[2022] KEHC 1445 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

SUCCESSION CAUSE NO. 198 OF 2000

IN THE MATTER OF THE ESTATE OF HELLEN NYOKABI MARINE -DECEASED

LEAH WAMBUI NDUNGU................................................APPLICANT

VERSUS

GLADWELL WANGUI NDUNGU

FRANCIS GACHUCHA WANG’OMBE

MARION NYOKABI GITONGA

VERONICA WAMBUI MURERIA

MICHAEL MUTERO MARINE...............................RESPONDENTS

RULING

1. The applicant has filed summons dated 8th February 2021 seeking that the Nyeri Land Registrar be ordered to remove restriction placed on title No. Nyeri Island Farms 2223 registered in the name of the applicant so as to allow transmission. The application is based on the grounds that the restriction was placed on the said land pending the determination of Nyeri High Court succession cause No. 198 of 2000. That the said cause is concluded and a certificate of confirmation of grant issued. That the respondents have been given their parcels of land. That no prejudice will be suffered by any of the parties if the orders sought are granted.

2. The application was opposed by the 1st and 5th respondents on the ground that the referred to land is a subject matter of Nairobi High Court Succession Cause No.2167 of 2000 which is still pending. That the application only seeks to defeat the ends of justice.

3. The application was supported by the affidavit of the applicant wherein she deposes that Nyeri succession cause No. 198 of 2000 was finalised vide a judgment delivered by this court (Mativo J.) on the 2nd January 2016 after which a confirmed grant was issued. That the land that was the subject of the succession cause was subdivided and she was allocated land parcel No. Nyeri Island Farms/2223 that is now registered in her name. That on the 23rd November 2021 the Nyeri Land Registrar placed a restriction on the land ostensibly to await outcome of succession cause No. 198 of 2000. That the said restriction is misplaced because succession cause No.198 of 2000 is long concluded. That the restriction was placed maliciously as it was not based on any court order. The applicant attached a copy of official search that shows that the land is registered in her name and that there is indeed a restriction placed on the land entered on the 23rd November 2020 till completion of Nyeri succession cause No.198 of 2000.

4. The 1st and 5th respondents filed their grounds of opposition but there was no replying affidavit filed.

5. The application was canvassed by way of written submissions. The applicant submitted that Nyeri Succession Cause No. 198 of 2000 is finalised. That maintaining a restriction on the grounds that the case is still pending is an abuse of the process of the court. That the same is malicious, unlawful and oppressive.

6. It was further submitted that Nairobi High Court Success Cause in No. 2167 has no connection with the restriction in the register. That there was no replying affidavit filed to show the interest of the respondents.

7. The respondents on the other hand submitted that the restriction was placed on the said parcel of land vide orders of this court made on 19/2/2020. That the applicant herein and the 1st and 5th respondents are parties in succession cause No.2167/2000 at the High Court Nairobi wherein the court has ordered the applicant who is a former administrator of the estate therein to render account of the estate. That the applicant has not complied with the said court order. That if the orders sought herein are granted the applicant can sell the land to third parties thereby defeating the orders of the court in Succession Cause No.2167 /2000. That the applicant has disposed of all her assets save for the parcel of land in issue so as to avoid compensating the respondents once she renders account and found to have misappropriated the deceased`s estate.

8. It was further submitted that the restriction was placed on 23/11/2020 after the judgment of Mativo J. was delivered on 2/1/2016. That the applicant filed an appeal against the said judgment which appeal is still pending.The respondents urged the court to dismiss the application.

Determination –

9. I have given due consideration to the grounds in support of the application and the submissions by the respective advocates for the parties. I have also perused the court file in this succession cause and read the ruling attached herein in Nairobi succession cause No. 2167 /2000. I have noted from the court file that the subject matter in this succession cause was land parcel No. Nyeri Island Farm/139 that was registered in the name of the deceased herein, Hellen Nyokabi Marine. I have noted that the applicant herein had placed a restriction on the said parcel of land wherein an application dated 17/7/2019 was made for the said restriction to be lifted so as to enable transmission to be completed. On the 19/2/2019, Justice Mshila made the following orders:

1. That the restriction should only apply after mutation is registered and all the parcels are registered in the respective names of the five beneficiaries.

2. That the appellant C.A 113/2017 can place her restriction on the parcel for Leah and Gladwell. Alternatively, the land registrar can place restriction on the parcel for Leah and Gladwell only.

3. The restriction placed by L/R NYERI / ISLAND/ 139 is hereby lifted.

4. That the Deputy Registrar is hereby directed to execute the transmission documents. Land registrar to dispense with production of required documents.

10. The respondents contend that the restriction on land parcel Nyeri Island Farm/2223 was pursuant to Justice Mshila`s orders issued on 19/7/1019 which was done after the process of transmission was complete and parcel No. Nyeri Island Farm/22223 allocated to the applicant.

11. It is clear from the evidence that the deceased in succession cause No. 2167/2000 is different from the deceased in this succession cause. The deceased in succession cause No.2167/2000 is Ndung`u Marine Wangombe while the deceased in this succession cause is Hellen Nyokabi Marine. The succession cause in the matter involving the estate of Hellen Nyokabi Marine is complete and the estate transmitted to the beneficiaries as ordered by the court. The applicant was among the five beneficiaries and was allocated parcel No.Nyeri Island Farm/2223 which is now registered in her name as shown by a copy of official search attached to her application. A title was issued in her name on 2/11/2020 and the subject restriction entered on 23/11/2020.

12. The jurisdiction of the probate court was expounded by Musyoka J. in In Re Estate of Alice Mumbua Mutua (Deceased)(2017) eKLRwhere he posited that:

“…..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.

27. 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………..

29. 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.

13. Deducing from the above passage, the duty of this court as a probate court in the matter of the estate of Hellen Nyokabi Marine ended after land parcel No.Nyeri Island Farm/139 was distributed and title deeds issued to the beneficiaries. Any subsequent disputes relating to the resultant titles do not involve the estate of Hellen Nyokabi Marine and does not fall under the mandate of a probate court. The court with the requisite jurisdiction is the Environment and Land Court. The orders made by Justice Mshila on 19/2/2019 were only in relation to land parcelNo. Nyeri/Island/139. The orders cannot have applied to any other parcel of land that was not in existence at the time that the orders were made. It is to be noted that a land registrar has power under section 76 of the Land Registration Act, 2012to enter restriction on any particular land without an order of the court. This means that the land registrar need not have acted on an order of the court in this matter so as to enter a restriction on the subject parcel of land.

14. In the premises, it is my considered view that this court has no jurisdiction to entertain the application dated 8th February 2021. The applicant should move to the right court.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT NYERI THIS 11TH DAY OF MARCH 2022.

J. N. NJAGI

JUDGE