[2022] KEHC 11327 (KLR)

In re Estate of Ndeto Mutwika (Deceased) (Probate & Administration 187 of 1998) [2022] KEHC 11327 (KLR) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11327 (KLR)

Republic of Kenya

In the High Court at Machakos

Probate & Administration 187 of 1998

MW Muigai, J

July 21, 2022

IN THE MATTER OF THE ESTATE OF NDETO MUTWIKA (DECEASED)

Between

Theresia Wayua Ndeto

Petitioner

and

Veronicah Kaleso Matilu

Objector

Ruling

Background 1. The deceased herein Ndeto Mutwika died intestate on 3rd day of May, 1998 as per Death Certificate No 38119.

2. Theresia Wayua Ndeto petitioned for grant of letters of administration intestate on November 4, 1998 and annexed the following documents:

3. The deceased died intestate and left the following surviving him;-a.Joseph Ndetob.Kioko Ndetoc.Masyuki Ndetod.Makau Ndetoe.Ngui Ndetof.Mutie Ndeto

4. The Deceased left property known as Land Parcel No. Ukia/Utaati/751.

5. After gazettement of 4TH November, 1998, the Grant of letters of Administration was issued at Machakos on September 3, 1999 to Theresia Wayua Ndeto.

Division - Summons For Confirmation 6. Summons for confirmation of grant dated June 20, 2013 was filed on October 18, 2013 by one Veronicah Kaleso Matilu (Purchaser) and claimed interest as Purchaser of 7 Acres out of the Land Parcel No. Ukia/Utaati/571.

Affidavit To Protest 7. Stephen Ndolo Nyoli filed the Affidavit in Protest sworn on April 10, 2014deposing as follows:-a.That on or about September 21, 2003he was sold a portion of land in a parcel of land known as Ukia/Utaati/571 measuring 1. 1. Ha.b.That his father in law Mr Nyoli Ivuki Yalo was also sold a portion of the said land Ukia/Utaati/571 by the wife of the deceased Wayua Ndeto.c.That Veronicah Kaleso Matilu omitted his share in her application for confirmation.d.That he had paid the agreed price of the said portion as agreed and is entitled to get a share in Ukia/Utaati/571. e.That the family of the deceased herein had agreed on his rights to get his share he had rightfully paid for but the Veronicah Kaleso Matilu has declined.

8. On 23/07/2014 Summons was filed by the Petitioner herein and prayed for the following orders;a.The summons for confirmation of grant dated June 20, 2013filed by the respondent one Veronicah Kaleso Matilu be struck out with costs to the Petitioner.b.That the petitioner as the holder of the Temporary Grant herein be at liberty to file Summons for Confirmation of Grant issued to her on 3/09/1999. c.That preservation orders be issued restraining the said Veronicah Kaleso Matilu from intermeddling with the estate of the deceased.

Summons For Confirmation 9. Summons for confirmation of grant was filed by (Theresia Wayua Ndeto) petitioner herein on December 21, 2015and the same was confirmed on 10th day of October, 2016.

Summons For Revocation Of Grant 10. The objector/applicant Veronica Kaleso Matilu, filed Summons for revocation of Grant dated 3rd June, 2020 filed on 16/06/2020 and sought the following orders:-a.That the grant of confirmation issued in favour of Theresia Wayua Ndeto on 10/10/2016 be revoked.b.Summons for confirmation of grant be heard afresh.c.That there be a suspension of the operation of the Grant pending the hearing and determination of the summons for revocation.d.That costs of this application be paid out from the estate.

11. The application was based on the following grounds:a.That the applicant is a legal beneficiary of the estate of the late Ndeto Mutwika – deceased who owned the land parcel No. Ukia/Utaati/751 entirely.b.The applicant was a Protestor but the protest was dismissed.c.The court ordered the respondent herein to apply for Summons for Confirmation of grant in 30 days from 25/11/2015. d.That the Respondent was definitely required to serve the Applicant since she was aware of the Applicant’s interest in this matter.e.It is apparent that therespondent never served the Summons for Confirmation to the applicant.f.The Applicant instructed Counsel to write a letter dated 28/10/2019 to the Respondent’s Advocate on record to confirm the position of the case but they did not respond.g.That the grant was confirmed with material non-disclosure of the applicant’s interests.h.That the applicant currently resides at the suit property and she is likely to be evicted and condemned unheard.

Replying Affidavit By The Petitioner /respondent 12. That the petitioner is the lawfully wife/widow of Ndeto Mutwika (deceased herein).

13. That the deceased property comprises only one property Plot No. Ukia/Utaati/751 of Three Point Two Hectares (3. 2 Ha).

14. That the applicant filed Summons for Confirmation of grant without her knowledge on 20/06/2013 (to transfer the estate to herself) despite the fact that the grant had been actually issued to the petitioner.

15. That the applicant had registered a restriction against the estate’s property pending determination of her Application in this cause.

16. That the applicant’s husband Richard Matilu Malei (now deceased) had allegedly purchased the estate from thepetitioner.

17. That she was claiming and purporting to sue for and/or enforce her late husband’s alleged rights as a purported Purchaser thereof whilst she herself was without letters of Administration to her deceased husband’s estate.

18. That the applicant’s said summons was struck out vide this court’s Ruling dated 25/11/2015.

19. That the applicant’s Application is misguided and incompetent as it was premised on wrong, erroneous and misconceived understanding, interpretation and application of the law.

20. The Petitioner denies the Applicant’s allegations of possession as the Petitioner has been in possession of the estate property at all material times to date.

Applicant’s Submissions 21. It was submitted that the applicant is a legal beneficiary of the deceased property/estate by virtue of purchase of a portion from Land Parcel No. Ukia/Utaati/751.

22. That the petitioner/respondent did not involve or inform the Applicant herein in the succession proceedings knowing very well that she had a direct and protectable interest in the land and the actions of the petitioner/respondent amount to utterly disinheriting her therefore the grant was obtained fraudulently by the concealment of material facts by the Respondents herein.

23. That the petitioner/respondent was all along aware that a portion of the land parcel Ukia/Utaati/751 was sold to the applicant’s husband hence she is a bona fide purchaser for value without notice.

24. That thepetitioner/respondent obtained the confirmed grant in respect of the estate of the deceased which granted the whole estate to herself despite the fact that she was aware that a portion of the Land Parcel No. Ukia/Utaati/751 was sold to the Applicant’s husband.

25. That the petitioner/respondent failed to name the applicant as a beneficiary to the estate.

Supplementary Affidavit 26. Theresia Wayua Ndeto (petitioner) filed supplementary affidavit sworn on 10th March,29022 and deposed as follows;a.That the Applicant’s summons dated 16/06/2020 is incompetent, unmerited and complete waste of judicial time and should be dismissed with costs.b.That Ndeto Mutwika (the deceased herein) died on 3/05/1989 and the plot No. Ukia/Utaati/751 the subject of this grant was registered to him on 8/08/1991. The deceased had not sold the said plot to the applicant’s husband before death.c.That the grant was issued to the petitioner on 3/09/1999 and confirmed on 10/10/2016 which then renders wholly illegal all alleged land sale/purchase transaction of 1991 – 1998. d.That thiscourt Ruling of 25/11/2015 dismissing the applicants summons for confirmation was never appealed or set aside and it remains the position that the Applicant’s husband was not a valid or legal creditor of the deceased’s estate.e.That the applicant has not discharged the burden of proving a creditor’s interest to the deceased’s estate as stated in thecourt’s Ruling of 25/11/2015.

Respondents Submissions Filed On 16Th May, 2022 27. It was submitted that the applicant’s summons for confirmation was struck out in this court ruling dated November 25, 2015, therefore the applicant’s role in the subsequent confirmation proceedings was spent, obsolete and functus. She could only sue the Administrator on confirmation of her grant, for any alleged ownership interest in a separate ownership suit at the proper civil court and not seek a revocation when not entitled to a grant.

28. That therespondent’s grant was lawfully confirmed and is not subject to revocation as purported as the respondent filed her summons for confirmation on 21/12/2015 in accordance with this court’s Ruling of 25/11/2015 and the same confirmed on 10/10/2016 and the grant issued on 11/11/2016.

29. That according to the ruling of this court the applicant and her late husband were mere intermeddlers that never constituted them as valid purchasers or creditors of the deceased’s estate.

30. On the issue of an interest recognized in law it was submitted that the applicant had and her husband have no legal or any interest recognized in law over the deceased’s estate.

31. On the issue of service of the summons for confirmation of grant, the Ruling of 25/11/2015 did not direct any service of the ordered summons for confirmation of the respondent’s grant.

32. Therespondent raised the issue of lack of the Succession Court’s jurisdiction to adjudicate the issue of trust and sale of land title and ownership of land.

33. Therespondent referred to the case of Monicah Wangari Njiri & 4others vs Eunice Wanjiru Igamba &anor[2016] eKLR by A. K. Ndung'u, J stated that;“Secondly, I do not think that the Succession proceedings are appropriate way to challenge the title of the deceased to the said properties. Their claim of a trust is or ought to be the subject matter of separate suit or proceedings. The objectors have to prove the trust and thereafter seek revocation of the title or partition thereof. This requires declaratory orders of the existence of trust. Succession are not appropriate for resolution of serious contested claims against the estate by 3rd parties. This is not the function of a Succession Court where the claimant is neither a beneficiary or dependent…..In this case the objectors ought to institute separate proceedings to articulate or vindicate their claims or rights……..even if there was material establishing that there is such a trust, I doubt the resolution of the issue would be a matter of the Probate court. The mandate of the Probate court under the Law of Succession is limited.”

Determination 35. Thecourt considered pleadings and written submissions by parties and the courtis to determine whether the confirmed grant filed on 24/3/2020 should be revoked or not.

36. The Objector’s claim is that a portion of Land Parcel No. Ukia/Utaati/751 was purchased from the Respondent’s late husband hence the Objector resides on the said suit property. If the interest is not recognized and established the Objector may be evicted from the suit property and condemned unheard.

37. The Summons of Confirmation of Grant filed by the Respondent was not served on the Objector and the Confirmation proceedings were done secretly without material disclosure of the Objector’s claim. Therefore, the confirmed grant ought to be revoked.

38. The respondent submitted that the objector/applicant filed Summons for confirmation of grant dated June 20, 2013, filed on October 18, 2013claimed interest as Purchaser of 7 Acres out of the Land Parcel No. Ukia/Utaati/571. This court by Ruling of 25/11/2015 of Hon. P Nyamweya LJ (as she then was) dismissed theobjector/applicant’s summons for confirmation on grounds that the objector/applicant (respondent) and/or her late husband did not qualify as one of the persons entitled to a grant under Section 66 of LSA as they did not prove that they were creditors of the deceased’s estate and the court struck out the Summons of Confirmation of 20/6/2013 and thepetitioner (respondent herein) was to apply for confirmation of grant. The Ruling remains a valid, legal and regular order of the court until varied, set aside, reviewed or successfully appealed against.

39. With regard to the objector/applicant’s claim thatthe Summons for Confirmation filed by (Theresia Wayua Ndeto) Petitioner herein on December 21, 2015confirmed on 10th day of October, 2016; the proceedings were shrouded in secrecy as the Petitioner failed to serve the objector/applicant. The objector/applicant was not in priority in the list of beneficiaries under section 66 of LSA and Rules 26,27,40,41 & 44 of Probate & Administration Rules that spell out the parties to be served.

40. This court ‘s mandate under the Law of Succession Act is limited to facilitating and effecting intestate and testamentary succession and the administration and distribution of estates of deceased persons to beneficiaries and dependents. The court confers beneficial interest(s) transmitted to the beneficiaries of the deceaseds’ estates. The claims by 3rd Parties (purchasers, trustees etc) that entail proprietary interests and trusts are within the purview of separate proceedings conducted in other courts.

41. The objector/applicant’s claim to the suit property Land Parcel No. Ukia/Utaati/571consists of a trust and proprietary interest arising from the late Objector’s husband who is alleged to have purchased a portion of the suit property from the Petitioner’s late husband. The Trust and/ or proprietary interest has to be established first before it is visited upon or applied to the estate of the deceased herein.

42. This court’s jurisdiction is limited to Succession proceedings; Hon. W. Musyoka J. in the case of In re Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR, stated: -“It may be argued that the subject land is estate property and by dint of that fact the probate court would have jurisdiction thereon. The position is not as simple. The Law of Succession Act, and the Rules made thereunder, are designed in such a way that they confer jurisdiction to the probate court with respect to determining the assets of the deceased, the survivors of the deceased and the persons with beneficial interest, and finally distribution of the assets amongst the survivors and the persons beneficially interested. The function of the probate court in the circumstances would be to facilitate collection and preservation of the estate, identification of survivors and beneficiaries, and distribution of the assets.Disputes of course do arise in the process. The provisions of the Law of Succession Act and the Probate and Administration Rules are tailored for resolution of disputes between the personal representatives of the deceased and the survivors, beneficiaries and dependants. However, claims by and against third parties, meaning persons who are neither survivors of the deceased nor beneficiaries, are for resolution outside of the framework set out in the Law of Succession Act and the Probate and Administration Rules.” (Emphasis added)

43. The Environment and Land Court is contemplated under article 162(2) of the Constitution, 2010 and its jurisdiction is provided for under section 13 of the Environment and Land Court Act. The Environment and Land Court has the power to hear and determine issues relating to the use and occupation of, and title to land. The court is the appropriate forum for determination of the Purchaser’s interest /right in the suit property against the respondent.

44. For the above listed reasons based on legal provisions and case-law, the objector/applicant’s application for revocation of grant does not meet the legal threshold required to revoke and annul the grant on the basis the grant was defective in substance; was obtained fraudulently or concealment something material or by an untrue allegation.

Disposition 1. The Summons for revocation of 16/06/2020 is dismissed.

2. The objector/applicant may pursue the claim, right or interest from ELC Court against the petitioner over portion of Land Parcel No. Ukia/Utaati/571.

3. Each Party to bear own Costs.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 21STJULY 2022. (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGE