[2019] KEHC 10376 (KLR)
The court found that the agreement relied upon by the protestor was unenforceable for several reasons: it was time-barred under the Limitation of Actions Act, the protestor lacked legal capacity to claim on behalf of her late husband, the agreement was vague and not properly executed, and, most importantly, the High...
Source-derived case information.
- Citation
- [2019] KEHC 10376 (KLR)
- Parties
- Applicant: Arron Mutua Muambi; Respondent: Domitila Katilo Mwanzia
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 224 of 2017
- Procedural Posture
- Probate and Administration / Ruling on Confirmation of Grant and Protest
- Outcome
- Protest struck out; grant confirmed; distribution approved; no order as to costs.
- Judges
- CM Kariuki
- Legal Topics
- Confirmation of Grant, Distribution of Estate, Jurisdiction of Court, Limitation of Actions, Capacity to Sue, Sale of Land Agreements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Arron Mutua Muambi
Applicant
Domitila Katilo Mwanzia
Respondent
Procedural Posture
Probate and Administration / Ruling on Confirmation of Grant and Protest
Legal Issues
- 1 Is the agreement dated 13/10/1984 enforceable by this court in the context of the succession proceedings?.
- 2 Does the protestor have legal capacity to claim on behalf of her late husband?.
- 3 Does the High Court have jurisdiction to determine ownership of land in probate and administration matters?.
Ratio Decidendi
The court found that the agreement relied upon by the protestor was unenforceable for several reasons: it was time-barred under the Limitation of Actions Act, the protestor lacked legal capacity to claim on behalf of her late husband, the agreement was vague and not properly executed, and, most importantly, the High Court sitting in probate and administration jurisdiction lacked the authority to determine ownership of land. Such disputes fall within the exclusive jurisdiction of the Environment and Land Court. Consequently, the protest was struck out as incompetent and lacking merit. The court proceeded to confirm the grant and approve the distribution of the estate as proposed by the...
Court Disposition
Protest struck out; grant confirmed; distribution approved; no order as to costs.
Orders
- The protest by Domitila Katilo Mwanzia is struck out as incompetent and lacking merit.
- The grant is confirmed and the distribution of the estate is approved as set out in the affidavit in support of the Chamber Summons dated 04/12/2017.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HC P&A. NO. 224 OF 2017
ESTATE OF ELIJAH MUTUA MUAMBI (DECEASED)
ARRON MUTUA MUAMBI ………………..………....…… PETITIONER
-VERSUS-
DOMITILA KATILO MWANZIA …….……………..………. OBJECTOR
RULING
1. The Petitioner lodged Chamber Summons dated 04/12/2017 on 07/12/2017 seeking confirmation of grant in the instant matter and for the court approval of distribution of the estate of deceased person to the beneficiaries.
2. The Protestor Domitila Kitilo Mwanzia lodged protest in a response to the aforesaid application on the ground that before registration of one parcel part of the estate No. Makueni/Mubau/301.
3. The deceased sold to her husband who was deceased son a portion thereof. However during registration the deceased registered the entire parcel of land in his name.
4. A homemade notes claimed to be agreement and translation thereof is attached. Same is alleged to have been entered into on 13/10/1984.
5. When matter came for hearing, the parties agreed to hear the matter via viva voce evidence. The protestor testified and never called any witnesses. The Petitioner testified and called 2 witnesses.
6. The protestor testified and reiterated what is in his affidavit of protest. She proceeded to demonstrate that in presence of named elders in the agreement of 13/10/1984.
7. The deceased and her husband entered into an agreement of sale of unspecified piece of land and did pay Kshs. 25,900/=. She named 6 witnesses who were present.
8. She claims that the portion bought by her husband should be set aside and given to her before the estate of the deceased is shared equally before the beneficiaries.
9. The Petitioner has testified explaining the sharing of the deceased estate as set out in the affidavit in support of the application for confirmation of grant and distribution.
10. He says that the beneficiaries have agreed on sharing and a consent attached and signed by them. He says the agreement of 18/08/2003 share the land deceased estate equally.
11. DW2 is a beneficiary and a son of the deceased. He said that his deceased father was given land subject of protest from the government and the protestors husband never bought any portion from his father as alleged.
12. He says the land is 69 acres in size. He says he got 6. 27 acres and every beneficiary got same size. It is only the protestor who is complaining.
13. DW3 also a son of deceased and a beneficiary testified that protestor got 6. 72 acres from the proposed distribution and himself got 6. 72 acres. He says she agreed to the sharing and thus does not understand what she is demanding.
ISSUES
14. After going through the affidavit and evidence on record, I find that only singular issue is whether the agreement of 13/10/1984 is enforceable by this court?
15. On the face of the agreement, same would appear to be time barred as the same was made more than 2 years ago. Thus cannot be employed as a tool to recover land by virtue of Section 4 of Limitation of Actions Act Cap 22, L.O.K.
16. Secondly the protestor does not demonstrate that she is the legal representative of her late husband to have capacity to claim on behalf of his estate.
17. Thirdly the agreement does not specify the land allegedly bought nor did the contractors; deceased and her husband appear not to have appended their signatures.
18. And finally and the most important for this court, the claim of ownership of land as alleged cannot be litigated via P&A matters and before this court.
19. This court by virtue of Article 165(2) Constitution lacks jurisdiction to entertain such claim. The same lies in the mandate of Environment and Land Court (ELC).
20. Thus the protest herein is incompetent and lacks merit thus struck out with no orders as to costs.
21. The court therefore goes ahead to confirm grant and approve distribution as set out in affidavit in support of Chamber Summons dated 04/12/2017.
22. Parties to bear their own costs.
DATED, DELIVERED, SIGNED THIS 7TH DAY OF FEBRUARY, 2019 IN OPEN COURT.
………………….......
HON. C. KARIUKI
JUDGE