[2022] KEHC 16214 (KLR)

In re Estate of Kimani Karanja (Deceased) (Probate & Administration Appeal 1 of 2018) [2022] KEHC 16214 (KLR) (13 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16214 (KLR)

Republic of Kenya

In the High Court at Murang'a

Probate & Administration Appeal 1 of 2018

J Wakiaga, J

December 13, 2022

In The Matters Of The Estate Of Kimani Karanja (Deceased)

Between

Francis Mungai Kimani

Appellant

and

Paul Mungai Kimani

1st Respondent

John Macharia Kimani

2nd Respondent

Josephat Kimemia Kimani

3rd Respondent

Peter Mwangi Kimani

4th Respondent

(Appeal From The Ruling Made On 3Rd November 2017 In Kigumo Succession Cause No 25 Of 2013)

Judgment

1. The appellant applied for grant of letters of probate to the will of the deceased herein and on 7th day of April 1992, and by an application dated May 17, 2017, the appellant applied for confirmation thereof.

2. The respondents on June 22, 2017filed affidavit of protest to the confirmation of grant challenging the proposed mode of distribution by the appellant on the ground that there was a valid will in which the deceased had distributed his property.

3. The said protest was heard by way of oral evidence and by a ruling thereon, the subject of this judgement the court upheld the protest and stated that the contract the appellant was relying on was illegal as it offended the provision of section 82 of the Law of Succession and distributed the estate as per the will.

4. Being aggrieved by the said ruling, he filed this appeal and raised the following grounds of appeal: A.The court failed to appreciate that the estate was partly testate and partly intestate

B.The court failed to appreciate that the doctrine of estoppel by election applied to succession cause and that the protestors had no valid claim for title no Loc 3 mukuria/ 980 upon exercise of election to cede beneficiary interest when they accepted consideration and or in default sold to the appellant to the extent of their interest in that property under the provisions of section 24 of the Act

C.The magistrate did not give consideration that the estate was subject to added section 83(e) of the Act.

SUBMISSIONS 5. Directions were given that the appeal be heard by way of written submissions, which were duly filed. On behalf of the appellant, it was submitted, that the respondents entered into sale of the subject property for a consideration when they knew that the same belonged to them and therefore the document which they deem as will was not a valid will and that the court was wrong in holding that it was legally wrong to alienate the estate or part thereof prior to confirmation of grant. It was contended that the deceased died partly estate and partly intestate as the gift deed did not amount to a will.

6. It was contended that it was the intention of the deceased that was to be taken into account and that gift becomes complete when it vest of transfer, otherwise the beneficiary of the gift is only a trustee and that the respondents sold what they believed to be theirs to one of their siblings, the appellant.

7. It was submitted that having voluntarily offered the property for sale the respondents were estopped by the deed dated September 13, 2004. It was contended that the appellant had made a full discloser of the dealing of the estate under the provisions of section 83(e) of the Act and the respondents did not deny the existence of the agreement for sale and receipt of consideration.

8. On behalf of the respondents it was submitted that there was no estate in law which was partly estate and intestate and that ruling on the distribution of the estate was on sound basis.

Determination 9. This being a first appeal the court is under a duty to re-evaluate the evidence tendered before the trial court and to come to its own determination thereon as was stated in Abok James Odera t/a A.J Odera &Associates v John Patrick Machira t/a Machira & co Advocates[2013] e KLR.

10. The appellant testified, that the deceased agreed to share his three parcels of land and that when they met the 1st respondent said that they should not share land according to acreage because the land in muranga was more productive than the land in mwiga ,so they agreed that they takes the mwiga land four of them and the deceased said that he takes the marumi land , while Mukuria land the five were to share, but he decided to leave to the four and that when their father died the respondents approached him to buy the mukuria land which he did and agreement entered into.

11. In cross examination he conformed that the agreement ws in the handwriting of the 1st respondent and that the car which was part of the consideration was not registered in his name.

12. PW2 Elijah Mwangia mechanic confirmed that the took the said car to the respondents’ home but did not hear that it was being sold and that his role was only to repair the car and drive it to the respondents.

13. The 1st respondent stated that the appellant proposed mode of distribution was wrong since the mukiri land was given to them through a will even though the petitioner was using the land and that in the year 2004 he pushed them to sell to him the land in exchange for a motor vehicle which was in horrible state so they returned these motor vehicles and they take back the land but he declined.

14. The 2nd respondent stated that the estate should be distributed as per the will despite the fact that they had agreed on the land as they were willing to refund to him the consideration.

15. From the proceedings herein, it is clear that the deceased left a valid will and that the appellant applied for the probate of the same as such. The content of the said will has not been challenged and would therefore not agree with the submissions by the appellant that the estate was both estate and intestate and therefore find no fault with the trial courts determination thereon.

16. Whereas there was evidence tendered before the trial court of an agreement by the respondents to sell one of the property belonging to the estate to the appellant, the trial court cannot be faulted in upholding the intention of the deceased will distribution the estate as the sole role of the court in probate and administration matters is to give effect to the intention of the decease which the court did and cannot be faulted in finding that the respondents did not have the capacity to deal with the estate before the grant was confirmed .

17. This position was confirmed by the court in the case of in re Estate of Isaac Kaburu Marete (Deceased) [2017] e KLR where the court stated that acquisition of land before confirmation of grant unlawful and does not enjoy property rights under the Constitution. The court stated that under section 82(b) (11) of the Law of succession Act, the sale of immovable property of the estate before confirmation of grant is prohibited and a void transaction is in law a nullity and incurably bad.

18. The trial court cannot therefore be faulted in dismissing the appellants claim on sound legal principles and therefore the agreements entered into between the appellant and his siblings violated the law and to that extent was void as found by the trial court.

19. The appellants claim to the said property lies in the land court and not in this court acting as a Probate and administration court

20. The upshot of this is that I find no merit on the appeal herein which I hereby dismiss.

21. On the issue of cost, whereas the same follows the event, this being a family matter and having noted that the appellant has some claim against the respondents only that he is claiming it in the wrong forum, each party shall bear their own cost and it is ordered.

DATED SIGNED AND DELIVERED AT MURANGA THIS 13th DAY OF DECEMBER 2022J. WAKIAGAJUDGEIn the presence of;-Court assistant: Ms Carol Mutahi