[2017] KEHC 1161 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

HC P&A NO. 446 OF 2017

ESTATE OF MALAI ALIAS LILI ……………………… (DECEASED)

-VERSUS-

JAMES KIENDI MALAI ………………….…………. 1ST PETITIONER

JOHN MWANIA MALAI ……………………………. 2ND PETITIONER

RULING

1. By an application dated 16/08/2016, the Applicant/Administrator seeks the following orders:-

1. Spent

2. THAT the Honourable court be pleased to issue orders to preserve the deceased’s Estate and more particularly the property known as KISEKINI/412 pending the hearing and determination of the application.

3. THAT this Honourable Courts be pleased to issue an order directing the Respondent to co-operate with the Applicant to facilitate transmission and proper management of the deceased’s Estate.

4. THAT the costs of the Application be in the cause.

2. The same is anchored on Section 45and 47ofLSA Cap 160.

3. The Application is based on the following grounds:-

a) That the Applicants are the lawful administrators of the deceased’s Estate whereas the Respondent is one of the beneficiaries.

b) That the Certificate of Confirmed Grant of Representation in respect of the deceased’s Estate was issued on 08/11/2013.

c) That the Respondent is in the process of illegally disposing part of the parcel of land known as KISEKINI/412 which forms part of the deceased’s Estate and that he is solely in possession and use of the same by isolating the rest of the deceased’s beneficiaries.

d) That the Respondent’s actions whilst illegal, also amount to intermeddling with the property of the deceased.

e) That the Respondent has completely refused to co-operate with the Applicants therefore thwarting efforts to transmit the Estate to all the lawful beneficiaries.

f) That justice demands that the Application be allowed to prevent further waste of the Estate.

4. It is supported by Supporting Affidavit sworn by JAMES KIENDI MALAI sworn on 16/08/2015 and filed on 16/08/2016.

5. The Respondent opposed it via Replying Affidavit sworn on 23/02/2017.

6. The parties agreed to canvass the same via Written Submissions which they filed and exchanged.

APPLICANT’S SUBMISSIONS

7. The main prayers by the Petitioner are for preservation of the Estate of the deceased herein and for the Respondent to co-operate with the Applicant to facilitate transmission and proper management of the Deceased’s Estate.

8. Section 82(a) of the Law of Succession Act provides that;

“Personal representatives shall, subject only to any limitation imposed by their grant, have powers to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arise out of his death for his estate.

9. In interpreting the above provision of law, the Honourable Court in the case of ALEXANDER MUTUNGA WATHOME –VS- PETER LAVU TUMBO & ANOTHER [2015] EKLR (MACHAKOS SUCCESSION CAUSE NO. 80 OF 2011) noted that;

“In law one can only represent the estate of a deceased person when a grant of representation has been made in respect of the estate of such deceased person under the Law of Succession Act. In addition section 82 of the Law of Succession Act provides that it is the personal representative who has the powers to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased. A personal representative is defined under section 3 of the Act as the executor or administrator, as the case may be, of a deceased person.”

10. In the foregoing matter, the Applicants herein who are Administrators of the estate are perfectly in court by virtue of the above provisions of law and properly entitled to seek for preservation of the estate of the deceased herein and to call for the Respondent to co-operate with the Applicant to facilitate transmission and proper management of the Deceased’s Estate.

11. Section 45 of the Law of Succession is to the effect that no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.

12. The Respondent herein has not denied being in possession of property known as KISEKINI/412 and has not denied that the said property is in the name of the deceased. However, he denies issues of selling land. It is submitted that in view of Section 45 of the Law of Succession, any attempts to sell and or alienate the land in question amounts to intermeddling and an order should issue restraining the Respondents from their purported actions.

13. On the other hand, the Respondent is alleging that him and other wives of the deceased including his mother one Kanukwa Kyengo were not involved in these proceedings.

14. Further, the Respondent alleges that the deceased has subdivided his estate before his demise and that the grant herein was issued erroneously.

15. It submitted that the Respondent has raised weighty issues through a response to an application of which such issues cannot be fully canvassed in this application.

16. Section 76 of Law of Succession Act (Cap 160) provides grounds for revocation of grant which include if the grant was obtained fraudulently by the making of false statements or by the concealment from the court of things material to the case.

17. It is submitted that if the Respondent feels that the grant was fraudulently obtained, he had the option of filing for revocation of the said grant but he has not so done.

18. On the issue of the Respondent alleging that Plot No. 676 in the grant was ordered to be registered in the names of his mother in Land Case No. 8 of 1972, it is submitted that the Respondent has no Locus to litigate on behalf of her mother since no authority has been exhibited before this court.

19. In addition, the aforementioned land case decision is not enforceable in view of Section 4(4) of the Limitations of Actions Act, since more than 12 years have elapsed from the date on which the decision was delivered and no evidence has been exhibited to show action taken to enforce the same.

20. In view of the foregoing, the applicant submitted that since the Respondent chose not to challenge the grant and the Certificate of Confirmation thereof through Summons for Revocation, he is not entitled to intermeddle with the estate of the deceased.

21. Equally, he has no locus to bring extraneous issues in this application. He is duty bound to obey court orders and in this regard, it is prayed that the Court to grant the prayers sought to enable transmission and proper management of the Deceased’s Estate.

RESPONDENT SUBMISSIONS

22. The respondent submitted that he has never been involved in the proceedings herein by the Petitioners herein contrary to the Law of Succession Act until 8th September 2016 when the current summons was served upon him.

23. The deceased herein had 4 wives but the Petitioners failed to involve the other wives including his mother in the proceedings as per attached copy marked MK1. It is not true that he sold plot number 412 or part thereof and indeed it is the 1st Applicant who sold part of the deceased property to AIC CHURCH Nunguni without involving the other members of the family and he comes to court with unclean hands and the 2nd Applicant sold a portion to MAKENGA KAMUYA.

24. Indeed, Plot Number 676 in the attached confirmation of grant was ordered to be registered in the names of respondent mother KANUKWA KYENGO vide Land case Number 8 of 1972. Annexed and marked MK2 is a copy thereof and case number 21 of 1999. Thus the Plot Number 3850 does not belong to the late MALAI LILI.

25. Before the deceased passed away, he had subdivided his land amongst the four wives as per the annexed document marked MK2 on the Respondents Replying Affidavit thus, the said grant was issued erroneously bearing in mind the foregoing.

ANALYSIS AND DETERMINATION

26. After going through the evidence on record, and the parties’ submissions, I find the following issues:-

i. Whether the Application has merit?

27. The grants herein were confirmed and certificate thereof issued on 08/11/2013 and no challenge of the same has been undertaken to date.

28. However the respondent is accused of intermeddling with KISEKINI/412 which forms part of the deceased estate. The respondent denies selling same property of the deceased. The respondent does not deny occupation and user of the same and obstruction of the administration of the estate.

29. His justification is that he was not involved in the matter herein prior to confirmation of grant.

30. Section82(a) of the Law of Succession Act provides that;

“Personal representatives shall, subject only to any limitation imposed by their grant, have powers to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arise out of his death for his estate”

31. In interpreting the above provision of law, the Honourable Court in the case of ALEXANDER MUTUNGA WATHOME –VS- PETER LAVU TUMBO & ANOTHER [2015] EKLR (MACHAKOS SUCCESSION CAUSE NO. 80 OF 2011)noted that;

“In law one can only represent the estate of a deceased person when a grant of representation has been made in respect of the estate of such deceased person under the Law of Succession Act. In addition section 82 of the Law of Succession Act provides that it is the personal representative who has the powers to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased. A personal representative is defined under section 3 of the Act as the executor or administrator, as the case may be, of a deceased person.”

32. Section45 of the Law of Successionis to the effect that no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.

33. Section 76 of Law of Succession Act (Cap 160)provides grounds for revocation of grant which include if the grant was obtained fraudulently by the making of false statements or by the concealment from the court of things material to the case.

34. It is this court’s view that if the Respondent feels that the grant was fraudulently obtained or was obtained by concealment from the court of things material to the case, he had the option of filing for revocation of the said grant but he has not so done.

35. The Respondent chose not to challenge the grant and the Certificate of Confirmation thereof through Summons for Revocation; he is thus not entitled to intermeddle with the estate of the deceased.

36. The court thus makes the following orders;

i. An order be and is hereby issued to preserve the deceased’s Estate and more particularly the property known as KISEKINI/412 pending the hearing and determination of the application.

ii. An order be and is hereby issued directing the Respondent to co-operate with the Applicant to facilitate transmission and proper management of the deceased’s Estate.

iii. Costs in the cause.

SIGNED, DATED AND DELIVERED THIS 7TH DAY OF DECEMBER, 2017.

C. KARIUKI

JUDGE

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