought and as such an intermeddler by virtue of section 45 of the Law of Succession Act. Reliance was made on the case of Re Veronica Njoki Wakagoto (2013) eKLR andRe Mohammed Makau (deceased) (2019) eKLR to buttress the point that the respondent herein is an intermeddler. Further that the suit land herein has never been distributed and thus David Kivuti had no defined share wherefrom he could have sold his share to the respondent and that the application dated 30. 10. 2019 is not res judicata and further that the applicants herein are only seeking protection of the estate of the deceased herein from intruder/ strangers such as the respondent herein as administrators of the estate of the deceased. In relation to the application dated 19. 11. 2019, it was submitted that the same is spent as it seeks setting aside of the interim orders and that the two applications were to be heard together.

8. The respondent on his part submitted that in Embu CMCC 205 of 2015, the court dismissed a suit before it and which was seeking orders similar to the ones sought herein and the court in its judgment found that the respondent herein is in occupation of the suit land pursuant to an express authority of the beneficiaries and that since the plaintiffs in that suit (the applicants herein) were just beneficiaries of the said estate, they did not have the locus standi to litigate over the property. That the applicants never appealed against the said decision but proceeded to file the application dated 30. 10. 2019 seeking exact same orders against the respondents herein but the applicants failed to disclose to the court of the existence of the said judgment. As such, the instant application is res judicataand an abuse of the court process and the applicants are just but forum shopping. The respondent as thus prayed that the court do discharge the ex-parte orders and dismiss the application dated 30. 10. 2019 for the reasons that the respondent herein was not made a party to the said application whereas court orders cannot be issued against a person who is not a party to the court proceedings. Further that temporary injunctions cannot be issued in a vaccum as the succession to the estate of the deceased herein had already been finalized and a certificate of confirmation issued and the only avenue available is either to appeal, or seek to amend the grant or revoke the said grant and none of these has been sought. Further that the application is res judicata and that the applicants do not have locus standi. The respondent cited a number of authorities to support this position.

9. I have considered the two applications and the submissions thereto and it is my view that the main issue for determination is whether the said applications are merited. However, before going to the merit of the applications, I have noted that the respondent herein in his replying affidavit raised an issue to the effect that the application dated 30. 10. 2019 is res judicataand also that the applicants do not have locus standi to bring the same. It is trite law that where a party does not have the locus standi the court is bereft of jurisdiction to determine a dispute brought before it by such a party. This is the position where a suit is res judicata. As such, the two issues being of such a nature to affect the jurisdiction of the court, they ought to be determined in limine. The question which needs to be answered in the preliminary is whether the application dated 30. 10. 2019 is res judicata and whether the applicants have the locus standi to bring the said application.

10. As to whether the applicants herein have the locus standi to present the application before this court, the respondent’s case is that the estate of the deceased was distributed when the grant issued in this cause was confirmed. That the said estate was shared amongst the 6 beneficiaries and wherein each got 2¼ acres and that the youngest beneficiary one David Kivuti Charles was given his share which included the homestead. That the widow to David Kivuti (deceased) has the letters of administration on behalf of the estate of the said David Kivuti and she ought to be the proper person to sue on behalf of the said estate. On the other hand, the applicants’ case is that the estate has never been distributed and thus David Kivuti did not have an identifiable share which he was capable of selling to the respondent and any sale amounted to intermeddling.

11. The confirmed grant of letters of administration of the suit land herein clearly indicates that the suit land has already been distributed. As such, it can be said that the deceased David Kivuti had his own share well identified. However, the applicants deposed that the said land parcel has not been distributed. This deposition was not controverted by the respondent herein and neither did he produce mutation forms or even signed transmission forms to prove that the estate has been administered and each beneficiary of the estate gotten his share of the same. The suit land having not been sub-divided and fully transmitted to the beneficiaries, it is my view that it cannot be said that the applicants herein do not have the locus standi. The office of the administrator of an estate can only be terminated or dissolved upon the full administration of the estate such that if one of the beneficiaries has not gotten his share, (and in this case it is all the beneficiaries), it therefore means that the administrators are the ones responsible for enforcing any suit as against any other person on behalf of the deceased owner. In this case, since the suit land has not been distributed, the applicants herein are still the administrators of the same as it is still in the name of the deceased and as such they have the locus standi to approach this court and enforce any suit concerning the same land parcel.

12. As to whether the application is res judicata, the principle of re judicata is found in Section 7 of the Civil Procedure Act which provides that: -

“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.

13. For the bar ofres judicatato be effectively raised and upheld on account of a former suit, the following elements must be satisfied that is; the suit or issue was directly and substantially in issue in the former suit; that former suit was between the same parties or parties under whom they or any of them claim; those parties were litigating under the same title; the issue was heard and finally determined in the former suit; and the court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised. {See Accredo AG & 3 others v Steffano Uccelli & another [2019] eKLR}.

14. It is not in dispute that the applicants herein filed a suit in Embu Chief Magistrate’s Court being Embu CMCC No. 205 of 2015 seeking orders of injunctions against the respondent herein and which orders are similar to the orders sought by the applicants in the application dated 30. 10. 2019. Despite the court having granted interim orders, the suit was dismissed vide the judgment of 27. 05. 2019. The applicants herein had sued as the administrators of the estate of the deceased herein. The decision of the lower court being a court of competent jurisdiction and the issue as to who ought to be in possession of the suit land having been determined, this court does not have jurisdiction over the same issue. The only time this court can determine the issue is if exercising its appellate jurisdiction. Despite the applicants herein having crafted their prayer in a way to appear different from the one sought in the lower court in Embu CMCC No. 205 of 2015, it is clear that the said application basically seeks for restraining orders and which is similar to the orders which were denied by the lower court in Embu CMCC No. 205 of 2015. In my view, the applicants are trying to argue an appeal disguised as a fresh application. The said application in my view, is therefore unmerited and an abuse of the court process. The same ought to be dismissed.

15. Even assuming that the application is properly before this court, it is my view that the application is not merited. The applicants opposed the occupation by the respondent herein on the basis that the same is a family homestead and the grave yard holding the remains of the deceased, that is needs to be respected and that the respondent did not have a title to his share in land parcel Gaturi/Nembure/56. That the said land had not been sub-divided and as such it was impossible for him to sell a plot out of his share when the same had not been determined on the ground. Further that the suit land herein has never been distributed and thus David Kivuti had no defined share wherefrom he could have sold his share to the respondent.

16. However, the fact that there is a sale agreement in place was not disputed. The respondent on the other hand produced a sale agreement dated 22. 04. 2014 and wherein David Kivuti sold a share of the estate herein being a beneficiary. The said sale was made after the confirmation of the grant by this court. It is thus not in dispute that the deceased David Kivuti was allocated a share of the estate which included the homestead.

17. It is now established law that a beneficiary who sells part of the estate of the deceased before confirmation of the grant is intermeddling with the estate of the deceased, contrary to section 45 of the Law of Succession Act, Cap 160, Laws of Kenya. (See In the case of Gitau and Two Others vs. Wandai and Five Others (1989) KLR 231where it was held that entering into an agreement to sell estate property before getting a grant or without such a grant is an act of intermeddling with the estate. The only time when sale of immovable properties forming the estate of the deceased can be sold is only after the confirmation of the grant (see section 82(b) (ii) of the law of Succession Act).

18. In the Matter of the Estate of Isaac Kaburu Marete (Deceased) Daniel Gituma Marete –vs- Frankline Mutwiri[2017] eKLR the court stated that; -

“. ……..I need not also state that beneficial interest of a person beneficially entitled to a share in the estate must be identified and be capable of registration in his name before it could be sold or pledged as security or exchanged with another type of property. It is during confirmation hearing that the court establishes the respective identities and shares of persons beneficially entitled, and when confirmed the grant specifies such persons and their respective shares in the estate. See section 71 of the Law of Succession Act. Therefore, before confirmation, the interest of the beneficiary remains amorphous and entangled within the estate; and vested in the administrator or executor as the estate property as by law stated.”

19. As such, in my view, despite the estate having not been formally distributed, David’ share of the estate cannot be said to have been unidentified. The same was identifiable. David Kivuti’s share is indicated to be 2½ acres including the homestead. From the evidence presented before this court, the car-wash is in the homestead. It is thus clear that the deceased beneficiary sold a plot from where he was to get his share from. That being the case, the respondent lawfully occupies the said part of the estate. He is therefore not an intermeddler or stranger to the said portion. The deceased’ beneficiary’s share being identifiable, he had a right to sell the said part. As such, it is my view that the orders sought in the application dated 30. 10. 2019 cannot be granted. As such the application has no merits and it is hereby dismissed.

20. As for the application dated 19. 11. 2019, I agree with the respondents that the same is spent. The orders which the applicant seeks to have set aside were interim orders pending the hearing and determination of the application dated 30. 10. 2019. Now that the application has been determined, it means that the orders in that respect cannot be granted. The two applications were ordered to be heard together and as such that prayer is also spent. The application is also dismissed.

21. I have noted that the grant issued to the applicants herein was confirmed in 2005 and up to date, the estate has not been administered and more so the suit land herein. I direct that that the applicants herein do move with haste to administer the same and/or take steps to administer the same. Otherwise, they are in breach of their duties under section 83(f) and (g) of the Law of Succession Act.

22. Each party to bear its own costs of the application.

23. It is so ordered.

Delivered, dated and signedat Embu this 22nd day of March, 2021.

L. NJUGUNA

JUDGE

……………………………………………….for the Applicants

………………………………………………for the Respondent