[2020] KEHC 1986 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

SUCCESSION CAUSE NO. 558 OF 2013

IN THE MATTER OF THE ESTATE OF NASHON MALIKA LUBANGA Alias MALIKA LUBANGA (DECEASED)

AND

DINAH ANYONA MUTOKO ................... PETITIONER

VERSUS

MUSA LUBANGA MATENDECHERE.....PROTESTOR

JUDGMENT

1. The petitioner has filed summons for confirmation of grant dated 9th July, 2020 seeking for the estate of the deceased herein comprising of land parcel Marama/Inaya/536 to be distributed as follows:-

Dinah Anyona Mutoko - 4 Acres

Alexander Hosea Matendechere

Musa Lubanga Matendechere 2½ Acres to share equally

Ezekiel Akhapwoya Matendechere

2. The mode of distribution proposed by the petitioner was opposed by the protestor wherein he proposed that the estate be distributed in accordance with his affidavit sworn on 21st February, 2014 to wit:-

(a) Alexander Hosea Matendechere - 1. 0 Acres

(b) Isaac Makutwa Matendechere - 1. 75 Acres

(c) Musa Lubanga Matendechere - 2. 0 Acres

(d) Ezekiel Akhapwoya Matendechere - 1. 15 Acres

3. The brief facts of the case are that the deceased herein, Nashon Malika, was son to the late Harrison Malika. Harrison Malika had two wives who were mothers to Nashon and the petitioner on one hand and the protestor and 3 other brothers on the other hand. Nashon was the registered proprietor of land parcel Marama/Inaya/536 while his father was the registered owner of land parcel Marama/Inaya/531. Nashon died in the year 1990 and his father followed suit in 1997. The petitioner filed this succession cause in the year 2013 with the view of inheriting her late brother’s land. However the protestor and his brothers were already settled on the land. The petitioner proposes to give the protestor and his brothers 2 ½ acres of the land while she retains 4 acres. The protestor did not favour that mode of distribution and filed the protest.

4. It is the case for the petitioner that their father had settled her mother on land parcel 536 and registered it in the name of her brother, Nashon. That their father had settled the protestor’s mother on land parcel 531 together with her children. That their father sold the said land parcel with the consent of the protestor and his brothers. That after the death of their father the protestor and his brothers moved into land parcel 536 to where they reside to date. That it is Nashon alone who was living on the said land parcel before he died. That being the uterine sister to Nashon she is entitled to inherit his estate to the exclusion of the protestor and his brothers. That the protestor and his brothers should inherit from land parcel 531 that they and their father sold. However that she is willing to give them 2 ½ acres of the land on humanitarian grounds.

5. The evidence for the petitioner was supported by a uterine brother to the protestor, Ezekiel DW2. It was the evidence of Ezekiel that his mother was settled on land parcel 531 where he and his siblings were living with their mother. That during the burial of his father in 1997 they learnt that his father had sold the said land parcel. Since they had been left landless as a result of the sale they moved to stay in Nashon’s land parcel 536. The petitioner was living in Nairobi when they moved into the land. She came and found them having occupied the land. That since the petitioner is the uterine sister to the late Nashon she is the rightful heir to his estate. That he is contended with the petitioner giving them 2 ½ acres as they were not even entitled to get anything in the first place.

6. The evidence of the petitioner was also supported by a brother to her father, Harrison Okwaro Malika, DW3. DW3 testified that his deceased brother was settled on land parcel 531 with the mother of the protestor. That the said land parcel belonged to the household of the protestor’s mother. That Malika’s son Nashon was living on land parcel 536. That his brother sold land parcel 531 and then shifted to land parcel 536. The protestor and his brothers built on the land. That since the petitioner is a sister to Nashon she is the one entitled to inherit the land. That after his brother died the elders sat down and proposed that the petitioner gets 4 acres of land parcel 536 while the protestor and his brothers were to get 2½ acres.

7. The protestor on his part testified that his father died in the year 1997. He denied that his mother’s house was settled on land parcel 531. He said that he was not aware of the existence of such land until when he heard it during his father’s burial.

8. The protestor further said that the suit land, parcel No. 536, initially belonged to his grandfather, Musa Lubanga. That the land was registered in the name of Nashon to hold in trust for his brothers, namely himself, Alexander Hosea Matendechere, Isaac Makutwa Matendechere and Ezekiel Akhapwoya. That after Nashon died, his (protestor’s) father demarcated the land and distributed it to each of his sons way back in the year 1997. That there are clear boundaries on the demarcated land. That by then the petitioner was happily married. That the land should therefore be distributed as demarcated by his father. That the petitioner can claim from what was left by their father as the subject land is ancestral.

9. The evidence of the protestor was supported by his brother, Isaac PW2, his uncle Moses Cheteri Malika PW3 and an aunt, Elina Indimuli PW4. Isaac stated that the suit land originally belonged to his father. That his father registered it in the name of Nashon to hold in trust of other children who were then still young. That he was born and raised on the land. That after Nashon died his father sub-divided the land among his sons. They put up houses on the land. They have been in occupation since then. That the petitioner came in 2013 and said that she wanted land despite the fact that she is married. He said that the land should be distributed as sub-divided by his father. He said that he only heard about land parcel 531 during his father’s burial.

10. Moses Chiteri testified that the suit land was given to Nashon by his father to hold in trust for his other sons. That the protestor and his brothers were born on the said land. That after Nashon died, the protestor’s father sub-divided the land to his sons. The witness denied that the protestor and his brothers were living on land parcel 531. He said he is not aware of such land.

11. Elina DW4 testified that the subject land belonged to the protestor’s father who had inherited it from his father. That it is the protestor and his brothers who live on the land after being settled there by their father.

Submissions –

12. The advocates for the parties made written submissions. The advocate for the protestor, Miss Andia submitted that the evidence showed that Nashon was registered proprietor of the land as trustee for the protestor and his brothers. That the protestor and his brothers have been in occupation of the land since when they were born. That the petitioner came back to claim the land after her brother died. That she only wants to sell the land to a third party. That the protestor has proved that he is a beneficiary to the estate and that he is entitled to a share of the same.

13. The advocate for the petitioner, Mr. Getanda submitted that Section 76 of the Law of Succession Act provides the grounds under which a grant may be revoked. That no evidence was adduced to warrant the revocation of the grant. That Section 39 of the Law of Succession Act provides the degree of consanguinity under which relatives can inherit the property of a deceased relative. That in that degree the section favours brothers and sisters ahead of step-brothers and step-sisters. That in this case the petitioner is a step-sister to the protestor. That she ranks higher than the protestor in the degree of consanguinity. That it was proved that the land belonged to Nashon Malika and does not form part of the estate of Nahashon’s father. Counsel urged the court to dismiss the protest.

Analysis and Determination –

14. The questions for determination in the matter are –

(1) Whether the protestor’s household was ever settled on land parcel Marama/Inaya/531.

(2) Whether land parcel Marama/Inaya/536 was registered in the name of Nashon Malika in trust of the protestor and his brothers.

(3) Whether land parcel Marama/Inaya/536 was the absolute property of Nashon Malika (deceased).

15. I have keenly considered the evidence adduced before the court and the submissions by the respective advocates for the parties. The protestor and his witnesses all testified that the protestor and his brothers have always lived on land parcel 536. They denied that the protestor and his brothers were brought up in land parcel 531 and that they moved into land parcel 536 after the death of the protestor’s father.

16. The petitioner on the hand contends that the protestor and his brothers were brought up on land parcel 531 and that they moved to land parcel 536 in 1997 after the death of their father. The question is as to who between the two parties is telling the truth. 17. The petitioner produced a copy of green card for land parcels 536 and 531 as exhibits, P.Ex 1 and 2 respectively. P.Ex 2 shows that the land was originally registered in the name of Harrison Matendechere Lubanga (the father to the protestor) in 1963 who later sold it to one Manase Bismark Etemesi Wandanje on the 30/9/96. A brother to the protestor Ezekiel DW2 supports the evidence of the petitioner that the house of his mother was settled on land parcel 531 and that they moved into land parcel 536 after the death of their father upon learning that land parcel 531 had been sold. Their uncle Harrison Okwaro Malika DW3 supported this evidence. I am convinced that the evidence of the petitioner was more credible than that of the protestor. I do not believe the evidence of the protestor and his brother Isaack PW2 that they were born on land parcel 536. I do not believe the evidence of their uncle Moses Chiteri PW3 and their aunt PW4 that the house of the protestor have always lived on land parcel 536. It is clear that the protestor and his brothers were brought up in land parcel 531 and moved into the land parcel 536 after land parcel 531 was sold. DW2 confirmed that they moved into land parcel 536 after the death of their father. There is no time that their father divided land parcel 536 among them before he died. It is a lie for the protestor and his witnesses to say that they only came to hear of land parcel 531 during the burial of their father. I find that the protestor and his brothers were settled on land parcel 531 and moved into land parcel 536 after the death of their father.

18. Land parcel 536 was registered in the name of Nashon Malika in 1963. The protestor contends that the land was ancestral land and that it was registered in the name of Nashon Malika in trust of the other children of his father. The petitioner contends that Nashon owned the land absolutely and that it was his free property. That the protestor and his brothers occupied the land in 1997 and therefore that the issue of trust does not arise.

19. Section 25 of the Registered Land Act (Cap 300) provides as follows:-

“(1)The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject –

a. to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and

b. to such liabilities, rights and interests as affect the same and are declared bysection 28not to require noting on the register, unless the contrary is expressed in the register.

(2)Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee.”

20. Further to this, Section 28 of the Act provides that:-

“Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register-

a. .....

b. trusts including customary trusts;

c. - (j) .......

21. I have made a finding that the protestor and his brothers occupied the suit land in 1997 after the death of their father. However the fact that they were not in occupation of the land before then does not preclude them from establishing that a trust existed even before the date of occupation. A party can make a claim over land on the basis of a trust even when he/she is not in occupation and actual possession of the land. In James N. Kiarie –V- Geoffrey Kinuthia & Another (2012) eKLR the High Court held that:-

“While occupation may be relevant and has been found to be relevant in some cases in raising the inference of a trust, it is not a necessary ingredient for a trust to be established.”

The question is whether the protestor has established a trust existed over the land.

22. The burden of proving the existence of a trust fell on the protestor. In the case of Alice Wairimu Macharia –V- Kirigo Philip Macharia (2019) eKLR it was held that:-

“The legal burden to prove the existence of the trust rests with the one who is asserting a right under customary trust. To discharge this burden, the person must proof that:- (a) the suit properties were ancestral clan land; (b) during adjudication and consolidation, one member of the family was designated to hold on behalf of the family; (c) the registered persons were the designated family members who were registered to hold the parcels of land on behalf of the family. In essence, one had to lay bare the root of the title to create the nexus or link of the trust to the title holder and the claimant.

............ In the case of Njenga Chogera –V- Maria Wanjira Kimani & 2 Others [2005] eKLR which quoted with approval the holding in the case of Muthuita –vs- Muthuita [1982 – 88] 1 KLR 42, the Court of Appeal held that customary law trust is proved by leading evidence. Trust is a question of fact which must be proved by whoever is claiming a right under customary trust.”

In Isaack M’Inanga Kiebia –V- Isaya Theuri M’Lintari & Another (2018) eKLR the Supreme Court considered the onus of proof in a case of trust and held that:-

“21. A trust can never be implied by the Court unless there was intention to create a trust in the first place. In Peter Ndungu Njenga vs. Sophia Watiri Ndungu [2000] eKLR where the Court held,

“The concept of trust is not new. In case of absolute necessity, but only in case of absolute necessity, the Court may presume a trust. But such presumption is not to be arrived at easily. The Courts will not imply a trust save in order to give effect to the intention of the parties. The intention of the parities to create a trust must be clearly determined before a trust is implied.”

22. In Juletabi African Adventure Limited & Another v Christopher Michael Lockley [2017] Eklr the Court also held that …. It is settled that the onus lies on a party relying on the existence of a trust to prove it through evidence. That is because:-

“The law never implies, the Court never presumes, a trust, but in case of absolute necessity.The Courts will not imply a trust save in order to give effect to the intentions of the parties. The intention of the parties to create a trust must be clearly determined before a trust will be implied.”

In that case the court cannot imply a trust on the part of Nashon Malika unless it is clear that there was an intention to create a trust.

23. In the same case of Isaack M’inanga Kiebia –V- Isaya Theuri M’Lintari & Another(Supra) the Supreme Court dealt at length on the issue of trusts and customary trusts and held that:-

“[52]Flowing from this analysis, we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the trusts to which a registered proprietor, is subject under the proviso to Section 28 of the Registered Land Act. Under this legal regime, (now repealed), the content of such a trust can take several forms. For example, it may emerge through evidence, that part of the land, now registered, was always reserved for family or clan uses, such as burials, and other traditional rites. It could also be that other parts of the land, depending on the specific group or family setting, were reserved for various future uses, such as construction of houses and other amenities by youths graduating into manhood. The categories of a customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor.

Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court inKiarie v. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are:

1. The land in question was before registration, family, clan or group land

2. The claimant belongs to such family, clan, or group

3. The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous.

4. The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.

5. The claim is directed against the registered proprietor who is a member of the family, clan or group.

[53]We also declare that, rights of a person in possession or actual occupation under Section 30(g) of the Registered Land Act, are customary rights. This statement of legal principle, therefore reverses the age old pronouncements to the contrary in Obiero v. Opiyo and Esiroyo v. Esiroyo. Once it is concluded, that such rights subsist, a court need not fall back upon a customary trust to accord them legal sanctity, since they are already recognized by statute as overriding interests.

[54]In the foregoing premises, it follows that we agree with the Court of Appeal’s assertion that “to prove a trust in land; one need not be in actual physical possession and occupation of the land.” A customary trust falls within the ambit of the proviso to Section 28 of the Registered Land Act, while the rights of a person in possession or actual occupation,, are overriding interests and fall within the ambit of Section 30(g) of the Registered Land Act.

Although the Respondents herein were not in possession or actual occupation of Parcel No. Njia/Kiegoi Scheme 70, both the High Court and Court of Appeal were entitled to enquire into the circumstances of registration, to establish whether a trust was envisaged. Since the two superior courts were satisfied that indeed elements of a customary trust in favour of the Respondents pertaining to the parcel existed, we see no reason to interfere with their conclusions.”

24. The protestor merely states that the estate was held in trust for them by Nashon. He did not adduce credible evidence to prove so. There is no basis on which to hold that land parcel 536 was registered in the name of Nashon to hold in trust for the protestor and his siblings. The father to the protestor was polygamous. He settled the first house on land parcel 536 and the second house on land parcel 531. It is only Nashon who was living on land parcel 536 before he died. The fact that the two houses were settled on different parcels of land shows that there was no intention for any of the parcels of land to have been held in trust of the other household. It is apparent that if it were not for the fact that the protestor’s father sold land parcel 531 the protestor and his siblings had no intention of making a claim on land parcel 536. They simply came up with the issue of trust on land parcel 536 because they had been rendered landless by the sale of their land on parcel No. 531. There is no evidence on which a customary trust can be implied. I find no evidence that land parcel 536 was registered in the name of Nashon in trust of the 2nd house. The land was free property of Nashon. The claim that Nashon was holding the land in trust of his other family members has no basis. By virtue of the provisions of Section 39 of the Law of Succession Act on consanguinity, the petitioner as the uterine sister to Nashon is the one entitled to inherit the free property of her late brother to the exclusion of the protestor and his siblings. She can only give a share of the land to the protestor and his brothers on humanitarian grounds.

25. The upshot is that the protest has no merit. The same is dismissed in its entirety. I accordingly order for land parcel Marama/Inaya/536 to be distributed as follows:-

Dinah Anyona Mutoko - 4 Acres

Alexander Hosea Matendechere

Musa Lubanga Matendechere

Ezekiel Akhapwoya Matendechere 2½ Acres to share equally

Isaac Mukutwa Matendechere

Orders accordingly. Each party to bear its own costs.

Signed:

J. NYAGA NJAGI

JUDGE

Delivered, dated and signed at Kakamega this 28th day of October, 2020.

By:

W. M. MUSYOKA

JUDGE

In the presence of:

No appearance for the Petitioner

No appearance for the Protestor

Petitioner – Dinah Anyona

Protestor - Musa Lubanga

Court Assistant – Eric Zalo

30 days right of appeal.