[2019] KEHC 4949 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

SUCCESSION CAUSE NUMBER 209 OF 2004

IN THE MATTER OF THE ESTATE OF THE LATE KIHARA MWANGI KARUKU (DECEASED)

JUDGMENT

1. By way of a notice of motion, Danson Kirugo Kimani (applicant) moved this court for orders;

1. Spent

2. Spent

3. THAT the grant of representation issued to Francis Mwangi Kihara 1st Respondent, Naomi Wangui Kihara 2nd Respondent and Samuel Kamau Kihara 3rd Respondent and confirmed on 11th February, 2008 be revoked and/or annulled.

4. Spent

5. Spent

6. The cost of the application be provided for.

2. The application is premised on the affidavit of the applicant and on grounds that;

1. The grant issued to the Respondents was obtained fraudulently by making false statement that the property known as LOC 2/KANDERENDU/376 belonged to the deceased’s estate.

2. The grant was obtained fraudulently by concealing to the court that the judgment and the decree which had been decreed the said piece of land to the deceased have been set aside.

3. The respondents herein have acted in contempt of court orders in lower court in Murang’a and transferred the suit property to the 2nd Respondent in total violation of court orders.

4. The Respondents have since moved the court in Nakuru for an application to strike out the orders sought on ground of procedural technicality and opted to forego the matter in Murang’a to defeat the ends of justice.

3. The gist of the applicants case is that land known as Loc 2/Kanderendu/376 (the suit property originally belonged to the deceased Kihara Mwangi Karuku having bought the same from one Chege Mungaru and transfer effected, sometimes in 1976.

4. It is averred that the deceased subsequently sold the land to the applicant for Kshs. 22,000/=. A transfer was effected in the names of the applicant and a certificate of title issued.

5. The 1st respondent is accused of fraudulently effecting transfer of the land into the names of the deceased on the strength of a court decree which had been set aside.

6. The application is opposed and in a replying affidavit Samwel Kamau Kihara (3rd respondent) has stated that the application is fatally defective as the same is brought under the wrong format and procedure.

7. It is urged that the subject land belonged to the deceased Kihara Mwangi all along. The deceased is the husband to the 2nd respondent and father to the 3rd respondent.

8. The 3rd respondent depones that the application to cancel the registration of the deceased as the legal owner of the land by the applicant herein has since been dismissed. An order of court is annexed.

9. Both sides adduced oral evidence. The witnesses adopted the witness statements on record and were cross-examined on the same.

10. The format in which the application is brought has been challenged and the application is said to be fatally defective in the format it is presented. I note the application is brought by way of notice of motion on procedure not provided for by the Law of Succession Act. I, however, take refuge in the provision of Article 159(d) of the Constitution and serve justice without undue regard to technicalities. I deem the application as proper and proceed to determine it on merit.

11. The only question for determination in this matter is whether land known as Loc 2/Kanderendu/376 formed part of the deceased’s estate, that is to say, that it was a free property of the deceased which is defined under Section 3 of the Law of Succession Act in the following terms;

“Free property”, in relation to a deceased person, means the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death.”

12. If the answer to this is in the negative, then the administrators of the estate of the deceased would fall foul of the provision of Section 76(b) of the Law of Succession Act which provides;

“S. 76 A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion –

(b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case.’’

13. The deceased herein died on the 3rd March, 2004. It is common ground that sometime before the filing of Murang’a PMCC Case Number 436 of 2008 by the respondents herein the land Loc 2/Kanderendu/376 was registered in the names of the applicant herein.

14. Murang’a PMCC Number 436 of 2008 was filed by the 3rd administrator of the estate of the deceased and the outcome (and again this is common ground) was that the registration of the applicant as the owner of land parcel Loc 2/Kanderendu/376 was cancelled and the registration of ownership reverted to Kihara Mwangi; the deceased herein.

15. The applicant was aggrieved by this order and he moved to court vide application dated 22nd September, 2010 seeking the setting aside of the exparte judgment on the grounds that he had not served.

16. A consent order setting aside the judgment was recorded by the parties.

17. The applicant lodged another application dated 20th September, 2010 in which he sought orders;

(a) THAT this matter be certified as urgent and service on the Respondents be dispensed within the first instance.

(b) THAT the name of NAOMI WANGUI KIHARA be added to these proceedings as the 2nd Respondent.

(c) THAT the Land Registrar Murang’a Land Registry be ordered to maintain the status quo of the title relating to the parcel of land known as Loc 2/Kanderendu/376 pending the hearing and determination of this application.

(d) THAT the Land Registrar, Murang’a Land Registry be ordered to rectify the register relating to the said parcel of land LOC. 2/KANDERENDU/376 by cancelling the name of NAOMI WANGUI KIHARA, the 2nd respondent, and reinstating that of DANSON KIRUGO KIMANI, the applicant.

18. The application dated 20th September, 2012 was dismissed for lack of jurisdiction relation to cancellation of title.

19. Further backward in time, and this is important, I note that parcel of land Loc 2/Kanderendu/376 was introduced as part of the assets of the deceased’s estate vide an application for rectification of grant dated 9th January, 2008.

20. In a sworn affidavit, the joint administrators of the estate of the deceased stated that they had forgotten to include the said property among the assets of the deceased’s estate.

21. What is now clear is that as at 9/1/2008, the said property was registered in the names of the applicant herein.

22. Fast forward, the joint administrators did the appropriate thing. They moved to the Murang’a Principal Magistrate’s Court where vide Murang’a PMCC No. 436/2008 they obtained orders reverting the ownership of the land to the deceased.

23. This decree was set aside by the consent of the parties.

24. In the intervening period, it transpires that the ownership of the land was now registered in the names of Naomi Wangui Kihara (2nd respondent).

25. Efforts by the applicant to move the court to cancel this title came a cropper as the court cited lack of jurisdiction to cancel title to land.

26. Having considered the chronological flow of the events and acts enumerated above, it is clear in my mind that the current application turns on the consent order setting aside the decree of court in Murang’a PMCC No. 436 of 2008.

27. The effect of the order setting aside the orders of court in Murang’a PMCC No. 436 of 2008 is that the order reverting ownership of the land to Kihara Mwangi (deceased) was no longer effective and the land reverted to the applicant.

28. Strangely, there is no evidence of what transpired in regard to the suit Murang’a PMCC 436 of 2008 and whether it was ever prosecuted. The consent order setting aside the exparte decree was specific that the plaintiff was to serve the defendant with the plaint on the date of the order and the defendant (read the applicant herein) was to file defence within 15 days of the order.

29. By his own admission Samwel Kamau Kihara acknowledges in his evidence that Murang’a PMCC No. 436 of 2008 is still pending. The ownership of Loc 2/Kandereru/376 is thus not determined.

30. Without a plausible explanation, and none has been provided, the registration of the subject land in the names of Naomi Wangui Kihara was irregular as at the time the summons for rectification of grant was filed on 9th January, 2008 and by the time the grant was confirmed on 11th February, 2008, the subject land was in the names of the applicant and not the deceased and the challenge mounted against the applicant’s title through Murang’a PMCC No. 436 of 2008 was not successful following the consent order setting aside the decree that had reverted the ownership of the land to the deceased.

31. The ownership of the subject land needed to be determined before the same could be included as part of the estate of the deceased.

32. I am satisfied before this court was the making of a false statement and concealment from the court of something material to wit that land parcel Loc 2/Kandereru/376 was part of the estate of the deceased a fact that has not been finally determined.

33. The only defect in the grant herein is the inclusion of land known as Loc 2/Kanderendu/376 as an asset of the deceased. This defect can be easily remedied by removal of the same and allowing the confirmed grant to stand over the undisputed properties. The certificate of confirmed grant ought to be emended accordingly.

34. For the above stated reasons the summons for revocation of grant herein is hereby allowed in part. I so allow and make the following orders;

1. The notice of motion dated 2nd day of September, 2016 is allowed in part.

2. The certificate of confirmed grant be amended to remove the property Loc 2/Kanderendu/376 from the list of assets.

3. Parties be at liberty to move the appropriate court for necessary orders as regards the ownership of property Loc 2/Kanderendu/376.

4. Each party to bear its own costs.

DatedandSignedatNakuruthis 4th day ofJuly, 2019.

A. K. NDUNG’U

JUDGE