[2022] KEHC 15474 (KLR)

In re Estate of Musau Kitavi (Deceased) (Succession Cause 386 of 2003) [2022] KEHC 15474 (KLR) (18 October 2022) (Ruling)

Neutral citation: [2022] KEHC 15474 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 386 of 2003

GV Odunga, J

October 18, 2022

Between

Benjamin Musyoki Musau

1st Respondent

Timothy Muthiani Musau

2nd Respondent

and

Rebecca Nyabiya Seme

Applicant

Ruling

1. By Summons for revocation or annulment of Grant dated June 24, 2019, expressed to be brought under Sections 45, 47 and 76 of the Law of Succession Act and Rules 44, 49 and 73 of the Probate and Administration Rules and all enabling provisions of the law, the applicant herein sought an order that the Rectified Grant of Letters of Administration Intestate issued on March 8, 2016 to Benjamin Musyoki Musau and Timothy Muthiani Musau be revoked and/or annulled.

2. The Summons were based on the fact that the applicant was a personal representative of Elizaphan Nahashon Seme who purchased two and half acres of land from the deceased hence was entitled to a share in the estate of the deceased herein as creditor claiming a purchaser’s interest and that the 1st Administrator had received a further Kshs 45,000/- from the Applicant’s husband to facilitate the process of succession on the understanding that the 1st Administrator would add him 0. 4 acre piece of land to make the applicant’s claimed land to be 2. 9 acres, which portion was clearly demarcated and the applicant had developed and reside thereon to date.

3. The subject of this ruling, however is a preliminary objection taken by the 1st administrator file on February 17, 2020 in which the 1st Administrator contends that this court lacks the jurisdiction to hear and determined the said application.

4. In his submissions filed in support of the preliminary objection, the 1st Administrator averred that pursuant to the grant issue herein, the estate of the deceased was distributed as per the schedule of distribution and new titles issued to the beneficiaries therein one of whom was the 1st Respondent who was duly issued with a valid title being LR Donyosabuk/Komarock Block 1/46471 which was hive of from LR Donyosabu/Komarock Block 1/25434. According to the 1st Administrator, it is that hived off parcel that is the subject of the present application. According to the 1st Respondent by the fact that one of the prayers sought in the application is leave to file a suit in Kangundo Law Courts to determine the question of ownership of the said land and its subsequent subdivisions, the Applicant acknowledges that this Court has no jurisdiction in the matter.

5. In response, the 2nd Administrator filed grounds of opposition to the preliminary objection. It was averred that pursuant to the orders of this Court the matter of ownership was referred to Kangundo ELC and that the same was heard and determined in favour of the applicant in ELC No. 76 of 2020. It was therefore contended that the preliminary objection has since been overtaken by events and ought to be dismissed with costs.

6. In its submissions, the Applicant contended that disputes between the estate and third parties need not be solve within a succession cause but should be resolved in a civil court and brought to the probate court for implementation. In the meantime, property involved in the dispute should be removed from the distribution table and referred to the Environment and Land Court. It was submitted that in the instant case the applicant merely sought interim orders and sought leave to file a suit to determine the question of ownership in respect of the land in question. It was therefore submitted that this Court has power to grant the orders sought.

7. According to the Applicant, this case raises genuine issues of triable facts which ought not to be dismissed summarily as sought. It was submitted that this Court having granted leave to the applicant to institute the civil suit, the same was instituted, heard and judgement pronounced hence any objections have been overtaken by events.

Determination 8. I have considered the submissions made by the parties herein. The crux of the preliminary objection is that, the application seeks to determine ownership of land that was subdivide and titles issued. The applicant’s case is however based on the ground that her late husband purchased the land from the deceased and hence she, being the personal representative of her husband, is entitled to the said portion as a creditor of the estate. It is not in doubt that where a person purchases land from another and that other dies before the transfer is effected, the purchaser may lay his claim to the portion sold as against the estate of the deceased vendor.

9. In that case, the purchaser becomes a creditor for the estate and is entitled to lay a claim to the portion of the estate that his interest attaches to. While he does not become a beneficiary of the estate by virtue of his interest in the estate and therefore ought not to seek that his name be included in the list of beneficiaries, he may successfully protest to the manner in which the estate is proposed to be distributed if his interest therein is not catered for. That was the position adopted in Titus Muraguri Warothe & 2 Others vs. Naomi Wanjiru Wachira Nyeri HCSC No. 122 of 2002, where Makhandia, J (as he then was), while revoking the grant in question expressed himself as hereunder:“Section 76(c) of the Law of Succession Act and rule 44(1) of the Probate and Administration Rules allows any person interested in the estate of the deceased to have a grant revoked or annulled. The grounds upon which a grant can be annulled are set out in section 76 thereof. It is also important to note that a grant of representation, whether or not confirmed may at any time be revoked. In the instant case the applicants are purchasers for value of a portion of the deceased’s estate comprised in the grant. There is uncontested and unchallenged evidence that before the deceased passed on he had sold various portions of land to the applicants and he had been fully paid and had indeed put each one of the applicants in possession of their respective portions that they had purchased. The applicants have to date been in continuous and uninterrupted occupation of those portions and have extensively developed them. The respondent who is the wife of the deceased was all along aware of these transactions involving her deceased husband and the applicants. The deceased, pursuant to the sale agreement and as required by law made an application to the Land Control Board for necessary consents to the subdivision of the said parcels of land and subsequent transfer to the applicants of the portions they had purchased. However, he passed on just before he could attend the board meeting. Yet the respondent knowing very well the interest of the applicants in the suit premises when she petitioned for the grant of letters of administration and later had the same confirmed completely ignored that interest of the applicants in the suit premises. Had the applicants been made aware of the application for the confirmation by being served they would have brought to the fore their aforesaid interest in the estate of the deceased and the resultant grant would have taken care of these interests. Further, had the respondent been forthright and candid and included the applicants as beneficiaries of a portion of the estate of the deceased as purchasers for value, the court in confirming the grant would have taken into account their interest in the estate of the deceased. As it is, therefore, the grant was obtained fraudulently by the making of a false statement and concealment from court of something material to the cause. The respondent knew of the applicants’ interest in the estate of the deceased yet she chose to ignore them completely in her petition of letters of administration intestate. She also ignored them completely when she applied for confirmation of the grant. In her distribution proposal she completely ignored the part of the estate that was purchased by the applicants yet she was aware of the purchase as she was present when the transactions were concluded. In any event the applicants were put in possession of their portions of the suit premises by the deceased before he passed on and with full knowledge of the respondent and since then they have been in continuous and uninterrupted occupation of the suit premises which they have extensively developed over the years.”

10. In that case, the Purchaser may successfully stake his claim to the deceased’s estate in his capacity as a creditor of the estate. My view is supported by the holding In re Estate of Mukhobi Namonya (Deceased) [2020] eKLR that:“the omission of persons who claim to be claimants from or creditors of the estate is not a ground for revoking a grant. After all, creditors of an estate are entitled to have their debts settled. It is for this reason that debts and liabilities are given priority over distribution of the estate. Debts and liabilities ought to be settled first. Distribution is of the net estate, after the debts and liabilities have been met. The administrators have a duty to identify the creditors of the estate and to pay them off before proposing distribution, or to make provision for them at confirmation of grant. Such claimants and creditors have an obligation to place their claims before the administrators, and should the administrators fail to settle the same or acknowledge them, move the Environment and Land Court to prove their claims, since the High Court no longer has jurisdiction to determine questions around ownership of immovable property in view of Articles 162(2) and 165(5) of the Constitution. Who exactly is the creditor of the estate or what ought to be treated as a liability of the estate. The most obvious candidates are individuals or entities that transacted with the deceased during his lifetime. Debts that the deceased left unsettled are a burden that the administrators of his estate ought to take care of. Transactions that he left incomplete, such as for sale of land by him or to him, should be completed by the administrators. The administrators are able to do so through the powers conferred upon them by section 82 of the Law of Succession Act, being mindful of section 79, which vests the assets of the estate in the administrator. Section 83 imposes a duty on administrators to settle such debts before distributing the estate…One of the duties of administrators, set out in section 83(d) of the Law of Succession Act, is to ascertain and pay out of the estate all the debts of the deceased. Ascertainment of the debts of the estate is about identifying them, in terms of finding who the creditors were, how the debts were incurred, what documentation is available, before pay out can be done. If the debts arose during administration, and were necessitated by the exigencies of administration, such as where funds were needed to pay for the administration process, in terms moneys for court fees, advocates costs, land rents and rates, taxes, and attendant expenses, then section 83(c) of the Law of Succession Act would be relevant. That provision requires administrators to pay out of the estate all the expenses of obtaining the grant and all other reasonable expenses of the administration. Where estate assets have been dissipated to address the expenses envisaged in section 83(c) then it must be stated what these expenses were, how they arose and how they were settled. The same would apply where certain debts and liabilities of the estate needed to be settled and estate assets had to be sold to facilitate the settlement of such debts. Section 83(d) of the Law of Succession Act requires administrators to ascertain and pay, out of the estate, all the debts of the deceased. In addition, section 83, at paragraph (e), requires the administrators to render accounts of their administration within six months of their appointment.”

11. However, where the said land has passed to third parties, this Court sitting as a succession court may not be the proper forum to litigate over that issue. It may therefore be prudent for the parties to commence civil proceedings for determination of that issue and depending on the outcome of the civil suit, return to the succession court for determination based thereon. This is exactly what this Court did when it temporarily stayed these proceedings to give the parties an opportunity to litigate that matter. That matter has now been determined and in its judgement delivered on June 2, 2021, the Senior Principal Magistrate’s Court, Kangundo in ELC Case No. 76 of 2020 - Rebecca Nyabiya Seme vs. Benjamin Musyoki Musau and Timothy Muthiani Musau entered judgement in favour of the Plaintiff therein, who is the applicant herein, directing that 2. 9 acres of land in respect of land parcel No. Donyo Sabuk/Komarock 1/25434 and its subsequent subdivisions be registered in the name of the Plaintiff, the Applicant herein.

12. That being the position, it is clear that the preliminary objection raise herein has now been overtaken by events. What this Court is now require to do is to determine the Summons herein taking into account the determination in the said ELC matter.

13. Accordingly, I find no merit in the preliminary objection raised herein which I hereby dismiss with costs.

14. It is so ordered.

G V ODUNGAJUDGERULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 18TH DAY OF OCTOBER, 2022. M W MUIGAIJUDGEDelivered the presence of: