[2022] KEHC 11948 (KLR)

In re Estate of Dickson Anyoso Macheru (Deceased) (Succession Cause 916 of 2011) [2022] KEHC 11948 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11948 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 916 of 2011

WM Musyoka, J

May 13, 2022

IN THE MATTER OF THE ESTATE OF DICKSON ANYOSO MACHERA (DECEASED)

Ruling

1. For determination herein is a notice of preliminary objection on a point of law, dated 20th May 2021. The objection is to an application dated 12th April 2019, as amended on 15th March 2021, and it to the effect that the issues raised in the application fall within the realm of the Environment and Land Court, and that this court lacks jurisdiction to entertain the application.

2. The application dated 12th April 2019, is by Phoebe Omuhindi Mbone, who I shall refer to hereafter as the applicant, seeking revocation of the grant herein, on grounds that she had been left out of the succession process, yet she had a proprietary interest to the whole of West Bunyore/Ebubayi/234. She asserts that she bought the property from the administrator of the estate on 12th May 2010. She states that there was an understanding that at the confirmation of the grant her interest would be taken care of. She asserts that the grant was obtained fraudulently to the extent that she was not disclosed as a purchaser. A copy of the sale agreement between the applicant and Newton Anyoso Machera is attached.

3. The response to the application is by Newton Machera Anyoso, through an affidavit sworn on 8th July 2019. He is the administrator of the estate, and I shall refer to him hereafter as the administrator. He concedes that the applicant was a purchaser of East Bunyore/Ebubayi/234, but of his share in that property. They had entered into a sale agreement between them on 12th May 2010. He alleges a breach of the sale terms by the applicant, whereupon he alleges that he sold the property to someone else. He asserts that the applicant had not bought the whole of East Bunyore/Ebubayi/234.

4. On 14th July 2021, I directed that the preliminary objection be disposed of by way of written submissions. Both sides have filed their respective written submissions, which I have read through and noted the contents. .

5. The issue is whether I, as a Judge of the High Court, have jurisdiction to determine the question of ownership of East Bunyore/Ebubayi/234 as between the applicant and the administrator herein, for that is the core question for determination. For if there is jurisdiction, I would decide on the validity of the sale transaction, and should I find that the same was valid, hold that the applicant ought to have been included in the succession proceedings as a purchaser, and that her exclusion was fraudulent.

6. The starting point is that the deceased herein died on 1st April 1994. Representation to the intestate estate was granted to the administrator on 5th June 2012. The sale transaction between the administrator and the applicant happened on 20th July 2010. The effect of it is that the property was not sold by the deceased before his demise, but by the administrator after the deceased died. It is significant that the administrator sold the property before he had been appointed as administrator on 5th June 2012, and even before this cause was initiated on 25th November 2011. These facts raise serious doubts on the validity of the transaction, and it would appear that the applicant stands on quicksand. I say so wholly on the basis of the law of succession.

7. The proprietor of registered land, such as East Bunyore/Ebubayi/234, has a right to dispose of their interest in such land during their lifetime, including by way of sale. However, upon their demise, there are limitations on how such interest is to be disposed of by way of sale, given that a dead person is incapable of transacting, he or she is no more, and cannot exercise the powers that accrue to an owner of such land. Under the Law of Succession Act, Cap 160, Laws of Kenya, the estate of a dead person vests in the State, which holds radical title to all landed property, before representation is granted in the estate to anyone. At this stage, no one, not even the State can dispose of the said land by way of sale. Upon representation being granted, the property then vests in the personal representative, whether executor or administrator in intestacy, by virtue of section 79 of the Law of Succession Act. It is upon the vesting, under section 79, that the personal representative acquires the powers to sell the land as set out in section 82 of the Law of Succession Act. Even then, under section 82, the administrator in intestacy would have no power to sell the property before confirmation of grant. Under section 45 of the Law of Succession Act, there is a specific bar on anyone who has no authorization in law to handle estate property, unless they obtain representation to it or are conferred with authority by the law one way or other.

8. The property in dispute was not sold by the deceased, for the applicant did not transact with the deceased. The transaction happened after the deceased had died. That would mean that the applicant was not a creditor of the estate, for the deceased did not owe her anything as at the time of his death. The transaction happened before the administrator had obtained representation to it. It had not vested in him, by virtue of section 79, and, therefore, he had no power at all under section 82 to sell it to anyone. He could not confer a title to anyone over property that he did not own, and any person purporting to buy land from him acquired no valid title whatsoever from the estate, for the seller could not represent the estate without a grant. Secondly, the alleged sale fell afoul of section 45 of the Act. It was being conducted by persons who had no authority to handle the property of a dead person. What they did is what section 45 defines as intermeddling, which is a criminal offence, and a transaction conducted in furtherance of a criminal enterprise confers no title on anyone. The transaction was, therefore, as dead as a dodo, and the applicant is no doubt advancing a dead cause.

9. The other thing of course is that the administrator claims that he was selling his anticipated stake in East Bunyore/Ebubayi/234. As indicated above, the applicant did not transact with the deceased, and, therefore, she cannot have any claim against the estate. She also dealt with a person who was not an administrator of the estate at the time, and who had no right or power to handle the property. It should be pointed out that the mere fact that one is a child or spouse of the deceased owner of the property or anticipates a share in the property on that account confers no rights at all over the property. The relationship between the seller and the deceased is relevant. The property vests in the administrator, and only he can sell the property after confirmation or with leave of court. So, the fact that the administrator was a son of the deceased at the time of sale did not confer on him any rights over the deceased’s property, he could only transact if he held a grant and that grant had been confirmed, or he had otherwise been granted leave by the court to sell the property before confirmation. The deceased died intestate. Under section 80(2) of the Law of Succession Act, the vesting under section 79, of the estate to the administrator, happens only from the date the administrator is appointed. The authority conferred by the grant in intestacy does not relate back to the date of death, and it does not authenticate any intermediate acts, which remain invalid and unenforceable. It cannot, therefore, be argued that the subsequent appointment of the administrator in 2012 somehow breathed life to the transaction of 2010, to render it valid or authentic. The only remedy that the applicant has lies with her pursuing the administrator, to either have him transfer the portion that she bought from him, so long as the same has been devolved to him, or for refund of the purchase price.

10. The issue as to entitlement of the applicant in East Bunyore/Ebubayi/234 is framed, in the application, as a land dispute, where the court is called upon to determine whether the sale transaction between the applicant and the administrator was validity. The principal provisions on valid of transactions for sale of land, whether of a dead or living person, are in the land legislation, that is the Land Registration Act, No. 3 of 2012, and the Land Act, No. 6 of 2012. Disputes or questions or actions founded on these two pieces of legislation ought to be placed before the Environment and Land Court. That is so by virtue of Articles 162(2) and 165(5) of the Constitution, and sections 2 and 101 of the land Registration Act and sections 2 and 150 of the Land Act. Article 165(5) of the Constitution is emphatic that the High Court shall exercise no jurisdiction over disputes that are the subject of Article 162(2). The dispute before me is one such, and I have no jurisdiction to determine the issues around the sale transaction over East Bunyore/Ebubayi/234, to extent that that dispute is subject to the provisions of the Land Registration Act and the Land Act.

11. In view of everything I have discussed above, I uphold the objection raised in in the notice of preliminary objection dated 20th May 2021. Consequently, I hereby strike out the summons for revocation of grant dated 12th April 2019, as amended on 15th March 2021, but with no orders as to costs. As the entire estate is situate within Vihiga County, I hereby direct that the file herein be transferred to the High Court of Kenya at Vihiga.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 13thDAY OF May 2022WM MUSYOKAJUDGEErick Zalo, Court AssistantMr. Mutoka, instructed by Shivachi Mutoka & Co., Advocates for the applicant.Mr. K’Ombwayo, instructed by M. Kiveu, Advocates, instructed by the administrator.