[2022] KEELRC 378 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

FAMILY DIVISION

SUCCESSION CAUSE NO. 214 OF 1992

IN THE MATTER OF THE ESTATE OF JULIUS WACHIRA (DECEASED)

NJOROGE F.A. WACHIRA...........................................................................1ST APPLICANT

ALOIS MWANGI WACHIRA........................................................................2ND APPLICANT

VERSUS

LUCY WATIRI MUBURI...................................................................................RESPONDENT

RULING

1. Before this Court for determination is the Notice of Motion Application dated 24th September 2020by which the Applicants NJOROGE F.A. WACHIRA and ALOIS MWANGI WACHIRA seek the following orders:-

“1. That the Honourable court be pleased to make an order

restricting the Respondent their agents, employees or whomsoever from damaging, assaulting ESTATE HEIRS IN THE NAME OF FORCEFUL EVICTION on land parcel number LOC 9/KANYENYAINI/574 pending hearing and determination of the application.

2. That the Muranga Police Court Commander to oversee

the compliance of the orders herein.

3. That cost of the cause be in cause.

2. The application which was premised upon sections 1A, 1B, 3A of the Civil Procedure Act, Cap 21, Laws of Kenya, the Law of Succession Act, The Constitution of Kenya 2010 and all other enabling provisions of the law was supported by the Affidavit dated 28th September 2020, sworn by the 1st Applicant.

3. The Respondent LUCY WATIRI MUBURI opposed the application through her Replying Affidavit dated 9th November 2020. The 1st Respondent filed a Supplementary Affidavit dated 15th December 2020 in response to the Replying Affidavit.

4. The application was canvassed by way of written submissions. The Applicant filed the written submissions dated 18th May 2021 whilst the Respondent relied upon her written submissions dated 26th April 2021.

BACKGROUND

5. This Succession Cause relates to the estate of JULIUS WACHIRA (hereinafter ‘the Deceased’) who died intestate at the Thika Hospital on 9th February 1981. Following the demise of the Deceased, Grant of letters of Administration were made to MELANIA WAIRIMU, the widow of the Deceased. Thereafter the said widow also passed away on 11th November 1996. On 30th September 2003 the Grant was amended to substitute the widow with her two sons (the Applicants) herein as administrators of the estate. The Certificate of Grant was duly confirmed on 29th September 2004 and amended on 15th July 2007.

6. The estate of the Deceased comprised of several properties one of which was the property known as LOC 9/KANYENYA-INI/574(hereinafter referred to as the‘suit property’)

7. The Respondent Lucy Watiri Muburifiled in court a summons for revocation of Grant dated 28th October 2011 claiming that the suit land belonged to her late father-in law ZACHARIA MUYA MWANGI.The Respondent alleged that the same had been fraudulently included as part of the estate of the Deceased. Vide a Ruling delivered on 30th August 2013 Hon Justice William Musyoka dismissed the summons for revocation of Grant.

8. The Respondent thereafter filed a suit before the Muranga Environment and Land Court being Muranga ELC Number 490 of 2017 in which she claimed that the suit land LOC 9/Kanyenyaini/574was held by the Deceased in trust for her late husband. After a full hearing, the Muranga ELC on 27th September 2018delivered its judgment in favour of the Respondent. The Respondent therefore submits that the current application has been overtaken by events as the suit land has already been transferred into the name of the Respondent.

Analysis and Determination

9. I have considered this Notice of Motion dated 24th September 2020, the Affidavit in reply as well as the written submissions filed by the parties. The key question is whether the orders being sought by the Applicants are merited.

10. It is common ground that the Deceased herein Julius Wachira passed away in Thika on 9th February 1981. A copy of his Death Certificate Serial Number 90348 is annexed to the Petition for Grant of letters of Administration Intestate dated 8th April 1991.

11. It is further not in dispute that Grant of letters of Administration was initially made to the widow of the DeceasedMelania Wairimu but following her own demise on 11th November 1996 a fresh Grant was issued in the names of the two Applicants who are the sons of the Deceased. The Grant issued to the Applicants was confirmed on 29th September 2004 and amended on 15th July 2007. It is therefore manifest that the two Applicants are the legal Administrators of the estate of the Deceased.

12. In the Petition for Grant of letters of Administration Intestate dated 8th April 1991, the following were the assets listed as comprising the estate of the Deceased.

(a) Title LOC 9/KANYENYAINI/574 – 12 acres.

(b) Nairobi/Block 60/116.

(c ) Share Certificate for one share of Kshs 300/- in WITEITHIE men and women Harambee Self Help Group.

13. A dispute arose regarding Title Number LOC 9/Kanyenyaini/574which the Respondent claimed belonged to her late father-in-law ZACHARIA MUYA MWANGI. The Respondent alleged that the Deceased held the suit land ‘in trust’ for her late husband MATHEW MUBURI MUYA.

14. A summons for revocation of Grant filed by the Respondent challenging the inclusion of the suit land as part of the estate of the Deceased was dismissed vide a Ruling delivered on 30th August 2013. In dismissing that summons Hon Justice William Musyoka held as follows:-

“The applicants (the Respondent herein) claim existence of a trust in their favour. It could very well be that such a trust does exist. However, it is not for this court to declare it. None has been demonstrated by way of declaration by a court of competent jurisdiction. Ideally, the applicants ought to have moved a civil or land court to make a declaration of trust in their favour which they would then seek to enforce against the estate. In the absence of a declaration by a court, there is no basis upon which I can declare such a trust in a revocation of grant application”. (Own emphasis)

15. A careful reading of the said decision reveals that at no time did the Hon Judge declare that no trust existed in favour of the Respondents. The Judge merely indicated that the Probate Court could not declare the existence of such a trust – that only a court of competent jurisdiction would make such a declaration.

16. Which is this court of competent jurisdiction? Article 162 of the Constitution of Kenya 2010 and Section 13 (2) (d) of the Environment and Land Court Act give exclusive jurisdiction to the Environment and Land Court to determine questions of ownership, use and occupation of land. As such, the Probate Court has no jurisdiction in Succession Cause to make a pronouncement regarding the ownership of the suit land as rightly held by Justice Musyoka.

17. Following the dismissal of the summons for revocation of Grant, the Respondent did move to the ELC in Muranga where she filed a suit ELC No. 490 of 2017 claiming that the suit land was held by the Deceased in trust for her late husband. The ELC court heard the suit and gave judgment in favour of the Respondent on 27th September 2018.

18. In the said Ruling Hon Justice Kemei of the ELC held as follows:-

“41. The totality of the facts and evidence on record leads this court to the conclusion that the Plaintiff has discharged the burden of proof on the required balance of probability that the suit land is ancestral land of Mwangi Mutambuki and ought fairly to have been shared between his two sons Zakaria and Mathew. It is on record that Mathew Muburi Mwangi sold his portion (LOC 9/Kanyenya-ini/574) and relocated to Naivasha. It would be unjust for the defendants to hold onto the suit land and yet the Defendants share was appropriated by way of sale to one Geoffrey Gachiri by their grandfather, Mathew Muya Muburi”.

19. Finally, the ELC court went on to make the following orders:-

“a. A declaration that Julius Wachira alias J. Wachira Mateo Mururi (Deceased) held the land parcel Number LOC 9/Kanyenyaini/574 in trust for the Plaintiff’s husband Mathew Muburi Muya (Deceased) and that the Plaintiff be registered as the sole proprietor.

b. The Defendant counterclaim be and is hereby dismissed.

c. That the District Land Registrar Muranga be and is hereby directed to rectify the register to reflect the Plaintiff as owner of LOC 9/Kanyenyaini/574 as a whole.

d. The Defendants, their servants and/or agents do vacate the suit land within 90 days from the date hereof failing which execution do issue in compliance with the provisions of section 152 of the Land Act 2012.

e. The parties being relatives each to bear their own costs.

20. Following the judgment of the ELC the suit land was on 5th May 2019 transferred to the Respondent. A new title Deed was issued on 20th August 2019 (see Annexture ‘LWM-3’ to the Replying Affidavit dated 9th November 2020) in the name of the Respondent Lucy Watiri Muburi.

21. A notice to vacate the land was issued to the Applicant vide the letter dated 11th September 2019 (Annexture ‘LWM6’). Thereafter an eviction notice was issued by the court on 12th May 2020 (see Annexutre ‘LWM-5’and‘LWM-6’). According to the Respondent the Applicants were in fact evicted from the suit land on 29th September 2020. Therefore the Applicants allegations that they are in occupation of the suit land has been disproved. The letter dated 30th September 2020 (Annexture ‘LWM-7’) written by the OCS Kanyenyaini Police Stationevidence of that eviction.

22. From the evidence available it is manifest that the current application has been overtaken by events. The Environment and land court which has exclusive jurisdiction to determine the question of ownership of the suit land has rendered its decision in faovur of the Respondent. The Respondent has demonstrated that she followed proper legal procedure in having the Title transferred to herself and in having the Applicants evicted from the suit land.

23. The Applicants being dissatisfied with the decision of the ELC apparently filed an application before the High Court in Nyeri seeking leave to appeal out of time. That application is yet to be determined. An application made by the Applicants seeking a stay of the ELC judgment was dismissed vide a judgment delivered by Hon Justice J.G. Kemeion 27th September 2018.

24. By filing the present application in the Probate court the Applicants are in effect flogging a dead horse. They are inviting this court to sit in appeal over the decision made by the ELC which is a court of concurrent jurisdiction. This court declines that invitation.

25. Based on the forgoing it is my finding that the present application is not only misplaced but also amounts to an abuse of court process. The Applicants are attempting to secure from this Probate Court orders which they failed to obtain in the ELC. Their application has clearly been overtaken by events. The same has no merit and is dismissed in its entirety. Costs are awarded to the Respondent.

Dated in Nairobithis 18th day of March 2022.

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MAUREEN A. ODERO

JUDGE