[2022] KEHC 15011 (KLR)

In re Estate of Muchunku Nthiga (Deceased) (Succession Cause 746 of 2015) [2022] KEHC 15011 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15011 (KLR)

Republic of Kenya

In the High Court at Chuka

Succession Cause 746 of 2015

LW Gitari, J

November 3, 2022

Judgment

1. This cause relates to the estate of Muchunku Nthiga (deceased) who died intestate on August 27, 1982.

2. A grant of letters of administration in respect of the deceased’s estate was issued to Maitha Muchunku in his capacity as the son of the deceased in Chuka Principal Magistrate’s Court Succession Cause No. 20 of 2000.

3. The estate of the deceased comprised of the following properties as per the affidavit in support of the petition for a grant of letters of administration intestate:a.Karingani/Muiru/940b.Karingani/Muiru/220c.Karingani/Gitareni/255

4. The said affidavit in support of the petition for a grant of letters of administration intestate also identifies the following persons as the beneficiaries that survived the deceased:a.Mwingo Nthiru Nthiga - Widowb.Maitha Muchunku – Sonc.M’Nyiri Muchunku – Sond.Mati Muchunku – Son

5. The deceased’s estate was distributed as follows as per the certificate of confirmation of grant dated September 13, 2001;a.Karingani/Muiru/220i.Maitha Muchunku – 5. 0 Acresii.M’Nyiri Muchunku – 3. 0 Acresiii.Ephantus Mati Muchunku – 3. 0 Acresb.Karingani/Gitareni/255i.Maitha Muchunku – 4. 2 Acresii.Ephantus Mati Muchunku – 2. 5 Acresiii.Jamlick Rugendo Magana – 2. 0 Acresiv.Festus Rugendo Musyoka – 5. 0 Acresv.Munyiri Muchunku – 2. 2 Acresc.Karingani/Muiru/940i.Ephantus Mati Muchunku - Whole

6. Following the confirmation of the grant, L.R. No. Karingani/Gitarene/255 was subsequently subdivided into five portions being L.R. Nos. Karingani/Gitarene/2524, 2525, 2526, 2527 and 2528, and registered in the names of the beneficiaries thereof.

7. Vide Summons for Revocation dated April 24, 2015, the late Musyoka Nderi, the Interested Party/Applicant sought for orders, inter alia, that the certificate of confirmation of grant issued in Chuka PM Succession Cause No. 20 of 2000 be revoked and the resultant subdivisions of L.R. No. Karinga/Gitarene/255 do revert to Muchunku Nthiga. Following the death of the said Musyoka Nderi, Martin Kariuki Muchoka, a son of the late Musyoka Nderi, substituted his father as the applicant herein. The application was premised on various grounds set out on the face of the summons dated April 24, 2015 and the affidavit in support thereto. The application was further supported by the Supplementary Affidavit sworn by Martin Kariuki Muchoka on January 31, 2019. The grounds in support of the application are that:-1. That the interested party is a benefitiary of the estate of the deceased herein.2. That the interested party resides on a portion of LR.No.Karingani/Gitareni/255 which has since been subdivided.3. That the Chuka Succession Cause No.20/2000 in the Principal Magistrate’s Court was instituted secretly and in total disregard of his interest in the estate.4. That the lower court lacked jurisdiction to entertain the succession cause.5. That strangers to the estate of the deceased were included.6. That the Interested Party was disinherited of his entitlement and the grant was obtained on the basis of false allegations and concealment of material facts.In support of these grounds, the applicant swore an affidavit on 24/4/2015. He avers that his interest in the claim has a convoluted history which would be evident in the dispositions in the affidavit.

8. The late Musyoka Nderi contended that he had an interest in the subject estate arising from family lineage and ancestral rights and that is how he came to be in occupation of the suit land. He thus alleged that the failure by the administrator to get his consent prior to the institution of these proceedings warrants the revocation of the confirmed grant. He thus prayed for the cancellation of L.R. Nos. Karingani/Gitarene/2524, 2525, 2526, 2527 and 2528, which were subdivisions of L.R. No. Karingani/Gitarene/255.

9. The application was opposed by the Administrator of the subject estate, who is the 1st respondent herein; vide his affidavit sworn on May 30, 2016 on his own behalf and on behalf of his brother, the 3rd respondent herein. The 1st respondent denied the allegations that the late Musyoka Nderi was a beneficiary of the estate herein. The 1st Respondent deponed that the deceased herein was not the father of the late Musyoka Nderi. He stated that the late Musyoka Nderi’s father was called Nderi Ngonko and had his own share of the land that was separate from the land parcels forming the subject estate. He thus claimed that the late Musyoka Nderi had no legal right to occupy the subject estate hence the reason for the 2nd respondent filing a suit to evict him from his land, the same being Chuka P.M.C.C. No. 165 of 2014.

10. The application was also opposed by the 2nd respondent vide his affidavit sworn also on May 30, 2016. He deposes that he is the registered owner of land registration no. Karingani/Gitarene/2525, having purchased the same for valuable consideration on November 7, 1996. He attached to the affidavit a copy of the sale agreement entered into between himself and Maithia Muchunku. He also confirmed that he filed Chuka P.M.C.C. No. 165 of 2014 seeking the eviction of the late Musyoka Nderi from the said parcel of land, which suit he stated was pending hearing and determination as the time of swearing his affidavit. The respondents thus urged this court to dismiss the application.

11. The application was heard by way of viva voce evidence. Below is a summary of the respective cases by the parties.

12. PW1 was Martin Kariuki Muchoka. He stated that he was the son to the late Musyoka Nderi. He however did not know whether his late father was a brother to the deceased. He stated that he knew the land forming the subject of these proceedings and that he used to live there but was chased away by Mati Ephantus Muchungu. He adopted his affidavit which he swore on September 26, 2019 as his evidence. In the said affidavit he averred that his deceased father was the son of Nderi Ng’onko who was in turn the son of Ng’onko M’Murithi who had a son by name Muchunku Nthiga the deceased in this matter. He claims that his father had occupied Land Parcel No. Karingani/Gitareni/255. That upon the death of his father, the respondents barred his burial on this land parcel and he had to be buried at Kyeni Mission Hospital after two years. That thereafter the second respondent evicted them from the land using hired goons. He further contends that the 2nd respondent had filed a suit to evict his late father. Although he annexed documents to show that the 2nd respondent had filed a civil suit against his deceased father, no documents were annexed to show that his father had opposed the suit. On cross examination, he contradicted himself by stating that he did not know the deceased in this cause. He stated that his late father used to say that the deceased was his father. He again contradicted himself by stating that the father of his father was Nderi Ng’onko. He continued to add that he did not know the children of his grandfather. He conceded that it is the children of the deceased who should claim from the subject estate and that he did not know why his father was claiming from the estate and not that of his own father, PW1’s grandfather.

13. PW2 was Nyeri Kanabu. She stated that she knew both the deceased and the late Musyoka Nderi as they all come from the same clan. She further stated that she was involved in resolving the dispute over the suit land. She adopted her affidavit sworn on September 26, 2019 as her evidence. On cross examination, she corroborated PW1’s testimony that PW1 was the son of the late Musyoka Nderi and that the father of the late Musyoka Nderi was Nderi Ng’onko.

14. On the other hand, Ephantus Mati Muchungu testified as DW1. He adopted his affidavit sworn on May 30, 2020 as his evidence. According to him, the deceased had six children namely Maithya Muchungu (deceased), Muchura Muchungu, Juliaster Chiamwari, M’Nyiri Muchunku and himself. He denied that the late Musyoka Nderi was their brother or that he deceased was in any way related to the late Musyoka Nderi. According to him, the late Musyoka Nderi had two wives. The first wife, Gatangaa, had two children while the second wife, Julia Ciatharaka, had four children. It was his testimony that the late Musyoka Nderi was buried at Kyeni Mission Hospital and that none of the wives or children of the late Musyoka Nderi had gone to claim a share of the deceased’s estate. DW1 finally denied that PW2 was a member of their clan and further denied knowledge of how the late Musyoka Nderi ever came to occupy the suit land.

15. DW2 was Jamlick Rugendo Magana. He adopted his affidavit sworn on May 30, 2020 as his evidence. It was his testimony that he had the title deed over land parcel no. Karingani/Gitareri/2525 having bought the same from Maithya Muchunku. He produced the sale agreement he entered into in 1996 in respect to the said parcel of land. According to him, he acquired vacant possession of the said land parcel but the late Musyoka Nderi entered on his land in 1998 forcing DW2 to sue him. He denied hiring goons to evict the late Musyoka Nderi and confirmed that he is the one that is currently using the land.

16. Notably, the parties were consequently given time to file and serve their written submissions but at the time of writing of this judgement, none of them had complied.

Analysis 17. The application is expressed to be brought pursuant to the provisions of section 76 of the Law of Succession Act, chapter 160 of the Laws of Kenya (hereinafter referred to as the “Act”), Rule 44 of the Probate and Administration Rules (hereinafter the “Rules”), and section 68 of the Land Registration Act, 2012.

18. Section 76 of the Act provides for instances when a grant issue by the court may be revoked. The said provision specifically states as follows:“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion.a.that the proceedings to obtain the grant were defective in substance.b.that the grant was obtained fraudulently by the making of a false statement or by the concealment from court of something material to the case.c.that the grant was obtained by means of an untrue allegation of the fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently.”

19. For the court to order revocation of grant, a party must prove that:a.Proceedings to obtain the grant were defective in substance;b.The grant was obtained fraudulently by the making of a false statement or concealment from court of something material to the case;c.That the grant was obtained by means of untrue allegations.

20. A party need not prove all the above matters, prove of any one of them will lead to the revocation of the grant. In this case, the initial applicant was the late Musyoka Nderi, who unfortunately died before he could prosecute his application. He was substituted by his son, PW1. In his evidence, PW1 stated that he did not know why his late father was claiming a share of the deceased’s estate and not the estate of his own father. No evidence was adduced by either of the two Applicant’s witnesses how the late Musyoka Nderi was a beneficiary of the deceased’s estate.

21. It is a cardinal principle of law that “he who alleges must prove”. This principle is well captured in sections 107 to 109 of the Evidence Act which reads as follows;“107 (1)whoever desires any court to give judgment as to the legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies with that person.108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on the other side.109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that proof of that fact shall lie on any particular person.”The appellant claims benefitial interest in the estate of the deceased. The applicant must prove dependency. Section 29 of the Law of Succession Act gives definition of a dependant. It provides:a)the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;(b)such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and (c) Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.”The applicant who claims to be a distance cousin and has not claimed dependency does not fall within this definition. He has not proved dependency and is basing his claim on what he calls traditional lineage. He has not however demonstrated that he has a claim over the estate of the deceased. The Act at the second schedule gives the degree of consanguinity and has demonstrated with a graph. The graph explains how the court is expected to determine claims under section 39(1) (e) of the Act which provides for the relatives who are in the nearest degree of consanguinity upto and including the 6th degree. The applicant does not fall under this graph as it recognizes parents; children, great grandchildren, great great grandchildren. The applicant was not a child of the deceased and has stated that he was a step cousin. The schedule recognizes cousins and second cousin. This removes the applicant’s claim from the estate of the deceased. The grant is copied here.I may also point out that the applicants claim is time barred as the claim ought to have been filed before the confirmation of grant. Section 30 of the Act provides for limitation of time and provides mandatorily that no claim shall be brought after the grant has been confirmed.Section 30 of Law of Succession Act provides:-“No application under this Part shall be brought after a grant of representation in respect of the estate to which the application refers has been confirmed as provided by section 71. ”It follows that the application having been brought long after the grant had been confirmed was time barred and was not properly before this court. A matter that is statute barred is a none starter. It is dead on arrival. Having found this as a fact, I need not consider other prayers in the application.

22. The applicant herein had the onus to establish that he was entitled to a share of the deceased’s estate. In my view, the Applicant did not discharge the legal burden of proving that the grant herein was obtained secretly or through concealment of material facts as alleged. As such, he failed to prove on a balance of probabilities any of the grounds envisaged under section 76 of the Act to warrant this court to revoke the subject grant. He was not a benefitiary and had no lawful claim in the estate. The claim offends section 30 of the Act.

Conclusion 23. The upshot of the foregoing, is that the present application lacks merit. I dismiss it with costs.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 3RD DAY OF NOVEMBER, 2022. L.W. GITARIJUDGE