[2019] KEHC 11462 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 527 OF 1981

IN THE MATTER OF THE ESTATE OF MBIYU KOINANGE (DECEASED)

EDDAH WANJIRU MBIYU............................................APPLICANT

VERSUS

LENNAH WANJIKU KOINANGE.............................RESPONDENT

RULING

1) Section 45 of the Law of Succession Act (Cap 160) provides as follows:-

“1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.

2) Any person who contravenes the provisions of this section shall-

(a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and

(b)be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.”

2) Any person who has no authority under this Act, or under any other written law, or is not an executor or administrator of the estate of the deceased, or has no order of the court, takes possession of or disposes the free estate of the deceased, or does any act that dispossesses the executor or the administrator of the estate, does any act to waste or cause loss or damage to the estate, or makes it impossible for the executor or administrator to administer the estate, is guilty of intermeddling with the free property of the deceased under Section 45 of the Act (Jane Kagige Geoffrey & Another –v- Wallace Ireri Njeru & 2 Others [2016]eKLR, Gitau and 2 Others V. Wandai & 5 Others [1989]KR 23; In Re The Matter of The Estate of David Julius Nturibi M’ithinji (Deceased) [2012]eKLR).Acts of transfer, exchange, paying out, distributing, donating, charging, leasing or mortgaging of any part of the estate without the authority above amount to intermeddling (Benson Mutuma Muriungi –v- C.E.O Kenya Police Sacco & Another [2016]eKLR).

3) Section 82 of the Act provides for the power of the personal representative of the estate of the deceased. Personal representative under Section 3 of the Act means the executor or administrator of a deceased person. Subject to the limitations imposed in the grant, the personal representative may sue or be sued on behalf of the estate; or may sell, so far as it seems necessary or desirable, all or any part of the assets of the estate; and provide an account. However, under Section 82(b) (ii) he has no power to sell immovable property of the deceased before the confirmation on the estate.

4) This dispute relates to the estate of Peter Mbiyu Koinange who died intestate on 3rd September 1981. It has now been established that the deceased’s family comprised four houses: the house of Loise Njeri Mbiyu (deceased), the house of Rith Damaris Wambui Mbiyu (deceased), the house of Margaret Njeri Mbiyu and the house of the applicant Eddah Wanjiru Mbiyu. The respondent Lennah Wanjiku Koinange is the daughter of Rith Damaris Wambui Mbiyu. She is not one of the administrators of the estate of the deceased.

5) There is no dispute that one of the properties that the deceased owned was LR No. 22/2 measuring about 640. 25 acres. It was known as Closeburn Estate on Limuru Road. On 2nd August 2002 the court ordered 260 acres of the parcel to be sold to the Aga Khan Group. On 13th August 2010 the court ordered 100 acres of the same to be sold to Centum Investments Company Limited. On 7th July 2015 the ELC Court ordered 3 acres to be excised and conveyed to Karura Community Chapel Registered Trustees. This left a balance of about 283 acres.

6) In an application dated 28th January 2019 the applicant swore that on 7th May 2013 35. 85 Hectares of Closeburn Estate was hived off and transferred to the respondent vide entry No. 44 of the Register. The subdivision was L.R. No. 22/363. Her case was that there was no court order that sanctioned that subdivision and transfer, and that the transactions were not done with the knowledge or consent of either the administrators or the beneficiaries. There is no dispute that the respondent is one of the beneficiaries of the deceased.

7) The respondent acknowledged the subdivision and transfer to herself when she swore her replying affidavit dated 14th February, 2019. According to her, these transactions were, however, always known to the applicant and the other administrators and beneficiaries. She stated that a lot of the other properties have been illegally sold and ravaged by the administrators and beneficiaries, including the applicant, without the authority of the court. Further, she stated that during the discussions among the family members regarding the distribution of the estate she proposed to have this portion where her late mother resided. The family did not object. She settled here and has made extensive developments on the same over the years. She will be seeking that, during distribution, she be allocated this portion, and would be willing to surrender parts of other estate properties to the respective beneficiaries.

8) The applicant asked that the respondent be prohibited from selling, transferring, charging or in any other manner dealing with the portion registered in her name until the estate is distributed. She also asked that entry No. 44 be cancelled.

9) The application was prosecuted by Mr. Muite (SC), and supported by Mrs. JanMohamed for George Kihara Mbiyu, Mr. Gikandi for Margaret Njeri Mbiyu, Mr. Kiarie for Stella Kibara and Steven Mungai Kibara, Mr. Muguku for Susan Kamau Kihara, M/s Njuguna for Barbara Wambui Koinange and Impulse Developers Limited, M/s Were for Paul Mbatia Koinange, Mr. Munge for Joyce Njeri w/o Isaac Njune Mbiyu. Mr. Ouma for the respondent opposed the application. He basically relied on his client’s replying affidavit.

10) The administrators and the other beneficiaries may have known that the respondent was residing on the property now in question. That is not the issue. The issue is that she caused the parcel to be subdivided and a portion of it measuring 35. 85 Hectares to be transferred into her name. These were done through entry No. 44 on the title document L.R. No. 22/2. The respondent’s subdivision was L.R. No. 22/363. There was no court order, and there was no consent from the administrators. Through these actions, the estate lost 35. 85 acres. She had no authority to cause the subdivision. She had no authority to cause the transfer to herself, or to any other person. She intermeddled with the estate of the deceased. The subdivision and transfer were done in contravention of the law. They were criminal transactions under Section 45(2)of the Act. They were not valid transactions (In the Matter of the Estate of Veronica Njoki Wakagoto (Deceased) [2013]eKLR) .

11) Consequently, I cancel entry No. 44 on Title Number L.R. No. 22/2. The title to L.R. No. 22/363 is cancelled. The respondent is ordered to deposit this title document into court within fourteen (14) days. There shall be issued a notice by the applicant in a national newspaper with a wide circulation in Kenya informing the Public of this cancellation and warning anyone dealing with the excised portion by the respondent.

12) I consider that the applicant abandoned the rest of the prayers in the application.

13) The respondent shall pay costs of this application.

DATED and DELIVERED at NAIROBI this 26TH day of JUNE, 2019.

A.O. MUCHELULE

JUDGE