[2022] KEHC 10245 (KLR)

In re Estate of Mbuu Mutua alias Mbuu Mwake (Deceased) (Succession Cause 2 of 1998) [2022] KEHC 10245 (KLR) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10245 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 2 of 1998

MW Muigai, J

July 14, 2022

IN THE MATTER OF THE ESTATE OF MBUU MUTUA ALIAS MBUU MWAKE (DECEASED)

Between

Joseph Mutua Kavoya

1st Applicant

Peter Munyao Nzuki

2nd Applicant

Titus Kinama Ndiku

3rd Applicant

Felix Muoki Mutuku

4th Applicant

Benjamin Kingoo Katuma

5th Applicant

Japheth Mutua Kasivu

6th Applicant

and

Kamene Mbuu

1st Administrator

Mulondu Mbuu

2nd Administrator

Dominic Mutua Mbuu

3rd Administrator

Ruling

Background 1. The deceased herein, Mbuu Mutua died on December 1, 1995.

2. Kamene Mbuu and Mulondu Mbuu applied on January 8, 1998 for the Grant of Letter of Administration Intestate in the estate of the deceased.

3. In the Affidavit in support of the Petition, it is indicated that the deceased was survived by the following;a.Kamene Mbuu-Wifeb.Mulondu Mbuu-Wifec.Alice Kavinu Mbuu-Daughterd.Kimeu Mbuu-Sone.Dominic Mutua Mbuu-Son

4. An inventory of the assets of the deceased as at the date of his death were listed as follows;1. Kangundo/Kyevaluki 13862. Kangundo/Kyevaluki 17853. Yatta Ndalai

5. A Grant of Letters of Administration Intestate was granted to Kamene Mbuu and Mulondu Mbuu on August 14, 1998 and issued on 19th August, 1998.

6. On May 10, 1999, the two administrators applied for the Confirmation of the Grant and a Certificate of Confirmation of Grant was issued to the two administrators on March 15, 2002. As per the attached schedule of assets, Kamene Mbuu was to get a share of 1. 6 HA and Mulondu Mbuu 1. 6 HA of parcel of land Kangundo/Kyevaluki/1785 while in respect of parcel of land Kangundo/Kyevaluki/1386, each was to get 1. 9 HA.

7. On November 26, 2020 the Objector herein filed Summons for revocation or annulment of Grant and also sought for the cancellation of the title deed for parcel of land Kangundo/Kyevaluki/1386 and 1785.

8. On December 15, 2020, D.K. Kemei J. found that based on an affidavit of service, the Summons had not been opposed by 1st and 2nd Administrators herein despite proof of service and the following court orders were issued;1. That the Certificate of Confirmation of the Grant issued herein to Kamene Mbuu and Mulondu Mbuu be and is hereby annulled and/or revoked and the Respondents are ordered to file fresh summons for confirmation of grant to enable other beneficiaries protest if need be.2. That all title deeds, subdivisions and transfers effected by use of the said Certificate of Confirmation of Grant on all parcels of land known as Kangundo/Kyevaluki/1386 and 1785 be recalled and cancelled and the same be re-registered in the names of the deceased herein and the Land Registrar do file a report in court within 7 days of service of the order confirming implementation of the same.3. That costs of this application to be borne by the Respondent.4. ....

9. On November 2, 2020, the Deputy Registrar issued an order directing the Land Registrar to register a Prohibition over parcel of land known as Kangundo/Kyevaluki/1386 and 1785 and report to court with 7 days.

10. Vide an application dated May 10, 2021 by the 2nd Administrator, the name of the deceased Mbuu Mutua and the administrator Mulondu Mbuu were rectified to read as Mbuu Mutua alias Mbuu Mwake and Rodah Mulondu Mbuu respectively.

11. Based on the requested rectification by the 2nd Administrator/Respondent, on June 17, 2021, the Grant of representation was rectified and issued on June 30, 2021 whereby under the schedule of assets, parcel of land Kangundo/Kyevaluki /1785 and 1386 were to be shared equally amongst the following beneficiaries;a.Kamene Mbuub.Kavini Mbuuc.Rodah Mulondu Mbuud.Dominic Mutua Mbuue.Kimeu Mbuuf.Mutio Mutavag.Mary Mbula Kaindih.Syombua Wambua

12. On November 25, 2021, Dominic Mutua Mbuu, the Objector/Respondent herein was substituted in place of the deceased administrator, Rodah Mulondu Mbuu to administer the deceased’s estate with Kamene Mbuu. A fresh Grant of Letters of Administration and a Certificate of Confirmation of the Grant were issued on 1st February, 2022 to Kamene Mbuu and Dominic Mutua Mbuu to administer the estate of the deceased.

Summons dated 10. 02. 2022 13. The 1st to 6th Applicants sought the following orders:-1. That the matter be certified as urgent, service thereof be dispensed with and the same be heard exparte in the first instance.2. That pending the interpartes hearing and determination of this application, the honourable court be pleased to suspend/stay the effect of its orders of 15. 12. 2020 and all other consequential orders issued pursuant thereto.3. That pending the interpartes hearing and determination of this application and/or further orders a temporary injunction do issue restraining the Respondents, the beneficiaries of the estate of the deceased, their agents, servants or any other persons whether acting on their own or on behalf from proceeding with the alienation, transfer or howsoever dealing with all that Land Title No. Kangundo/Kyevaluki/2246 measuring 1. 9 hectares sold to the Applicants by the 1st Respondent and comprised in Land Title No. Kangundo/Kyevaluki/13864. That the Honourable Court be pleased to ex debito justiciae set aside its orders of 15. 12. 2020(Hon. Justice D. K. Kemei) and all consequential orders issued pursuant thereto.5. That the Applicants be granted unconditional leave to defend the Summons for Revocation of the grant with emphasis on their preservation of their property right acquired after purchase of Land Title No. Kangundo/Kyevaluki/2246 carved from Kangundo/Kyevaluki/1386. 6.That the costs be in the cause.

14. The Summons is supported by the Supporting affidavit of Titus Kinama and Benjamin Kingoo Katuma sworn on 10th February, 2022. According to the deponents, the Applicants are all individuals carrying on business under the name of Kyevaluki Hill Investments. They averred that as a group policy whenever they acquire any property, it is registered in the names of such members of the group as may be agreed upon.

15. According to the deponents, between 2011 and 2016, they purchased for valuable consideration a parcel of land measuring 1. 9 hectares subject to title number Kangundo/Kyevaluki/2246 (a subdivision from Kangundo/Kyevaluki/1386) from the 1st Respondent. They averred that the family of the 1st Respondent had occupied 50% of Kangundo/Kyevaluki/1785 hence the reason why the 1st Respondent’s family sold to them half portion of Kangundo/Kyevaluki/1386 which 50% of the parcel of land was occupied by the 2nd Respondent’s family.

16. It is averred that in December, 2021 they got unconfirmed reports that their title deed had been cancelled vide the court orders and the official search of the property confirmed to them the court orders of 15th December, 2020. According to the deponents, the Applicants have developed Land Title No. Kangundo/Kyevaluki/2246 by sinking a borehole and building a tank in a portion of the land hence the community is at risk of losing access to water in the event of a demolition of the borehole. They asserted that the purchase of the suit property from the registered owner/1st Respondent was done in full glare of the public and the Objector as well as the entire family of the deceased hence the application seeking revocation of their title smacks of mala fides especially when the same is being made after a decade and demise of one of them.

17. According to the deponents, the Applicants have exercised and enjoyed unabated and continuous property rights over their said parcel of land for over ten (10) years as well as the 1stRespondent who had obtained a confirmed Grant of letters of administration on 18. 03. 2002 confirming her as the owner. The deponents assert that the Applicants were never notified of the present proceedings by the administrators, the Objector and/or other parties yet it is a cardinal principle of justice and rule of law that all persons expected to be adversely affected by any order of a court or judicial body be heard before any such decision is made. They averred that their proprietary rights acquired over the parcel of land require to be secured ex debito justiciae which can only be exercised and recognized within the context of the present proceedings and titled.

18. In their view, the deponents assert that the court would have reached a different finding had it been made aware of the information contained in their application herein hence. They urged the court in the interest of justice to grant the orders sought by the Applicants.

Objector/respondent’s Replying Affidavit 19. In opposition to the Summons, Dominic Mutua Mbuu, the Objector/Respondent herein swore a replying affidavit dated April 4, 2022 wherein he has averred that he is a biological son of the deceased herein but the Applicants are neither sons, beneficiaries nor creditors of the estate herein.

20. According to the deponent, the 1st Administrator/Respondent secretly and with the help of the Applicants filed the succession proceedings herein in a bid to defraud the estate. He averred that the 1stRespondent did not inform the 2ndRespondent and his siblings of the proceedings herein hence they did not sign the consent to the making and/or confirmation of the Grant.

21. According to the Objector/Respondent, the Applicants and in conjunction with the 1st Respondent fraudulently through concealment of material facts that there existed other beneficiaries of the estate namely Dominic Mutua Mbuu (son), Kimeu Mbuu (Son), Mutio Mbuu (daughter), Mbula Mbuu (daughter) and Syombua Mbuu (daughter) who were persons of prior or equal rights in the deceased estate and had not renounced their rights prior to the issuance of the letters of administration.

22. According to the deponent, his interest was not taken care of in the said Grant. He asserted that together with his siblings they have been disinherited from the estate as the 1stRespondent purportedly sold the land which they have been occupying since time immemorial and did not sell the land which she occupied. According to the deponent, if this application is not allowed, they will be rendered vagabonds. He averred that the aforesaid beneficiaries who are concealed from the court were not given portion of the estate despite having permanent house on the properties of the estate.

23. According to the deponent, this fraud was done through the collusion of the 1stRespondent, the Area Chief, Assistant Chief and Personal sureties of the 1stRespondent who failed to certify to court that the estate had other beneficiaries. He averred that it was after they became aware of the said fraud that they filed Summons for Revocation of the Grant which was allowed by court and all titles were cancelled hence there is nothing to stay.

24. He averred that the Applicants purport to have purchased the land yet the following issues of fraud arise;a.There is no sale agreement for the sale and purchase of either Kangundo/Kyvaluki/1386 or its subdivision namely Kangundo/Kyevaluki/2246. b.That the 2nd Administrator did not consent to the purported sale in violation of the Grant of letters of administration whereof they had been ordered to act jointly.c.Under the purported sale agreement, the land was sold to Kyevaluki Hill Investment Group yet in the certificate of registration, they are registered as Kyevaluki Hill Investments which are totally 2 different legal personalities.d.That the 2nd Administrator did not sign the mutation formse.That there are no transfer forms to show that the 2nd Administrator consented to the alleged sale and signed the same.f.That the title deed is purportedly issued in the names of Joseph Mutua Kavoya, Peter Munyao Nzuki and Titus Kinama Ndiku yet the sale agreement is by different legal entityg.That the Applicants and the purported purchaser are two different legal entities and the agreement did not provide for assignment of the sold interests.

25. According to the deponent, the Applicants should base their claim directly to the 1stAdministrator. It is the view of the deponent, that this court lacks jurisdiction to hear this suit based on the sale, purchase and use of land as the same is a preserve of the Environment and Land Court hence the Applicants should be advised to sue the 1stAdministrator instead. According to the deponent, this court can only hear disputes between beneficiaries but not purchasers.

26. According to the deponent, they have been in occupation of the suit property and to the exclusion of the 1stAdministrator hence the use of the Area Local Chief and Provincial Administration to forcefully gain entry and destroy properties on the suit property does not confer ownership to them.

27. Based on his averments above, he urged the court to dismiss the Applicants Summons with costs.

Applicants Skeleton Submissions 28. On behalf of the Applicants, it is submitted that they deserve to be granted the orders they have sought herein for the basic and fundamental reason that by the said court order of 15th December, 2021 they were condemned unheard.

29. According to the Applicants, the Respondents have not denied that 2nd Respondent was fully aware at all material times that the Applicants had purchased land title No. Kangundo/Kyevaluki/2246 from the 1st Respondent hence the actual purchase of the suit land by the Applicants cannot be regularly challenged before a court of law without joining the Applicants to the court proceeding challenging an otherwise legal sale.

30. In response to the 1st Respondents challenge to the jurisdiction of this court over this matter, it is submitted that the argument is spurious and moot. According to the Applicants, this court has revoked the Grant, Certificate of Confirmation of Grant and the title deeds for the suit land hence this court having been vested with jurisdiction to do so, it would amount to approbating and reprobating by arguing that this court now lacks jurisdiction to Undo that which it has legally Done.

31. According to the Applicants, they are simply seeking orders of restoration to the initial and original legal status they occupied in regard to their ownership of the suit property and thereafter the objection proceedings can be heard and determined inter partes in the presence of all parties directly affected.

32. It is submitted that the Applicants failed to particularize and specifically prove any allegations of fraud so as to indict the subject sale of the suit land and the Applicants. It is the Applicants view that the proper proceedings in which the 2nd Respondent can regularly raise such allegations would be the inter partes objection proceedings to the issuance of the grant and certificate of confirmation. They urged the court to grant the substantive orders prayed for in the Summons ex debito justiciae.

Objector/respondent’s Submissions 33. Regarding the suspension/stay orders sought by the Applicants, reliance was placed on the case Kungu Muthua v James Icharia Kungu (2015) eKLR where conditions considered by court to grant stay were pronounced. One of the conditions being proof of substantial loss, it is submitted that the Applicants have not attempted to demonstrate the likelihood of substantial loss occasioned to them in the event the stay is not granted. Reliance was placed on the case of Kungu Muthua v James Icharia Kungu (supra) and Machira t/a Machira & Co. Advocates v East African Standard (No.2) (2002) KLR 63. The 2nd Respondent urged the court to dismiss the Summons based on this ground.

34. Regarding furnishing of security of costs, it is submitted that despite it being a discretion for the court to consider the sufficiency of the security offered, it is imperative that the Applicants show good will either on their own motion or as directed by court for the due performance. According to the 2nd Respondent, there is no mention nor indication by the Applicants of their willingness to furnish security for costs. It is submitted that the failure to make the offer by the Applicants, the Summons should therefore be dismissed.

35. As to whether there was unreasonable delay to file the Summons, it is submitted that the Applicants Summons was filed on February 11, 2022 while the subject court orders had been issued on December 15, 2020 but the Applicants have not explained the 14 months period between the delivery of the judgment and filing of this Summons. Based on the cases of Charles Nyamwega v Asa Njeri Kimata & Another(2017)eKLR where Njuguna J. quoted the case of Moiisen Ali & Another v Priscillah Boit & Another ELC No. 200 of 2014[2014]eKLR, it is submitted that the Summons herein has been filed with inordinate and inexcusable delay.

36. According to the Objector/Respondent, this court lacks jurisdiction to set aside the court orders of December 15, 2020 as well as the revocation of the grant proceedings to afford the Applicants an opportunity to defend the cause. It is the view of the 2nd Respondent that order 9a rule 10 of theCivil Procedure Ruleswere not imported into theProbate and Administration Rulesto apply in Succession matters. It is further submitted that rule 49 and 63 of theProbate and Administration Rulesdo not give this court the power to set aside orders and in any case the orders of the court were long effected and as such there is nothing left to be stayed.

37. It is submitted that since the 1st Administrator/Respondent is alive and has a portion of land, the proper forum for them to claim directly against her would be the Environment and Land Court. According to the Objector/Respondent, the grant was revoked because of fraud of omitting the beneficiaries of the estate. Regarding the issue of purchaser approaching the family court, it is submitted such issues should be resolved by the civil court and not the family court. Reliance was placed on the case In re Estate of Joseph Mutiso Kithome (Deceased) [2019]eKLR quoting with approval Musyoka J. decision in re Estate of Stone Kathuli Muinde(Deceased) [2016]eKLR.

38. According to the Objector/Respondent, there has been no conclusive evidence put forward by the Applicants to warrant the grant of the orders sought. He urged the court to find that the Applicants Summons dated 10th February, 2022 is an abuse of the court’s time and unmerited and should be dismissed with costs.

Determination 39. I have considered the Summons, affidavit in support and in opposition and submissions filed. The jurisdiction of this court is contested by the Objector/Respondent.

Jurisdiction of this Court 40. The Court’s jurisdiction was well put by Musyoka J. in the case of In re Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR, wherein he stated: -“It may be argued that the subject land is estate property and by dint of that fact the probate court would have jurisdiction thereon. The position is not as simple. The Law of Succession Act, and the Rules made thereunder, are designed in such a way that they confer jurisdiction to the probate court with respect to determining the assets of the deceased, the survivors of the deceased and the persons with beneficial interest, and finally distribution of the assets amongst the survivors and the persons beneficially interested. The function of the probate court in the circumstances would be to facilitate collection and preservation of the estate, identification of survivors and beneficiaries, and distribution of the assets.Disputes of course do arise in the process. The provisions of the Law of Succession Act and the Probate and Administration Rules are tailored for resolution of disputes between the personal representatives of the deceased and the survivors, beneficiaries and dependants. However, claims by and against third parties, meaning persons who are neither survivors of the deceased nor beneficiaries, are for resolution outside of the framework set out in theLaw of Succession Actand theProbate and Administration Rules.” (Emphasis added).

41. The question of jurisdiction raised by a party must be dealt with by court before proceeding with the matter as per Nyarangi, JA. in the locus classical case of Owners of the Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd (1989) KLR.

42. According to the Objector/Respondent, the Applicants ought to pursue their claim against the 1st Respondent who they claim sold to them 1. 9 acres of parcel of land Title No. Kangundo/Kyevaluki/1386. It is submitted that their claim can only be adjudicated upon by the Environment and Land Court and not the family court.

43. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (supra) Nyarangi JA. held:“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 tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction ... ”

44. In the same vein, the Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, explained that:“A Court's jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred by law. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings...Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power on Parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law."

45. Article 165 (3) of the Constitution provides:-“(3)Subject to clause (5), the High Court shall have—(a)unlimited original jurisdiction in criminal and civil matters; ...”

46. However, that unlimited original jurisdiction has been ousted under sub-article 5 of the article, that;(5)The High Court shall not have jurisdiction in respect of matters—(a)reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or(b)falling within the jurisdiction of the courts contemplated in Article 162 (2) ...”

47. The Environment and Land Court is one of the courts contemplated under article 162(2) of the Constitution, 2010 and its jurisdiction is provided for under section 13 of the Environment and Land Court Act.

48. The Environment and Land Court has the power to hear and determine issues relating to the use and occupation of, and title to land. According to the Objector/Respondent, this court can only hear disputes between beneficiaries but not purchasers in this case the Applicants. It is submitted that the Applicants claim is against the 1st Respondent the basis being that the 1st Respondent sold Kangundo/Kyevaluki/2246 hived off from Kangundo/Kyevaluki/1386 to the Applicants.

49. Musyoka J. In re Estate of Alice Mumbua Mutua (Deceased) Succession Cause No. 3142 of 2003 [2017] eKLR held;“Clearly, disputes as between the estate and third parties need not be determined within the succession cause. The legal infrastructure in place provides for resolution elsewhere, and upon a determination being made by the civil court, the decree or order is then made available to the probate court for implementation. In the meantime the property in question is removed from the distribution table. The presumption is that such disputes arise before the distribution of the estate, or the confirmation of the grant. Where they arise after confirmation, then they ought strictly to be determined outside of the probate suit, for the probate court would in most cases be functus officio so far as the property in question is concerned. The primary mandate of the probate court is distribution of the estate and once an order is made distributing the estate, the court’s work would be complete. The proposition therefore is that not every dispute over property of a dead person ought to be pushed to the probate court. The interventions by that court are limited to what I have stated above.” [Emphasis added]

50. Joel Ngugi J. in Joseph Koori Ngugi & another v Stephen Ndichu J. Mukima [2017] eKLR stated:“24. I am persuaded that this is the correct appreciation of the law and circumstances of this situation. I say so both for doctrinal and prudential reasons. Doctrinally, as alluded to above, a claim for an equitable interest in land is a claim against the legal owner of land and hence a dispute over ownership of the land. I am persuaded that the drafters of the Kenyan Constitution intended such questions to be determined in the ELC. The text of the Constitution and section 13 of the ELC Act seems perfectly clear to me on that question.25. In addition,in my view, prudential reasons militate in favour of these kinds of disputes being heard at theELCor at least in a separate suit. While I agree that the Law of Succession Act envisages a class of people beyond “traditional” beneficiaries to bring proceedings for revocation or annulment of a grant of representation in a probate cause, cases which present a straightforward challenge to the ownership of property by the Deceased present a separate question and not a probate matter. To attempt to resolve such issues of contested ownership in the context of a probate case could obfuscate the real issues and lead a Court to reach wrong or compromised conclusions. This is in part because probate proceedings are not designed for parties to be able to effectively litigate complex issues of ownership. In a separate suit, parties are better able to plead their case, go through discovery process and a fully-fledged hearing where evidence can be properly presented, contested, examined and veracity tested ...”

51. In response, the Applicants submitted that the question of jurisdiction of this court is spurious and moot since this court can undo that which it has legally Done in this revoking the Grant and cancelling the title to the land.

52. Essentially the Applicants mean that they are the legal proprietors of Kangundo/Kyevaluki/2246 measuring 1. 9 hectares which was sold to them by the 1st Respondent. Their claim is based on a sale agreement, mutation form and a title deed attached to the supporting affidavit.

53. What is ‘moot’ has been defined in the Black’s Law Dictionary Free Online Dictionary 2nd Ed. to mean ‘the term that is given to a hypothetical question and a question that is not answered by referring to facts.

54. According to Mativo J. in Shadrack Kinyanjui Wambui v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR:-“4. A matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law. Thereby the matter has been deprived of practical significance or rendered purely academic.5. Mootness arises when there is no longer an actual controversy between the parties to a court case, and any ruling by the court would have no actual, practical impact.17. A case or issue is considered moot and academic when it ceases to present a justiciable controversy by virtue of supervening events, so that an adjudication of the case or a declaration on the issue would be of no practical value or use. In such instance, there is no actual substantial relief which a petitioner would be entitled to, and which would be negated by the dismissal of the petition. Courts generally decline jurisdiction over such cases or dismiss it on the ground of mootness, save when, among others, a compelling constitutional issue raised requires the formulation of controlling principles to guide the bench, the bar and the public; or when the case is capable of repetition yet evading judicial review...”

55. The Courts will therefore generally decline jurisdiction over such cases or dismiss matters that exemplify mootness.

56. The Applicants seek the suspension/stay and setting aside the orders of Kemei J. issued on 15th December, 2020. The effect of the court orders is that Kangundo/Kyevaluki/1386 reverted back to the estate of the deceased. The Objector/Respondent has attached an official search from the Land Registry that establish the proprietor of the land to be the deceased herein and not the Applicants. I have perused the Petition for letters of administration and I note that when the deceased died 1st December, 1995, the Title to the parcel of land No. Kangundo/Kyevaluki/ 1386 was registered in his name and therefore the parcel of land formed part of assets of the deceased as defined under Section 3 of the Law of Succession Act.

57. Based on the undated Sale Agreement attached to the Affidavit of Titus Kinama Ndiku and Benjamin Kingoo Katuma in support of the Applicants Summons, the buyer is indicated to be Kyevaluki Hill Investment Group and the seller is only the 1st Respondent. It is indicated in the sale agreement that the buyer was to pay the purchase price in 3 installments on 17th July, 2011 at Kshs.340, 000/, on 30th October, 2011 at Kshs. 200,000/- and on 13th June, 2016 at Kshs. 100,000/-. It can therefore be presumed that the sale transaction commenced in the year 2011 and was completed in 2016. The title to the portion of land hived off Kangundo/Kyevaluki/2246 was issued on 20th December, 2018.

58. At the time of sale of the parcel of land Kangundo/Kyevaluki/2246, the administrators of the estate were Kamane Mbuu, the 1st Respondent and Mulondu Mbuu (Deceased) pursuant to the Grant of representation issued to them on 15th March, 2002. The name of the Mulondu Mbuu does not appear in the said sale agreement as one of seller yet she was an administrator of the estate.

59. Section 82 of the Law of Succession Act provides:-“Powers of personal representativesPersonal representatives shall, subject only to any limitation imposed by their grant, have the following powers—(a)to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative;(b)to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best: ... ”

60. Section 83 of the same Actprovides:-“Duties of personal representativesPersonal representatives shall have the following duties—(a)to provide and pay out of the estate of the deceased, the expenses of a reasonable funeral for him;(b)to get in all free property of the deceased, including debts owing to him and moneys payable to his personal representatives by reason of his death;(c)to pay, out of the estate of the deceased, all expenses of obtaining their grant of representation, and all other reasonable expenses of administration (including estate duty, if any);(d)to ascertain and pay, out of the estate of the deceased, all his debts;(e)within six months from the date of the grant, to produce to the court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;(f)subject to section 55, to distribute or to retain on trust (as the case may require) all assets remaining after payment of expenses and debts as provided by the preceding paragraphs of this section and the income therefrom, according to the respective beneficial interest therein under the will or on intestacy, as the case may be;(g)within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the court a full and accurate account of the completed administration;(h)to produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;(i)to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration ... ”

61. It is clear from the above provision that the administrators were under obligation to provide a full and accurate inventory of the assets and liabilities of the deceased’s estate but the court finds none has been provided by the 1st Respondent. The 2nd Respondent (deceased) was not involved by the 1st Respondent in the sale transaction.

62. Odunga J. in In re Estate of Mary Ng’ondu Mwanunga (Deceased) [2019] eKLR held that:“17. In the same vein, where there are more than one administrators of the estate of a deceased, all the administrator must act jointly. This is so because an administrator is in the position of a trustee for the benefit of the beneficiaries. Just like other trustees, he must act in the best interests of the beneficiaries. It was therefore held in Willis Ochieng Odhiambo v Kenya Tourist Development Corporation & Another Kisumu HCCC No. 51 of 2007 based on Lewin on Trusts 16th Ed at 181 that:“In the case of co-trustees of a private trust, the office is a joint one. Where the administration of the trust is vested in co-trustees they all form as it were one collective trust and therefore must execute the duties of their offices in their joint capacity.”18. In this case the contention is that the applicant has been kept in the dark about the ongoing in the estate by his co-administrator. In my view unless an administrator acts in accordance with the instrument that appointed him, in this case jointly, he may well be considered to be intermeddling with the estate since his powers and authority must always be jointly exercised.”

63. By dint of Section 45 of the Law of Succession Act, therefore the sale transaction between the 1st Respondent and the Applicants amounted to intermeddling with the estate of the deceased as written consents were not obtained from all beneficiaries on confirmation of grant and the sale was by only 1 Administrator to the exclusion of the other Administrator.

64. Musyoka, J. in Veronica Njoki Wakagoto (Deceased) [2013] eKLR that:“The effect of [section 45]…is that the property of a dead person cannot be lawfully dealt with by anybody unless such a person is authorised to do so by the Law. Such authority emanates from a grant of representation and any person who handles estate property without authority is guilty of intermeddling. The law takes a very serious view of intermeddling and makes it a criminal offence.” See In re Estate of M’Ngarithi M’Miriti [2017] eKLR.

65. The Court’s view is that since the parcel of land Kangundo/Kyevaluki/1386 is in the name of the deceased herein, this court has the jurisdiction over the distribution of the assets amongst the survivors of the deceased and the persons beneficially interested. We have a Certificate of Confirmation of Grant on record which requires the distribution of the assets of the deceased herein to be shared equally amongst the beneficiaries. The Applicants are not listed as beneficiaries of the estate and if they are to pursue their claim over the said parcel of land, it will be against the 1st Respondent and not the estate of the deceased herein.

66. Accordingly, the court finds that the orders sought against the estate herein are not merited.

Disposition(a)In the premises, the court finds the Summons dated 10th February, 2022 lacks merit and is hereby dismissed.(b)A preservation order in respect of parcel of land Title No. Kangundo/Kyevaluki/2246 and/or Kangundo/ Kyevaluki/1386 shall issue against the Applicants, their agents, servants or any other persons whether acting on their own or on behalf from proceeding with the alienation, transfer or howsoever dealing with all that parcel of land and to pursue their claim from ELC Court against 1st Respondent.c.The Objector/Respondent shall have the costs of the Summons.It is so ordered.

DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 14th DAY OF JULY, 2022 (VIRTUAL CONFERENCE).M.W. MUIGAIJUDGE