[2022] KEHC 2492 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

SUCCESSION CAUSE NO. 307 OF 2008

IN THE MATTER OF THE ESTATE OF EPHANTUS KARIUKI M’MBUI (DECEASED)

A.C.K ST. MATHEWS CHURCH NDUNDURI..............................................................APPLICANT

VERSUS

JULIA NJURA EPHANTUS................................................ADMINISTRATOR/1ST RESPONDENT

ABIUD JASON MUCANGI....................................................................................2ND RESPONDENT

JANE NJOKI MATI.................................................................................................3RD RESPONDENT

DENIS NYAGA NJIRU............................................................................................4TH RESPONDENT

PATRICK MUGENDI MBOGO............................................................................5TH RESPONDENT

EVANSON NJERU..................................................................................................6TH RESPONDENT

PETER NDWIGA IKONGORO...........................................................................7TH RESPONDENT

ANGELO MAINA CINDANO..............................................................................8TH RESPONDENT

NELSON MURIITHI KARIUKI..........................................................................9TH RESPONDENT

LAND REGISTRAR-EMBU COUNTY.............................................................10TH RESPONDENT

RULING

1. Before this court is an undated summons in general filed on 27. 05. 2020 and wherein the applicant seeks for orders that :

i.Spent

ii.A prohibitory order do issue on Plot Numbers Ngandori/Ngovio/ 5238, Ngandori/Ngovio/5239, Ngandori/ Ngovio/5240, Ngandori/Ngovio/5241, Ngandori/Ngovio/ 5243, Ngandori/Ngovio/5244, Ngandori/Ngovio/5368 and Ngandori/ Ngovio/5369 until further orders of this court.

iii.The respondents be restrained from selling, disposing, transferring, leasing out Plot Numbers: Ngandori/Ngovio/ 5238, Ngandori/Ngovio/5239, Ngandori/Ngovio/5240, Ngandori/Ngovio/5241, Ngandori/Ngovio/5243, Ngandori/ Ngovio/5244, Ngandori/Ngovio/5368 and Ngandori/Ngovio/ 5369 until this application is heard and determined.

iv.The land Registrar- Embu County cancel the title deeds issued to the respondents in regards to Plot Numbers: Ngandori/Ngovio/5238, Ngandori/Ngovio/5239, Ngandori/ Ngovio/5240, Ngandori/Ngovio/5241, Ngandori/Ngovio/ 5243, Ngandori/Ngovio/5244, Ngandori/Ngovio/5368 and Ngandori/Ngovio/5369 and reinstate land Parcel Number Ngandori/Ngovio/433.

v.The administrator/1st respondent be ordered to partition Plot Number Ngandori/Ngovio/433 according to the confirmation of grant issued by the Honourable Court on 29. 03. 2012.

2. The application is based on the grounds on its face and supported by the affidavit sworn by Rev. Patrick Muchunku in which he deponed that the lands in issue are Ngandori/Ngovio/5238, Ngandori/Ngovio/5239, Ngandori/Ngovio/5240, Ngandori/ Ngovio/5241, Ngandori/Ngovio/5243, Ngandori/Ngovio/5244, Ngandori/Ngovio/5368 and Ngandori/Ngovio/5369 which are subdivisions from the plot number Number Ngandori/Ngovio/433 which was the subject land of a confirmation of grant issued by the Honourable Court on 29. 03. 2012. The applicant’s case is that the administrator/1st respondent acted contrary to the confirmed grant and distributed the partitioned plots of land to illegal beneficiaries. Further that, the Land Registrar-Embu County fraudulently registered the partitioned plot numbers and that unless restrained, the above listed beneficiaries will further transfer the partitioned plots and enstrange the rightful beneficiaries from their entitled shares of Plot Number Ngandori/Ngovio/433.

3. The application is opposed by way of replying affidavits sworn by the 1st, 4th and 7th respondents. In a nutshell, the 4th and 7th respondents deposed that the application is frivolous, sham and misconceived and meant to mislead the court since the land in question was not available for sale at the date of the purported sale agreement. That the applicant has not come to court with clean hands since 10 years from the date of the purported sale agreement with the 1st respondent, the applicant has not shown why he took almost a decade to claim the land in question. It was the case of the 4th and 7th respondents that by the sale agreement made on 17. 07. 2019 and 23. 04. 2013 respectively, they purchased their respective parcels from the 1st respondent; that the 4th respondent thereafter registered L.R. Ngandori/Ngovio/5239 under his name which was a resultant parcel of subdivisions of L.R Ngandori/ Ngovio/433 while the 7th respondent registered Ngandori/Ngovio/ 5369 a resultant parcel of subdivision of Land Parcel Ngandori/Ngovio/5242 from the original parcel No. Ngandori/Ngovio/433.

4. The application was canvassed by way of written submissions. The applicant in support of the application submitted that by a confirmed grant issued on 29th March, 2012, the beneficiaries of the estate of the deceased were identified but in the end, illegal beneficiaries ended up getting shares of the same estate thus ending up disinheriting the rightful beneficiaries. That all the said parcels were initially registered in the name of the 1st respondent who transferred them to the respective beneficiaries. That the acquisition of land by the 4th, 5th and 7th respondents was fraudulent and this can only be cured by cancelling the titles resultant from the Land Parcel Ngandori/Ngovio/433.

5. The 1st respondent submitted that after successfully obtaining grant and by the strength of the confirmed grant, she subdivided the original property of the deceased (L.R Ngandori/Ngovio/433) into 7 portions hence the allegation by the applicant is unfounded. That the applicant had prior approached the 1st respondent with a view to purchase a portion of the original land and that the applicant has not attached or demonstrated or shown proof to the court in any way that he paid the full amount of money in regards to the agreement made on 06. 07. 2010. That the applicant can only claim entitlement on the resultant parcels but only on the amount expended in furtherance of the said agreement. The 4th and 7th respondents submitted that the 1st respondent had all the rights to deal in the original land the moment she became the administrator and as such, they became the registered proprietors by transmission as per section 61(1) of the Land Registration Act 2012. It was their case that they are innocent purchasers for value and thus protected under the Law of Succession Act and thus the prayer for the cancellation of the respondents’ titles is untenable. They therefore urged this court to disallow the application with costs.

6. I have considered the application herein together with the respondents’ replying affidavits on record. I have equally considered the respective submissions of the parties and I find that the main issue for determination is:

(i) Whether the orders sought can be granted by this court.

7. It is not in dispute that the certificate of confirmation of grant in regard to the estate of Ephantus Kariuki M’Mbui was issued to the 1st respondent on 29. 03. 2012. Therefore, the land parcels listed in the body of the summons are a resultant of subdivision of L.R Ngandori/Ngovio/ 433 which was subject of the succession cause which was finalized and the grant issued when all the beneficiaries were present and the same was not challenged.

8. The respondents are of the view that, upon the 1st respondent obtaining the grant and by virtue of Section 79 of the Law of Succession Act, the 1st respondent in principle became the legal and personal representative of the deceased’s estate with all the powers and rights as prescribed by the said section which provides as follows:

Property of deceased to vest in personal representative.

The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.

9. They have argued that on the strength of the grant issued to the 1st respondent, she subdivided the original property of the deceased into 7 portions hence the allegation by the applicant that she illegally subdivided the said land is unfounded.

10. This court has wide inherent powers in succession matters to make such orders as may be expedient, to ensure that the ends of justice are met and prevent abuse of court process by parties under section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules. Section 47 of the Law of Succession Act provides as follows:

The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient:

11. Rule 73 of the P&A also provides;

“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

12. In Salome Wambui Njau (suing as the Administratrix of the Estate of Peter Kiguru Njuguna (Deceased) v Caroline Wangui Kiguru, Nairobi ELC suit NO. (2013) eKLR, the court was of the view that in matters of succession disputes touching on land, the Environment and Land Court pursuant to Article 162 (2) of the Constitution and the High Court as the Succession Court under section 47 of the Law of Succession Act would appear to have a concurrent jurisdiction. It would thus depend on the circumstances of each case which Court is best suited to hear and determine the dispute.

13. Musyoka J. in this regard in In Re Estate of Alice Mumbua Mutua (Deceased) [2017]eKLR expounded as to when a matter is best placed for a succession cause and when it ought to be referred to another Court with concurrent jurisdiction as follows:

“…..The Law of Succession Act, and the Rules made thereunder, are designed in such a way that they confer jurisdiction to the probate court with respect to determining the assets of the deceased, the survivors of the deceased and the persons with beneficial interest, and finally distribution of the assets amongst the survivors and the persons beneficially interested. The function of the probate court in the circumstances would be to facilitate collection and preservation of the estate, identification of survivors and beneficiaries, and distribution of the assets.

Disputes of course do arise in the process. The provisions of the Law of Succession Act and the Probate and Administration Rules are tailored for resolution of disputes between the personal representatives of the deceased and the survivors, beneficiaries and dependants. However, claims by and against third parties, meaning persons who are neither survivors of the deceased nor beneficiaries, are for resolution outside of the framework set out in the Law of Succession Act and the Probate and Administration Rules. Such have to be resolved through the structures created by the Civil Procedure Act and Rules, which have elaborate rules on suits by and against executors and administrators.

Clearly, disputes as between the estate and third parties need not be determined within the succession cause. The legal infrastructure in place provides for resolution elsewhere, and upon a determination being made by the civil court, the decree or order is then made available to the probate court for implementation. In the meantime the property in question is removed from the distribution table. The presumption is that such disputes arise before the distribution of the estate, or the confirmation of the grant. Where they arise after confirmation, then they ought strictly to be determined outside of the probate suit, for the probate court would in most cases befunctus officioso far as the property in question is concerned. The primary mandate of the probate court is distribution of the estate and once an order is made distributing the estate, the court’s work would be complete. The proposition therefore is that not every dispute over property of a dead person ought to be pushed to the probate court. The interventions by that court are limited to what I have stated above.

14. The dispute that has been placed before me relates to transmission of the property of the deceased herein in terms of a certificate of confirmed grant in the hands of the 1st respondent, and a prayer for cancelation by the applicant of titles derived from L.R Ngandori/Ngovio/433. Transmission of property and cancelation of titles, which hinder such transmission, are processes governed by the Land Registration Act and the Land Act, and under that law, the court with jurisdiction, to deal with any disputes or issues that may arise over the processes is the Environment and Land Court. Transmission is a process which confers title on the beneficiaries named in a certificate of confirmation of grant. It is a process of transfer of title, and, therefore, any issue arising around it would be a dispute over title to which Article 162(2) of the Constitution apply. Cancelation of titles also concern title. These processes are at the core of Article 162(2) of the Constitution. The cancelation of titles is, no doubt, one of the functions that are envisaged in Article 162(3) of the Constitution.

15. As indicated, the 4th and 7th respondents did present before the court a sale agreement between them and the 1st respondent and further a copy of mutation document. While this court is aware that the certificate of confirmation of grant was made on 17. 02. 2011 unto the 1st respondent, the sale agreement on the other hand between the 1st respondent and the 4th respondent and 7th respondent shows 17. 07. 2019 and 23. 04. 2013 respectively. It is thus clear that the said sale agreements between the 1st respondent and the 4th and 7th respondents were entered after the certificate of confirmed grant was already issued unto the 1st respondent.

16. As narrated here above, the grant herein was confirmed, and a certificate of confirmation of grant was issued. After a grant is confirmed the process of transmission is carried out in terms of the relevant land legislation. In other words, transmission of property in accordance with a confirmation of grant is not governed by the provisions of the Law of Succession Act nor the Probate and Administration Rules. Disputes around transmission of property, as per the certificate of confirmation of grant, therefore, do not lie to the probate court, but to the court with jurisdiction. Indeed, the Law of Succession Act and the Probate and Administration Rules do not carry any provisions on transmissions.

17. Section 61 of the Land Registration Act provides as follows:

“Transmission on death of a sole proprietor or proprietor in common.

61. (1) If a sole proprietor or a proprietor in common dies, the proprietor’s personal representative shall, on application to the Registrar in the prescribed form and on the production to the Registrar of the grant, be entitled to be registered by transmission as proprietor in the place of the deceased …

(2) Upon confirmation of a grant, and on production of the grant the Registrar may, without requiring the personal representative to be registered, register by transmission—

(a) any transfer by the personal representative; and

(b) ….

(3) In this section, “grant” means the grant of probate of the will, the grant of letters of administration of the estate or the grant of summary administration of the estate in favour of or issued by the Public Trustee, as the case may be, of the deceased proprietor.”

18. Transfer of land after a succession process is what transmission is about but in regards to determinations as to validity of the transactions that led up to the subdivisions, which had not been ordered by the probate court, perhaps do not have to be heard by the probate court. That should raise an issue of jurisdiction. As stated elsewhere, the Law of Succession Act and the Probate and Administration Rules do not provide for transmission of property following confirmation of grant. It follows, therefore, any disputes around transmission should be resolved, not through the Law of Succession Act and the Probate and Administration Rules, but under the relevant land legislation, which govern transmission.

19. Since the law governing the processes of transmission of interests in land is located in the Land Registration Act and the Land Act, the answer to the question, as to the court with jurisdiction to address or resolve disputes around transmission, is to be found within the Land Registration Act and the Land Act.

20. My understanding of these provisions, in the context of the matter before me, is that any disputes or questions or issues that require court intervention and which revolve around transmission of property upon the death of the proprietor and after completion of succession proceedings, fall within the jurisdiction of the Environment and Land Court. At this juncture this court is functus officio.

21. In the end, I form the view that this Court lacks the requisite jurisdiction to entertain the matter at hand. The application is hereby struck out.

22. Each party to bear its own costs.

23. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 2ND DAY OF FEBRUARY, 2022.

L. NJUGUNA

JUDGE

...........................................for the Applicant

........................................for the Respondent