[2019] KEHC 4392 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 664 OF 2012

IN THE MATTER OF THE ESTATE OF M’MUCHIRI M’NABEA (DECEASED)

JERICAH NKIROTE M’MUCHIRI ............................ PETITIONER

VERSUS

SARAH KARWITHA MUCHIRI MBAMBA

JOSEPH MWENDA MUCHIRI

LUCY MUKAMI MUCHIRI

MARY KITHIIRI MWITARI

M’INOTI M’NABEA alias

STEPHEN MURITHI NABEA .........................................OBJECTORS

J U D G M E N T

1. M’MUCHIRI M’NABEA (“the deceased”)died on 24th May, 2012. According to the area Chief’s letter dated 16th July, 2012, the deceased left a widow and five children as his beneficiaries and eight properties constituting his estate.

2. On 2nd May, 2014, Jerica Nkirote Muchiri (“the petitioner”)petitioned for letters of administration of his estate intestate which was issued to her on 29th August, 2013. She thereafter applied for confirmation and the grant was confirmed on 26th June, 2014 whereby 5 of the properties were distributed to her and 3 to one Isaac Kimene Nabea.

3. By an application dated 26th May, 2015, the objectors applied for the revocation of the grant and for the registration of L.R. Nyaki/Kithoka/3249 and 3250in the name of Harun Muthomito be cancelled and the property to revert back to the deceased.

4. The application was grounded on the supporting affidavit sworn 26th May, 2015 by all the applicants. Basically, the applicants alleged that; they were beneficiaries of the estate yet they were not involved in the lodging of the petition; that the consents relied on by the petitioner to lodge the petition and distribute the estate was a forgery; that the deceased held the estate property in trust for, inter alia, his brothers.

5. The application was opposed by the petitioner vide her replying affidavit sworn on 13th July, 2015. The application was heard by way of viva voce evidence whereby the witnesses filed their affidavit evidence and witness statements on which they were cross-examined on.

7. OW1 M’Inoti M’Nabea alias Stephen Muchiri Nabea (hereinafter “the 5th objector”) told the court that he was a brother to the deceased. That during demarcation in 1967, their father, M’Nabea M’Rintwara, had given the deceased L.R. Nyaki/Kithoka/135to hold in trust for his siblings as he was the eldest son. That he build a permanent house thereon in 1959 and has lived thereon to-date. That his wife and five children are buried thereon.

8. That despite as aforesaid, the deceased had subdivided the property into various portions and had sold some of the sub-divisions. That he had bought his own land, L.R. Nyaki/Kithoka/298which he has since distributed to his children. That the deceased held in trust for him 2 ½ acres in L.R. Nyaki/Kithoka/135which he was claiming. That the petitioner did not consult him and the other beneficiaries of the deceased before she lodged the Cause.

9. OW2 Joseph Mwenda Muchiri testified that he was a son to the deceased from the latter’s 1st wife one Maritha Karambu. That the deceased had four wives from whom he begot many children who were, however not consulted by the petitioner when she lodged this Cause. That he knew that the deceased held L.R. Nyaki/Kithoka/3248, 3249, 3250 and 3251on behalf of the 5th objector.

10. OW3 Sarah Karwitha Muchiri denied signing the consent to the making of the grant by the petitioner. She supported the claim of the 5th objector. She set out those she contended to be the beneficiaries of the deceased who included one Lucy Ntinyari who was deceased but had left behind one daughter i.e. Angela Nkirote.

11. OW4 Harriet Karamanatestified that she was a daughter to Charity Kithao, a sister to the deceased. That her late mother had been given L.R. Nyaki/Kithoka/1490 by the deceased when he was still alive. She further testified that the deceased sold to her L.R. Nyaki/Kithoka/3252. It was her contention that the deceased held Nyaki/Kithoka/135 in trust for all the beneficiaries ofM’Nabea M’Rintuara.

12. PW1 Jerica Nkirote M’Muchiri told the court that she was the 2nd wife of the deceased, having been married for eight (8) years. That M’Nabea M’Rintwara,the deceased’s father, gave each of his three sons and daughters their parcels of land while he was alive. That the 5th objector was given plot No. Nyaki/Kithoka/298, the deceased Nyaki/Kithoka/135while Isaac Kimenewas given Nyaki/Kithoka/334.

13. That she intended to distribute the five properties confirmed to her to six of the deceased’s children. She denied having sold Plot Nos. 3250 and 3249 and contended that the same were sold to Harun Muthomi by the deceased. That Plot No. 1505 was sold to Isaac Kimene and that none of the objectors had any claim over the estate.

14. PW2 Charity Mwari testified she was the biological daughter of the deceased. She denied that OW2 was a child of the deceased. She supported PW1’stestimony on how M’Nabea M’Rintuarahad allegedly settled his children.

15. All the parties duly filed their submissions which the court has carefully considered. Having considered the record, the testimonies of the witnesses and the submissions of Learned Counsel, the issues for determination are; whether the grant should be revoked, who the beneficiaries of the deceased are, and how the estate should be distributed.

16. The provision that relate to revocation and/or annulment of grant is section 76 of the Law of SuccessionAct, Cap 160 Laws of Kenya (hereinafter “the Act”). The section sets out the grounds upon which a grant may be revoked 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. The objectors alleged that there was a mistake, concealment and misrepresentation of material facts by the petitioner. That they were not informed before this succession cause was filed and that the petitioner did not disclose that the deceased was holding the property, the subject of the Cause, in trust for his brothers and sisters.

18. It was the objectors’ contention that they were not consulted before the Cause was filed. That they never consented to the filing of the petition. The petitioner submitted that being a widow of the deceased, she did not need the consent of the other beneficiaries before lodging the petition.

19. The evidence on record clearly showed that, although the deceased had about five wives, the petitioner was the only surviving widow. That being the case, under section 66 of the Act,she ranked in priority over all the other beneficiaries in applying for letters of administration. I agree with Mr. Karanja,Learned Counsel for the petitioner, that the petitioner did not require the consents of the objectors before filing the Cause.

20. Although there was no requirement for the petitioner to seek the consents of the beneficiaries, she nevertheless filed the consents. There was a consent filed on 26th October, 2012 together with the petition and another one for distribution on 2nd May 2014. The said consents were allegedly signed by Sarah Karwitha, Lucy Mukami, Charles Karemu, Zipporah Nthaari and Joyce Makena. Except Charles Karemu’s signature, the other signatures were hand- written name initials. Sarah Karwitha appeared and denied ever signing any of the said consents.

21. Although the said documents were not subjected to forensic examination, a casual look at the documents clearly shows that the initials may have been made by the same person. The testimony of Sarah Karwitha that she was away in Sweden at the time and that she did not sign either of the said consents was neither challenged nor denied.

22. The petitioner did not deny in her evidence in chief as well as cross-examination that the consents were not signed by the persons appearing thereon. She casually stated in re-examination that the consents had been executed by the named persons. I did not believe her. Sarah Karwithaappeared and her evidence was never challenged.

23. It was submitted for the petitioner that the failure to obtain consents of beneficiaries is no ground to revoke a grant. The case of Angelas Maina v. Rebecca Waiyego Mwangi & Another [2016] eKLR, was relied on for this proposition. To my mind however, while the said decision may have been correct on its own facts, I do not think the reasoning would apply here.

23. To the extent that the petitioner presented in court forged documents which were relied on to issue and confirm the grant, the grant cannot stand. The court cannot close its eyes to an illegality. That would be tantamount to encouraging wrong doers in their unlawful mission. If it were that the consents were completely not there, it would have been a different case. However, here there were admittedly forged consents. That grant cannot stand. The same is for revocation.

24. A petitioner is a trustee who should act in utmost good faith. By presenting in court forged documents, the petitioner was not acting in good faith.

25. The second issue is, who are the beneficiaries of the deceased? In considering this issue, the question of trust was raised by the objectors. The parties were agreeable as to who the beneficiaries of the estate were, except for Joseph Mwenda and M’’Inoti M’Nabea.All the rest who were set out in the chief’s letter of introduction, to wit, Jerica Nkirote, Sarah Karwitha, Grace Karimi, Joseph Kinyua, Lucy Gatiria, Lucy Mukami, Charity Mwari, Charles Karemu, Zipporah Nthaani, Joyce Makena, Rose Wanja, Nancy Kairuthi and Peter Mukundiwere admittedly the widow and children of the deceased and therefore beneficiaries.

26. Apart from those set out above, there were also claims by and or in respect of Isaac Kimene(who died shortly before the trial) and Harriet Karamana.I propose to deal with this issue by considering the claims of Isaac Kimene, Harriet Karamana, Joseph Mwendaand M’Inoti M’Nabeain that order.

27. Before I deal with the said claims, both Mr. Mutunga and Mr. Karanja,Learned Counsels for the objectors and the petitioner respectively were of the mistaken belief that this court has no jurisdiction to determine the issue of trust raised by the objectors. Mr. Mutungasubmitted that the court should revoke the grant and stay the proceedings pending the issue of trust being argued before the Environment and Land Court (“the ELC Court”). Mr. Karanjaon his part powerfully submitted that the court with jurisdiction was the ELC court and by dint of the dicta in the Owners of Motor Vessel Lilian ‘S’ v. Caltex Oil Kenya Ltd [1989] KLR 1653, this court should down its tools.

28. Far from that. In Zipporah Wanjiru Mwangi v. Zipporah Wanjiru Njoroge [2017] eKLR, the Court of Appeal delivered itself as follows:-

“In succession proceedings where, as here, existence of a trust is alleged in respect of land claimed to be family land, it is appropriate to the court to give directions as to the procedure to be followed. …

Where, as here, the issue (of trust) arises in succession proceedings whether the land is family land and therefore is subject to trust or whether it is owned absolutely by the deceased and therefore is not subject to distribution, the court hearing the succession proceedings has jurisdiction to determine the issue and to give appropriate directions on the hearing. This is in line with the jurisdiction vested in the High Court by Article 165(3) (a) of the Constitution and Section 47 of the Law of Succession Act, Cap 160”.

29. In re Estate of of M’Mukira M’Arimi (Deceased) [2019] eKLR,the court felt that it was bound by the aforesaid pronouncement of the Court of Appeal and held:-

“On the basis of the foregoing and the objectors having claimed the existence of a trust, I hold that this court has jurisdiction to determine the objectors’ claim in these proceedings.

…

…, a trust will not be implied or presumed unless it is to give effect to the intention of the parties. Before a trust can be implied, the intention of the parties to create a trust must clearly be determined and established. In the present case it was the objectors to prove the existence of the trust.”

30. In view of the forgoing, I hold and find that where an issue arises before a family court when dealing with a Succession Cause such as this, that the land formed trust land, the family court has jurisdiction to determine the same. It is for this reason that this court gave the parties latitude to tender viva vocetestimony. Indeed, the court granted the parties leave, even while the trial was going on, to file further affidavit evidence and even recalled witnesses to try and establish their respective cases.

31. Accordingly, I hold that this court has the jurisdiction to determine the issue of trust raised by the objectors in this matter.

32. I will now consider the claim by each of those said not to be beneficiaries. Isaac Kimenewas but a brother to the deceased. He was not part of the objectors but had been included in the original distribution whereby three properties, to wit, L.R. Nos. Nyaki/Kithoka/1490, 2528 and 3248were distributed to him. The 5th objector alleged that the said properties had been distributed to him because the deceased held L.R. No. 135(the original property from which all the other sub-divisions arose from) in trust for his brothers and sister.

33. At the trial, it turned out that Isaac Kimenehad filed a statement on 5th November, 2018. In that statement, he denied the existence of any trust in respect of L.R. No. 135. He stated that his father, M’Nabea M’Rintwarahad distributed his properties to all his sons. That the deceased was given L.R. No. 135,the 5th objector got L.R. No. 298 while he was given Nyaki/Kithoka/334. He also stated that he had bought Nyaki/Kithoka/1263, 2528and 3248 from the deceased on various dates. I caution myself that the said statement was not tested in cross-examination.

34. However, there were two agreements that were produced to back up the allegations of Isaac Kimene.There was an agreement dated 21st January, 1980 by which he purchased 2. 5 acres (1ha) from L.R. No. 788 from the deceased. After sub-division, this became L.R. No. 1263. There was also an agreement dated 10th December, 2001 whereby Isaac Kimenepurchased ¼ acre from the deceased. That agreement was witnessed by among others the 5th objector. This was what constituted Nyaki/Kithoka/2528 (0. 10ha)and Nyaki/Kithoka/3248 (0. 06ha).

35. To my mind Isaac Kimenewas entitled to the said Nyaki/Kithoka/2528 and 3248,from the estate having purchased them from the deceased during his lifetime. As regards Nyaki/Kithoka/1490,his statement was categorical that it belonged to his late sister Charity Kithao.

36. Harriet Karamana,testified that she was one of the daughters of Charity Kithao,who was a sister to the deceased. She told the court that her mother was entitled to Nyaki/Kithoka/1490where she had been settled by M’Nabea M’Rintwara.All the parties were agreeable to this fact. Indeed, the report by the District Surveyor dated 6th November, 2018 showed that that property was occupied by the late Charity Kithaoand her grandson.

37. Harriet Karamanafurther told the court that in 2007, she purchased Nyaki/Kithoka/3252 (0. 03ha)from the deceased. She produced an agreement dated 8th March, 2007 to prove her said allegation. That testimony was neither denied nor challenged in cross-examination. I accept the same.

38. In his statement, Joseph Mwenda Muchirionly supported the claim by the 5th objector. When he appeared, he told the court that he was a son of the deceased. That he had a birth certificate to that effect but did not produce it. He alleged that the deceased had indicated that he had the 5th objector’s land.

39. After analyzing the evidence on record, what came out clear was that Mary Karambuwas the first wife of the deceased. Her first child was Sarah Karwitha (OW3).She separated with the deceased after the deceased started to marry other wives. It would seem that she got other children but they did not belong to the deceased. The deceased only recognized Sarah Karwithaand that is why he gifted her Nyaki/Kithoka/1503in 1987. Indeed, she is the only child that the deceased gave land during his lifetime when he was busy selling other portions.

40. In this regard, Joseph Mwendadid not produce any evidence to prove that he was the son of the deceased. A mere statement was not enough. The only witness who corroborated his testimony was OW1 whose evidence was self-serving. He had brought Joseph Mwendato support his claim that the deceased held L.R. No. 135in trust. His own sister Sarah Karwitharefused to be drawn to the discussion whether or not he was a son of the deceased. I reject the claim by Joseph Mwenda.

41. What is now left is the claim by the 5th objector. His testimony was that Nyaki/Kithoka/135belonged to their father who gave it to the deceased to hold in trust for his brothers and sister. He testified that he has lived on that property throughout his life. That he married thereon in 1962, brought up his children thereon and has buried his wife and 4 children on a portion he is occupying. That the deceased held 2 acres thereon in trust for him. That he had bought Nyaki/Kithoka/298from Silas Mugambi, Marete Kiregi and Kithamba Kiregiand had since divided it to his sons.

42. On the other hand, the petitioner denied the claim of trust. She was firm that the father of the deceased had given all his sons their own properties save for his daughter Charity Kithao who had been divorced. According to her, the 5th objector was given Nyaki/Kithoka/298.

43. As held in the case of Gichuhi v. Gichuhi [1982] EA 285,the party relying on the existence of a trust must prove through evidence the existence and creation of such trust. And in Ayoub v. Standard Bank of S. A[1963] EA 619, the Privy Council quoted with approval Cook v. Fountain [1676] 36 ER 984 at 987, where it was held:-

“So the trust if there be any, must either be implied by the law, or presumed by the court. There is one good, general, infallible rule that goes to both these kind of trust. It is such a general rule as never deceives; a general rule to which there is no exception, and that is this, the law never implies, the court never presumes a trust, but in a case of absolute necessity”. (Emphasis added).

44. From the foregoing, it was for the 5th objector to prove the creation and existence of the alleged trust. Further, this court will not presume the existence of a trust unless the said objector proves the existence of absolute necessity.

45. The evidence on record clearly shows that, on 2nd May, 1969, the deceased became the first registered owner of Nyaki/Kithoka/135 measuring 7. 4 ha. On the same day, the 5th objector was registered as owner of 2. 8 ha being Nyaki/Kithoka/298 The two were sons of M’Nabea M’Rintwara. The latter had one other son (Isaac Kimene) and two daughters now deceased. It was alleged by the petitioner but disputed by the 5th objector, that Isaac Kimene was given Nyaki/Kithoka/334. The parties did not disclose its size but the title therefor was issued on 31st January, 1983.

46. What came out clear at the trial is that, the entire family of M’Nabea M’Rintwara must have been living on Nyaki/Kithoka/135. Despite the 5th objector having his own property, Nyaki/Kithoka/298,which was said to boarder Nyaki/Kithoka/135, he had constructed and vastly developed his home on Nyaki/Kithoka/135. Further, Isaac Kimenehad also developed his home on Nyaki/Kithoka/135.

47. It would seem that right from 1974, the deceased embarked on subdividing the said Nyaki/Kithoka/135 and disposing portions thereof. He sub-divided a portion measuring 1ha where Isaac Kimenewas occupying and transferred it to him as Nyaki/Kithoka/1263on 22nd March, 1982. Isaac Kimenewas later to purchase other smaller portions from the deceased being Nyaki/Kithoka/2528 and 3248,respectively. The deceased sold other large portions to 3rd parties not related to his immediate family. Those parties have since taken possession and extensively developed their portions.

44. The 5th objector’s testimony, that was neither denied nor challenged, was that he constructed a permanent house on Nyaki/Kithoka/135 in 1959. That he married thereat in 1962 and brought up his children thereon. That he has buried both his wife and four children on that property. That all this happened during the lifetime of the deceased who did not object to that course of events.

45. The court ordered for a report to be filed by the District Surveyor to show the nature of developments and occupation of the original Nyaki/Kithoka/135. The District Surveyor, Meru Central filed his report dated 6th November, 2018. From that report, it is clear that the 5th objector occupies and has developed three sub-divisions namely Nyaki/Kithoka/3249, 3250 and 3251. There are 5 graves on Nyaki/Kithoka/3251where he has constructed his permanent house while there is a zero grazing development on Nyaki/Kithoka/3250. The report clearly agreed with the testimony of the 5th objector.

46. The father of the deceased and the 5th objector is said to have died in 1976 and left the parties in occupation of their respective parts on Nyaki/Kithoka/135. They had clear boundaries even as at the time the District Surveyor went to the ground. There was no evidence that during his lifetime the deceased claimed the portions occupied by his brother, the 5th objector. There was no evidence that he tried to evict him therefrom and ask him to migrate to the property he had allegedly been given by their father.

48. To the contrary, the parties seem to have lived harmoniously whereby each developed his own portion on Nyaki/Kithoka/135,with the deceased actively sub-dividing portions thereof and disposing them to 3rd parties. The deceased never objected to the 5th objector burying not only his wife, but four sons on the portion he occupied on that property. To my mind, that was but a conduct of a person who very well knew that the portion occupied by the 5th objector had a claim on the portion he occupied.

49. How else would one explain that, since 1974 when he started sub-dividing and selling portions of Nyaki/Kithoka/135,he sold all other areas but did not interfere with the portion occupied by the 5th objector? It is clear that he only caused the area occupied by the 5th objector to be subdivided barely three (3) months before he died. The sub-division of Nyaki/Kithoka/1505from which sub-division Nos. 3248, 3249, 3250, 3251, 3252 and 3255 arose, was registered on 2nd February, 2012 and the deceased died three months later on 25th May, 2012 aged 83 years.

50. To my mind, I am satisfied that the deceased held Nyaki/Kithoka/135in trust for the 5th objector and his late sister Charity Kithao,only to the extent of the area the two occupied. The 5th objector was in occupation of Nyaki/Kithoka/3249, 3250 and 3251while Charity Kithaoand her children were in occupation of Nyaki/Kithao/1490.

51. It came out at the trial that Nyaki/Kithoka/3249 and 3250had been sold to and registered in the name of Harun Muthomia month before the deceased died. How the said purchaser came to purchase from the deceased a property in the occupation of and fully developed by another (the 5th objector) is a puzzle. The question that will arise is, what sort of due diligence did he undertake before buying a property which is clearly in the exclusive occupation of another? That is not for this court to determine but the Environment and Land Court.

52. Since Nyaki/Kithoka/3249 and 3250seem to have been sold and registered in the name of a 3rd party, they do not form part of the estate of the deceased. This court cannot therefore make any orders in respect thereof. The parties know where to take their claim if any.

53. The deceased was polygamous. Save for the properties that are clearly meant for Charity Kithao, Isaac Kimeneand the 5th objector, the estate is to be distributed in accordance to section 40 of the Law of succession Act.As already stated, the deceased had already gifted Sarah Karwitha Muchiri Mbambawith Nyaki/Kithoka/1503measuring 0. 502 ha. She will only be entitled to a share if the estate is enough to cater for all the beneficiaries to that extent, which is not the case.

54. Accordingly, the application is allowed on the following terms: -

a) the grant herein issued to the petitioner on 29th August, 2013 be and is hereby revoked.

b) the deceased held in trust for M’Inoti M’Nabeaand Charity Kithao, the portions occupied by them on Nyaki/Kithoka/135.

c) the estate of the deceased shall be distributed as follows:-

i) Nyaki/Kithoka/3252 to Harriet Karamana Nabea

ii) Nyaki/Kithoka/3251 to M’Inoti M’Nabea alias Stephen Murithi Nabea

iii) Nyaki/Kithoka/1490 to Harriet Karamana Nabea, Susan Wanja, Mary Kathiira and Gituma Nthiira in equal shares

iv) Nyaki/Kithoka/2528 and 3248to the Estate of Isaac Kimene

v) Nyaki/Kithoka/3253 to Jerica Nkirote M’Muchiri, Joyce Makena Muchiri and Charity Mwari in equal shares

vi) Nyaki/Kithoka/2532 to Charles Karemu

vii) Nyaki/Kithoka/2531 to Lucy Mukami, Angela Nkirote and Zipporah Nthaani in equal shares.

55. This being a family matter, I will make no order as to costs.

It is so decreed.

DATEDand DELIVEREDat Meru this 19th day of September, 2019.

A. MABEYA

JUDGE