[2024] KEHC 10687 (KLR)

In re Estate of Danson Muia Ndalana (Deceased) (Succession Cause 12 of 2020) [2024] KEHC 10687 (KLR) (16 September 2024) (Ruling)

Neutral citation: [2024] KEHC 10687 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 12 of 2020

FROO Olel, J

September 16, 2024

Between

Rose Ndalana

Petitioner

and

David Nzioka Ndalana

Objector

Ruling

A. Introduction 1. Before court for determination is the objection to making of Grant filed by the objector pursuant to Rule 17(1) of the Probate and administration Rules dated 23rd June 2023 and based on the grounds that;a.That the petitioner herein has intentionally concealed to this court that the deceased held parcels of land known as Muputi Kimutwa/225, Muputi Kimutwa/392 and Muputi Kimutwa/400 in trust for himself and his siblings; that is David Nzioka Ndalana, Pius Makewa Ndalana, Charles Maweu Ndalana, Nicholas Musyoka Ndalana (deceased), Patrick Musau Ndalana (deceased) & Rose Mutanu Ndalana.b.That the petitioner has applied for letters of administration, totally ignoring the above facts and in an attempt to disinherit the aforesaid persons and their families while they have lived and used the aforementioned parcels of land for all their life time.

2. The parties herein consented to have the said objection disposed off by way of viva voce evidence and file witness statements in support of their respective position.

B. The Objectors Case 3. The objector David Nzioka Ndalana adopted his witness statement and replying affidavit filed in court on 21. 09. 2023. He further testified that the deceased herein was his elder brother and he was his immediate follower. He had filed this objection on the basis that the three parcels of land owned by the deceased; Muputi Kimutwa/225, Muputi Kimutwa/392 and Muputi Kimutwa/400 (hereinafter referred to as the suit parcels of land), were bought by their father one George Muia Ndalana , while all of them were still in school between the years 1952 to 1957 and by then, his deceased brother did not have the capacity to purchase the suit parcels of land. Later when land adjudication was carried out, the suit parcels were registered in the deceased name as their father George Muia Ndalana had passed on by then and the said suit parcels of land were registered under the deceased name to hold in trust for the benefit of their family, given that he was the eldest son of the family.

4. The objector further did contend that his deceased father had three families and even for the other two families, this process was replicated and their parcels of land were registered in the names of their 1st born sons, under similar circumstances to hold in trust for the benefit said families. The objector further testified that he personally, he had bought land in Makueni county where he resided but his brothers and other family members resided on the suit parcels of land and the family grave where his father, mother and other brothers had been buried was on parcel Muputi Kimutwa/400. Based on this history it was important that other family members be given their portion of land, where they resided and the petitioner too, be left with her portion.

5. Upon cross examination, the objector reaffirmed that the suit parcels of land were bought by his father, while they were in school and he had seen a book where the said agreements had been recorded. Later when he came home from school, he found that his mother had moved and settled on Muputi/ Kimutwa/400. Later after the initial transaction had gone through, his father bought an extra portion of the said parcel and the second transaction had been done in his presence. Parcel Muputi/ Kimutwa/ 400 also constituted the family home and is where family members were buried. He reiterated that his deceased brother was registered as the owner of the suit parcels to hold in trust for all family members as he was the eldest son and the said parcels were not exclusively his. Their original home was based at Makaveti, and after the suit parcels were purchased their father moved their family to Kimutwa and settled thereon.

6. Further by the time the decease died in 2018, they did not have any dispute with him and it was to be noted that his brother Silas was registered to hold land in trust for the 2nd family and his other brother Wilfred Munyao was also holding land in trust for the 3rd family. In re-examination the objector reiterated his evidence and further clarified that it was his deceased elder brother who had the custody of the land agreements and it could be presumed that the petitioner had the same in her custody. They only had interest in the three suit parcels of land and were not interested in deceased other properties.

7. OW2 Daniel Nzaku Mweku also relied on his witness statement, where he stated that he was a resident of Kimutwa and was close family friend to the family of the late George Ndalana Nguu. The said George Ndalana Nguu had bought land from their family in the 1950’s and by then land adjudication process had not been carried out, but they as a family knew the land boundaries as they existed. The suit parcels had initially belonged to his father Mweku Kasinga, but by the time George Ndalana Nguu came to purchase the same his father had died and the transactions were carried out with the help uncle Kavwika Kasinga. The first parcel bought was later adjudicated and registered as Muputi/Kimutwa/225 measuring approximately 45. 5ha. Later in 1957 or thereabouts, the objector’s father bought parcel Muputi/Kimutwa/392 measuring approximately 7. 4ha.

8. The initial parcel of land bought Maputi/Kimutwa/225 was situated in an area which was not accessible and was next to Miumoni river and the objector’s father therefore had requested their family to give him a more accessible land where he could build a permanent home for his 1st wife. They made arrangements and gave him a parcel of land which was later registered as parcel Muputi/Kimutwa/400. The family of the late George Ndalana Nguu had resided on this parcel of land during his life time and continued to reside therein even after his death. The petitioner’s husband did not buy the suit parcels of land and the same belonged to his larger family as they were bought by his father George Ndalana Nguu.

9. Upon cross examination, OW2 confirmed that as at when the suit parcels of land were bought, he was present and the same were sold by his uncle Kavwika Kasinga. Other family members too were present and approved of the same. The agreements were entered into around the period between 1952 to 1953 and the aggregate consideration for all the suit parcels of land was about Kshs.10,000/=, though he did not have any written agreement to presented before court to confirm the same. He also reaffirmed that the deceased herein Danson Muia Ndalana did not purchase the said suit parcels of land.

10. OW3 Mbubu Denson testified that the late Senior Chief George Ndalana Nguu was his paternal cousin, as his father was the elder brother to the said George Ndalana Nguu’s father. The late George Ndalana Nguu had three wives Wayua, Kavuu and Kavenge. In 1953, his cousin had bought land at Kimutwa and he was one of the persons who helped him load his wife’s household goods onto his lorry owned and unloaded the same into the new house built for her on the new parcel of land situated at Kimutwa. He was aware that his cousin had bought three parcels of land at Kimutwa and was eventually also buried on the parcel at the centre, where Charles Maweu and his family lives. The objector other brothers Pius Makewe Ndalana and the late Danson Muia Ndalana also had their residential homes therein.

11. OW3 further testified and stated that all the three (3) suit parcels of land had been registered under the name of the eldest son as a caretaker (trustee) on behalf of his other siblings. The other two (2) families too did register the parcels of land allocated to them under the name of their first-born son’s, Wilfred Munyao Ndalana and the late Cyrus Mutonga as trustee of their respective family interest. Upon cross examination, OW3 stated that in 1959 he was about nine (9) years old and was not present when his cousin George Ndalana Nguu bought the suit parcels of land. The petitioner’s husband was slightly older than him and was two classes ahead of him in school. In the 1970’s during land adjudication process, the family of George Ndalana Nguu had agreed to have the suit parcels registered under the name of the petitioner’s husband given that he was the eldest son and even for the other two families, the same action was undertaken.

12. Finally, OW3 also stated that it should be noted that the ancestral land of the deceased/ his father was at Makaveti, where the other two (2) wives remained and even the parcels of land at Makaveti were registered under the names of the 1st born sons of both families. In re-examination OW3 reiterated that all the suit parcels were bought in the 1950’s and he would visit his cousin George Ndalana Nguu at his farm in Kimutwa. The other parcels of land were also registered in the names of the 1st born sons of the two other families as trustee and caretaker on behalf of their siblings.

C. The Petitioners case/response. 13. The petitioner /respondent testified and stated that she was the wife of the late Danson Muia Ndalana, who owned all the suit parcels amongst other properties. Her husband was the first-born son of the late Senior Chief George Ndalana Nguu, who resided at Makaveti with his three wives. After sometime in her marriage, her husband had informed her that he had requested his father to find him suitable land within Kimutwa area, which he could purchase and eventually her father in law had sourced and gotten the three suit parcels of land, which her deceased husband had eventually bought and opted to resettle his mother Wayua therein to avoid constant fighting with her other co wives at Makaveti.

14. Their father in law secured the suit parcels of land from one Kavwiki Kasinga at a cost of Kshs.3,000/= for the first parcel of land, Kshs.5,000/= and Kshs.16,000/= for the second and third parcels of land respectively. Her deceased husband relocated his mother to Kimutwa and built for her a mud house, while their father in law remained at Makaveti where he resided with his third wife. Later in 1968, when her father in law passed on, he was buried at Kimutwa, at his eldest wives home as per the Kamba tradition. Before his burial the family which had sold the suit parcel of land had demanded Kshs.1,000/= which had to be paid before the burial ceremony could be held. Later on, her husband did build a permanent house for his mother, had the suit parcels of land surveyed and was issued with the title deeds to the suit properties thereto.

15. The petitioner further testified that her brother in law Pius Ndalana had died and was buried within his own parcel of land, separate from the three suit parcels. Similarly, her other brothers in law Charles Ndalana and David Ndalana , both of whom were still alive, had no claim over the suit parcels of land as they had their own parcels of land distinct and separate from the suit parcels of land. OW2 and OW3 too were not a close relative and/or family friend as they had alleged in their evidence and therefore their evidence was not factual.

16. According to the petitioner, her father in law had distributed all his properties in the 1960’s and no family member had any valid claim over the suit parcels. This was further confirmed by the fact that during the lifetime of her deceased husband, the objector and/or his brothers had not asked her deceased husband for land nor was there any court dispute filed seeking ownership of the same. This dispute had arisen after her husband’s death and was propelled by the Objectors greed to take advantage and take the estate’s land away. The petitioner urged the court to find that the objectors claim was baseless and proceed to dismiss the same.

17. Upon cross examination the petitioner denied that her brother in law (Pius Ndalana) was buried on land parcel Muputi/Kimutwa/392, where her husband was buried and affirmed that they exclusively owned the said suit parcel of land. Her father in law and mother in law were buried on Muputi/Kimutwa/400, while she used parcel Muputi/Kimutwa/225 to graze her cattle and goats. She reiterated that it was her husband who had bought he suit parcels of land in the 1960’s and later settled his mother on parcel Muputi/Kimutwa/400. She also averred that she did not understand Kamba customs, which dictated that a father cannot be buried on his son’s parcel of land, unless he was the last born.

18. The petitioner further reiterated that it was her husband who purchased the suit parcels of land and believed what he had told her regarding the suit parcels of land. Her brother in laws resided within the same vicinity/neighbourhood but they were not immediate neighbours nor did they reside within the suit parcels of land. After her father in law had died, her husband took over and educated his brothers, step brothers, gave them jobs, over saw their marriages and settlement within their homes. The objector therefore had no valid claim over the suit parcel of land and therefore prayed that his objection be dismissed with costs.

D. Parties Submissions Objector/Applicant submissions 19. The applicant/objector did submit that they had indeed proved that Danson Muia Ndalana (the deceased herein) was born in 1939 and was too young to have bought the suit parcel of land in 1953- 1957, when the transactions to buy the suit parcels of land were carried out. It was therefore not logical that the deceased, who was in school by then, could have instructed his father at that time to look for parcels of land to buy for him so that he could settle him mother. To the contrary it had been proved that the deceased father, George Ndalana Nguu by then was a senior chief, a man of means, and a successful businessman who could afford to buy the suit parcels of land without assistance from anyone.

20. Further, the late George Ndalana Nguu had settled his first wife on parcel Muputi/Kimutwa/400 and sired Nicholas Musyoka Ndalana and Patrick Musau Ndalana while residing thereon. It had also been proved that the family of George Ndalanan Nguu had exclusive use and occupied portions of the three suit parcels of land from the 1960’s without any dispute and even the petitioner’s husband had never attempted to evict them therefrom during his lifetime because he knew this was their family land and the same had been registered under his name to hold in trust on behalf of his siblings. The objector’s evidence had further been corroborated by the evidence of OW2 and OW3 who were both clear that it was the decision of the larger family that every first born of each of the three families of George Ndalana Nguu, would be registered as owner of their fathers’ various parcels of land in trust for their respective families.

21. The Objector further pointed out to the court, that it was the evidence of the petitioner, that her husband would constantly remind his brother to refund him money used for purchase of the suit parcels of land before he died, but they never did so. If the petitioner’s evidence was to be believed, that her deceased husband exclusively owned the suit parcels, it would be illogical for him to seek for refund from his brothers and logically would have opted to evict them. The objector reiterated the fact the deceased husband lived peacefully with his brothers and their families on the subject suit properties from the 1960’s until 2018 when he died was a clear indication that he recognised their interest therein. The court was also urged to note that, when the initial objector (Pius Makewe Ndalana) died in May 2023, during pendency of this succession cause, he was buried with land parcel Muputi/Kimutwa/392, the same parcel of land where the petitioner resides and which the two brothers shared.

22. Based on Kamba customary law, a son cannot bury his father and mother within his own parcel of land, unless the son was the last born, who remained with the home. The deceased herein was the 1st born son and therefore his parents could not have been buried within Muputi/Kimutwa/400, if indeed he owned the said parcel of land. The deceased younger brother Nicholas Musyoka Ndalana (deceased) too had been buried on this parcel of land and also had his homestead thereon. The objector relied on the decision of Supreme court of Kenya in the case of Isack kieba M’inanga Vrs Isaaya Theuri M’lintari & Another Scok No 10 of 2019 Eklr, & the case of Alice Wairimu Macharia Vrs Kirigo Philip Macharia (2019) Eklr, where both court’s quoted with approval the case of In the Estate of Samuel Katheri (Deceased), (2019) Eklr, where the court applied customary trust to hold that such land should benefit all family members if it was proved that the suit property was ancestral land, during adjudication and one family member had been designated to hold the said parcel on behalf of the family and designated persons, who were members of the said family.

23. Finally, the petitioner had refused to produce the sale agreements, which would have shown that it was her father in-law who had bought the suit parcels of land. The court was urged to make an adverse inference to this fact, as she had admitted the same were in her possession, but deliberately failed to produce the same before court. Reliance was placed on Kenya Akiba Microfinace Limited Vrs Ezekiel chebii & 14 others, which had been quoted with approval in the case of Lucy Nyambura Gitonga Vrs Vijaykumar shamji Patel & Another (2021) Eklr , where it was held that where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court will be entitled to make adverse inference that if such evidence is produced, it would be adverse to such party.

24. While the petitioner had proved ownership of the suit properties, the objector had proved that they had an overriding interest on the same and thus their claim for customary trust over the suit parcels of land had been established. Reliance was placed in the case of George Mbiti Kiebia & Another Vrs Isaya Theuri M’lintari & Another (2014) Eklr, where it was proffered that the root of registration could be challenged and the proprietor had to go beyond the instrument and rebut the notion that the property is not free from any encumbrance including any and all interests which need not be noted on the register.

The petitioner/Respondent Submissions 25. The Petitioner/Respondent did submit that this court lacked jurisdiction to declare that the deceased held the three suit parcels in trust for the objector and/or their larger family. The objector ought to have filed this claim before the Environment and land court and not in these probate proceedings. For the aforestated reasons the petitioner urged the court to strike out and dismiss the objection filed. Reliance was placed in the case of Estate of Atibu Oronje Asioma (Deceased) Succession cause No 312 of 2008(2022) KEHC 11046 (KLR) & Samuel Kathieri Alias Samuel M’munoru Kariari (Deceased), (2019) eKLR.

26. If the court were to find otherwise, the petitioner urged the court to find that the suit properties were rightfully registered in the names of the deceased and it had not been proved that the suit titles were obtained in an unlawful manner or by fraud and therefore the said title deeds could not be defeated and rightfully formed assets of the estate. The objector was on a solo mission and had no authority to act on behalf of his other siblings and also did not produce any evidence to support his claim, especially his allegation that the suit properties were bought by their father George Ndalana Nguu. To the contrary, it had been proved that from the time of registration in 1971, the deceased had peacefully ownership of the suit parcels of land and the objector should have explained why he waited for 47 years, until 2018 to claim the same. The petitioner therefore urged this court to find that the objection filed did not have merit and proceed to dismiss the same.

E. Analysis and Determination 27. I have considered all the pleadings filed with respect to the objection dated 23rd June 2023, the oral evidence tendered by both parties and the submissions made by the parties before this court and ascertain the issues which rise for determination are;a.Whether this court sitting as a probate court has jurisdiction to determine issue of customary trust relating to ownership use and occupation of land.b.If yes, Whether the objector has proved his case beyond reasonable doubt that their father Senior Chief Goerge Ndalana Nguu bought the suit parcels of land and that the same were subsequently registered under the names of Danson Muia Ndalana( Deceased ) to hold in trust for and behalf of their family.

Jurisdiction 28. The subject of jurisdiction is by now well settled by the Constitution, the law and legal principles. Jurisdiction is defined in Halsbury’s Laws of England 4th Ed Vol 9 as “…the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.”

29. Black’s Law Dictionary, 9th Edition, defines jurisdiction as the court’s power to entertain, hear and determine a dispute before it, and In Words and Phrases Legally Defined Vol 3, John Beecroft Saunders defines jurisdiction as follows:“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…. Where a court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given”.

30. The Supreme Court of Kenya in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & others (2012) eKLR stated as follows: -“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsels for the first and second respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality, it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings … where the Constitution exhaustively provides for the jurisdiction of a court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.

31. Also, in Orange Democratic Movement v Yusuf Ali Mohamed & 5 others [2018] eKLR, the Court of Appeal further stated: -“…. a party cannot through its pleadings confer jurisdiction to a court when none exists. In this context, a party cannot through draftsmanship and legal craftsmanship couch and convert an election petition into a constitutional petition and confer jurisdiction upon the High Court. Jurisdiction is conferred by law not through pleading and legal draftsmanship. It is both the substance of the claim and relief sought that determines the jurisdictional competence of a court….”

32. From the foregoing, it is sufficiently settled that a court’s jurisdiction is derived from the Constitution, an Act of Parliament or both. To wit; Constitutional instruments, Statutes and Schedules thereto and Statutory instruments.This jurisdictional question is best understood by first laying a basis on the Constitutional and legislative mandates of each of the courts while dealing with succession matters and matter to do with ownership, use and occupation of land.

33. Article 162 (2) of the Constitution 2010 enjoins Parliament to establish courts with the status of the High Court to hear and determine disputes relating to the Environment, the use and occupation of, and title to, land. In this regard parliament enacted under the Environment and Land court Act, No 19 of 2011 and under Section 4 thereof, the court is established as a superior court of records with the status of a high court. Further Section 13 Environment and Land court Act, No 19 of 2011 empowers the court to exercise both original and Appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the constitution of Kenya and these include jurisdiction relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries rates , rent valuations , compulsory acquisition, land administration and management and any other dispute relating to environment and land.

34. On the other hand, Article 165 of the constitution, also establishes the High court with unlimited original jurisdiction to hear and determine both civil and criminal matters. Pursuant to its unlimited civil jurisdiction, this court under the Succession Act, Cap 160 laws of Kenya has limited jurisdiction to determining cases of intestate and testate succession and to the administration of estates of deceased persons. Section 2 (1) of the Law of Succession Act provides as follows:“Except as otherwise expressly provided in this Act or any other written law the provisions of this Act shall constitute the law of Kenya in respect of and shall have universal application to all cases of intestate and testamentary succession to the estate of deceased persons dying after commencement of this Act and to the administration of estates of those persons.”

35. The objectors claim over the three suit properties is purely based on customary trust. This was directly pleaded and evidence lead to show that the petitioners deceased husband did not buy the suit properties as the same had been bought by his father/ the petitioners father in law, the late Senior chief George Ndalanan Nguu between the years 1953 to 1957, by which time the petitioner’s husband was still school going and did not have the resources to have bought the said suit parcels of land. Evidence was further led to show that as at the time land Adjudication was being affected, the said George Ndalana Nguu had died and all the family parcels of land were registered in the names of the 1st born sons of the three households of the said George Ndalana Nguu to hold in trust for their respective families.

36. Further the deceased father George Ndalana Nguu, mother wayua and last-born brother Nicholas Musyoka Ndalana were buried on parcel Muputi/Kimutwa/ 400 and under Kamba customary law such would not have been allowed as the said custom does not allow a parent to be buried in his or her elder son’s parcel of land, but the same could happen if the land had been inherited, by the last-born son. There had been no dispute as to the usage and occupation of the three suit parcels by various family members from the 1960 and therefore it would only be right to hold that the deceased Danson Muia Ndalana was holding the three suit parcels in trust for members of the 1st family of George Ndalana Nguu and they ought be allowed to benefit from the same.

37. A distinction ought to be made between a claim against the Estate of the Deceased and a claim on Customary trust, and in Succession cause 432 OF 2009, Monica Wangari Njiri & 4 Others V Eunice Wanjiru Igamba & Another [2016] EKLR it was held:“The mandate of the probate court is limited. A distinction ought to be made between a claim against the Estate of the Deceased and a Claim on inheritance in respect to the Estate of the Deceased. In our instant suit, the Objectors are not claiming any interest as dependants or direct beneficiaries of the Deceased. Their claim is that the title to the parcels of land is held in trust for them. Indeed this is a claim for proprietary rights.”

38. Also, in the matter of Peter Igamba NjorogeJ, Succession Cause No. 432 OF 2009 (Uunreported) quoted in Succession cause No 488 OF 2010 In Re Estate of the late Jonathan Kinyua Waititu (Deceased) [2017] EKLR it was held:“……I do not think that these Succession proceedings are the appropriate way to challenge the title of the Deceased to the said properties. Their claim of a trust is or ought to be the subject matter of a separate suit or proceedings. The Objectors have to prove the trust and thereafter seek revocation of the title and/or partition thereof. This requires declaratory orders of the existence of trust. This is not the function of a Succession Court where the claimant is neither a beneficiary nor dependant. Succession proceedings are also not appropriate for the resolution of serious contested claims against an Estate by third parties. In this case, the Objectors ought to institute separate proceedings to articulate or vindicate their claims/rights. I therefore do hold that this Court has no jurisdiction to determine the claim of trust or to give any relief in respect thereof.”

39. To reaffirm this legal position, I again take refuge in the decision in H.C. Succession Cause No.864 of 1996 In the Estate of Mbai Wainaina ( Deceased)[2015] KEHC 6979 eKLR where the court held that:“Even if there was material establishing that there was such a trust, I doubt that the resolution of this issue would be a matter of the probate court. The mandate of the probate court under the Law of Succession Act is limited. It does not extend to determining issues of ownership of property and declaration of trusts. It is not a matter of the probate court being incompetent to deal with such issues but rather that the provisions of the Law of Succession Act and the relevant subsidiary legislation do not provide a convenient mechanism for determination of such issues. A party who wishes to have such matters resolved ought to file a substantive suit to be determined by the Environment and Land Court.

40. Interest in land arising from customary law trusts are now expressly recognized under the provisions of Section 28 (b) of the Land Registration Act, No.3 of 2012 and the same can only be determined by the Environment and Lands Court. Although Article 165(3)(a) Constitution, 2010 grants the High Court unlimited original jurisdiction in criminal and civil matters, the same is subject to sub-article (5) of the same Article which provides:(5)The High Court shall not have jurisdiction in respect of matters:(a)......(b)Falling within the jurisdiction of the courts contemplated in Article 162 (2)…

41. The Courts contemplated in Article 162(2) include courts with the status of the High Court to hear and determine matter relating to the environment and the use and occupation of, and title to, land. Pursuant to the Environment and Land Court Act, No. 19 of 2011 Section 3 of the Act (supra) Establishes the Environment and Lands Court and Section 13 give the Court jurisdiction and power to hear and determine disputes—(a)...(b)...(c)...(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.

42. In light of the above and the sentiments in the locus classicus case of Owners of the Motor vessels “Lillian S” -Vs- Caltex Oil (K) Ltd. Civil Appeal No. 540 of 1989 where it was held that,“...Jurisdiction is everything. Without it a court has no power to make one more step. Where the Court has no jurisdiction, there would be no basis for a continuation of procedure pending other evidence. A Court of law shall lay down tools in respect of the matter before it the moment, it holds the opinion that it is without jurisdiction.”

43. This Court's jurisdiction in this matter limited to enforce Law of Succession Act Cap 160 on administration of testate and intestate estates of deceased persons. In this regard, the court can hear and determine issues of issuance of grants, summons for confirmation of grants where lists of beneficiaries, lists of assets and modes of proposed distribution of estates as agreed and consented to by all beneficiaries and where there is contest, the court can hear and determine the Protests and revocation of grants application.

44. Where there is a dispute of what constitutes the net estate of the deceased available for distribution arising from contest as to deceased's title and ownership, then based on Rule 42 (2) of the probate and administration Rules, the Court is empowered before confirmation of a grant to remove property which is contested from the schedule of assets and have the same determined separately, while confirmation of the undisputed assets may be granted to allow beneficiaries beneficial interest over the said part of the estate.

Disposition 45. Consequently, and for the reasons above stated, I must find and hold that this court has no jurisdiction to resolve the proprietary interest on land based on the alleged trust. In this case therefore, the only path legally open to the objector/applicant is to institute separate proceedings to articulate his claim/rights in the right forum and which is the Environment and Land Court.

46. The objection dated 23rd June 2023 therefore has no merit and the same is dismissed with no orders as to costs, since the matter involves family members.

47. Further based on provisions of section 47 of the law of succession Act and Rule 73 as read with Rule 42(2) of the probate and administration rules, I do direct that the three suit properties Muputi Kimutwa/225, Muputi Kimutwa/392 and Muputi Kimutwa/400 be temporarily hived off the distribution list of the deceased Danson Muia Ndalana estate pending filing, hearing and determination of the existing dispute over the said parcels of land at the Environment and land court. Confirmation of grant for all other properties listed in the distribution schedule will proceed as normal.

48. It is so ordered.

RULING WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 16THDAY OF SEPTEMBER 2024. FRANCIS RAYOLA OLELJUDGEDELIVERED ON THE VIRTUAL PLATFORM, TEAMS THIS 16THDAY OF SEPTEMBER, 2024. In the presence of;Mr. Kamende for Objector/ApplicantMr. Mutinda for Petitioner/RespondentSusan/Sam Court Assistant