[2018] KEHC 8983 (KLR)
The court found that the property in question was not the free property of the deceased at the time of his death, as it had already been transferred to the 3rd interested party and charged to I & M Bank. Therefore, it could not form part of the deceased's estate for purposes of succession. The Family Division of the...
Source-derived case information.
- Citation
- [2018] KEHC 8983 (KLR)
- Parties
- Applicant: Samuel Mburu Kamau; Respondent: Susan Njeri Kamau; Interested Party: Daniel Macua Ndonga; Interested Party: Peris Susan Wangui; Interested Party: South Knight Limited; Interested Party: Standard Chartered Bank of Kenya; Interested Party: I & M Bank
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 202 of 2016
- Procedural Posture
- Succession Cause / Ruling on Application for Transfer and Dismissal
- Outcome
- Application dismissed; cause transferred to Environment and Land Court; costs awarded against applicant.
- Judges
- AO Muchelule
- Legal Topics
- Succession of Estates, Fraudulent Transfer of Property, Statutory Power of Sale, Letters of Administration, Jurisdiction of Courts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Mburu Kamau
Applicant
Susan Njeri Kamau
Respondent
Daniel Macua Ndonga
Interested Party
Peris Susan Wangui
Interested Party
South Knight Limited
Interested Party
Standard Chartered Bank of Kenya
Interested Party
I & M Bank
Interested Party
Procedural Posture
Succession Cause / Ruling on Application for Transfer and Dismissal
Legal Issues
- 1 Whether the suit property formed part of the deceased's estate for purposes of succession proceedings.
- 2 Whether the property was fraudulently transferred from the deceased to the 3rd interested party.
- 3 Whether the High Court (Family Division) had jurisdiction to determine the dispute over the property or if it lay with the Environment and Land Court.
Ratio Decidendi
The court found that the property in question was not the free property of the deceased at the time of his death, as it had already been transferred to the 3rd interested party and charged to I & M Bank. Therefore, it could not form part of the deceased's estate for purposes of succession. The Family Division of the High Court lacked jurisdiction to determine disputes over the title or alleged fraudulent transfer of the property; such matters properly belonged before the Environment and Land Court, where proceedings were already ongoing. As there was no other property forming part of the deceased's estate, the succession cause was incompetent and was accordingly transferred to the...
Court Disposition
Application dismissed; cause transferred to Environment and Land Court; costs awarded against applicant.
Orders
- The applicant's application is dismissed with costs.
- The motion of the 5th intended interested party to transfer the cause is allowed with costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 202 OF 2016
IN THE MATTER OF FRANCIS KAMAU ERASTUS MUNGAI
SAMUEL MBURU KAMAU………...……….………………...…... APPLICANT
VERSUS
SUSAN NJERI KAMAU…………..…………………..………… RESPONDENT
AND
DANIEL MACUA NDONGA……….….....…..………. 1ST INTERESTED PARTY
PERIS SUSAN WANGUI…………..……..…………. 2ND INTERESTED PARTY
SOUTH KNIGHT LIMITED………….........……………3RD INTERESTED PARTY
STANDARD CHARTERED BANK OF KENYA..........…4TH INTERESTED PARTY
I & M BANK………………........….…..….5TH INTENDED INTERESTED PARTY
RULING
1. The deceased Francis Kamau Erastus Mungai died intestate on 1st December 2015 at Nakuru. He hailed from Kiambu. Up to 25th July 2014 he was the registered proprietor of land parcel Nakuru/Municipality B4C3/427. On this date the property became registered in the name of South Knight Limited (3rd interested party). On 2nd July 2014 a charge was registered on the title in favour of I & M Bank Limited (5th intended interested party) to secure a loan of Kshs.15,000,000/=.
2. On 4th February 2016 the applicant Samuel Mburu Kamau and one Evans Mungai (both sons of the deceased) petitioned this court for the grant of letters of administration intestate.
3. There is in the Environment and Land Court at Nakuru a case ELC No. 98 of 2017 in which the respondent Susan Njeri Kamau (one of the widows of the deceased) has sued I & M Bank (5th intended interested party), the 3rd interested party, Daniel Macua Ndonga (1st interested party) and Benjamin Kisoi Sila t/a Legacy Auctioneers over this same property. The 3rd interested party had allegedly failed to repay the loan that had been disbursed to it by the 5th intended interested party, and that had led to the bank’s exercise of its statutory power of sale. This had been done through the auctioneers. The respondent’s case was that this was her land which she was selling to the 1st interested party and his wife who were directors of the 3rd interested party. The agreed price was Kshs.30,000,000/= but she was paid only Kshs.5,000,000/=. Somehow, before payment of the full purchase price, the suit property had been fraudulently transferred to the 3rd interested party who had used it to obtain the loan of Kshs.15,000,000/= which was never serviced.
4. In the instant cause, the applicant stated that the property belonged to the deceased but that it was fraudulently transferred to the 3rd interested party, at the time when the deceased was incapacitated owing to ill health.
5. Whatever the case, by the time the deceased died this was not properly registered in his name. This was not his free property in terms of section 3 of the Law of Succession Act (Cap 160). It follows that when this succession proceedings were filed (in which it was alleged that this was the deceased’s property) the property did not belong to the estate of the deceased.
6. The applicant claims that this was the deceased’s property that was fraudulently and illegally transferred to the 3rd interested party who took a loan on it which they did not service thereby leading to there being its sale. That is a dispute that (once he has letters of administration intestate) he can pursue before the Environment and Land Court. The Court that would deal with the matter would be the Environment and Land Court at Nakuru. Indeed, there are proceedings in that court that the respondent is already involved in. The applicant can seek to join the proceedings, if he is not a party therein.
7. Unless this cause has other property that belonged to the deceased, I find that it is incompetent. The cause herein is transferred to the Environment and Land Court in Nakuru (ELC 98 of 2018) for hearing and disposal.
8. The applicant’s application is dismissed with costs and the motion of the 5th intended interested party to transfer the cause is allowed with costs.
DATED and DELIVERED at NAIROBI this 5TH day of MARCH 2018.
A.O. MUCHELULE
JUDGE