[2022] KEHC 11429 (KLR)

In re Estate of Kizuri Akata alias Shitsuli Lihungwa (Deceased) (Succession Cause 564 of 2014) [2022] KEHC 11429 (KLR) (8 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11429 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 564 of 2014

WM Musyoka, J

July 8, 2022

In the matter of

In the Matter of The Estate of Kizuri Akata alias Shitsuli Lihungwa (Deceased)

Applicant

Judgment

1. Two succession causes were initiated in respect of the deceased person herein.

2. In this cause it is alleged that the deceased herein died on 9th August 1992, according to the certificate of death on record, serial number 0095689, dated 8th July 2014. He is identified as Shitsuli Paulo Lihingwa. According to the Chief of Muranda Location, by a letter dated 10th July 2014, he had married only one wife, who predeceased him, leaving only one child, a married daughter known as Berneta Mbokani. He was said to have had died possessed of Isukha/Shiswa/41, which he had sold to Ignatius Ayekha Sore, who was in occupation. A certificate of official search in respect of Isukha/Shiswa/41, dated 9th July 2014, indicates that the same was registered in favour of Kizuni Akata on 7th August 1973. Representation to the estate was sought herein by Berneta Mbokani Nyundu, by a petition that she filed herein on 16th July 2014, in her capacity as a daughter of the deceased. She listed herself as the sole survivor of the deceased, who died possessed of Isukha/Shiswa/41. Ignatius Ayekha Sore is listed as a liability. Letters of administration intestate were made to Berneta Mbokani Nyundu on 12th November 2014, and grant was duly issued, dated 13th November 2014. The said grant was confirmed on 21st September 2015, vide an application undated filed in court on an unknown date. The entire estate was devolved upon Ignatius Ayekha Sore.

3. The other cause in the estate of the deceased was initiated in Kakamega HCSC No. 663 of 2014. The certificate of death in that cause, serial number 0060997, dated 18th June 2014, indicated that he died on 12th June 1984. His name is indicated as Kizuni Akata. According to the Chief of Shiswa Sub-Location, by letter dated 4th April 2014, the deceased had been survived by five children, being three daughters and two sons. Their names are listed as Lilian Isokoni, Sifurosa Mutola Joseph, Brenda Indakuli, Andrew Shilabika Amukaka and Mark Matwang’a. a certificate of official search in respect of Isukha/Shiswa/41, dated 24th June 2013, indicates that the same was registered in favour of Kizuni Akata on 7th August 1973. Representation to the estate was sought herein by Susana Ayuma Matwang’a, by a petition that she filed in that cause on 18th August 2014, in her capacity as a daughter of the deceased. She listed seven individuals the survivors of the deceased, namely Susana Ayuma Matwang’a, Liliani Isokoni, Sifurosa Mutola Joseph, Brenda Indakuli, Andrew Shilabika Amukaka, Bonface Bukhala Rugaria and Mark Matwang’a. The deceased was said to have had died possessed of Isukha/Shiswa/41. Letters of administration intestate were made to Susana Ayuma Matwang’a on 13th November 2014, and grant was duly issued, dated 7th January 2015. The said grant is yet to be confirmed, vide there is an application for its confirmation pending, dated 30th January 2015, filed herein on 6th February 2015, which proposes to devolve the entire estate upon Bonface Bukhala Rugaria.

4. What I am called upon to determine is a summons dated 11th December 2015. It is brought at the instance of Susana Ayuma Matwang’a, who I shall refer to hereafter as the applicant, and it seeks revocation of grant made herein to Berneta Mbokani Nyundu, cancellation of the transmission of Isukha/Shiswa/41 to Ignatius Ayekha Sore and its reversion to the estate, and the consolidation of this cause with Kakamega HCSC No. 663 of 2014. The applicant is not a child of the deceased, but was a member of the family that had bought Isukha/Shiswa/41. That family is of a Martin Muchalwa. The land was allegedly ben sold to the said Martin Muchalwa by the deceased in 1979, and the family of the said Martin Muchalwa from 1979. The deceased is said to have had moved out of the land and settled at Ileho. She concedes that Berneta Mbokani Nyundu, who I shall refer hereto after as the respondent, is a daughter of the deceased. The respondent is accused of concealing the fact that Isukha/Shiswa/41 had been sold by the deceased to Martin Muchalwa. It is argued that the respondent, upon obtaining representation to the estate, was obliged to transfer the land to Martin Muchalwa. She is accused of transferring the land to another person instead, and also of using fake names of the deceased to facilitate the fraud. The said names are Kizuri Akata alias Shitsuli Lihingwa. It is asserted that the respondent petitioned for representation while well aware that the family of Martin Muchalwa was entitled to the land. It is further argued that the respondent had never expressed any wishes or desire to reclaim the land from Martin Muchalwa. It is asserted that the registration of Ignatius Ayekha Sore was fraudulent. .

5. I have seen no affidavits in response to the application by the respondent.

6. Directions were not taken on the disposal of the application, but the same was canvassed by way of viva voce evidence. .

7. The oral hearing commenced on 2nd October 2018. The applicant, Susana Ayuma Matwang’a was the first to take the witness stand. She testified that her late father had bought the land from the deceased in 1979, but both the deceased and her father died before title was processed in his name. Her father moved into the land, and lived there until he died in 2008, and was buried on the same land. She stated that their brother, Mark Matwang’a killed someone, and, under customary law, they were required to move out of the land. She described the respondent as a sister of the deceased, and she said that she had sold the land she said she did not know whether the deceased had a child. She said that Ignatius Ayekha Sore had land neighbouring Isukha/Shiswa/41, but said that she was unaware that it was he who had bought Isukha/Shiswa/41. She said she wanted Isukha/Shiswa/41 to be given to her family. During cross-examination, she described the respondent as a sister of the deceased. She said that she was not aware that Mark Matwang’a nor Adriano Koti nor any other member of their family had sold any land. She said that they had sold the land in 2013 to a young man. She concluded that they had bought the land from a Shitoli Lilingwa, the father of the deceased. She stated that the land belonged to the deceased. .

8. Peter Ambani Angula followed. He said he was a neighbour of Martin Muchalwa, who bought land from the deceased. He was then buried on that land that he had bought. He said that he was present when the transaction was done, and that there was a written agreement. He did not have a copy of the agreement and he did not know when the sale of land was done. He stated that a child of Martin Muchalwa killed a person, and the family was chased out of the land. He said that the sale agreement was burnt when the houses of family were burnt, and then he said no body had told him that the agreement was burnt in that house. He said that he was not aware that the same land had been sold by a brother of Martin Muchalwa called Adriano Koti and Mark Matwang’a. He said that he was not related to the father of the applicant. He said that it was Ignatius Ayekha Sore who was in occupation of the land. He said that he knew that the applicant had sold the land to David Muchalwa, which was the same land that Adriano Anuswa Kuti and Mark Matwang’a had sold. He said that they sold it to Ignatius Ayekha Sore. He stated that the applicant had told her that the person she sold the land to wanted the land transferred to him. .

9. Abraham Wakukha Likhali followed. He said he was a neighbour to Isukha/Shiswa/41. The family was allegedly using the land, and moved in in the 1970s, until Mark Matwang’a killed someone and the family was forced to relocate. Then Ignatius Ayekha Sore moved in in 2013. He said that he was not present when the father of the applicant bought the land from the deceased. He said he was not aware whether Adriano Anuswa Kuti and Mark Matwang’a had sold the land to Ignatius Ayekha Sore. He said he was aware that the applicant sold the land to one Bonface Bukhala Rugaria, sometime in 2014.

10. Selvester Masheti Imonje was next. He stated that he was related to the applicant, whose father bought Isukha/Shiswa/41, moved in and died on the land and was buried there, and so was his wife. He stated that the family of the applicant was forced out of the land after their brother Mark Matwang’a killed someone. Ignatius Ayekha Sore then moved in and began to use the land. He could not tell the circumstances under which he moved into occupation of the land. He said he did not know whether Mark Matwang’a sold the land to Ignatius Ayekha Sore. He stated that the applicant approached Bonface Bukhala Rugaria and sold the eland to him, in 2013, when Ignatius Ayekha Sore was already in occupation, believing that he had leased the land. .

11. The case for the respondent opened on 22nd June 2021, with Ignatius Ayekha Sore on the witness box. He stated that Isukha/Shiswa/41 was in the name of Paul Shisuli Agata Biyengwa, but had been transferred to his name. He said that he got the property through succession proceedings, commenced by a daughter of the deceased, the respondent herein. He said that the applicant was not related to the deceased. He said that he bought the property from Mark Matwang’a Muchalwa and Adriano Anuswa Kuti, son and brother, respectively of Martin Muchalwa, who had allegedly bought the land from the deceased. He said that the person who was suing the land in question was Mark, a son of Martin Muchalwa and a brother of the applicant. He stated that Mark Matwang’a had inherited the land from his father, Martin Muchalwa. He asserted that he knew that Martin Muchalwa and Mark Matwang’a had bought the land. He said that he bought the land in 2013, by which time the deceased herein had died, and succession to both estates had not been done. He said that he paid mark, who went to buy land elsewhere. He said that after the deceased sold the land to Martin Muchalwa, he went and steeled at Ileho. He said he was born in 1969, and by then the family of Martin Muchalwa had not moved in, for they occupied the land in 1979, and moved out in 2013, after Mark Matwang’a killed someone in the village. He said that he did not know who burnt their houses. He said after the sale, Mark Matwang’a pleaded with the respondent to do succession to facilitate the transmission of the land to him.

12. The respondent then followed. She said that she was a daughter of the deceased. She said that it was Mark Matwang’a who had asked her to initiate the succession cause herein, and she did so, and the land was devolved to Ignatius Ayekha Sore. She said Mark Matwang’a asked her to devolve the land to Ignatius Ayekha Sore as he had bought it. He said that no one from his side of the family opposed that proposal. She explained that Mark Matwang’a had killed someone and had to leave the land. She said that she was the only child of the deceased. She explained that the deceased had sold the land to Martin Muchalwa, and moved to Ileho. Martin Muchalwa died and was survived by mark. She said that the family of Martin Muchalwa lived on the land until Mark Matwang’a killed someone. Mark Matwang’a then sold the land to Ignatius Ayekha Sore. She said that she was a witness to that transaction. She said that she did not involve the sisters of Mark Matwang’a in the matter, saying that they were married. She said that Mark Matwang’a fled after he killed someone, and that it was his uncle, Adriano Anuswa Kuti, who transacted, and sold the land. She stated that it was Mark Matwang’a who was living on the land after Martin Muchalwa died.

13. Mark Matwang’a Mujalwa testified next. He stated that his father had bought land from the family of the respondent, which they then sold to Ignatius Ayekha Sore. He described the applicant as his sister. He stated that they no longer lived on the eland, as they were forced out after he killed someone. He said the land was sold in 2013. He said that the property was in the name of the deceased. He said the sale agreement was lost when they were evicted. He said that his sisters were involved in the sale, they sat down and agreed as a family. He said that he bought land elsewhere after he sold the land. He said that his sisters got married elsewhere and had their own property. He conceded that if they were to come back they would have a right to the land, and he would give them a share. He said that the land was sold when he was in jail, he was not present and that it was his uncles who transacted. He said that the property was not in the name of his father, and was still in the name of the seller, the deceased. He said that they had approached the respondent, and they agreed. The property was sold to Ignatius Ayekha Sore, and money changed hands.

14. Mathews Asutsah testified next. He said that he wrote the agreement in 2103 when Mark Matwang’a sold the land to Ignatius Ayekha Sore. It was between Ignatius Ayekha Sore and Adriano Kuti. He stated that the applicant and Mark Matwang’a were not present, but the other sisters of Mark Matwang’a were present. The respondent was also present, as the next of kin of the deceased. At the time there was no grant, and Mark Matwang’a was said to be in hiding. He stated that Ignatius Ayekha Sore was using the land.

15. At the close of the oral hearings, the parties were directed to file and exchange written submissions. This they did. I have read through their respective written submissions, and noted the arguments advanced in them.

16. The application before me is for revocation of grant. It is a fairly straightforward matter. The deceased herein is the father of the respondent, to whom representation was granted. She was the only child of the deceased. The applicant is not related by blood to the deceased. She was neither a spouse nor child of the deceased. She was not his survivor. Her claim is that her father’s estate had a stake in the estate of the deceased. Under the law that governs applications for representation, the respondent was not obliged to notify or involve the applicant in the process. Therefore there was no wrongdoing on her part in the manner that she obtained the grant. She practiced no fraud, nor misrepresentation, nor concealed any facts from the court. she did not violate section 51 of the Law of Succession Act, Cap 160, Laws of Kenya, nor Rules 7(7) and 26 of the Probate and administration Rules, and the grant was properly made to her as the sole survivor of the deceased. No other person had prior right over her to administration, and no other person could claim equal entitlement with her to the administration of her father’s estate. There is no case, therefore, made under section 76(a) (b) (c) of the Law of Succession for revocation of the grant made to her on 12th November 2014. It is the applicant who is guilty of fraud, misrepresentation and concealment of matter from court. In her cause, in Kakamega HCSC No. 663 of 2014, she claimed that she and her siblings, and Bonface Bukhala Rugaria, were sons and daughters of the deceased herein, which was a lie, for the deceased had only one child, the respondent herein, who they did not even list as a survivor of the deceased. She obtained her grant based on those lies and misrepresentations, and has clearly not come to court with clean hands.

17. The principal claim herein is really about how the estate was distributed, and, therefore, the applicant is challenging the confirmation process. Her case is that the estate should have been devolved to Bonface Bukhala Rugaria, the person to whom she sold the land, and not Ignatius Ayekha Sore. Problems about how the process of confirmation was handled are not a good ground at all for revocation of grant. Under section 76 a grant can only be revoked, with respect to confirmation, where a confirmation application has not been filed within one year, as per of the ground which covers failure of administration. The fact that the confirmation process was botched or faulty is not a ground for revocation of the confirmed grant. The remedy for such is an application for review of the confirmation orders or an appeal.

18. For avoidance of doubt section 76(d) (i) of the Law of Succession Act states:“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by an interested party or of its own motion –(a)…(b)…c)…(d)That the person to whom the grant was made has failed, after due notice and without reasonable cause either –i.to apply for confirmation of the grant within one year from the date thereof , or such longer period as the court has ordered or allowed; orii.…iii.…(e)…”

19. Should I expend my energies considering whether to interfere with the orders that were made herein on the confirmation of the grant or distribution of the estate? The deceased herein died a long time ago. In 1984, according to the applicant herein; and 1992, according to the respondent. There is need to get closure in the matter. The dispute herein is really amongst the children of Martin Muchalwa. There is no claim of whatever nature against the respondent as such. She, herself, makes no claim to the property. Her father, the deceased, had sold the land to Martin Muchalwa. She did not transact with Ignatius Ayekha Sore, by way of purporting to sell anything to him. The transaction was by Adriano Anuswa Kuti, a brother of Martin Muchalwa, ostensibly on behalf of Mark Matwang’a, a son of Martin Muchalwa. The applicant is unhappy with that process, as she had herself sold the same land to Bonface Bukhala Rugaria. Apparently, she did not get a share of the sale proceeds, for Mark Matwang’a did not share the same with her and her sisters. According to him, they got married and ought to have been content with the land they were able to access through their husbands. Clearly, the applicant has no case against the respondent as such over the distribution.

20. Is there a case for me to intervene? I think there is. Ignatius Ayekha Sore did not transact with the deceased herein. He was not a creditor of the estate of the deceased herein. The estate that had a claim was that of Martin Muchalwa, on whose behalf Adriano Anuswa Kuti and Mark Matwang’a acted. They had no grant of representation, and, therefore, the estate of Martin Muchalwa did not vest in them by virtue of section 79 of the Law of Succession Act. They had no land to sell. They could not pass any good title to Ignatius Ayekha Sore. Ignatius Ayekha Sore, therefore, had no good title himself to enable him have the property herein devolved and transmitted to him. He transacted with Mark Matwang’a and he should have waited for Mark Matwang’a to carry out succession to his father’s estate to enable his give him the land that he had sold to him. The estate herein did not owe Ignatius Ayekha Sore any land. What should have been done, should have been to devolve the property herein to the estate of Martin Muchalwa, to be handled in a succession cause in that estate, resolving these issues herein and amount to handling the estate of Martin Muchalwa within the estate of Kizuri Akatu The issues between the applicant and her brother Mark Matwang’a, and between Bonface Bukhala Rugaria and Ignatius Ayekha Sore, are better resolved in a cause in the estate of Martin Muchalwa, rather than in the instant cause.

21. Should this cause and Kakamega HCSC No. 663 of 2014 be consolidated? They should. They relate to the estate of the same individual. Maintaining two successions causes in the same estate has the danger of the probate court making conflicting orders, which would expose the court to embarrassment and disrepute. For instance, in the instant cause the property was devolved to Ignatius Ayekha Sore at confirmation; in Kakamega HCSC No. 663 of 2014 there is a pending confirmation application for devolution of the same property to Bonface Bukhala Rugaria. The potential result would be, if Kakamega HCSC No. 663 of 2014 were to go to confirmation, that the same asset is devolved to two different individuals, presenting a challenge to the lands registry with respect to who the property should be transmitted to in the circumstances. That is the folly with double or multiple succession causes over the same estate.

22. In the end, the final orders are:(a)That I hereby I hereby decline to revoke the grant made herein to the respondent on 12th November 2014;(b)That I order consolidation of the instant cause with Kakamega HCSC No. 663 of 2014, after which the file in Kakamega HCSC No. 663 of 2014 shall be closed, and the grant made in Kakamega HCSC No. 663 of 2014 to the applicant herein, Susana Ayuma Matwang’a, in that cause, shall be revoked;(c)That confirmation orders made herein are hereby reviewed, so that Isukha/Shiswa/41 is devolved upon the estate of the late Martin Muchalwa or the administrator of that estate, instead of Ignatius Ayekha Sore;(d)That the Deputy Registrar shall process and issue a certificate of confirmation of grant in terms of (c), above;(e)That as a consequence of (c), above, the Land Registrar responsible for Kakamega County shall cause any transmission of Isukha/Shiswa/41 to the name of Ignatius Ayekha Sore, on the basis of the certificate of confirmation of grant, dated 21st September 2015, to be cancelled and to have Isukha/Shiswa/41 reverted to the name of the deceased herein, Kizuni Akata;(f)That whoever has claims over Isukha/Shiswa/41 shall pursue them in the cause initiated or to be initiated in the matter of the estate of the late Martin Muchalwa;(g)That each party shall bear their own costs; and(h)That any party, aggrieved by these orders, has leave of twenty-eight days, to move the Court of Appeal, appropriately.

23. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 8th DAY OF July 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Ms. Ashitsa, instructed by Shitsama & Company, Advocates for the applicant.Mr. Mukavale, instructed by JJ Mukavale & Company, Advocates for the respondent.