[2022] KEHC 10180 (KLR)

In re Estate of Mbugua Kabuchi Mraga alias Mbugua Kabuchi (Succession Cause 1281 of 2018) [2022] KEHC 10180 (KLR) (Family) (10 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10180 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 1281 of 2018

MA Odero, J

June 10, 2022

Between

Jane Wangeci Mbugua

Applicant

and

Lydia Wambui Njuguna

Respondent

Ruling

1. Before this court for determination is the Notice of Motion Application dated January 26, 2022by whichJane Wangeci Mbugua(the Applicant) seeks the following orders:-“1. Spent2. Spent3. That pending the hearing and determination of the succession cause and issuance of the confirmation of grant herein, an order of injunction be granted herein restraining the Respondent whether by themselves, through their employees, servants, and/or agents from interfering with the peaceful possession, transferring, alienating, charging, leasing, entering, constructing or in any way interfering with the status quo of the parcel of land known as plot No. 239 Kangemi; and4. That costs of this Application be provided in the cause.”

2. The application which was premised upon Rule 49 and 73 Probate and Administration Rules, sections 45 & 47 of the Law of Succession Act, Cap 160, Laws of Kenya, Sections 1A and 1B and 63B of the Civil Procedure Act, Rule 40 (1) of the Civil Procedure Rules and all other enabling provisions of the law was supported by the Affidavit of even date sworn by the Applicant.

3. The Respondent Lydia Wambui Njugunaopposed the application and filed the Grounds of opposition as well as the Replying Affidavit both dated on February 25, 2022. The application was canvassed by way of written submissions. Counsel for the Applicant despite indicating that he had filed his written submissions did not file any submissions. The applicants submission were not available on the court portal. The Respondent filed the written submissions dated April 23, 2022.

Background 4. This Succession Cause relates to the estate of Mbugua Kabuchi Mragaalias Mbugua Kabuchi (hereinafter, ‘the Deceased’) who died intestate on September 18, 2015. A copy of the death certificate serial number 0466133 is annexed to Petition for Grant of letters Intestate datedJanuary 23, 2018.

5. The Deceased was survived by the following persons (as indicated in the chiefs letter datedMarch 9, 2018)1. Kairu Mbugua – son2. James Kamau Mbugua – son3. Jane Wangeci Mbugua – daughter4. Wanjiku Mbugua Kabuci – daughter5. Njenga Mbugua – son6. Dorcas Wangui Mbugua – daughter7. Teresiah Wanjiru Githu – Granddaughter8. Purity Njeri Wanga – Granddaughter9. Lydia Wambui Njuguna – Daughter-in-law

6. The estate of the Deceased was said to comprise of the following assets valued at Kshs 2,000,000:-“(a)Dagoretti/Kangemi/T.15(b)Plot No. 239 Kangemi( c)Elburgon/Elburgon Block 8/234 (Ndimo)(d)Molo South/Ikhumbi Block 7/128(e )Eco Bank Account No. SA-05-31101851. ”

7. Following the demise of the Deceased Grant of letters of Administration Intestate was on April 29, 2019made to Kairu Mbugua andJames Kamau Mbugua. The Grant is yet to be confirmed. The Applicant herein has filed this application in her capacity as one of the heirs to the estate of the Deceased.

8. The applicant (a daughter of the Deceased) avers that following the demise of the Deceased the family agreed on how to distribute the estate. However, the Respondent (who is a daughter-in-law of the Deceased) has been unwilling to abide by the decision of the family regarding distribution of the estate.

9. The Applicant claims that the Respondent has entered into and occupied the share set aside for the applicant being Plot Number 239 Kangemi and has commenced thereon construction of permanent structures, which she intends to lease out for commercial gain. The Applicant denies the Respondents claim that this Plot 239 was given to her by the Deceased during his lifetime. The Applicant states that she is apprehensive that the intention of the respondent is to grab her share thereby leaving the applicant with nothing.

10. The Applicant further stated that the Respondent has benefited from the estate through the allocation to her of the share of her late husband in the properties known as Dagoretti/Kangemi/T.15 and Elburgon/Elburgon Block 8/234 (Ndimo)

11. The applicant pleads that the portion of land which the Respondent is now occupying is the Applicants only inheritance from her father. That if the Respondent is permitted to continue with her construction and occupation of the property then the Applicant is likely to suffer irreparable harm. The Applicant avers that she has been in possession of the suit land since year 2015.

12. As stated earlier the Application for injunctive orders was opposed. The Respondent averred that she was a beneficiary of the estate of the Deceased by virtue of being married to one Joseph Muratha Njuguna a son to the Deceased. She has annexed a copy of their marriage certificate serial Number 567913 (Annexture LWN ‘1’) as proof of the marriage. The Respondent states that her husband is now deceased.

13. The Respondent further avers that she was never notified of the existence of the present Succession Cause. She denies having opposed the proposed mode of distributions of the estate of the Deceased.

14. The Respondent states that upon the death of her husband in 1989 she was left with the heavy burden of providing for their seven (7) children. That the Deceased (her father-in-law) in an effort to relieve her burden approached his own brother to grant the Respondent permission to make use of a small portion of Plot 239 as a vegetable kiosk in order to provide for her family. That she was shown the portion she was to use in the year 1987 and has continued to occupy and utilize that portion of land for the past thirty five (35) years. She avers that the Applicant who lives and works in Mombasa has never been in possession of the subject land.

15. According to the Respondent she later took out a loan from a family group and used the funds to further develop her vegetable business by putting up extra structures. She alleges that the Applicant and her son sent goons who demolished the structures she had put up and stole some properties. She annexed photographs of the damage (Annexture LWN ‘3’). The Respondent reported the matter both to the local chief and to the police. Later on the family reconciled and the Respondent did not pursue criminal charges.

16. The Respondent further avers that upon completion of the construction by the Respondent the Applicant rushed to court and obtained interim orders. The Respondent asserts that said interim orders were obtained by concealment of material facts.

17. The Respondent asserts that Plot 239 does not form part of the estate of the Deceased. Further that any dispute over the said plot falls under the jurisdiction of the Environment and Land Court and not this Probate court. The Respondent states that the interim orders issued by the court are detrimental to her since they deprive her of income for her daily up keep and for purchase of medication to manage her hypertension as well as funds to pay off the loan she had taken. She urges the court to dismiss the application in it’s entirely.

Analysis and Determination 18. I have carefully considered the Notice of Motion before this court the Affidavit filed in Reply as well as the written submissions filed by both parties.

19. The position of the Applicant herein is that Plot 239 forms part of the estate of the Deceased. However, the Respondent is adamant that the suit property belonged to a brother of the Deceased and as such does not form part of the estate. I note that in the Petition for Grant of letters of Administration Intestate dated August 8, 2018, Plot 239 Kangemi was listed as one of the assets forming part of the estate of the Deceased. However, whereas copies of Title Deeds were annexed for the other listed properties, no proof by way of Title Deed and/or Plot card was annexed to prove that the said parcel of land belonged to the Deceased.

20. Neither the Applicant nor the Respondent have annexed any ownership documents in respect or the suit land in support of their claims. It is manifest that the dispute between the parties relates to the question of ‘ownership’ of this Plot 239, Kangemi.

21. It is trite law that where a court finds itself without jurisdiction in any matter, said court must down its tools immediately. (See Owners of Motor Vessel Lillian S – Vs - Caltex Oil (Kenya) Ltd [1989] KLR1)

22. This court is sitting as Probate Court with the mandate to oversee the distribution of the estate of the Deceased to the genuine heirs. In re: Estate of G.K.K. (Deceased)[2017] eKLR the court stated thus:-“The primary function of a probate court is distribution of the estate of the dead person.”

23. The Respondent contends that the suit land does not belong to the estate of the Deceased. The Applicant on the other hand insists that the suit land is one of the assets comprising of the estate of the Deceased. Matters relating to the ownership use and occupation of land have now under Article 162 of the Constitution of Kenya 2010 been mandated to be determined by a specialized court being the Environment and Land Court (‘ELC’).

24. Section 13 of the Environment and Land Court Act provides for the jurisdiction of that court as follows:-

13. Jurisdiction of the Court(1)The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.(2)In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes―(a)relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;(b)relating to compulsory acquisition of land;(c)relating to land administration and management;(d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and(e)any other dispute relating to environment and land. [Rev. 2012] No. 19 of 2011 Environment and Land Court 9 [Issue 1](3)…………………”

25. The Applicant and the Respondent each lay claim to Plot 239. The Applicant asserts that the said parcel of land comprises part of the estate of the Deceased. The Respondent equally asserts that the land does not belong to the estate. Neither has availed ownership documents for the suit land to support their positon. In the circumstances doubt has been raised as to whether Plot 239 belonged to the Deceased. The correct and proper forum before which the question of ‘ownership’ of this plot ought to be ventilated is the ELC. It would be counterproductive and a waste of judicial time to proceed with the hearing of this matter without evidence of any order/Decree from the ELC legitimizing the claim of the estate of the Deceased to the suit land

26. In re Estate of Stone Kathubi Muinde(Deceased) [2016] eKLR Hon Justice William Musyoka held that:-“Such claims to ownership of alleged estate property, as between the estate and a third party, should be resolved through the civil process in a civil suit properly brought before a civil court in accordance with the provisions of theCivil Procedure Actand theCivil Procedure Rules. This could mean filing suit at the magistrates’ courts, or at the Civil or Commercial Divisions of the High Court, or at the Environment and Land Court. If a decree is obtained in such suit in favour of the claimant then such decree should be presented to the probate court in the succession cause so that that court can give effect to it.” (own emphasis)

27. In the absence of any proof of who owns the suit land it would be pointless for this court to issue any orders in respect of said property. The dispute between the parties is a dispute relating to ownership of land in question. This court sitting as a Probate Court does not have jurisdiction to determine disputes relating to ownership of land. The Parties are at liberty to file suit in the ELC where they will have the opportunity to ventilate any claim they each have to the suit land.

28. Finally I find that the interim orders issued in this matter must be set aside as there is no proof/evidence that Plot 236 Kangemi belonged to the Deceased. Similarly I find no merit in this application and the same is dismissed. In conclusion, this court makes the following orders.1)The Notice of motion dated 26th January 2022 is hereby dismissed in its entirety.2)The interim orders issued in this matter on February 14, 2022are hereby set aside.3)The Administrators to file a summons for Confirmation of Grant. However, said summons must exclude Plot 239 Kangemi as the same has not been proved to form part of the estate of the Deceased.4)Once a Decree/order has been obtained from the ELC in respect of Plot 239 Kangemi the Administrators may apply for distribution of the same.5)This being a family matter each side will bear its own costs.

DATED IN NAIROBI THIS 10TH DAY OFJUNE 2022. MAUREEN A. ODEROJUDGE