[2022] KEHC 9816 (KLR)

In re Estate of Ireri Baini Njau (Deceased) (Succession Cause 12A of 2017) [2022] KEHC 9816 (KLR) (16 March 2022) (Ruling)

Neutral citation: [2022] KEHC 9816 (KLR)

Republic of Kenya

In the High Court at Chuka

Succession Cause 12A of 2017

LW Gitari, J

March 16, 2022

(FORMERLY MERU H.C. SUCC. CAUSE NO. 651 OF 2011)

IN THE MATTER OF THE ESTATE OF THE LATE IRERI BAINI NJAU (DECEASED)

Between

Mugambi William M’Njau

Applicant

and

Geoffrey Muriungi Ireri

1st Respondent

Peter Mwenda Ireri

2nd Respondent

Gitonga Kibii

3rd Respondent

Alex Muriuki Ireri

4th Respondent

Gerald Mugo Muturi

5th Respondent

John Mutuma Ireri

6th Respondent

Jasper Nkonge Mathai

7th Respondent

Ruling

Background 1. This cause relates to the estate of the late Ireri Baini M’Njau who died intestate on 23rd April 2006. Grant of Letters of Administration was sought and issued to the Petitioner/1st Respondent herein on 21st July 2008. The said Grant was confirmed on 12th November 2008 and the deceased’s estate was distributed as follows:a)Mwimbi/Mugumango/1259i.Jasper Nkonge Mathai (7th Respondent) – 0. 50 Acresii.Geoffrey Murungi Ireri (1st Respondent)iii.Peter Mwenda Ireri (2nd Respondent) Equal sharesiv.Alex Muriuki Ireri (4th Respondent) of balancev.John Mutumu Ireri (6th Respondent) thereofb)Mwimbi/Mugumango/1256i.Mugambi William M’Njau (Applicant) – Whole

2. Before this court is the chamber summons application dated 11th November 2011. The orders sought by the Applicant that are pending determination are listed as prayers no. 5-8 in the instant Application and read as follows:a)Thatthe grant herein issued on 12th November 2008 by the Chuka court be revoked.b)Thatthe applicant be given leave file objection out of time.c)Alternatively the honourable Court be pleased to order for the subdivisions of the original parcel No. Mwimbi/Mugumango/26 be cancelled and the 3 acres of the applicant as per the award in Chuka P.M.’s Court L.D.T. Case no. 10 of 2005 be awarded to the applicant.d)Thatthe petitioner do bear the cost of this application.

3. The Application was supported by the affidavit of the Applicant sworn on 14th November 2011. He however recanted the said affidavit and filed a supplementary affidavit evidence sworn by him on 3rd March 2020. The application is further supported by the affidavit evidence of the Applicant’s nephew, one Mbae Manene, also sworn on 3rd March 2020. It is premised on the following summarized grounds:a)The original title of the whole suit land was Mwimbi/N.Mugumango/26 and the same was registered in the name of the deceased.b)The deceased instituted a tribunal case in Chuka P.M.’s Court L.D.T. case no. 10 of 2005 and the Applicant was awarded 3 acres from the original parcel no. Mwimbi/N.Mugumango/26 which was later subdivided into 1259 and the current 1409-1416. c)In the tribunal case, it was found that the deceased held the 3 acres from the original parcel in trust for the Applicant.d)The Applicant was not informed of the succession cause in Chuka and the Petitioner fraudulently used the succession case to defraud the Applicant contrary to the tribunal findings.

4. The 1st Respondent opposed the Application vide a Replying Affidavit sworn by himself on 1st February 2019. The said affidavit is expressed to have been sworn by the 1st Respondent on his own behalf and on behalf of the other Respondents. According to him, the deceased extensively dealt with his properties during his lifetime leaving only two sub-divisions, Mwimbi/Mugumango/1259 and Mwimbi/Mugumango/1256. It is the Respondents’ contention that the two aforementioned properties are the only assets that formed part of the deceased’s estate and the same were duly disclosed when the succession cause was filed.

5. The matter proceeded by way of viva voce evidence. The Applicant testified as PW1. He adopted his supplementary affidavit sworn on 3rd March 2020 as his evidence. It was his testimony that he was the brother of the deceased as they shared the same mother and father. The applicant stated that his late father had two wives. According to him, the clan elders decided that the ancestral land held by the Applicant’s father would be demarcated following his death. He alleged that one Mbae Manene was given land to hold on behalf of the 1st house while the deceased herein was given land parcel no. Mwimbi/N.Mugumango/26 to hold in trust for the 2nd house.

6. The 2nd house included the deceased herein, the Applicant, and their late brother, Mwaragu (deceased) and they were allegedly given land measuring 6 acres. According to the Applicant, land parcel no. Mwimbi/N.Mugumango/26 was registered in the name of the deceased because the Applicant was very young at the time. The Applicant further contends that upon becoming of age, he asked the deceased to give him his share of the land, but the deceased declined to heed his request prompting the Applicant to place a caution on the land.

7. The aforementioned Mbae Manene testified as PW2. He opted to adopt the affidavit he swore on 3rd March 2020 as his evidence, which corroborated the Applicant’s testimony.

8. The Petitioner/1st Respondent testified as DW1. He acknowledged that the Applicant was the deceased’s brother. He however denied knowledge of the land dispute tribunal case between the deceased and the Applicant. According to him, the distribution of the deceased’s estate under the impugned grant was in accordance to the alleged wishes of the deceased.

Issues for Determination 9. From the pleadings on record and evidence adduced before this court, it is my view that the main issues arising for determination are:a)Whether this court has the requisite jurisdiction to determine this claim; and if so,b)Whether the grant confirmed on 12th November 2008 should be revoked.

Analysis Jurisdiction 10. It is trite that the issue of jurisdiction goes to the root of any matter before a court of law and therefore ought to be determined first. That said, it crucial to point out that the mandate of this court as a probate court is limited to succession proceedings only. More specifically, it is the primary duty of a probate court to distribute the estate of the deceased to the rightful beneficiaries. As of necessity, the estate property must be identified. Thus, where issues on the ownership of the property of the estate are raised in a succession cause, they must be resolved before such property is distributed.

11. In this case, the Respondent has challenged this court’s jurisdiction on the ground that the Applicant’s claim regards issues of ownership of land and declarations of trusts which are matters that fall within the purview of the Environment and Land Court and not the probate court.

12. As I expressed myself while sitting in Kerugoya in the case of In re Estate of John Mbogo Karuri (Deceased) [2019] eKLR:“8. It is now well settled that person who were registered during land demarcation held the land in trust for other members of the family in what is called customary trust. Though the title deed does not disclose that the person is registered in trust, that was immaterial if the other members of the family proved that the person who in trust cases was the first born son was registered in trust. Such trusts were protected under Section 28 and 30 (g) Registered Land Act (Cap.300) now repealed. Such trusts are recognized as overriding interests in land.9. Even after the repeal of the Registered Land Act (Cap.300) the clan Land Registration Act (2012) which is to consolidate and rationalize the registration of titles, the issue of customary trust is addressed at Section 28 (b) of the Act.10. It is now accepted by the court in this country that Section 30 (g) of the Registered Land Act provided for customary trust. Section 28 (b) of the Land Registration Act specifically provides for overriding interests as may subsist on the land and affect if without it being noted on the register as such customary trust. In the case of Kanyi Muthiora (1984) KLR 712 .C.A it was stated that;“The registration of the Land in the name of appellant under the registered land Act (Cap.300) did not extinguish the Respondents rights under Kikuyu Customary Law and neither did it relieve the appellant of her duties or obligations under Section 28 as trustee”Further in Mbui Mukangu Vs. Gerald Gatwiri Mbui C.A. NO.281/2000. The court stated that customary trust is a concept of intergenerational equity where the land is held by one generation for the benefit of another.”

13. InMuthuita v Muthuita (1982-88) 1 KAR 42 at 44 it was held that,“customary law trust is proved by leading evidence on the history of the suit property and the relevant customary law on which the trust is founded.”

14. It thus follows that for the Applicant to be protected under a trust, the said trust must be proved. The Supreme Court in the case ofIsack M’Inanga Kieba versus Isaaya Theuri M’Lintari & another[2018] eKLR, expressed itself as follows concerning customary trusts:“Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie V. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are:1. The land in question was before registration, family, clan or group land.2. The claimant belongs to such family, clan, or group.3. The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous.4. The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.5. The claim is directed against the registered proprietor who is a member of the family, clan or group.”

15. It is not in dispute that the original title over the land in question belonged to the late William M’Njau prior to its registration in the name of the deceased in 1969. The late William Njau was the father to both the deceased and the Applicant herein. It is also not disputed that the Applicant has lived on the suit land since childhood.

16. At paragraph 11 of the Applicant’s affidavit sworn on 16th July 2019, the Applicant however concedes that he is not a direct beneficiary of the estate but alleges to have a known lien and/or interest in the deceased’s estate. It is the applicant’s contention that he had a case before the Land Disute Tribunal, being case no. 10 of 2005, whereby he sued the deceased over his rights on land parcel no. LR/Mwimbi/N.Mugumango/26 and the tribunal decided that the Applicant was entitled to have 3 acres out of the said land. An excerpt containing the tribunal’s ruling was annexed to the said affidavit and marked “MW1”.

17. A probate court has jurisdiction to enforce the Law of Succession Act (Cap 160 of the Laws of Kenya) on administration of estates and intestate estates of deceased persons. In this case, the Respondents have raised the issued of locus standi or interest. It is not in dispute that the Applicant is not laying his claim as an heir or a direct beneficiary of the deceased but as an “owner” of 3 acres of the subject land. He is in in essence challenging the deceased’s title. Indeed this is a claim for proprietary right. In my view, the Applicant’s claim does not fall within the purview of this court as a probate court.

Conclusion 18. Having found that the mandate of this court is limited in respect to the Applicant’s claim, I opine that instant application lacks merit and is dismissed for want of jurisdiction.I make no orders as to costs.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 16TH DAY OF MARCH 2022. L.W. GITARIJUDGE16/3/2022Muthomi for ApplicantMr. Muriithi for Respondent – AbsentRuling has been read out in open court.L.W. GITARIJUDGE16/3/2022