[2017] KEHC 278 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

SUCCESSION CAUSE NO. 89 OF 2015

IN THE MATTER OF THE ESTATE OF JOHANA KARIUKI KAMAU (DECEASED)

PHYLLIS WANJIKU CHEGE.....................PETITIONER/RESPONDENT

-VERSUS-

MWANGI NGANGA...........................................OBJECTOR/APPLICANT

R U L I N G

1) Pursuant to the Petition filed by Phyllis Wanjiku Chege (Petitioner) in respect of the estate of Johana Kariuki Kamau, a grant of Letters of Administration was issued in favour of the Petitioner on 11th June 2009. However, Summons for confirmation filed on 20/8/2009 were met with Summons for the annulment of the grant, on grounds interalia, that the grant was obtained through fraud and suppression of material facts.

2) Through his various supporting affidavits, Mwangi Ng’ang’a (Objector), describes himself as a brother of the deceased herein, both of them sons of Ng’ang’a Kibeand Mugure. He outlines the history of a dispute between the deceased and his family, including the objector himself, over land parcel number LR. NYANDARUA/SOUTH KINANGOP/811 (suit property) listed as part of the deceased’s estate. The Objector claims it was family land acquired by his parents through a loan granted by the Settlement Fund Trustees (SFT) in 1963. He claims that he and his siblings have occupied respective portions of the said land since then. His other siblings are Chege Ng’ang’a and Macharia Ng’ang’a.

3) In support of his claim, the Objector has cited a decision made in 2004 in his favour by the Land Dispute Tribunal in SKD/LDT/CASE NO. 1/VOL.1declaring the land parcel to be family land and determining its distribution among the siblings.

4) For her part, the Petitioner filed affidavits deponing interaliathat the subject land belonged to her husband exclusively, having acquired it through a loan by the Settlement Fund Trustees. That the Objector and other siblings were licencees thereon since the 1990’s. She dismissed the proceedings of the Land Dispute Tribunal as null and void for want of jurisdiction.

5) Upon the matter being transferred to this court, the court directed the Petitioner to file submissions in response to the Objector’s which were already on record. The Objector’s submissions had been filed in Nakuru on 11/12/2009, and were subsequently refiled in this court on 16/6/2017. The submissions restate the contents of the Objector’s affidavits.

6) In response thereto, the Petitioner argues that the Objector had no capacity to participate in the succession proceedings pursuant to Section 66 of the Law of Succession Act, hence there was no fraud or concealment on the part of the Petitioner; that the Objector was not a beneficiary of the estate of the deceased and that the deceased was the absolute proprietor of the suit property.

7) Restating the jurisdiction of the now defunct Land Dispute Tribunal under Section 3 (1) of the Land Disputes Tribunal Act, the Petitioner states that the decision relied upon by the Objector has no legal force as it is null and void – See Macfoy -Vs- United Africa Company Limited [1961] 3 ALLER 1169 as quoted in Republic -Vs- Keyian Land Dispute Tribunal & 2 Others exparte Senya [2017] eKLR. She argues that the claimant Objector is infact time barred to raise a claim in respect of a trust. Further, that the material placed before the court by the Objector does not meet the threshold under Section 76 of the Law of Succession Act and Rule 44 of the Probate and Administration Rules, to warrant revocation of the grant to the Petitioner.

8) The court has considered all the material canvassed before it in respect of the Summons for revocation and also the record herein. There is no dispute as to the relationship between the deceased and the Objector, and though the latter made a half-hearted challenge to the Petitioner’s status as a wife to the deceased, the fact of her cohabitation with the deceased was not disputed, nor that they had children. The chief’s introduction letter filed at the commencement of these proceedings in that regard was not challenged.

9) The fact that the deceased was the registered owner of the suit property at his death, and existence of the previous disputes between the deceased and the Objector regarding the same are not in dispute. Nor the fact that the deceased and his three brothers have despite the dispute lived on the same land for many years.

10) In my considered view the court’s duty is to determine whether the Objector and his siblings were persons entitled as beneficiaries and and/or entitled to give consent or to be involved in the succession proceedings in respect of the estate of the deceased. Ultimately the court has to determine whether justification has been shown under Section 76 of the Law of Succession Act for the nullification or revocation of the grant in favour of the Petitioner.

11) The answer to the first question in my own view will to a large extent determine the answers to the subsequent questions. Regarding that first question, it is not disputable that the Objector and his siblings including the deceased have been living together on the suit property for many years, since 1963, according to the Objector. The Petitioner for her part concedes that the deceased’s siblings moved on to the land in the 1990s. This was the same period when the deceased obtained his title deed, specifically on 9/6/1996, as per the copy of green card annexed to the Petition. No copy of the title or search thereon was attached to the Petition and I will be reverting to that matter later.

12) It is not clear whether the Petitioner has custody of the title document. However, the Objector has attached a certificate of search in respect of the suit land, dated 7/7/2003. Entries therein indicate that 2 years after the issuance of title to the deceased the Objector filed a caution at the Land Registry. The relevant entry reads as follows:-

“5. 15/10/1996 caution in favour of Mwangi Ng’ang’a Box 28 Rwanyambo Primary School (Karangatha) claiming Beneficiary Interest” (sic)

13) Evidently the dispute before the tribunal was filed by the Objector in 2004, and following the death of the deceased on 22nd May 2008, a caveat was filed on 11th August, 2008 Nairobi Succession Cause 1897 of 2008, in the matter of the Estate of Johanah Kariuki Kamau (Deceased). The caveat was by the present objector, but the fate of that suit is not clear.

14) The Petitioner claims to have been unaware of the caveat but is conversant with the longstanding dispute, and the fact that, throughout the disputation the Objector and his siblings have lived on the suit land, in her words, with her husband’s permission. To bolster this assertion, the Petitioner has attached three receipts dated 17th August 1964, 6th October 1965, and 10th December 1965 for the total sum of Shs 151/= issued to the payee Kariuki Kamau. These monies were allegedly paid to the Settlement Fund Trustees by the deceased in part payment of the loan concerning the purchase of the suit property.

15) The green card copy of the title shows that the consideration (loan amount) from Settlement Funds Trustees was Shs 4,000/=. The land parcel measures 14. 1 hectares which converts roughly to 34. 6 acres. The deceased was aged 66 years at death. Thus, at the time of the payments disclosed herein he was aged about 22 years. No other receipts were tendered. Is it possible that at the age of 22 years in 1963 the deceased could have acquired such a large piece of land?

16) It is true that the Objector for his part tendered no evidence of the alleged joint family payments towards the Settlement Funds Trustees loan. However, the facts outlined above appear to suggest that the Objector’s claim should not be waved away in a peremptory manner. Despite the longstanding dispute, it seems that the deceased never applied to have the caution filed in 1996 lifted or to evict the Objector and the other siblings.

17) Who is a beneficiary under the Law of Succession Act? There are several overlapping categories. In my own view dependents as defined in Section 29 and protected in Section 26 of the Law of Succession Act are one category of beneficiaries. The former Section states:

“For the purposes of this Part, "dependent" means-

(a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;

(b) such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and

(c) where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.”

18) A second category of beneficiaries are immediate family members of the deceased namely, spouse(s), children as provided for in Sections 35, 38 and 40 of the Law of Succession Act in cases of intestacy. Similarly, there is another category of beneficiaries recognized in intestate cases under Section 39 of the Law of Succession Act. Included in that category are the father, mother, brothers, sisters, half-brothers, half-sisters etc. Of course these dependents have different levels of priority, so that in the latter case for instance, an estate only devolves upon brothers and sisters of a deceased person if he had no spouse or children surviving him, and the father and mother of the deceased are both dead.

19) With regard to testate succession, the category of beneficiaries is unlimited and only subject to the desires of the testator and the provisions of Section 26 which protect the rights of dependents not adequately provided for by the last will of a deceased person. The Law of Succession Act defines an administrator as “a person to whom a grant of letters of administration has been made”. And while it is true, as submitted by the Petitioner that the law gives first preference regarding intestate succession to surviving spouses, with or without association of other beneficiaries, the second preference is to other beneficiaries entitled in intestacy “with priority according to other respective beneficial interests as provided by Part V”. (See Section 66 a) and b) of the Law of Succession Act.

20) Following from the above and my own reading of the Act, an Administrator need not be a beneficiary and vice versa, but a spouse ranks high in priority, both as a beneficiary and as an administrator. The provisions of Section 66 of the Law of Succession Act have nothing to do with capacity per se but priority. Thus the Objector herein could not properly have run ahead of the Petitioner or her children in seeking a grant to himself, but in an appropriate case could potentially be a beneficiary liable to apply together with the widow. Section 66 of the Law of Succession Act gives wide discretion to the court in determining the person best suited for the issue of a grant of administration.

21) In the case of Matheka & Another -Vs- Matheka [2005] 2 KLR 455 the Court of Appeal set out guiding principles applicable where the court is considering an application for the revocation of a grant as follows:

“(1) A grant may be revoked either by application by an interested party or on the courts own motion.

(2)Even when revocation is by the court upon its own motion, there must be evidence that the proceedings to obtain the grant were defective in substance; or that the grant was obtained fraudulently by the making of a false statement or by concealment of something material to the case, or that the grant was obtained by means of untrue allegation of facts essential in point of law or that the person named in the grant has failed to apply for confirmation or to proceed diligently with the administration of the estate.

(3)The grant may also be revoked if it can be shown to the court that the person to whom the grant has been issued has failed to produce to the court such inventory or account of administration as may be required.

(4) ……………”

22) The Petitioner herein countered the Objector’s claims by arguing that under Section 27 of the repealed Registered Land Act under which the suit land was registered, the deceased’s title was indefeasible save for overriding interests such as a trust, as provided for in Section 28 of the repealed Registered Land Act, and currently under Section 25 of the Land Registration Act. No declaration of a trust, according to the Petitioner has been made, as the proceedings of the Land Disputes Tribunal were ultra vires. And besides, such claim (based on trust) has lapsed by operation of the Limitation of Actions Act.

23) Section 28 of the Registered Land Act (repealed) provided as follows:

“The rights of a proprietor, whether acquired on first registration

or whether acquired subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject-

(a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and

(b) unless the contrary is expressed in the register, to such liabilities, rights and interests as affect the same and are declared by section 30 not to require noting on the register:

Provided that nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee.”

24) Overriding interests recognized against the proprietor’s title but not requiring registration were set out at Section 30 of the Registered Land Act. The Section reads:

“Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as

may for the time being subsist and affect the same, without their being noted on the register-

(a) …………………….;

(b) …………………….;

(c) …………………….;

(d) …………………….;

(e) …………………….;

(f) rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription;

(g) the rights of a person in possession or actual occupation of land to which he is entitled in right only of such possession or occupation, save where inquiry is made of such person and the rights are not disclosed;

(h) …………………….:

Provided that the Registrar may direct registration of any of the liabilities, rights and interest hereinbefore defined in such manner as he thinks fit.”

25) These provisions were retained in the Land Registration Act (2012) in Section 25 and 28. Evidently, reference in Section 30 (f) in the former and 28 (h) in the latter Act, respectively is to rights in the process of accruing in respect of adverse possession interalia. In this case, the Objector and his siblings have admittedly been in occupation of the suit land for many years, at least since the 1990s. The Objector did in 1996 register a caution claiming beneficial interest to the suit land.

26) In the case ofMacharia Mwangi Maina & 87 Others -Vs- Davidson Mwangi Kagiri [2014] eKLR, the Court of Appeal sitting at Nyeri stated that a vendor who had given possession of his plots to purchasers in exchange for valuable consideration had created an implied or constructive trust in their favour. The court further stated:

“Pending the sale of all 240 plots by the respondent, the question that comes to mind is what was to be the legal status and relationship between the respondent and the appellants as purchasers who had paid the purchase price for individual plots? It is our considered view that the respondent created an implied or constructive trust in favour of those persons who had paid the purchase price pending the sale of all the 240 plots. In Mwangi & another –vs – Mwangi (1986) KLR 328, it was held that the rights of a person in possession or occupation of land are equitable rights which are binding on the land and the land is subject to those rights; the absence of any reference to the existence of a trust in the title documents does not affect the enforceability of the trust since the reference to a trustee under Section 126 (1)of the Registered Land Act is merely permissive and not mandatory. In Mutsonga – vs- Nyati (1984) KLR 425 and Kanyi – vs- Muthiora (1984) KLR 712, it was held that the equitable doctrines of implied, constructive and resulting trusts are applicable to registered land by virtue of Section 163 of the Registered Land Act which provides for the application of the common law of England as modified by equity.”(emphasis added).

27) Regarding the question of substantive justice the court proceeded to state:-

“We take note that the judicial decisions cited by the respondent were all made prior to the promulgation of the 2010 Constitutionof Kenya and before the Overriding Objective principles were enacted into the Appellate Jurisdiction Act, Chapter 8, Laws of Kenya. This Court is enjoined to dispense substantive justice. What is justice? Justice is conscience, not a personal conscience but the conscience of the whole humanity, (See Alexander Solzhenitsyn). Would the conscience of humanity allow an individual to receive purchase price and later plead that the agreement is void? The conscience of humanity dictates that constructive trust and proprietary estoppel shall apply in such cases. Lord Denning in Hussey -Vs- Palmer(1972) 3 All ER 744 held that a constructive trust is a trust imposed by law whenever justice and good conscience require it. It is an equitable remedy by which the court can enable an aggrieved party to obtain restitution

The transaction between the parties is to the effect that the respondent created a constructive trust in favour of all persons who paid the purchase price. We are of the considered view that a constructive trust relating to land subject to the Land Control Act is enforceable. Our view on this aspect is guided by the Overriding Objectives of this Court and the need to dispense substantive and not technical justice. We are reminded and guided by the dicta of Madan, JA (as he then was) inChase International Investment Corporation and Another vs. Laxman Keshra and Others, [1978] KLR 143; [1976-80] 1 KLR 891 to the effect that:

“If the circumstances are such as to raise equity in favour of the plaintiff and the extent of the equity is known, and in what way it should be satisfied, the plaintiff is entitled to succeed….”

Article 159 (2) (b)of the Constitution requires that justice should not be delayed. This matter has been in the courts since 1993. The persons or groups interested in the suit property are individuals of different status in the Kenyan society. Article 159 (2) (a) of the Constitution requires justice to be administered to all, irrespective of status; Article 159 (2) (g) of the Constitution stipulates that justice shall be administered without undue regard to procedural technicalities. This Court is a court of law and a court of equity; Equity shall suffer no wrong without a remedy; no man shall benefit

from his own wrongdoing; and equity detests unjust enrichment. This Court is bound to deliver substantive rather than technical and procedural justice. The relief, orders and directions given in this judgment are aimed at delivery of substantive justice to all parties having legal and equitable interest in the suit property.”

28) With the foregoing in mind, I have considered the impugned proceedings before the Land Disputes Tribunal. The deceased died before an appeal therefrom, preferred by him could be determined. It is not clear though whether the Objector and his siblings ever moved the court to adopt the Land Disputes Tribunal decision. It is indisputable from the parties’ evidence herein, the proceedings and decision of the Land Disputes Tribunal that the real question before it was whether the deceased held the suit land in trust for his brothers and what shares each of them were entitled to. There is reference therein to a customary trust wherein the deceased allegedly held the land as “Muramati” or trustee. See the Court of Appeal decision in Joseph Gitau Githongo -Vs- Victoria Mwihaki Munya [2014] eKLR regarding the office of a customary trustee.

29) The order by the tribunal for the subdivision of the land based on a finding that a customary trust existed, impinged upon the title of the deceased. These findings are patently ultra vires the jurisdiction of the Land Dispute Tribunal under the parent Act. Therefore, I agree that the proceedings, findings and decision are null and void. This however does not alter the fact that the deceased’s siblings are still living on the land as they have done for years. And that based on material before me they too possibly jointly with their parents were involved in the acquisition/purchase of the land parcel in question. Else, the deceased would have evicted them earlier or brought proceedings to lift the caution filed in 1996.

30) The facts in Henry Mukora Mwangi -Vs- Charles Gichina Mwangi [2013] eKLR were not too dissimilar from those in this case. Two brothers who had settled on the disputed land had a history of a long dispute between them, one of them claiming that his sibling in whose name the land was registered was only a trustee or “Muramati”. The Court of Appeal observed that:-

“The respondent’s claim to the entire 15 acres is based more on the fact of his registration as proprietor of the suit property as well as his status asmuramati.It is true that at all material time he was the registered proprietor under the Registered Land Act, Cap 300 Laws of Kenya (now repealed). That fact alone does not negate the possibility that he holds the land under a customary trust; after all, the fact that he was previously registered as the proprietor of the entire 195 acres did not preclude the trust that led to distribution of that land to the three wives/houses of Mwangi Gichina. In KANYI VS. MUTHIORA, (1984) KLR, 712 this Court held that registration of land in the name of a proprietor under the Registered Land Act did not extinguish rights under Kikuyu customary law and neither did it relieve the proprietor of his duties or obligations as trustee. The Court further stated that the trustee referred to in section 28 of the Act included a trustee under customary law.

In NJUGUNA VS. NJUGUNA,(2008) 1 KLR 889 this Court had occasion to consider the concept ofmuramatiin Kikuyu customary law and his obligations and responsibilities. The respondent in that appeal, the eldest son in a family, was registered as owner of a parcel of land which he held under customary law trust for himself and his six brothers. The land was divided into eight pieces. The other brothers were given one piece each, but the respondent took two pieces ostensibly because he was amuramati.

On appeal challenging that distribution, the Court allowed the appeal holding that under Kikuyu customary law the eldest son inherits land as amuramatito hold it in trust for himself and the other heirs; that amuramatiis not entitled automatically to an extra share oruramati,that themuramati has a duty to distribute the shares to the heirs in accordance with the wishes of the deceased or in accordance with the rules of intestacy; that themuramatiis not entitled to any remuneration for his services because his duty is a moral obligation; that in certain specific circumstances themuramati may get a slightly larger share if he proves in the eyes of themuhirigaelders that he has been a goodmuramati and that the extra share is not a right but is given at the discretion of the elders.”(emphasis added)

31) In my own view, having considered the circumstances of the long occupation of the land by the Objector and his siblings as well as the evidence of the Petitioner, I am inclined to view that the Objector and his siblings as persons who appear to have beneficial interest, either based on a customary or implied trust by virtue of which the deceased held title on their behalf, or at worst as persons covered under Section 30 (f) of the repealed Registered Land Act or Section 28 (h) of the Land Registration Act. This is a case where in my considered opinion the principles of equity must be invoked in order to advance the cause of substantive justice rather than the mere observance of legal technicalities.

32) The Objector’s claim as filed before the Land Dispute Tribunal in 2004 may have been misguided but it suggested an element of fraud on the part of the deceased, and for the purposes of a succession cause, a quick and adverse invocation of the provisions of the Limitation of

Actions Act may not be possible, as suggested in the Petitioner’s arguments. The proven facts admit no doubt that the Petitioner was well aware of the presence of the deceased’s siblings on the suit land and their claims thereto; further she was aware of their relationship as brothers of the deceased; and that they lived on the land for many years.

33) In the unique circumstances of this case, the Petitioner ought to have notified the Objector and his siblings concerning the Petition for letters of administration, or better still, have revealed to the court that indeed a caution had been filed in 1996 in respect of the suit land. The annexation to her Petition of the green card copy rather than a search certificate was most probably intended to conceal the fact of the existence of the caution; and therefore prevent any investigation by the court regarding the claims of the cautioner as regards the estate of the deceased.

34) The suit land being the principal asset of the deceased’s estate, it is the court’s view that the concealed facts in respect of the existing caution were material to the Petition. (See Rule 7 of Probate and Administration Rules.) It is telling that even the Petitioner’s Summons for Confirmation of grant does not include a search certificate in respect of the suit property.

35) In the circumstances, I am satisfied that the Objector and his two siblings qualify as persons holding beneficial interest in the suit property and were entitled to participate in these proceedings. The Petitioner’s calculated move to exclude them from the proceedings by concealing facts material to the Petition in my view vitiates her grant to that extent.

36) I would therefore revoke the grant issued to the Petitioner and order that a new grant does issue in the name of Petitioner and the Objector. I hasten to add that the participation of the latter is in a representative capacity for himself and his siblings namely Chege Ng’ang’a and Macharia Ng’ang’a. In light of the age of this dispute, I direct that upon issuance of the fresh grant, the parties will be at liberty to set down for hearing the Summons for confirmation on record and to file affidavits proposing suitable modes of distribution. Each party will bear own costs.

Delivered and signed at Naivasha this6th day ofOctober,2017.

In the presence of:-

Mr. Njuguna for the Petitioner

Mr. Gachiengo for the Objector

Court Assistant - Barasa

C. MEOLI

JUDGE