[2022] KEHC 15477 (KLR)

In re Estate of David Mutisya Makumbi (Deceased) (Succession Cause E53 of 2021) [2022] KEHC 15477 (KLR) (18 October 2022) (Ruling)

Neutral citation: [2022] KEHC 15477 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause E53 of 2021

GV Odunga, J

October 18, 2022

IN THE MATTER OF THE ESTATE OF DAVID MUTISYA MAKUMBI (DECEASED)

Between

Lydia N Wambua

1st Applicant

Stellamaris Ndinda Nzioka

2nd Applicant

and

Alice Mwikali Mutisya

1st Respondent

Phillip Mutinda Mutisya

2nd Respondent

Daniel Mutuku Mutisya

3rd Respondent

Agnes Nthenya Mutisya

4th Respondent

Joyce Kamene Mutisya

5th Respondent

Margaret Yula Mutisya

6th Respondent

Leonard Mutie Mutisya

7th Respondent

Makumbi Developers Limited

8th Respondent

Makumbi Investments Limited

9th Respondent

In Design Makumbi Limited

10th Respondent

Endeavours Contruction Limited

11th Respondent

Ruling

1. By Summons dated October 12, 2021, the Applicants herein, Lydia N Wambua and Stellamaris Ndinda Nzioka in their capacity as the deceased’s widows, seek an order restraining the 11th Respondent from constructing on LR No 7149/138 Mlolongo (hereinafter referred to as “the suit property”) pending the hearing and determination of this petition; an order of injunction restraining the Respondents from any further intermeddling with Estate of the Deceased specifically constructing permanent structures, selling the property, developing the said property, leasing out, and entering into agreements with third parties over the said properties pending the hearing and determination of this petition; an order compelling the 1st to 7th Respondents (hereinafter jointly referred to as the first family) to deposit the original title documents of the properties listed in this petition and those in their possession in court; that the 1st to 7th Respondents be compelled to render a true and accurate account of the income derived from the assets belonging to the Late David Mutisya Makumbi in their possession and that the said Respondents be compelled to disclose all the properties derived from the deceased whether by way of sale and purchase or otherwise.

2. The gist of this application, which was supported by an affidavit sworn by Stellamaris Ndinda Nzioka, was that that the Late David Mutisya Makumbi, a polygamous man with four wives, died intestate. By a Citation Cause No 11 of 2019, the deponent cited the members of the 1st family to take out the letters of administration but none of them did so. Instead, the first family has been engaging in unnecessary legal showdown while intermeddling with the estate of the deceased. It was averred that following the failure by the 1st family to take out the grant, the deponent with the consent of the children from the 2nd, 3rd and 4th family resolved to jointly petition for grant.

3. It was deposed that the deceased left behind a vast estate comprising of bare lands, real estate, motor vehicles, bank accounts, corporeal and incorporeal property and a string of successful businesses within Machakos. However, the first family, which has access and control to majority of these properties has been mismanaging the same without a grant of representation, and to the exclusion of the other three families. It was disclosed that whereas there is a total of 15 beneficiaries to the Estate, only seven members (1st to 7th Respondents) enjoy a vast majority of the Deceased’s free property. According to the deponent, the 1st family has unilaterally and unlawfully alienated, allocated themselves, sold, transferred, hidden or otherwise been dealing with the free estate of the deceased to the exclusion of the other houses. Further the 1st house has refused to render a full disclosure of the deceased’s assets but have entered into commercial dealings with the 11th Respondent over the suit property in a transaction shrouded in mystery. As a result, the 11th Respondents has commenced construction activities on the said property.

4. In response to the application, the 10th and 11th Respondents in a replying affidavit sworn by Zhi Rui Liu, their director averred that Indesign Makumbi Limited, the 10th Respondent herein is the registered owner of property known as LR No 7149/138 Mlolongo while Endeavours Construction Company Limited is an independent contractor that was engaged by the 10th Respondent to provide construction services. According to the deponent, the parcel of land was transferred inter-vivos by David Mutisya Makumbi (deceased) to Makumbi Investments Limited on November 17, 2015 while David Mutisya Makumbi died on August 13, 2019, close to four (4) years after the inter-vivostransfer.

5. It was disclosed that Makumbi Investments Limited changed its name to Makumbi Developers Limited on August 7, 2020. It was averred that the deceased has never been a director or a shareholder of Makumbi Investments Limited (now Makumbi Developers Limited) and therefore the suit property could not form part of free property of the deceased at the time of his death.

6. It was averred that the 10th Respondents herein conducted all due diligence exercise prior to purchasing the suit property and was satisfied that Makumbi Investments Limited (now Makumbi Developers Limited) were the legally registered proprietors of the property. It was deposed that the 10th Respondent begun developing the property soon after being issued with a certificate of title and engaged the 11th Respondent as contractor and projected to spend Kenya Shillings One Billion Five Hundred Million (Kes 1,500,000,000/=) in the project and has already expended Kenya Shillings Eight Hundred Million (Kshs 800,000,000/=).

7. It was the 10th and 11th Respondents’ case that the 10th Respondent’s right to ownership of property and utilisation of the same as they legally wish has been greatly infringed by the applicants’ application and the consequent orders issued. Their position was that if the Applicants are disputing ownership of the suit property, they should lodge their claim in the court that has jurisdiction to hear the matter and not this court.

8. The Court was urged to dismiss the application dated 12th October herein.

9. By her affidavit, Alice Mwikali Mutisya, also opposed the application in her capacity and the 1st wife of the Deceased. According to her, the averments by the Applicants were not true. In her averment the suit property did not belong to the deceased having been sold and transferred to the 9th Respondent on November 17, 2015 before the deceased’s death on October 12, 2021. It was her deposition that most of the properties listed in the petition as belonging to the deceased had been sold and transferred by the deceased and that some of them are subject of litigation between herself and the deceased.

10. In a further affidavit sworn by the 2nd Applicant, it was averred that being the fourth wife, she was very close to the deceased during the moments leading to his death, and he confided many things in her including the fact that the first wife and her children, particularly Daniel Mutuku Mutisya, were taking advantage of his advanced age to sell and steal his property without his consent and one of the said properties was LR No 7149/138 which was fraudulently transferred from the deceased by the 1st to 7th Respondent either acting singularly, jointly or through proxies in the form of companies. It was revealed that Indesign Makumbi Limited is a joint-venture between Endeavors Construction Limited and Makumbi Developers Limited and that the first partner of the Joint Venture, Endeavors Construction Limited, the 11th Respondent, the Contractor, has its main directors as Li Xuan Peng (489 shares) and Zhi Rui Liu (510 shares). The second partner in the joint-venture, Makumbi Developers Limited, is wholly owned by Margaret Yula Nzioki (6th Respondent), Daniel Mutuku Mutisya (3rd Respondent), Joyce Kamene (5th Respondent) and Leonard Mutie Mutisya (7th Respondent) each of whom own 25 shares in the company and are all children of the 1st wife in the main succession dispute. It was averred that Makumbi Developers Limited, is the successor of Makumbi Investments Limited which was still wholly owned by Margaret Yula Nzioki (6th Respondent), Daniel Mutuku Mutisya (3rd Respondent), Joyce Kamene (5th Respondent) and Leonard Mutie Mutisya (7th Respondent).

11. It was averred that the contention that the parcel of land LR No 7149/138 Mlolongo was transferred to Makumbi Investments Limited is untrue since the Applicants never gave their consent to the transfer of the said property as the same was acquired during the substance of their marriage to the deceased. She referred to Section 93 of the Land Registration Act which makes it mandatory for spouses to give their consent to the transfer of matrimonial property otherwise such transfers, if any, are void ab initio and ought to be reversed and/or nullified by this Court for want of consent.

12. The deponent denied that the property LR No 7149/138 was transferred inter vivos by the deceased and averred that it is highly unlikely that the Deceased could have willingly transferred the impugned property to the members of the 1st family or their agents and that his signatures were either forged to effect the transfer to Makumbi Investments Limited or in extreme cases, titles stolen and transferred. It was disclosed that during the year 2015, the Deceased was not in good terms with the 1st Wife and some of the 1st wife’s children, whom he accused of stealing and selling his property without his consent and that on or about the August 8, 2015, the Deceased reported to Machakos Police Station the Loss of title deeds to the properties LR No’s 7149/150, 7149/149 and 7149/144. In addition to the above, on or about the period when the alleged transfer to Makumbi Investments Limited took place, there was blood between the Deceased and Daniel Mutuku Mutisya (the 3rd Respondent herein and one of the directors of Makumbi Investments Limited).

13. Besides the lack of spousal consent, and the likelihood of fraud, the deponent averred that there is a high possibility that the Deceased did not have the mental capacity to transfer the aforesaid property or manage the affairs of his estate and that this can be gleaned from the fact that vide the suit Machakos ELC No 210 of 2016 – Alice Mwikali Mutisya (1st Wife) v David Makumbi Mutisya (the deceased) & 2 others – the 1st wife had sued the deceased for a land transfer, to the Global Trucks Limited on the ground that the Deceased suffered from dementia and organic personality syndrome (mentally unsound) and hence incapable of wilfully effecting a transfer based on a report by Dr JK Mutiso, a specialist psychiatrist. On the strength of the above contention as to the failing mental state of the Deceased, Angote, J proceeded to issue orders of injunction on the impugned suit property vide a ruling dated December 14, 2018.

14. The deponent therefore believed that the property LR No 7149/138 could not have been legally transferred to Makumbi Investments Limited because: there was no spousal consent; his personal consent/signatures was not obtained and/or obtained fraudulently; and he lacked the mental capacity to effect the transfer.

15. The deponent disclosed that through the suit Machakos ELC No 210 of 2016, they have learnt that the Parties entered into a consent to settle the suit on July 7, 2020, more than one year after the passing on of the Deceased without a grant of representation and that the monies received by the 1st Wife owing to the said settlement have not been disclosed as belonging to the Estate of the Deceased.

16. The deponent asserted that the property LR No 7149/138 Mlolongo still belongs to her late husband, and by extension to his estate, for the reason that there was never a valid transfer by himself to Makumbi Investment Limited. She denied that the 10th and 11th Respondents performed sufficient due diligence and that had the two companies heeded to the demand letter sent out by the former Advocates, M/s Mukunya & Company Advocates dated August 3, 2021 they would have noted the existence of a family feud over the impugned property. In her view, Makumbi Investment Limited could not pass on a property which never belonged to them in the first place hence the alleged transfer was illegal and fraudulent.

17. The deponent also denied the averments contained in the affidavit sworn by Alice Mwikali Mutisya.

18. On behalf of the Applicants it was submitted that there was no explanation as to how the suit property was transferred from the Deceased and that no agreement for sale was exhibited. It was noted that whereas the Certificate of Title in 9th Respondent’s name, shows the lease as having been issued on August 1, 1930, the company was incorporated on October 31, 2011.

19. On the issue of jurisdiction, it was submitted that section 47 of the Law of Succession Act as well as rule 73 of the Probate and Administration Rules cloth the High Court with wide discretion to do what is necessary to ensure that the ends of justice are met and reference was made to In re Estate of Gideon Kibitok Tarus (Deceased) [2021] eKLR cited with approval Court of Appeal in Floris Piezzo & Another v Giancarlo Falasconi [2014] eKLR and it was submitted that this being primarily a succession dispute this Court has the requisite jurisdiction to issue any reliefs, including injunctory reliefs to prevent the wastage of the Estate of the Deceased.

20. While citing various legal provisions and authorities, the applicants impeached the alleged process by which the suit property was transferred based on the foregoing averments and submitted that the said property belongs to the Estate of the Late David Mutisya Makumbi hence the argument that the property LR No 7149/138 Mlolongo was not free property cannot hold.

21. It was submitted that by presenting this application before this court, the Applicants seek the protection of the suit property for the benefit of the Estate of the Deceased which includes the 1st to 7th respondents. Therefore, whether this Honourable Court refers the determination of the ownership of the property LR No 7149/138 Mlolongo to another Court, the property needs to be preserved to prevent the irreversible consequences that may arise from its continued alienation by the Respondents.

22. As for the issue whether the orders of Injunction/Preservatory should issue pending the determination of the Succession Cause, it was submitted the consistent and brazen misappropriation of the Estate of the Deceased without a grant, and which dates back to the period prior his demise, is sufficient reason for the grant of preservatory orders pending the hearing and determination of this Succession Cause. The Applicants submitted that they had satisfied the conditions for grant of the orders sought and submitted that this Court has the power to grant temporary reliefs in line with the dictates of Giella v Cassman Brown & Co Ltd [1973] EA 358 to prevent waste or loss of the substratum of these succession proceedings. The Court was urged to allow Application to enable the parties to promptly proceed with the distribution of the Estate.

23. On their part the 10th and 11th Respondents reiterated the averments in the replying affidavit and cited the decision in re Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR.

24. It was submitted that the suit property known as LR No 7149/138 Mlolongo, was not owned by the deceased and thus did not form part of the free property of the deceased as at the time of his death. Therefore, the suit property ought not to have been included on the list of assets owned by the deceased.

25. It was submitted that the 10th and 11th Respondents have adduced proof of ownership of the suit property. If indeed the applicants have an interest or claim or dispute as to how the ownership was acquired, the issue should be taken to the court with proper jurisdiction for hearing and determination. Should the court thereafter find in their favour, then the matter can be referred to this court. It was however submitted that this court lacks jurisdiction to hear and determine any issue raised concerning suit property known as LR No 7149/138 Mlolongo as the same does not form part of free property of the deceased and the cause herein is a probate and a succession cause.

Determination 26. I have considered the issues raised in the instant application. The application is based on the fact that the Respondents herein, without obtaining letters of administration intermeddled in the estate of the deceased by entering into transactions for disposal of the interest of the deceased in the properties forming part of the estate.

27. Section 45 of the Law of Succession Act provide as follows:"(1)Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.(2)Any person who contravenes the provisions of this section shall—(a)be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and(b)be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration."

28. I associate myself with the opinion of Musyoka, J in Veronica Njoki Wakagoto (Deceased) [2013] eKLR that:“The effect of [section 45]…is that the property of a dead person cannot be lawfully dealt with by anybody unless such a person is authorised to do so by the Law. Such authority emanates from a grant of representation and any person who handles estate property without authority is guilty of intermeddling. The law takes a very serious view of intermeddling and makes it a criminal offence.”

29. I also agree with the position in re Estate of M’Ngarithi M’Miriti [2017] eKLR that:“Whereas there is no specific definition provided by the Act for the term intermeddling, it refers to any act or acts which are done by a person in relation to the free property of the deceased without the authority of any law or grant of representation to do so. The category of the offensive acts is not heretically closed but would certainly include taking possession, or occupation of, disposing of, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with lawful liens or charge or mortgage of the free property of the deceased in contravention of the Law of Succession Act. I should add that any act or acts which will dissipate or diminish or put at risk the free property of the deceased are also acts of intermeddling in law. I reckon that intermeddling with the free property of the deceased is a very serious criminal charge for which the person intermeddling may be convicted and sentenced to imprisonment or fine or both under section 45 of the Law of Succession Act. That is why the law has taken a very firm stance on intermeddling and has clothed the court with wide powers to deal with cases of intermeddling and may issue any appropriate order(s) of protection of the estate against any person.”

30. It follows that any action taken by a person whose effect would be to interfere with a property of a deceased intestate without being authorised to do so by the court amounts to intermeddling with the estate under section 45 of the Law of Succession Act. Absence an order from the court, no one is lawfully authorised to interfere with the estate of a deceased. Lenaola, J (as he then was) in Republic vs Chairman Machakos Land Disputes Tribunal & Others Ex Parte Late Mutheke Ndeti & OthersMachakos HCMA No 252 of 2006 held that:“It is trite law that the interests of deceased persons cannot be tampered with unless a properly appointed legal representative has been handed over the management of their estates.”

31. In Re Estate of John Gakunga Njoroge (Deceased)[2015] eKLR Muriithi, J was of the view that:“A person can only lawfully deal with the estate of a deceased person pursuant to a Grant of Representation made to him under the Law of Succession Act…For the transactions between the applicants and the beneficiaries of the estate of the deceased entered into before the Grant of Letters of Administration to them and before the Confirmed Grant, the contracts of sale are invalid for offending the provisions of section 45 and 82 of the Law of Succession Act. Even if the sale transactions were by the administrators, the dealings with immovable property of the Estate is restricted by the provisions on the powers duties of the personal representatives under section 82 (b) Proviso (ii), which provides that:(ii)no immovable property shall be sold before confirmation of the grant.The persuasive authority of Wakiaga J in Stephen Waweru Ng’ang’a v. Kimani Ng’ang’a, Nyeri HC P&A No 1 of 2011 would be relevant in a claim against the beneficiaries who sold their interest so that they should not defraud the innocent purchasers of their money.”

32. Where the Court finds that there is or there is threat of intermeddling with the Estate of a deceased’s person, the Court, no doubt, has the power to grant appropriate conservatory orders including an order of injunction. In The Matter of the Estate of George M’mboroki Meru HCSC No 357 of 2004, Ouko, J (as he then was) expressed himself inter alia as follows:“The Law of Succession Act, like section 3A of the Civil Procedure Act has a saving provision as to the court’s jurisdiction under section 47 which is affirmed by rule 73 of the Probate and Administration Rules. It is therefore accepted that the court retains certain intrinsic authority in the absence of specific or alternative remedy, a residual source of power, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent abuse of its process, to do justice between the parties and to secure a fair trial between them.”

33. The Court of Appeal in Floris Piezzo & Another v Giancarlo Falasconi [2014] eKLR expressed itself as follows;“We have carefully considered the grounds of appeal, rival written and oral submissions, and the law. The application before the high Court was for temporary injunction to restrain the appellants from dealing with the suit premises in a manner inimical to the estate of the deceased. The question which arose and had to be determined first was whether the Court had jurisdiction to grant an injunction in a Succession Cause. The appellants took the position that the Court had no such jurisdiction whereas the Respondent took the contrary position. However, the High Court was persuaded that Rule 73 of the Probate and Administration Rules reserved the Court’s inherent jurisdiction to allow for the grant of injunctions in deserving cases. We are in total agreement with this conclusion. We have no doubt at all that the Law of Succession Act gives the Court wide jurisdiction in dealing with testamentary and administration issues of an estate. Indeed Section 47 of the said Act gives the Court jurisdiction to entertain any application and determine any dispute under the Act and to pronounce such decree and orders as may be expedient. It cannot be said that such decrees and orders would exclude injunction orders. In other words, we are of the same view that Section 47 of the Act gives the Court all-embracing powers to make necessary orders, including injunctions where appropriate to safeguard the deceased’s estate. This section must be read together with Rule 73 of the Probate and Administration Rules which further emboldens Court’s jurisdiction to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of Court. We would imagine such orders would also include injunctive orders.”

34. It follows that this Court has the jurisdiction to issue the orders sought. However, jurisdiction may, in my view, therefore be conferred at two levels. It may be that the Court lacks jurisdiction to entertain the dispute ab initio, in which case it ought to down its tools before taking one more step as was held in Owners of the Motor Vessel “Lilian S” vs Caltex Oil (K) Ltd [1989] KLR 1. It may also be that though the Court has jurisdiction to enter into the inquiry concerned it lacks the jurisdiction to grant the relief sought. In this case, there is no doubt that this Court has jurisdiction to inquire into the allegations of threat to the property of the deceased. The question, however, is whether the Court has the jurisdiction to enter into an inquiry concerning a dispute relating to interest in land.

35. In this case, the Respondents’ position is that the suit land was sold by the deceased before his death. They have exhibited documents supporting this allegation. If their position is true, then the suit property would not form part of the estate of the deceased since according to section 3 of the Law of Succession Act, “estate” means “the free property of a deceased person” while “free property”, in relation to a deceased person, means “the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death.” It is therefore clear that the only property that forms part of the estate of the deceased is that property which the deceased was legally competent to dispose of during his lifetime and in which by the time of his death, interests had not been terminated. Once the interests of the deceased is terminated, the property nolonger forms part of his estate and cannot be the subject of a determination in succession cause.

36. In this case, the Applicant contends that the process by which the interests of the deceased were purportedly terminated was unlawful. They also questioned the mental competence of the deceased to enter into such a transaction and allege fraud on the part of the Respondents. Issues revolving around fraudulent transfer of land cannot be the subject of succession causes. In determining what order to make I am guided by the position adopted inIn re estate of P N N (Deceased) [2017] eKLR, where it was held that:“According to Article 162(2) of the Constitution the Environment and Land Court (ELC) is vested with jurisdiction to determine disputes touching on ownership and the right to occupy and use land. Article 165(5) of the Constitution states that the High Court has no jurisdiction over matters that are the subject of Article 162(2) of the Constitution. It is my considered view that the matter of Ngong/Ngong/[particulars withheld]. falls within the purview of Article 162(2) of the Constitution, meaning that this court then, by virtue of Article 165(5) of the Constitution, does not have any jurisdiction over it. Determination of the question of the ownership of Ngong/Ngong/[particulars withheld]. as between the deceased and the other claimants should be referred to the ELC for resolution of the matter of as to who between the deceased and his father had bought the property from Paul Karanja Muiruri. Under Rule 41(3) (4) of the Probate and Administration Rules, during the hearing of a confirmation application, like in the present case, where an issue arises as to the identity or share or estate of any person claiming to be beneficially interested in it, the court may set aside the distribution of that share or property to await determination of the matter elsewhere. Under section 71 of the {Law of Succession Act, Cap 160, Laws of Kenya, the court seized of a confirmation application may postpone determination thereof for one reason or other.”

37. It was therefore held by Musyoka J in Re Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR that:“With regard to the assets, one of the questions that may present itself would be the ownership of the assets presented as belonging to the deceased. An outsider may claim that the property does not form part of the estate and therefore it need not be placed on the probate table. The resolution of such questions do not necessitate joinder into the cause of the alleged owner to establish ownership. It is not the function of the probate court to determine ownership of the assets alleged to be estate property. That jurisdiction lies elsewhere. 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 the Civil Procedure Act and 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”.

38. In this case, where part of the Applicants’ case is that the registration of the suit property in the names of the10th and 11th Respondent was fraudulent, this is not the right forum to deal with such allegations.

39. As regards the other properties of the estate, this Court can only protect the properties that form part of the estate of the deceased. Therefore, it is upon the applicant to adduce evidence showing that the properties particularized do form part of the estate. To do so the applicant must clearly identify the said properties. Accordingly, the Court cannot issue an injunction retraining the disposal of the estate of the deceased without identifying the assets in question. In other words, an injunction cannot be issued at large.

40. Therefore, while this Court has the jurisdiction to issue the injunction, it cannot do so in respect of the suit property. Such orders can only be issued by the Environment and Land Court where properly moved.

41. In light of my findings on jurisdiction, I strike out the application dated October 12, 2021 with no order as to costs. In light of the conclusions I have come to, it is nolonger necessary to deal with the application dated November 9, 2021 which I hereby mark as settled.

G V ODUNGAJUDGERULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 18TH DAY OF OCTOBER, 2022M W MUIGAIJUDGEDelivered the presence of: