[2023] KEHC 25571 (KLR)

In re Estate of Isaya Mulari Tambaa (Deceased) (Succession Appeal E006 of 2022) [2023] KEHC 25571 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25571 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Appeal E006 of 2022

PJO Otieno, J

November 17, 2023

IN THE MATTER OF THE ESTATE OF ISAYA MULARI TAMBAA (DECEASED)

Between

Ayub Shisimba Mulari

1st Appellant

Deina Khalumba Mulari

2nd Appellant

Moses Shichenje Mukoto

3rd Appellant

and

Carolyne Kigadi Nyabera

1st Respondent

Alex Omendo Nyabera

2nd Respondent

Violet Kaukilwa Nyabera

3rd Respondent

Kenneth Mulubi Nyabera

4th Respondent

Brian Mukoyani Nyabera

5th Respondent

(Being an appeal against the Ruling of Hon. J. R. Ndururi (PM) in Kakamega CMC Succession Cause No. 1744 of 2018 delivered on 7th April, 2022)

Judgment

Background of the Appeal 1. Following the death of Muari Tambaa (“Deceased”) on the 13th day of September, 1975, Benjamin Mukoto Mulari, in his capacity as a son of the deceased initially petitioned this court for the grant of letters of administration intestate which grant was issued on the 24th day of September, 2009.

2. Vide an application dated 23rd May, 2014, the 2nd and 3rd Appellants and three others namely Dinah Isendi Muli, Sarah Khaluhya Mulari and Racheal Shivuka Mulari moved the court for the revocation of the grant on the ground that the Administrator was disposing property known as ISUKHA/SHISERE/614, which parcel was property of the deceased.

3. In responding to the application, the Administrator, now deceased, indicated that the 3rd Appellant was his son and he therefore had no interest in the property of his grandfather and he further indicated that the property had been solely left to him by his late father, the deceased herein.

4. The cause was transferred to the trial court at the instance of the Court and a fresh grant of letters of administration intestate was issued to Ayub Shisimba Mulari, Daina Khalumba Mulari & Moses Shichenje Mukoto on 12th May, 2021.

5. The Petitioners proceeded to file for summons for confirmation of grant dated 10th May, 2021 and in the Supporting Affidavit of Ayub Shisimba Mulari, he indicated that the deceased was survived by the following;a.Rose Injete (widow)-Deceasedb.Ayub Shisimba Mulari (Son)c.Daudi Likhaya Mulari (Son)-Deceasedd.Benjamin Mukoto Mulari (Son)-Deceased and survived by two widows namely Fridah Akala Ingavi and Rose Libeya Mukotoe.Deina Khalumba Mulari(Daughter)f.Rachel Mukasia Ibwaga(Daughter)g.Sarah Khaluyia Muteheli(Daughter)h.Dina Isenti Vigazi(Daughter)-Deceasedi.Resipah Mutola Buruti(Daughter)j.Jerida Ajitsa Mulari (Daughter)-Deceased

6. He added that at the time of the deceased’s death, the deceased was the registered proprietor of Isukha/Shiswa/614 measuring 2. 4 hectares which was subject to distribution in this cause. He added that the deceased was the registered proprietor of Isukha/Shiswa/87 measuring 2. 8 hectares which he had transferred to the deponent and another son to deceased, Daudi Likhaya Mulari (deceased also), in equal shares. To the deponent, himself and the family of Daudi Likhaya Mulari had no interest nor claim in Isukha/Shiswa/614.

7. He claimed that the late Benjamin Mukoto had initiated the succession proceedings in secrecy to the exclusion of other beneficiaries. He then proposed a mode of distribution based on what he called a consensus reached at a family meeting.

8. The Respondents protested to the confirmation of the grant on the ground that they had purchased part of Isukha/Shiswa/614, hereinafter referred to as “the suit property” from Benjamin Mukoto and that they were therefore entitled to the shares purchased.

9. In a ruling of the trial court delivered on 7th April, 2022, the court noted that Ayub Shisimba Mulari and David Mulari had filed separate succession causes for the property they inherited from the deceased and registered in their names and in which proceedings they did not name the daughters of the deceased as beneficiaries. Because the daughters never objected in the said causes, the learned Magistrate concluded that it could be assumed that because the deceased died before the inception of the Law of Succession Act, his intention was that his property devolves among his three sons. The trial Court further questioned why the daughters had not raised an objection to Benjamin Mukoto Mulari’s occupation of the suit property since the year 1976.

10. It was thus the finding of the Court that since the buyers of the suit property had a legitimate expectation that the interests they had acquired in the suit property would eventually be catered for when the estate of the deceased was being distributed, those interested ought to be protected leading to the rejection of the proposed distribution.

11. It is that decision which provoked the instant appeal in which the trial Court is faulted on the grounds that: -a.The learned magistrate erred in law and fact by making a finding in favour of the respondent by not considering the submissions and evidence of the appellants.b.That the learned trial magistrate erred in law by making a finding that the respondents who purchased land from the late Benjamin Mukoto Mulari had legitimate interest in the deceased estate yet the respondents herein had no direct legitimate legal or beneficial interest in the deceased’s estate herein as they did not buy land from the deceased.c.That the learned trial magistrate erred in law and fact by finding in favour of the respondents without considering the fact that the said land did not legally belong to the said Benjamin Mukoto Mulari at the time of such sale and that he had no locus standi to sale off any land as he had no grant of letters of administration from this court to do so and not considering that the grant issued to him was later revoked or annulled.d.That the learned trial magistrate erred in law and fact by ignoring the fact that the appellants had clearly informed the court that if the respondents had any interest in the deceased property, then the respondents ought to have protected their interest in claiming for the share that the estate of the late Benjamin Mukoto Mulari could have received.e.That the trial magistrate erred and misdirected himself by failing to distribute the deceased net estate as it had been proposed.f.That the learned magistrate was biased in the circumstances.

12. The appeal was directed to be canvassed by way of written Submissions and in the Submissions filed, the Appellant contend that the sale of the suit property by the late Benjamin Mukoto was made after the death of the deceased and before the grant of letters of administration intestate issued to the late Benjamin Mukoto had been confirmed therefore making the transactions void. It was then urged that the appeal be allowed and the Court proceeds to distribute the estate.

13. The Respondents on the other hand identify two issues for determination namely;a)whether the deceased administrator Benjamin Mukoto Mulari was issued with a grant to administer the estate of the deceased Isaya Mulari Tamba andb)whether the Respondents have a legitimate interest in the estate of the late Isaya Mulari Tamba.

14. On whether the deceased Administrator, Benjamin Mukoto Mulari, was issued with a grant to administer the estate of the deceased, the Respondents submit that no objection was raised within thirty (30) days upon the gazettement of the deceased Administrator on 18th December, 1998 to administer of the estate of the deceased and that the grant issued to the deceased Petitioner was merited to which regard they place reliance on the case of In the matter of the estate of Albert Kihara Ndunyu (Deceased) [2012] eKLR where the court held as follows;“The grant issued to Margaret was not defective in substance. It was not obtained by making of false substantive statement. The applicant has not been shown to have concealed any material facts to the issue before the court. The Objector has not proved that Margaret obtained the Grant by means of untrue substantive allegations of fact essential in any point of law.”

15. On whether the Respondents have a legitimate interest in the estate of the late Isaya Mulari Tamba, the Respondents submit in the affirmative and further argue that they purchased part of the suit property from the late Administrator after he had been issued with a grant to administer the estate of the deceased and in line with section 79 of the Law of Succession Act, the deceased’s estate had vested in him. They further argue that the position of a valid purchaser for value in the estate of a deceased person is protected under section 93(1) and (2) of the Law of Succession Act.

16. Having perused the proceedings and Judgment of the trial Court in line with the grounds of appeal and the Submissions by the parties, the issues that arise for my determination are;a.Whether the transfer by the deceased administrator of part of Isukha/Shisere/614 to the respondents was valid?b.If (a) above is answered in the negative, what is the remedy of the Respondents?c.Whether the daughters of the deceased are entitled to his estate?

Analysis and Determination Whether the transfer by the deceased Administrator of part of Isukha/Shisere/614 to the Respondents was valid 17. The late Administrator, Benjamin Mukoto Mulari, petitioned this court for the grant of letters of administration for the estate of the deceased which grant was issued on 24th September, 2009. On diverse dates between 19th September, 2010 and 1st November, 2010, the deceased Administrator executed sale agreements between himself and the Respondents herein in respect to a portion of Isukha/Shiswa/614 hereinafter referred to as the suit property. At the time of effecting such transactions the grant was yet to be confirmed.

18. The question that I am now called to determine is whether the deceased administrator had the legal authority to execute the transfers before the grant had been confirmed. The effect of such actions was addressed by the court In re Estate of Barasa Kanenje Manya (Deceased) (Succession Cause 263 of 2002) [2020] KEHC 1 (KLR) (30 July 2020) (Ruling) where it was held: -“19. The second agreement, of 19th February 2004, was entered into after David Wafula Kanenje had been appointed one of the administrators of the estate, on 14th October 2003. So, as at the date of the transaction, the asset the subject of the sale vested in him, by virtue of section 79 of the Law of Succession Act. He could, by virtue of section 82, exercise power of sale over it, but subject to section 82(b)(ii). The said asset was immovable, being a parcel of land. It could not be sold before confirmation of grant, unless the administrator had obtained prior leave or permission of court to sell it. The record indicates that the grant herein was confirmed on 15th June 2011, on an application dated 6th April 2011. That would mean that the sale transaction of 19th February 2004 happened before the grant was confirmed, and the said sale, therefore, fell afoul of section 82(b)(ii) of the Law of Succession Act. I have scrupulously perused through the record, and I have not come across any order from this court allowing David Wafula Kanenje to sell the property before the grant was confirmed. The said sale happened in contravention of the law, section 82(b)(ii) of the Law of Succession Act, and, therefore, it was unlawful and unenforceable. The purported buyer acquired no rights whatsoever under that contract of sale.”

19. Without the grant dated 24th September, 2009 being confirmed and without the permission of the Court, the sale of a portion of the suit property was null void. Being so void, it follows that the Respondents cannot base their claim on a void transaction and one conducted contrary to the plain provisions of the law. The Respondents may however pursue their claim against the estate of the person who sold to them and not against the estate of the deceased in this matter.

Whether the daughters of the deceased are entitled to his estate? 20. The trial Court appeared to imply that since the daughters of the deceased had not participated in or objected to the succession proceedings relating to Isukha/Shiswa/87, then the daughters were not entitled to inherit any property of the deceased.

21. There was no evidence led by the parties that the Luhya Customary Rules on inheritance save for the evidence of Alex Mulari Mutoyo, son to Benjamin Mukoto Mulari, that daughters married elsewhere were not entitled to a share of the deceased estate. Such a position is retrogressive and outdated thus incapable of being entertained by the Court. It is untenable for flying on the face article 27 of the Constitution of Kenya outlawed discriminatory practices by providing that all sexes have the right to equal opportunities in political, economic, cultural and social spheres.

22. Furthermore, by dint of article 2(4) of the Constitution of Kenya, 2010, any customary practice or law that is inconsistent with the provisions of the Constitution is void to the extent of the inconsistency.

23. The inevitable end is that the ruling of the trial court is set aside for being not in tandem with the law and evidence led. The protest by the Respondents is hereby dismissed. Having set aside the decision, it is directed that the file be placed before another judicial officer for purposes of determining the Summons for Confirmation of grant. In doing so, let the wishes of the heirs, irrespective of gender be honoured.

24. No orders as to costs.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, THIS 17TH DAY OF NOVEMBER, 2023. PATRICK J. O. OTIENOJUDGEIn the presence of:No appearance for Chunge for the Appellant (Reportedly bereaved)Mr. Mulama for Abok for the RespondentsCourt Assistant: Polycap Mukabwa