[2022] KEHC 1261 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 2622 OF 1999

IN THE MATTER OF THE ESTATE OF MUIRU GIKANGA- DECEASED

PETER JOHN GAKONDE NYAGA...................................1ST APPLICANT

CATHERINE WANJIKU GAKONDE...............................2ND APPLICANT

VERSUS

HUMPHREY GITHAIGA MUIRU....ADMINISTRATOR/RESPONDENT

RULING

1. The deceased Muiru Gikanga died intestate on 29th September 1982. He was survived by two widows and five children. One of the children is Humphrey Githaga Muiru (the administrator/respondent). On 18th November 1999 the respondent petitioned this court for the grant of letters of administration intestate. The grant was issued to him on 20th June 2000.

2. The estate of the deceased comprised LR No. Limuru/Bibirioni/1647 measuring 9 acres and LR No. Limuru/Bibirioni/1602 measuring 1 acre. The respondent sought the confirmation of the grant over LR No. Limuru/Bibirioni/1602. The grant was confirmed and he was ordered to be registered to hold the parcel for himself and for other beneficiaries in equal shares. The confirmation was on 28th November 2001.

3. What had happened was that the respondent’s brother Fredrick Francis Mwaniki Muiru had secretly filed Succession Cause No. 39 of 1985 at Kiambu Senior Resident Magistrate’s Court and obtained a grant of letters of administration intestate over the same estate. He had got the grant confirmed with orders that he gets LR No. Limuru/Bibirioni/1647 and that LR No. Limuru/Bibirioni/1602 goes to him and to Nicholas Macharia. He (Fredrick Francis Mwaniki Muiru) subdivided LR No. Limuru/Bibirioni/1647 into LR No. Limuru/Bibirioni/1787 and 1788. He sold them to Peter John Gakonde Nyaga (1st applicant) and Cyrus Komo Chege, respectively. Catherine Wanjiku Gakonde (2nd applicant) is the wife of the 1st applicant.

4. When the respondent became aware of the Kiambu Succession Cause he went before the court to seek the revocation of the grant to Fredrick Francis Mwaniki Njuguna. On 7th February 1986 a consent was recorded revoking the grant that had been issued on 13th December 1985. The consent provided that all transactions pursuant to the grant were cancelled.

5. In summons dated 9th July 2004 before this court, the 1st applicant sought the revocation of the grant issued to the respondent on 28th November 2001. His case was that he had bought his property from Fredrick Francis Mwaniki Muiru; and that he had been in possession since 1985. He asserted that he was entitled to the property by dint of adverse possession. The application was dismissed with costs on 7th March 2013. The court found that his claim over the parcel that he had allegedly bought was a matter for a civil or land court, but not a matter for a probate court. There is no indication that the 1st applicant appealed that decision.

6. The respondent filed the application dated 28th January 2019 against the applicants and Cyrus Komo Chege asking the Land Registrar Kiambu to cancel the subdivisions of LR No. Limuru/Bibirioni/1787 and 1988 done on LR No. Limuru/Bibirioni/1647 in accordance with the order cancelling all transactions that had been issued by Kiambu Court when it revoked the grant to Fredrick Francis Mwaniki Muiru. A response was filed by the 2nd applicant whose case was that, following the Kiambu succession cause, they had bought the parcels, had them registered and had taken possession. They stated that they had been unaware of the cancellation of their titles by Kiambu Court, and that they were innocent buyers for value without notice.

7. In the ruling delivered on 2nd November 2020, this court allowed the application with costs. This was on the basis that, the cancellation of the transactions on LR No. Limuru/Bibirioni/1647 had been ordered by Kiambu Court on 7th February 1986, and the order had not been appealed against. The revocation and cancellation had brought to an end the claims by the applicants over LR Nos. Limuru/Bibirioni/1787 and 1788. Lastly, no application had been brought before this court by the applicants to determine the question whether they were innocent buyers for value without notice. This was assuming that this probate court had jurisdiction to determine the issue.

8. It is this ruling that led to the present application by the applicants. The application was dated 17th November 2000. The application basically sought leave to appeal the ruling and, secondly, sought that, pending the hearing and determination of the appeal, there be stay of the orders in the ruling.

9. On the question of leave to appeal, I am mindful of the right of a party to appeal the decision that has aggrieved him. Article 164(3) of the Constitution gives the Court of Appeal jurisdiction to hear appeals from the High Court and any other court or tribunal as prescribed by an Act of Parliament. It is also true that under the Law of Succession Act (Cap. 160) there is no automatic right of appeal. Any appeal has to follow leave granted by the High Court. In John Mwita Murimi & 2 Others – Mwikabe Chacha Mwita & another [2019]eKLR,the Court of Appeal held that –

“…………under the Law of Succession Act, there is no express automatic right of appeal to the Court of Appeal; that an appeal will lie to the Court of Appeal from the decision of the High Court, exercising original jurisdiction with leave of the High court or where the application for leave is refused with leave of this court…………………..”

10. The issue is whether this court should grant leave to the applicants. It was submitted on their behalf that they will have a good case on appeal, but it is not for this court to discuss the merits of any such appeal. There is no question that the application has been brought without delay.

11. However, I have outlined the history of the case to show that the deceased died in 1982 and, since then, the beneficiaries have not benefitted from the estate because of countless disputes. I have considered that the grant that allegedly gave the parcels in question to the applicants was revoked on 7th February 1986. The applicants did not appeal that decision. The 1st applicant challenged the grant that was issued in this court by seeking its revocation. His application was dismissed on 7th March 2013. He did not appeal the decision. The 2nd applicant did not challenge the grant. That being the case, I determine that the leave sought is a back-door attempt to challenge the grant issued by this court and to review the orders issued by Kiambu Court without there being an appropriate application. It is for these reasons that I find no merit in the request to allow leave to appeal the ruling of 2nd November 2020.

12. There being no leave to appeal, and therefore there being no appeal, the decision whether or not to grant stay of the orders of 2nd November 2020 would be an academic exercise in which I would not like to engage.

13. The result is that the application dated 17th November 2020 is dismissed with costs.

DATED and SIGNED this …………………. day of MARCH 2022

A.O. MUCHELULE

JUDGE

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 28TH DAY OF MARCH, 2022

A.O. MUCHELULE

JUDGE