[2022] KEHC 11038 (KLR)

In re Estate of Joel Mbugua Kirui (Deceased) (Succession Cause 2078 of 2006) [2022] KEHC 11038 (KLR) (Family) (15 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11038 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 2078 of 2006

MA Odero, J

July 15, 2022

Between

Beatrice Gakenia Mbugua

Applicant

and

Mary Njeri Mbugua

1st Respondent

Margaret Ngina Mbugua

2nd Respondent

Ruling

1. Before this court for determination is the summons dated May 12, 2016 by which the applicant Beatrice Gakenia Mbugua seeks the following orders:-“1. Spent.2. Spent3. The 1st respondent herein Mary Njeri Mbugua by herself, agents, servants, employees, purchasers and/or anyone claiming under her be hereby restrained from subdividing, transferring, alienating, , selling, wasting, damaging, intermeddling, charging, developing, constructing and/or in any other way dealing with land reference numbers; Dagoretti/Riruta/5255

Dagoretti/Riruta/5256

Dagoretti/Riruta/5257

Dagoretti/Riruta/5258

Dagoretti/Riruta/5259

Dagoretti/Riruta/5260

Dagoretti/Riruta/5261

Dagoretti/Riruta/5262

Dagoretti/Riruta/5263

All of which are resultant titles of illegal subdivision of Dagoretti/riruta/1431 the main asset of the estate of the deceased herein pending the hearing and determination of this cause.4. This court be pleased to cancel and order the revocation of the illegal subdivision of L.R. Dagoretti/riruta/1431 and order the cancellation and revocation of all the resultant titles to wit; Dagoretti/Riruta/5255

Dagoretti/Riruta/5256

Dagoretti/Riruta/5257

Dagoretti/Riruta/5258

Dagoretti/Riruta/5259

Dagoretti/Riruta/5260

Dagoretti/Riruta/5261

Dagoretti/Riruta/5262

Dagoretti/Riruta/5263

5. Spent6. That the 1st Respondent be ordered to give account of all proceeds of illegal sale of Dagoretti/riruta/5255, 5256, 5258, 5259 and 5260. 7. The 1st respondent be completely barred from the administration of the estate of the deceased and the grant of letters of administration intestate of the estate of the deceased be granted to the applicant Beatrice Gakenia Mbugua.8. The court be pleased to give any further orders to preserve the assets of the estate of the deceased in the interest of justice.9. The cost of this application be provided for.”

2. The summons was premised upon sections 45 and 47 of the Law of Succession Act, Rule 49 and 73 of the Probate and Administration Rules and all other enabling provisions of the law and was supported by the Affidavit of even date sworn by the Applicant.

3. The 1st respondent Mary Njeri Mbugua opposed the application through her replying affidavit dated May 24, 2016 whilst the 2nd respondent Margaret Ngina Mbugua filed a replying affidavit dated January 31, 2021. The interested parties entered appearance in the matter but did not file any reply to the application. The application was canvassed by way of written submissions. The Applicant filed the written submissions dated January 25, 2022, the 1st respondent filed submissions dated 16th February 2022 whilst the Interested parties filed submissions dated February 15, 2022. The 2nd respondent did not file any written submissions and through her Advocate informed the court that she was in support of the application.

Background 4. The succession cause relates to the estate of Joel Mbugua Kirui(hereinafter ‘the Deceased’) who died intestate on June 22, 2006. A copy of the Death certificate serial number 921259 is annexed to the cross-petition dated 1February 1, 2008filed by the 2nd respondent. The deceased was survived by two (2) wives Beatrice Gakenia Mbugua (applicant) and Mary Njeri Mbugua (1st respondent) as well as several children. Amongst the assets left behind by the deceased was a four (4) acre parcel of land known as LR Number Dagoretti/Riruta/1431 (hereinafter ‘the suit land’).

5. Following the demise of the deceased the 1st respondent Mary Njeri Mbugua (claiming as a wife) filed a petition dated 13th March 2007 seeking Grant of letters of Administration Intestate in respect of the estate of the deceased. The applicant Beatrice Gakenia Mbugua (also claiming as a wife) opposed the issuance of Grant to the 1st respondent and filed a Cross-Petition dated August 8, 2007. The 2nd respondent Margaret Ngina Mbugua also claims to be a wife of the Deceased. To date the petition and cross-petition are still pending for hearing and no grant has been issued to any party in respect of the estate of the deceased.

6. The applicant claims that despite the non-issuance of grant of letters of administration the 1st respondent has been intermeddling with the estate of the deceased. Specifically that the 1st respondent has commenced development of over sixty semi-permanent houses on the suit land without the knowledge and/or consent of the other beneficiaries. That the 1st respondent has been collecting rental income in the amount of Kshs 180,000/- from three permanent houses erected on the suit land as well as income of Kshs 15,000 per month from the property known as Umoja 1 House No. P 239 which also belongs to the estate.

7. Theapplicant further states that sometime in January 2016 she discovered that there was ongoing development of over 100 semi-permanent houses on the suit land. The applicant filed the application dated January 25, 2016seeking to restrain any further development/construction on the suit land in respect of which interim orders were granted.

8. The applicant further avers that in April 2016 she conducted an official search of Title Number Dagoretti/Riruta/1431 and discovered that the mother Title had been closed on March 27, 2014and the property had been subdivided into nine (9) sub divisions with new Titles issued in respect of said sub-divisions.

9. The Applicant states that upon applying for official searches of these nine (9) sub-divisions she discovered that five (5) of the resultant Title Deeds had been transferred to third parties in December 2015 and only four (4) Title Deeds remain in the name of the Deceased. At Paragraph (10) (11) of her Supporting Affidavit, the Applicant lists the status of the nine (9) Title Deeds as follows:-No Title No. Date of issue Current Registered owner

a Dagoretti/Riruta/5255 16/12/2015 George Boro Njoroge and Stephen Kagunda Waweru

b Dagoretti/Riruta/5256 16/12/2015 Serah Wanjiru Kungu

c Dagoretti/Riruta/5258 16/12/2015 Mary Wairimu Murani

d Dagoretti/Riruta/5260 16/12/2015 Joseph Muongi

e Dagoretti/Riruta/5259 16/12/2015 Lucy Wanjiru Gichuhi

10. The applicant alleges that only 4 of the resultant titles remain in the name of the deceased as follows:-No Title No. Date of issue Registered owner

a Dagoretti/Riruta/5261 16/12/2015 Joel Kirui Mbugua (Deceased

b Dagoretti/Riruta/5262 16/12/2015 Joel Kirui Mbugua (Deceased

c Dagoretti/Riruta/5263 16/12/2015 Joel Kirui Mbugua (Deceased

d Dagoretti/Riruta/5257 16/12/2015 Joel Kirui Mbugua (Deceased

11. That title for the said sub divisions were issued in the name of the Deceased on August 27, 2014but by December 16, 2015the five (5) titles had already been transferred to third parties. The applicant avers that these sub divisions were carried out in the year 2014 almost eight (8) years after the death of the deceased.

12. The applicant further averred that she learnt from the Lands Office that it was the 1st respondent who had submitted the original Title deed together with the deceased’s personal documents including passport photo, copy of Identify card and PIN certificate to facilitate the illegal sub-division of the suit land. Therefore, according to the applicant all these suit-divisions remain the property of the deceased and form part of the estate.

13. The Applicant states that she made a report of the illegal transactions involving the suit land to the police. She further states that following a consent entered into before Hon Justice Musyoka it was agreed that the Applicant and the Respondents be jointly gazetted as Petitioners. However, it is now clear that the 1st Respondent is not genuine and is not fit to be appointed as Administrator, given her actions of intermeddling with the estate to the detriment of the other beneficiaries. That the 1st Respondent fraudulently sub-divided the suit land and disposed of some of the resultant titles to third parties during the pendency of this Succession Cause all in an attempt to disinherit the other beneficiaries. The Applicant prays that orders be made to preserve the estate.

14. The Applicant also prays for orders directing the Directorate of Criminal Investigations to investigate the alleged fraudulent transactions over the suit land and also seeks orders to permanently bar the 1st Respondent from taking part in the administration of the estate of the Deceased.

15. As stated earlier the application was opposed by the 1st respondent. The 1st respondent averred in her relying affidavit that prior to his demise the Deceased had already subdivided the suit land and had sold six (6) of the resultant subdivisions. That the deceased had his lifetime sought and obtained consent from the Land Control Board to transfer the six (6) subdivisions.

16. The 1st respondent further avers that at the time of the demise of the Deceased the purchasers (Interested parties in this cause) had already taken up possession of their sub divisions and, had built structures on the portions which they had purchased.

17. The 1st Respondent states that she was not involved in and has no knowledge as to how the sub-divisions were facilitated and does not know how title deeds were transferred into the names of the Interested parties after the death of the Deceased. She agrees that the matter should be investigated by Directorate of Criminal Investigations.

18. Regarding the 2nd respondent who also claims to be a widow of the Deceased, the 1st respondent states that the status of the 2nd Respondent is still in question and therefore the 2nd respondent is not qualified to be issued with letters of administration.

19. The 2nd respondent through her advocate indicated to the court that she had no objection to the prayers being sought in the application dated May 12, 2016. She concurred that the subdivisions and transfer of the suit land seven (7) years after the death of the deceased was a criminal act by the 1st respondent calculated to disinherit the other beneficiaries.

Analysis and Determination 20. I have carefully considered this application, the replying affidavit as well as the written submissions filed by the parties. Two questions arise for determination. Firstly, whether the interlocutory injunction sought ought to be granted and secondly, whether the 1st applicant ought to be barred from administering the estate of the Deceased.

(i) Interlocutory injunction 21. The Applicant has prayed that any further dealings in the sub-divisions arising from the suit land be restrained pending the final determination of this Succession Cause. In other words, the Applicant seeks orders to preserve the suit land against any further intermeddling.

22. The principles upon which an interlocutory injunction may be granted are set out in the oft cited case of GiellavsCassman Brown [1973] E.A. 358 as follows:-1. The applicant must establish a prima facie case with a probability of success.2. The applicant must demonstrate that he stands to suffer irreparable harm if the orders sought are not granted.3. If there is any doubt then the court will decide the case on a balance of probability.

23. The definition of what constitutes a ‘prima face’ case was given in the case of Mrao LtdvsFirst American Bankof Kenya Ltd & 2others [2003] KLR 125 where the court held as follows:-“In civil case a prima facie case is a case in which as the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. This is clearly a standard which is higher than an arguable case.”

24. The main dispute in this matter relates to the suit land which belonged to the Deceased and which land was subdivided into nine (9) parcels of land. It is common ground that the Deceased died in the year June 2006. The Applicant has annexed to her supporting Affidavit a series of official searches indicating that the original Title to the suit land was closed on August 27, 2014 and nine (9) new Titles issued for sub divisions of said land. (See Annexture BGM ‘4’).

25. There is also evidence that out of Title Deeds that were issued in respect of the said sub divisions (Annexture BGM ‘4’) five of said sub divisions had been transferred to third parties (Annexture ‘BMG5’). Given that these transactions took place seven (7) years after the demise of the Deceased and given that no Grant has as yet been issued to any person, the obvious question that arises is who facilitated and/or authorized these transactions. The deceased could not have carried out these land transactions from the grave

26. Clearly, there has been intermeddling in the estate of the Deceased by some person or persons. Section 4 of the Law of Succession Act makes intermeddling a criminal offence. I have perused the report dated February 22, 2017 prepared by the Directorate of Criminal Investigations relating to investigations conducted by the police into the circumstances under which Dagoretti/Riruta/1431 was subdivided and transferred. The preliminary findings were that the certificate of subdivision purportedly signed by the Director of City Planning and Architecture was a forgery. Based on the above I am satisfied that indeed the Applicant has established a prima facie case as required by the Giella Case.

27. The applicant claims to be a widow of the Deceased. Obviously any intermeddling with the Estate before issuance of a Grant will cause her irreparable harm. The High Court is vested with wide powers to make such orders as may be necessary to preserve the estate of a deceased person pending distribution of the same.

28. 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.”

29. Likewise, rule 73 of the Probate and Administration Rules proves that: -“73. 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.”

30. The powers donated to the High Court under the above provisions of law include the jurisdiction to grant injunctions in Succession Causes.

31. In the case of Floris Piezzo&another v GianCarlos FalasconI [2014] eKLR the Court of the Appeal as follows:-“.......... We have no doubt at all that the Law of Succession Act gives the Court wide jurisdiction in dealing with testamentary and administration issues of an estate. Indeedsection 47 of the said Act gives thecourt jurisdiction to entertain any application and determine any dispute under the Act and to pronounce such decree and orders as may be expedient. It cannot be said that such decrees and orders would exclude injunction orders. In other words, we are of the same view that section 47 of the Act gives thecourt all embracing powers to make necessary orders, including injunctions where appropriate to safeguard the deceased’s estate. This section must be read together withrule 73 of theprobate and Administration Rulewhich further emboldens courts jurisdiction to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court. We would imagine such orders would also include injunctive orders”(own emphasis)

32. Section 55 of the Law of Succession Act provides that“No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets, or to make any division of property, unless and until the grant has been confirmed as provided in section 71. ”

33. In this case no grant has been issued to any party much less confirmed. Thus, no person has authority to dispose of any of the capital assets of the estate. Land is a capital asset. Clearly, the sale and transfer of the four subdivisions of the suit land before a Grant has been issued amounts to intermeddling.

34. In the case of Veronica Njoki Wakagoto(Deceased) [2013 eKLR] the court held that:-“The effect of section 45 is that the property of a dead person cannot be lawfully dealt with by anybody unless such person is authorized to do so by the law. Such authority emanates from a grant of representation, and any person who handles estate property without authority is guilty of intermeddling. The law takes a very serious view of intermeddling and makes it a criminal offence.” (Own emphasis)

35. I find and hold that the Applicant has made out a case to warrant the grant of interlocutory relief in respect only of the four (4) parcels which remain in the name of the deceased and I therefore grant prayer (3) of this application with the necessary adjustment.

36. Regarding the five (5) parcels of land (sub divisions) which have already been transferred to the Interested Parties this court has no jurisdiction to make orders over the same. The dispute over those five (5) sub-divisions relates to the question of ‘ownership’ of the same ie. Whether the transfer of parcels 5255, 5256, 5258 and 5259 and 5260 was lawful. By virtue of article 162 of the Constitution of Kenya, 2010 and Land Court Act orders relating to LR Numbers Dagoretti/Riruta 5255, 5256, 5258, 5259 and 5260 which are now registered in the names of third parties, can only be sought and obtained in the Environment and Land Court, which is the only court with jurisdiction to determine questions relating to the ownership use and occupation of land. This court has no jurisdiction to make orders in respect of the said parcels of land. The applicant must therefore seek remedy in the Environment and Land Court.

37. Prayer (4) seeking the revocation/cancellation of the illegal subdivisions of the suit land is in my view premature. The police must be allowed to conclude their investigations into the matter and if necessary arraign the suspects in a criminal court. Moreover, this prayer for cancellation of Titles amounts to a final order which cannot be granted at this interlocutory stage. As stated above the only court with the constitutional mandate to determine whether the Tiles issued to the third parties are valid or not is the Environment Land Court. The prayers in questions may only be granted after a full hearing of the suit at which the Interested parties (the holders of said Titles) will be at liberty to call evidence on their own behalf. They cannot be condemned unheard. Accordingly, I decline to grant prayer (4).

(ii) Administration of the Estate 38. The applicant submitted that the 1st respondent who has had control of the estate has been intermeddling with the estate and as such letters of administration ought not to be issued to the 1st respondent. The applicant accuses the 1st respondent of having facilitated the subdivision of the suit land as well as the sale of the resultant parcels of land. On her part, the 1st respondent denies any knowledge of how the suit land was subdivided and/or sold.

39. Again in my view this is a matter which cannot be determined at this stage, on the basis of Affidavit evidence alone. As pointed out by the 1st respondent she has not been found culpable of any criminal act by a court of competent jurisdiction. The accusation of intermeddling is a serious one which carries criminal sanction. It would be unjust to bar the 1st respondent from administering the estate without first according her a hearing in a suit at which parties will call evidences.

40. I find that prayers (6) and (7) of this application are premature and I decline to grant the orders sought therein.

Conclusion 41. Finally this court makes the following orders:-(a)Prayers (4), (6) and (7) of the summons dated May 12, 2016are hereby dismissed.(b)Orders be and are hereby issued restraining the 1st respondent Mary Njeri Mbugua, by herself, her servants, employees, purchasers and/or anyone claiming under her from subdividing, transferring, alienating, selling, wasting, damaging, changing, developing, constructing, intermeddling and/or in any other way dealing with land Reference Numbers, Dagoretti/Riruta/5257

Dagoretti/Riruta/5261

Dagoretti/Riruta/5262

Dagoretti/Riruta/5263

All of which are resultant Titles of the subdivision of Dagorett/riruta/1431 the main asset of the estate of the deceased herein pending the hearing and determination of this cause.(c)The petition dated March 13, 2007 and the Cross-Petition dated August 8, 2007shall be heard together by way of viva voce evidence in open court.(d)This being a family matter each side will bear its own costs.

DATED IN NAIROBI THIS 15TH DAY OF JULY 2022. …………………………………MAUREEN A. ODEROJUDGE