[2022] KEHC 16237 (KLR)

In re Estate of Kubai Baimpwi (Deceased) (Succession Cause 503 of 2012) [2022] KEHC 16237 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16237 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 503 of 2012

TW Cherere, J

December 15, 2022

Between

Samuel Kubai

Applicant

and

Miriam Kabiria Kubai

Respondent

Ruling

1. Deceased’s died sometimes on March 10, 1985. According to the chief’s letter dated `October 13, 2011 deceased was survived by the following:Widow;Mariam Kabiria – widowChildren;1. Mercy Nkatha2. Patrick Gichunge3. Pauline Gakii4. Prisca Gacheri5. Joshua Mutethia6. Eric Mwongela7. Naomi Kauri

2. Deceased’s comprised of LR Kiegoi/kinyanka/1347 and LR Kiegoi/kinyanka/1348.

3. Letters of administration were issued to Mariam Kabiria Kubai (respondent) on June 8, 2012. Subsequently on August 8, 2012, Applicant by summons dated July 24, 2012 applied for revocation of the letters of administration and prayed that the same be issued to him. The summons was opposed by the respondent and court directed that the protest be heard by way of viva voce evidence.

Protestor/Applicant’s Case 4. Applicant stated that he bought land 0. 90 acre from the deceased’s land situated at Muukine village, Kiegei, Njia Location S/No 1348 vide a sale agreement dated March 15, 1984 and was allowed to take possession but deceased died before transferring the land to him. Charles Kubai, Chief Kanthiari Location and Ezekiel Ithalie Imunya, Assistant Chief Itumi Sub-Location stated that they were aware that Applicant settled on deceased’s land long before deceased died. Barnabas Gacheke Kariuki, an advocate of the High Court of Kenya stated that he executed the land sale agreement between the deceased and applicant on March 17, 1984.

Petitioner/Respondent’s Case 5. Petitioner/respondent, deceased’s widow stated that Applicant was son in law to deceased’s brother. She denied that applicant bought land from her late husband. She stated that applicant invaded deceased’s land 2 years after deceased died and has remained there without her consent. She similarly denied that applicant is a beneficiary of deceased’s estate. Her evidence was supported by her daughter Mercy Nkatha Kubai.

6. Michael Gichunge and Zablon Muchua, both Njuri Ncheke elders stated that respondent reported to elders that Applicant had invaded her land and upon considering that the sale agreement was neither signed by deceased and his wife, dismissed the applicant’s claim that he had bought land from deceased.

Analysis And Determination 7. I have considered the application in the light of the affidavits and oral evidence and also on the submissions filed on behalf of the petitioner, the applicant having not filed any and the issue for determination is whether a case has been made for revocation of the letters of administration.

8. In this instant application, the applicants’ claim is for title to, and occupation of land arising out of an alleged sale agreement between him and the deceased. Sale of land often involves subdivision or partition of land for sharing between several individuals, and that has something to do with boundaries, transfers, registrations, among others. The Law of Succession Act and the Probate and Administration Rules do not deal with such processes. These are, instead, regulated and governed by the Land Registration Act and the Land Act. So subdivision. partition, survey, boundaries, maps, transfers, registrations, etc., are dealt with in the context of land legislation, and not succession legislation. The Land Registration Act deals with these at parts II, III and IX. The Land Act, on the other hand, deals with them at part V. (See In re Estate of Daniel Khasievera Anusu (Deceased) [2022] eKLR)

9. The two pieces of land legislation, that is to say the Land Registration Act and the Land Act, are specific, that any disputes, actions or suits relating to matters governed or regulated by the two, are to be resolved by the Environment and Land Court. Indeed, the Land Registration Act and the Land Act provide that “court,” for the purposes of the two Acts or within their contexts, means the Environment and Land Court.

10. The Environment and Land Court is a statutory creation by theConstitution of Kenya under the provision of article 162 (b). From the preamble of the ELC Act, the jurisdiction of the court is defined as“……a superior court to hear and determine disputes relating to the environment and the use and occupation of, and the titles to, land and to make provisions for its jurisdiction functions and powers and for connected purposes……”.

11. In my considered view, the issue before the court is one on title to and occupation of the subdivisions of land that places the cause of action squarely in the jurisdiction of the Environment & Land Court Act (ELC Act) and consequently the Environment & Land Court (ELC Court).

12. By placing a dispute relating to title to and occupation of land before the probate court, applicant is asking the court to engage in matters that are beyond its jurisdiction. I echo Nyarangi, JA in the case of The Owners of the Motor Vessel Lilian 'S' v Caltex Kenya Limited[1989] KLR 1 that“………. jurisdiction is everything without it; a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”.

13. In the end, I find that the applicants’ summons dated summons dated July 24, 2012 has no merit and it is dismissed with costs to the respondent.

DATED AT MERU THIS 15TH DAY OF DECEMBER 2022. WAMAE TW CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor applicant - Mr Mbogo for Mbogo & Muriuki AdvocatesFor petitioner/ respondent - Mr Ondieki for CK Ungu & Associates