[2017] KEHC 2254 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 417 OF 2013

In the Matter of the Estate of the Late Mwenda Ntomariu Alias Eliyah Mwandia Ntomariu (Deceased)

JOSEPH KINYUA.....................................................1ST APPLICANT

PASCUALE GITONGA.............................................2ND APPLICANT

JOSHUA KALUNGE................................................3RD APPLICANT

-VS-

ROBERT KIMATHI MATI.....................PETITIONER/RESPONDENT

RULING

[1] This decision relates to application dated 21st May 2015 made by way of summons for revocation and/or annulment of the grant under section 48 and 76 of the Law of Succession Act, CAP 160, Rule 44 of the Probate and Administration Rules, Section 3, 3A of the Civil Procedure Act, Order 40 Rule 1, 2, 3, 4, 5 and 6 of the Civil Procedure Act 2010 and any other enabling provision of the law. The Applicants seek the following orders:

1. That the summons be certified urgent and service of the same be dispensed with in the first place.

2. That there be an order of injunction restraining the Respondent herein either by himself, agent, or any other person acting on his behalf from interfering in any manner whether sale, lease, mortgage, or in any other manner detrimental or adverse to the interest of the Applicants land parcel numbers 7459 Akirangondu ‘A’ Adjudication section and parcel number 7460 Akirangondu ‘A’ Adjudication section which now bear numbers 10309,1341 and 103808 Akirangondu ‘A’ Adjudication Section respectively pending the hearing and determination of the application.

3. That an order that the grant of letters of administration issued to Robert KimaniMati in Meru High Court Succession Cause No. 417 of 2013 made on 9th January 2014, be revoked (or annulled).

4. That inhibition orders be placed on the register of land parcels numbers 7459 and 7460 Akirangondu ‘A’ Adjudication section.

5. That the Respondent be condemned to pay costs of this application.

Applicants Claim

[2] The application is based on the grounds that there was no estate to be inherited by the Petitioner given that distribution had already taken place after the death of the Deceased and the property passed on to the Applicants who are the real owners of the land in question. The grant was obtained fraudulently by concealment from the court of some material facts. The chief’s letter is a forgery. The Deceased died intestate, before marriage at the age of 22 years and did not leave a wife or child. The Respondent is a distant cousin to the Deceased and does not enjoy first priority in filing the petition. The estate has already been subdivided by clan elders amongst the Applicants who are in occupation of two parcels land numbers 7459 Akirangondu ‘A’ Adjudication section and 7460 Akirangondu ‘A’ Adjudication Section which now bears numbers 10309,1341 and 103808 Akirangondu ‘A’ Adjudication section. The Respondent did not obtain the consent and no confirmation of the District Land Adjudication and Settlement Officer before filing of the petition.

[3] The Application is supported by the affidavit of JOSEPH KINYUA which is sworn on his own behalf and that off the other Applicants. He states that they are related to the Petitioner by virtue of being his uncles and cousin respectively. The Petitioner’s father is one JULIUS MATI, a brother to the Applicants. Thus, the Petitioner is junior in priority of inheritance and they did not consent to him filing the petition in court. They supported their claim that the chief’s letterused by the Petitioner is a forgery for the standard procedure is that the chief who purported to write the letter dated 28th September 2013 (annexure JK I) to give his name for he could not have written two letters to two different people; given that on 17th May 2013 their chief wrote a letter to the Applicantsexplaining the circumstances leading to the death of the Deceased and how his estate was to devolve (annexure JKII).

[4] They averred that the Deceased died without a wife or child and the only relatives the Deceased left were the Applicants and the father of the Petitioner. The clan (Nkomo) agreed that since the Deceased did not have an immediate family member the land which measures 0. 50 acres be subdivided amongst themselves as follows:

a) Julius M’mariu - 0. 10 Acres

b) Kinyua and Gitonga - 0. 10 Acres

c) Robert Kimathi - 0. 10 Acres

d) Joshua Kalunge - 0. 20 Acres

They stated that the subdivision was effected and they were issued with demarcation books showing ownership (annexure JK IV). The death certificate filed by the Petitioner is fictitious for they had obtained another certificate (annexure JK V). As the immediate family members of the Deceased they had a direct interest in his estate given that the NjuriNcheke council of elders had resolved on how the distribution of the estate was to take place, since the Deceased died at the age of 22 years old and had not married. The land parcel numbers 7459 Akirangondu ‘A’ Adjudication Section and parcel number 7460 Akirangondu ‘A’ Adjudication Section which the court ordered be registered in the name of the Petitioner do not exist because there was a subdivision of the same in the year 2013 which produced parcel numbers 10309,1341 and 103808 Akirangondu ‘A’ Adjudication section.

[5] The Applicantsalso filed their submissions dated 7th September 2016 which contains information substantially covered in their affidavit. The Applicants submit that it is safe to conclude that there was fraud and concealment of material facts in the entire process of obtaining these proceedings. According to the, the Petitioner has not countered this argument in his replying affidavit.They state that the confusion is being brought and engineered by the Petitioner because his father who is the Applicants’ brother died soon after subdivision. He should be advised to apply to administer the estate of his late father which measures ten points.

Petitioner’s Claim

[6] The Petitioner opposes this application in his replying affidavit dated 19th February 2015. He deposes that the mother of the Deceased died when he was 4 years old and his father took him in and educated him as his own son. The Deceased was like a brother since they grew up together under the care of his father and it was his grandfather who gave the Deceased the land in dispute. The 1st Applicant had been given a burial permit which he refused to give him to enable him to get a death certificate. Later he used the chief of the area to get a death certificate which enabled him to file this succession cause. He later came to understand that the Applicants had subdivided the Deceased’s land without a grantwhich was unlawful and criminal. The matter has been deliberated by Njuri-Ncheke council of elders and a decision has been made in his favour (annexure RK 1. It has not been annexed). He affirms that the 3rdApplicant has made forgeries and caused the Deceased’s land to be transferred without an order of a succession cause and continued occupying the land by force and without the courts backing. He states that he followed due process to file the succession and did not file it fraudulently or secretly as alleged.

[7] The Petitioner filed his submissions dated 29th August 2016 which reiterates informationsignificantly covered by his prior affidavit. However, he urges the court to dismiss the entire application for the Applicants are merely distant relatives of the Deceased and have no priority over the estate of the Deceased. That on the issue of injunction, the Objectors have satisfied the conditions set in law for the grant of such a relief. The Petitioner has been in full occupation until he got the grant and that is when the Objectors forcefully entered the land and took it by force.

DETERMINATION

[8] First things first. The Law of Succession Act came into commencement on 1st July 1981 and the Deceased died 13th October 2012. Therefore, this estate and distribution thereof is governed by the Law of Succession Act. See Section 2 thereof which states:

“(1) Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after, the commencement of this Act and to the administration of estates of those persons.

(2) The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commence or proceed so far as possible in accordance with this Act.”

[8] There seems to be competition among the disputants as to who should have preference to apply and inherit the estate of the deceased. The law of Succession Act in section 39 of PART V and Section 66 provides the order of inheritance as well as preference to apply for letters of administration of the estate. The Deceaseddied intestate and left no surviving spouse or children. I will therefore fall back to Section 39 which states:

(1) Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority —

(a) father; or if dead

(b) mother; or if dead

(c) brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none

(d) half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none

(e) the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.

(2) Failing survival by any of the persons mentioned in paragraphs (a) to (e) of subsection (1), the net intestate estate shall devolve upon the State, and be paid into the Consolidated Fund.

[9] I will apply the above test to the facts of this case. The material before the court show that the Deceased’s mother died whenhe was a child at 4 years of age. The Petitioner’s father took him and raised him as his own as stated by the Petitioner. This has not been refuted by the Applicants. Is the petitioner’s claim that the deceased was like his brother for he was raised by his father of any legal significance? When a person takes in a child who is not his/her own and raises the child as his/her own, that child is that person’s child.See Section 3(2) of the Law of Succession Act which states that

(2) Referencesin this Act to "child" or "children" shall include a child conceived but not yet born (as long as that child is subsequently born alive) and, in relation to a female person, any child born to her out of wedlock, and, in relation to a male person, any child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility.”

The Petitioner’s father is said to have educated and brought up the Deceased as his own. He voluntarily assumed permanent responsibility of the Deceased. Therefore the Deceased was a child of the Petitioner’s father as stated in Section 3(2). As a result, the Deceased and the Petitioner are brothers. This is not far-fetched as adopted siblings amongst themselves or in relation to the biological children of the foster parent have a right of inheritance. Accordingly between the Petitioner and the Applicants, I would regard the Petitioner to have priority over the Applicants for purposes of applying for letters of administration of and inheriting the estate of the deceased.

[10] But before I close, there are some matters calling for attention; the Applicants assertion that the clan subdivided the Deceased’s estate among the Applicants including the Petitioner’s father because the Deceased did not have an immediate family. The Parties also seem to be saying that NjuriNcheke council of elders decided this matter. Although none of the parties adduced evidence to support this claim, I wish to state categorically that neither the clan nor Njuri Ncheke had any legal authority to determine distribution of the estate of the deceased; only the court has such power under the Law of Succession Act. In addition, the subdivision of the estate property at the behest of the Applicants into parcel numbers 10309, 1341 and 103808 Akirangondu ‘A’ Adjudication Section was pure act of intermeddling with the estate property for they did so without a grant or authority from any written law. I concur with the Petitioner that the subdivision of the Deceased’s land without a grant was unlawful and criminal. Section 45 of CAP 160 states that:

(1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.

(2) Any person who contravenes the provisions of this section shall—

(a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and

(b) be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.

For that reason, the Applicants and demarcation officer in his letter, had no authority to transfer the Deceased’s estate to the following person: Joshua Kalunge, Julius Mati, M’ambau, GitongaKamenju, Joseph Kinyua and Grace KathaoM’imana based on the clan proceedings as the estate of the Deceased is governed strictly by the Law of Succession Act.

[11] Two chief letters and death certificates were produced by the different parties. Each party blames the other stating that they were forged. The Applicants state that the Petitioner’s chief’s letter ought to have the Chief’s name however their chief’s letter that they provided does not have the Chief’s name as well. On the issue of death certificate, the Petitioner’s death certificate is dated 16th July 2013 and the Applicants’ is dated 3rd July 2013. In spite of this, the Applicants have not provided the court with sufficient evidence to ascertain that the death certificate used by the Petitioner is a forgery. Stating and evidencing are two different things that the Applicants failed to do considering that the Petitioner is the one that has priority over the estate of the Deceased. However, the Registrar of Births and Deaths is to be notified of the issue of duplicity of certificates so that she may probe such.

[12] The Applicants seek that the court give inhibition orders to be placed on the register of land parcels numbers 7459 and 7460 Akirangondu ‘A’ Adjudication section. How can such orders be issued if they do not exist. The Applicants have repeatedly stated in their affidavit and submissions that the said land parcels do not exist because there was a subdivision of the same in 2013 which produced parcel numbers 10309, 1341 and 103808 Akirangondu ‘A’ Adjudication Section.

[13] Given that Orders 1 and 2 sought by the Applicants have been spent as per the orders issued by Judge Makau on 27th May 2015, this application is dismissed and I hereby issue the following orders:

1. That the Registrar of Lands shall cancel parcel numbers 10309, 1343 and 10380 Akirangondu ‘A’ Adjudication Section, amalgamate and revert them back to their original numbers as stated in the grant which are :

a) Akirangondu ‘A’ Adjudication Section/ 7459 and

b) Akirangondu ‘A’ Adjudication Section/7460

2. The grant that was confirmed on 15th October 2014 to be implemented as is and the Applicants who are in occupation of the parcels of land to vacate within a period of 30 days.

3. Each party to bear its own costs.

Dated, Signed and delivered in open court at Meru on this 11th day of October, 2017.

F. GIKONYO

JUDGE

In the presence of:

Mr. Anampiu advocate for petitioner

Mr. Nyamokeri for applicant

F. GIKONYO

JUDGE