[2022] KEHC 1485 (KLR)

IN THE HIGH COURT OF KENYA

AT NAIROBI

MILIMANI FAMILY DIVISION

SUCCESSION CAUSE NO. 1843 OF 2002

IN THE MATTER OF THE ESTATE OF KAROMO KARANJA (DECEASED)

RULING

1. Before this court for determination is a Summons dated 25. 5.21 by the Applicants, Jennifer Waithera Karomo (Jennifer), Margaret Wanjiru Njuguna, Eirene Wairimu Karomo, Jacinta Wanjiru Karomo, Judy Muthoni Mathenge, Raphael Muiru Karomo and Dorcas Wambui Karomo seeking:

1. Spent

2. THAT, An order of injunction do issue restraining the Administratrix (Beatrice Wambui Karomo) and beneficiary (Martin Karanja Karomo) from intermeddling, selling, alienating and/or dealing with property subject of the estate and in particular Title LR 10090/55 or subdivisions arising therefrom being LR 10090/55/521 and 10090/55/522 in any (sic) whatsoever other than in accordance with mediation order of 14th September 2016 and Certificate of confirmation of grant of 14th September 2016.

3. THAT, the Administratrix (Beatrice Wambui Karomo) and beneficiary (Martin Karanja Karomo) be ordered to surrender and deposit Titles Nos. 10090/55/519, 10090/55/520, 10090/55/521 and 10090/55/522 with the court forthwith and on (sic) before inter-partes hearing of the application or further orders of the court.

4. THAT, Title referred to in order (3) above being LR Nos. 10090/55/519, 10090/55/520, 10090/55/521 and 10090/55/522 be revoked by this court and be returned to Chief Land Registrar for cancellation and Rectification of the Register so as to reflect Status Ante (sic).

5. THAT, Survey carried out on LR No. 10090/55 and registered as FR 580/45 and resultant deed plans be revoked and be cancelled and Director of Survey to amend records accordingly to reflect Status Ante (sic).

6. THAT, Martin Karanja Karomo be cited for contempt of court on account of disobeying and violating Mediation orders of 14th September 2016 and be punished by fine or (6) months imprisonment.

7. THAT, Fresh survey be done in compliance with clause (4) of mediation order and Deed plans be submitted for approval and registration at Survey of Kenya.

8. THAT, all entries made in the Register and Mother Title 10090/55 being entry Nos. (6), (9), (10), (11), (12) be cancelled accordingly.

9. THAT, Deed plans approved in terms of prayer (7) be lodged together with appropriate documents of Lands Office Nairobi and the Chief Land Registrar or designated Land Registrar to issue Title in favour of each individual beneficiary.

10. THAT, the certificate of Confirmation of Grant issued on 14th September be rectified in terms of the draft annexed as “JWK 11” in the Supporting Affidavit hereto.

11. THAT, the certificate of confirmation of grant dated 20th July 2007 be annulled and revoked.

2. The background of this matter is that the deceased herein Karomo Karanja died on 27. 10. 01. The deceased was survived by his widow Beatrice Wambui Karomo (Beatrice) and 12 children and 3 grandchildren. A grant of letters of administration was on 18. 9.02 issued to Beatrice and confirmed on 20. 7.07.

3. The subject of this application is L. R. No. 10090/55, Thika (the suit property), one of the properties of the estate. In the certificate of confirmation of grant, the deceased’s children were to get 1½ acres each and the remainder 7½ acres was to be registered in the name of Beatrice, who was live thereon with her 3 grandchildren, each of whom was to get a ½ acre portion of the suit property.

4. On 30. 6.15, Jennifer lodged a caveat over the suit property claiming a beneficiary’s interest. Jennifer thereafter filed a summons dated 4. 12. 15 seeking inter alia that Beatrice be “removed” as administrator of the estate for failing to distributed the estate. Jennifer sought appointment of any of the other beneficiaries of the estate as administrator in place of Beatrice. The matter proceeded to mediation and a settlement was reached on 18. 7.16. one of the terms of the settlement was that the parties’ advocates were to agree on a joint surveyor and valuer to undertake survey and valuation of the suit property. The settlement was on 14. 9.16 adopted as an order of the Court and a certificate of confirmation of grant reflecting the settlement was issued on even date.

5. In her affidavit sworn on 25. 5.21, in support of the present Application, Jennifer averred that Beatrice and one of the beneficiaries Martin Karanja Karomo (Martin) secretly and without consulting counsel, engaged a surveyor and carried out illegal subdivisions of the suit property. Thereafter, Martin called all the beneficiaries to a meeting and introduced someone as his representative. He informed the beneficiaries that he and the said representative had processed titles in the name of Beatrice and had prepared the transfer documents in favour of the beneficiaries. The beneficiaries refused to sign the documents having not been involved in the process of subdivision.

6. Jennifer further stated that it was discovered at the meeting that Martin had forged Beatrice’s signature and sold some part of the land to third parties, to the prejudice of the other beneficiaries. A copy of the title from the Lands Office showed entries thereon which are in breach of the certificate of confirmation of grant. Jennifer further averred that prior to the mediation, Beatrice and Martin had illegally subdivided the suit property into 6 portions. Titles in respect of the said portions, namely L. R. Nos. 10090/518, 519, 520, 521, 522 and 51/1 were illegally issued on 1. 8.17, after the mediation order and certificate of confirmation of grant in breach of the order of the Court. It was further averred that Beatrice is too old to comprehend any of the dealings and cannot even see or sign any document. The Applicants accused Martin of being the architect of the aforesaid transactions. They contended that their signatures were forged on documents leading to the aforesaid transactions.

7. In view of the foregoing, the Applicants seek in the main, cancellation of the aforesaid titles and that fresh survey be done in accordance with the certificate of confirmation of grant.

8. The Application is opposed by Beatrice vide her replying affidavit sworn on 27. 7.21, on behalf of her herself, Martin, Erick Karomo, Mercy Karomo, Teresia Karomo, Lucy Karomo and Faith Karomo. Beatrice denied that she has disposed of any interest in the estate including the suit property which the deceased had christened Ukiriria Farm. Beatrice claimed that the subdivision of the suit property commenced in 2016, before the mediation settlement. At the time, she had the power to do the subdivision and did so with the acquiescence of the Applicants.

9. She accused the Applicants of non-disclosure and concealment of material facts that some of the Applicants have intermeddled with the estate and disposed of some of its assets. Beatrice stated that Jacinta purported to sell Plot 12 of the suit property to one Eunice Irene Wanjiru Mukiri for Kshs. 680,000/= vide an agreement for sale dated 7. 7.15. She further stated that on 11. 4.18, Raphael and Judy purported to guarantee a bank facility in favour of Nikunj Wholesalers Ltd using Plot 10090/520. She further alleged that Raphael had sold a subplot of the suit property to a third party.

10. Beatrice further stated that she kept calling the Applicants to actualize the consent order of 14. 9.16 and therefore they have always been aware of the subdivision process of the suit property. Additionally, she incurred huge costs and expenses in the subdivision process on her own. According to Beatrice, the Applicants’ prayer that the suit property reverts to status quo ante is mischievous and is intended to defeat the rights, interests and legitimate expectations of third parties. Beatrice accused the Applicants of coming to Court with unclean hands and are seeking to antagonise a process that they participated in. She urged that the Application be dismissed with costs.

11. In a supplementary affidavit sworn on 29. 8. 21 for himself and on behalf of Jacinta and Judy, Raphael denied the allegations by Beatrice that they guaranteed any loan with Equity Bank. Raphael stated that the titles in question for Plots 10090/520 and 521 are in the name of Beatrice. He accused Beatrice and Martin of malicious concealment of material facts intended to mislead the Court. He further charged that Martin and other beneficiaries combined some plots they gave to themselves, to form a block of 2½ acres which they sold to Nikunj Wholesalers and Siya Industries (K) Ltd. This sale was done with the consent of Beatrice and Martin who both benefitted from the same.

12. Raphael accused Martin of singlehandedly engaging a surveyor who subdivided the suit property in a manner that was contrary to the certificate of confirmation of grant. He further denied that Beatrice ever called them to a meeting as alleged and accused Martin misleading Beatrice who is 92 years old and incapable of making sound decisions and cannot even make calls or send text messages without assistance. Raphael contended that it was only after the survey and subdivision had been completed in secrecy and titles issued in Beatrice’s name, that Martin called them to a meeting to sign transfer documents and hand over titles to them. Martin thus usurped the role of administrator of allocating plots. He allocated to himself 2 acres and to Teresia and Erick 1 acre each. The rest of the plots are less than 1 acre, contrary the orders of sharing equally.

13. Directions were taken that parties file their written submissions. However, only the Applicants complied. I have thus considered the Application the rival affidavits and the Applicants’ submissions.

14. It is the Applicants’ case that subdivision of the suit property was done in a manner that does not accord to the mediation order and certificate of confirmation of grant. It was further submitted that the exhibited letter dated 5. 5.21 from the Senior Assistant Chief Land Registrar indicated that the suit property measures approximately 10. 53 ha (26 acres) and that on 1. 8.17 5 subdivisions were presented and registered against the title all in favour of Beatrice. This was contrary to the certificate of confirmation of grant of 14. 9.16 which superseded the earlier one of 20. 7.07. The Applicants further submitted that their evidence showing the fraudulent illegalities perpetuated by the Respondents was not rebutted and is therefore deemed to be admitted. The Applicants urged the Court to grant the orders sought in their application.

15. The record shows that in the prior certificate of confirmation of grant dated 20. 7.07, the deceased’s children were to get 1½ acres each and the remainder 7½ acres was to be registered in the name of Beatrice, who was live thereon with her 3 grandchildren, each of whom was to get a ½ acre portion of the suit property.

16. The exhibited Certificate of Title No. I. R. 88474 in respect of the suit property has several entries. Key among them are an assent to Beatrice as beneficiary and trustee the deceased’s children. This entry was made on 8. 10. 15. The Applicants contended that they never consented to the said assent. It must however be remembered that Beatrice is the duly appointed administrator of the estate of the deceased. As such, the estate of the deceased is vested in her by dint of Section 79 of the Law of Succession Act which provides:

The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.

17. The title also shows that 5 other entries were made on 1. 8.17 thereon as follows:

Title I. R. 188663 in respect of L. R. 1090/518 measuring 8. 3718 ha.

Title I. R. 188664 in respect of L. R. 1090/519 measuring 0. 4046 ha.

Title I. R. 188665 in respect of L. R. 1090/520 measuring 0. 2023 ha.

Title I. R. 188666 in respect of L. R. 1090/521 measuring 0. 4047 ha.

Title I. R. 188667 in respect of L. R. 1090/522 measuring 0. 9482 ha.

18. The subdivision leading to the issuance of the listed titles does not conform to what was set out in the certificate of confirmation of grant dated 20. 7.07. The subdivision does not also accord to the certificate of confirmation dated 14. 9.16. It is clear that Beatrice either on her own or in collision with other persons, went off on a frolic to do as she pleased with the suit property. Notably, this subdivision was done about 1 year after the mediation settlement and confirmation of the grant.

19. Beatrice’s defence is that the Applicants were aware of and acquiesced to the subdivisions. Even if that were so, which the Applicants have denied, it is trite that Court orders are binding on all parties. As such, parties cannot agree to do that which does not accord with a Court order without reverting to the Court for review. The mediation between the parties culminated in a settlement which was on 14. 9.16 adopted as a Court order. On the same date, the grant was confirmed and a certificate of confirmation of grant duly issued setting out the distribution of the suit property, as agreed upon by the parties in the mediation settlement. Any subdivision of the suit property not in line with the certificate of confirmation dated 14. 9.16 is unlawful and void.

20. Having found as I have, that the subdivision of the suit property is a nullity having been done in contravention of a Court order, it follows that the titles in respect of L. R. Nos. 10090/518, 10090/519, 10090/520, 10090/521, 10090/522 and 10090/51/1 are a nullity and incurably so. In this regard I am guided by the opinion the Privy Council Lord rendered by Denning in the case of Macfoy vs. United Africa Co. Ltd [1961] 3 All E.R. 1169, at page 1172 (1):

If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.

21. The Applicants have prayed that Martin be cited for contempt of Court on account of disobeying and violating the mediation orders of 14. 9.16 and be punished by fine or 6 months’ imprisonment.

22. The order of 14. 9.16 confirming the grant remains in force as the same has not been set aside or discharged. The general principle governing the obligation to obey Court orders was stated by ROMER L.J in Hadkinson v. Hadkinson [1952] 2 ALL E.R. 567 thus:

It is the plain and unqualified obligation of every person, against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to beirregular or even void.

23. Court orders must be obeyed at all times in order to maintain the rule of law and good order and the dignity of the Court. A party who disobeys a Court order is liable to be punished. In order to punish any person for contempt however, it must be established that there was disobedience of the Court and that the disobedience is willful. Evidence must therefore be led in this regard.

24. The standard of proof in contempt proceedings is well established. In the case of Mutitika vs Baharini Farm Limited [1985] KLR 229, 234, the Court of Appeal stated:

In our view, the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt...The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to an offence which can be said to be quasi-criminal in nature.

25. In the present case, the Applicants stated that Beatrice is incapacitated on account of her old age and that Martin was behind the impugned subdivision of the suit property and that he is the one who engaged the surveyor. The Applicants did not however place before the Court any cogent evidence to support these allegations. Further the Applicants did not demonstrate that Martin disobeyed the Court order of 14. 9.16. In order for this Court to grant the orders sought, the Applicants obligated to avail evidence that meets the requisite standard of proof, namely proof that is higher than a balance of probabilities, and almost but not exactly, beyond reasonable doubt. This, the Applicants failed to do. Notably, the Applicants made no submissions in respect of this prayer. Accordingly, the orders sought cannot be granted.

26. It is further noted that the Beatrice alleged that Jacinta has sold a portion of the suit property to one Eunice Irene Wanjiru Mukiri. The exhibited agreement relates to Plot No. 12, Ukiriria Farm. She claimed that the suit property was christened Ukiriria Farm by the deceased. This was denied by the Applicants. The Court notes that Beatrice did not place any evidence before it to show the correlation between Ukiriria Farm and the suit property. In any event, even if this were true, this sale and that of any other portion of the suit property, would be void as demonstrated herein.

27. In the end, and in view of the foregoing, I find that the Application dated 25. 5.21 partly succeeds and I hereby grant the following orders:

i) The titles in respect of L. R. Nos. 10090/518, 10090/519, 10090/520, 10090/521, 10090/522 and 10090/51/1 and the deed plans in respect thereof are hereby revoked.

ii) Status quo ante be and is hereby restored and L. R. No. 10090/55 do revert to the deceased Karomo Karanja.

iii) The suit property shall be resurveyed and subdivided by a Government Surveyor in line with what is set out in the certificate of confirmation of grant dated 14. 9.16.

iv) Thereafter, the Administrator shall immediately take steps to transfer to each beneficiary, their respective entitlement.

v) This being a family matter, there shall be no order as to costs.

DATED, SIGNED AND DELIVERED IN NAIROBI THIS 11TH DAY OF MARCH 2022

___________

M. THANDE

JUDGE

In the presence of: -

...................................................... for the Applicants

....................................................for the Respondents

........................................................... Court Assistant