[2022] KEHC 15473 (KLR)

In re Estate of Mwikya Kinywa (Deceased) (Succession Cause 39 of 1998) [2022] KEHC 15473 (KLR) (18 October 2022) (Ruling)

Neutral citation: [2022] KEHC 15473 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 39 of 1998

GV Odunga, J

October 18, 2022

IN THE MATTER OF THE ESTATE OF MWIKYA KINYWA (DECEASED) DAVID NDOLO NGILAI..............................OBJECTOR/APPLICANT -VERSUS- MUNYEKE MWIKYA.................ADMINISTRATOR/RESPONDENT

Ruling

1. Vide summons for confirmation of grant of letters of administration dated February 24, 2021 brought under Section 71 of the Law of Succession Act, the Applicant sought to have the letters of administration issued to Benard Mwanzia Mwikya on December 14, 2020 confirmed and that costs be in the cause.

2. The affidavit in support of summons for confirmation of grant of letters of administration was sworn by the Administrator, Benard Mwanzia Mwikya in which he stated that the deceased died on December 14, 1994 and the first grant was issued to the wife of the deceased, Munyeke Mwikya (Deceased) who died without completing the administration process. According to him, the deceased was survived by himself and three daughters; Monica Mutiso, Beatrice Mwicha and Veronica Musau and the only asset that he left was Machakos/Kitanga/58 (hereinafter referred to as “the suit property”) measuring 72. 4 Acres and he proposed that it devolves as follows;a.Benard Mwanzia Mwikya 11. 8 Acresb.David Ngilai 30 Acresc.Gregory Muia 10 0acresd.Rose Syowai Nzuki 5. 0 Acrese.Boniface N. Muinde 5. 5 Acresf.Patrick Muinde 4. 5 Acresg.Alii Nganga 3. 6 Acresh.Luka Mutisya 2. 0 Acres

3. David Ndolo, the Protestor herein, however filed an affidavit of protest dated April 16, 2022 in which he averred that he is a beneficiary of the estate due to the fact that on June 15, 1978 he entered into an agreement with the deceased for purchase of half of Plot Number 58 in Machakos/Kitanga Settlement Scheme and fully paid the purchase price of Kshs 23,270. 00 for 36 acres upon the execution of the agreement. Prior to the sale agreement, he said, they entered into an agreement in Kamba language which he contends the deceased understood very well, that he was purchasing half of the estate property. He further contended that the sale agreement dated June 15, 1979 that was drafted by TM Kisongoa, Advocate was reduced to the agreement dated March into English. He reiterated that he and the deceased understood the sale agreement well before signing it.

4. He disclosed that the estate property was charged to the Ministry of Lands settlement through Agricultural Finance Co-operation for a loan of Kshs 10,270 as evidenced in the agreement dated June 15, 1979 which loan he paid in full on November 22, 1980 to the District Settlement Officer. According to him, since he bought half of the shares belonging to the deceased herein in Kitanga Farmers’ Co-operative Society for Kshs512. 50, that was an indication that he was taking the shares equal to half of his parcel of land which is approximately 14. 42 Ha and equals to 36 acres.

5. He averred that the Land Control Board consent obtained by the deceased on February 7, 1981 to transfer 30 acres was not the right position and the consent was never executed. He indicated that he lived peacefully on the on the 36 acres in the estate property for 40 years until the demise of the deceased. It was his position that he had fulfilled his part in the sale agreement dated June 15, 1979 and it is only fair that the court declares his rightful share of 36 acres in the estate property.

6. In response, Benard Mwanzia Mwikya filed a replying affidavit averred on July 12, 2021 in which he stated that the protestor is neither a child nor a dependent of the deceased and therefore not a beneficiary of the estate. He admitted that the protestor had been using part of their land since 1977 when his father entered into an oral agreement to lease part of the land to him for which the Protestor paid mostly in the form of household consumables like sugar and bread.

7. According to him, his said his father could neither read nor write in English or comprehend Swahili, and he communicated orally solely in Kamba and scattered Swahili and therefore the annexed agreement is a fraudulent misrepresentation of the agreement between the deceased and the protestor. According to him, his father did not get into a contract of sale with the Protestor for the purchase of a portion of land and the alleged agreement with forged signatures is meant to acquire the deceased’s property without due consideration.

8. It was his contention that thereafter the protestor was allowed to reside on a small portion of the farm and an oral agreement that was witnessed by the village elders then. He acknowledged that towards the end of 1980, his father agreed to sell 30 acres to the protestor at Kshs 23,270 on condition that he completed payment. Subsequently the deceased and the protestor applied for the Land Control Board consent in 1981 which was confirmed. However, he averred that the protestor did not complete the payment before or after the demise of the deceased and this was what prompted the deceased to decline to process the transfer despite release of the Land Board Control Consent on February 9, 1981. According to the Administrator, the only payment that was made was done on November 22, 1980 yet in the alleged forged agreement it is indicated that he had fully paid the sale price by June 15, 1979. To him, it was illogical for the protestor to allege that the deceased sold him land secretly without any family member or witness present.

9. The deponent lamented that the 36 acres claimed by the Protestor exceeds the entire estate. He noted that the alleged written agreements in Kamba and English were materially different in content and do not indicate the intention of the deceased. Further, the land charged as alleged by the Protestor was never available for sale unless the chargor consents to such a sale thus making the entire allegations by the protester baseless and void.

10. According to him, the Land Control Board consent under the Land Control Board Act is final and binds the court and the Registrar of lands and overrides the agreement and the Protestor remains in occupation as a tenant at will. He disclosed that the protestor only paid Kshs 10,270. 00 paid to the District Resettlement officer Machakos with the balance pending to date thus invalidating the agreement. He undertook to transfer the 30 Acres upon full settlement of the purchase price at the prevailing market rate failure to which he is entitled to a refund of Kshs 10,270. 00. The Administrator asked the court to confirm the rest of the shares, vest 30 Acres in him and direct the protestor to pursue recourse in a land case.

11. The summons were prosecuted by way of written submissions.

12. On behalf of the Protestor, it was submitted that he had lived on the parcel for 42 years with no interruptions, constructed permanent houses and other permanent developments and therefore continues to enjoy proprietary rights even after the demise of the seller. He contended that neither the administrator nor other beneficiaries has raised any objection to his occupation, possession and use of the said land and relied on the case of Macharia Mwangi Maina and 87 others v Davidson Mwangi Kagiri [2014] eKLR and the case of The estate of Nasotokini Ole Sane alia Nasotokini Lesane (deceased) eKLR.

13. He contended that he had paid the loan in full on the issue of the land being charged. If any transaction was to be carried out, then the Administrator should inform the charge of the same and it was the charge to discharge the same as the loan had been paid in full. According to the Protestor, he was a bona fide beneficiary by purchase of 36 acres in the estate property to be excised from the estate to protect his interest.

14. On behalf of the administrator, it was submitted that if the intention of the deceased was to sell 36 acres to the protestor, he would have sought a further Land Control Board Consent in compliance with section 6 of the Land Control Act, cap 302 Laws of Kenya and any land in excess of the size indicated in the letter of consent is void.

15. He questioned why the protestor only realized the extra portion when he sought to confirm the grant to the deceased estate. He also pointed out that the protestor was relying on two agreements; one ambiguously describing the area of land sold as being half of the entire parcel of land without any number of acres and the second one claims 36hectares, a size bigger than the entire estate.

16. It was submitted that the court has no jurisdiction to entertain the protestor’s claim as framed in the protest, the best court suited to deal with the issue if the Environment and Land Court. The Administrator submitted that a constructive trust was not created over the six extra acres and if it were to be created over the land, it would have been with respect to the 30 acres which he is willing to have confirmed to him. Even if the indication of 36 hectares was an error, the protestor never took any step to have it rectified given he was the one to lose and therefore the reasoning in the Macharia Mwangi case supra was not relevant. He further stated that the claim for constructive trust amounts to a challenge of the deceased title to the said parcel of land. Reliance was placed on the case of The estate of the Late Jonathan Kinyua Waititu (Deceased) [2017] eKLR andRe Estate of Stanley Mathenge Ruriga (Deceased)[2018] eKLR.

Determination 17. I have considered the summons for confirmation of grant, the affidavit of protest, the replying affidavit and the submissions of the parties.

18. The protestor’s case is that he is a beneficiary by virtue of the purchase of a portion of the land he bought from the deceased. He has presented a sale agreement dated June 5, 1979, one dated March 24, 1979 and another undated one to show that he and the deceased were in communication and there was an alleged sale that took place. He also annexed a mutation form as at December 15, 2012 and a copy of the land control board consent form dated February 9, 1981.

19. The protestor has exhibited a copy of the consent from the Land Control Board in support of his case. However, that consent is only in respect of 30 acres as opposed to the 36 acres he is claiming. No convincing reason was given why the consent did not include the remaining 6 acres or why there was no further consent in respect thereof. According the administrator, the protestor did not complete the payment for the land in question. However, in the case of Johnson Muinde Ngunza & Another v Michael Gitau Kiarie & 12 Others (2017) eKLR, the Court stated that:“The Law of Succession Act recognizes the purchaser’s rights and in support of these submissions the said (sic) the Law of Succession defines a “Purchaser”. Purchaser according to the Act means a purchaser for money or money worth.”

20. In Titus Muraguri Warothe & 2 Others vs. Naomi Wanjiru Wachira Nyeri HCSC No 122 of 2002, 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.”

21. In my view the protestor has only succeeded in proving that he is entitled to 30 acres of the suit property. If he lays his claim to the longevity of his possession thereof, that is not for this court to determine as such disputes belong to the Environment and Land Court. It may well be that the said agreement for sale is nolonger valid for failure to obtain the consent but that is not for me to decide.

22. Accordingly, I find nothing wrong with the administrator’s proposed mode of distribution which takes care of the interest of the protestor in respect of the said 30 acres.

23. In the result, the protest fails and is dismissed but with no order as to costs.

24. It is so ordered.

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