[2022] KEHC 15139 (KLR)

In re Estate of Nduta Wang’ue (Deceased) (Succession Cause 457 of 2018) [2022] KEHC 15139 (KLR) (8 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15139 (KLR)

Republic of Kenya

In the High Court at Makueni

Succession Cause 457 of 2018

GMA Dulu, J

November 8, 2022

IN THE MATTER OF THE ESTATE OF NDUTA WANG’UE (DECEASED)

Between

Munyao Nduta Wangua

Applicant

and

Musau Nduta

1st Respondent

Kiio Nduta Wangwee

2nd Respondent

Maweu Wangwee

3rd Respondent

Ruling

1. Before me is a Summons dated 2nd November 2018 for revocation of grant of Letters of Administration brought by Munyao Nduta Wangwee under section 47 and 76 of the Law of Succession Act (Cap.160) and Rules 44(c) of the Probate & Administration Rules, in which the applicant listed the following prayers –1. That the grant confirmed on 11/7/2018 in favour of the respondents herein be revoked.2. That there be suspension of the operation of the grant pending the hearing and determination of the summons for revocation.3. That summons for confirmation of grant be heard afresh.4. That costs of the application be borne by the respondents herein.

2. For the record, the respondents are Musau Nduta, Kiio Nduta Wangwee, and Maweu Nduta Wangwee.

3. The application has grounds on the face of the summons that the applicant is the absolute owner of the land parcel No. Machakos/ulu/146 having purchased it back from respective buyers that the respondents failed to disclose his interest in the estate, that despite being a beneficiary to the estate he was never involved in the petition despite having entered appearance in the citation, and that the applicant stands to suffer loss owing to the confirmed grant.

4. The summons was filed with a supporting affidavit sworn by the applicant on 2nd November 2018, in which it was deponed that the respondents were not the biological children of the deceased, and that his father was the registered owner of land parcel No. Machakos/ulu/146. That in 1966 his father sold the land to Nzioka Kavuva and Musyoki Mulala and that his father died in 1974 and was buried in Malili. That title deed in the name of his father had not been issued, that in 1976 the applicant acquired back the land from Katiku Mbuva after refunding him the purchase money, that the applicant was forced to refund the money to Nzioka Kavuva and Musyoki Mulala since Katiku Mbuva failed to refund them out of the money he had been paid, that having refunded the money he became the owner of parcel Machakos/ulu/146 which ownership was later confirmed by a clan resolution on 15/04/2008, that the respondents appealed to the Makueni Land Disputes Tribunal and the appeal was dismissed, that though he entered appearance the citation, his consent was not sought during the petition proceedings herein.

5. The application was opposed through a replying affidavit sworn by Kiio Nduta Wangweeon 07/01/2018 in which it was deponed that the summons is bad in law and incompetent, that the plot Machakos/ulu/146 belonged to the deceased, that the objector had never purchased the deceased’s free estate, that during confirmation of grant the applicant was served with process to attend court, that the deceased herein had three wives, and that the 3rd wife of the deceased Wambui had leased part of land to Nzioka Kivuva, and that the applicant was only allowed by family member to refund the money paid for leasing.

6. Thereafter, applicant filed a further affidavit he swore on 6th February 2019 in which it was deponed that the subject land was registered in the name of Nduta Wangwee, and that Munyao Nduta Wangue the applicant, became the owner of the subject property after having refunded money to the previous purchasers which had been confirmed by the in clan its resolution passed on 15/04/2008.

7. Thereafter, Musau Nduta one of the respondents, also filed an affidavit he swore on 13th February 2019 in which it is deponded that he did not claim any share of the estate of the deceased, since the parcel of land had been purchased by his brother Munyao Nduta Wangwee from Nzioka Kivuva and Musyoki Mulala who had bought the land from Katiku Mbuva, who had bought it from the deceased.

8. He deponded further that he was illiterate and that he had been persuaded to sign documents which had not been explained to him.

9. The applicant filed a further supplementary affidavit, he swore on 14th February 2019 in which he deponed that the deceased sold the land to Kitweu Munyao who later sold it to Nzioka Kivuva and Musyoka Mulala, and that the applicant became the owner of the land after refunding the previous purchasers Nzioka Kivuva and Musyoki Mulala.

10. In another replying affidavit sworn on 23rd February 2019, Kiio Nduta Wangwee deponded that the deceased had never purchased the subject land as alleged, and that there had never been a clan resolution passed on 15/04/2018.

11. The application for revocation of grant was heard through viva voce evidence. The objector applicant called John Munyao; the objector and Peter Mbovu Wathome as witnesses.

12. The respondents on that part, called Kiio Nduta Wangwee alone as a witness.

13. Thereafter, the parties’ counsel filed written submissions. In this regard, I have perused and considered the submissions filed by ON Makau advocates for the objector/applicant as well as the submissions filed by Kamolo & Company advocates for the petitioners/respondents.

14. The proceedings herein are succession proceedings. As such, under the provisions of the Law of Succession Act (Cap. 160), the jurisdiction of this succession court is circumvented. It is limited to determining the free assets of the deceased, the beneficiaries of the estate, and distribution of the free assets to the beneficiaries therein, less liabilities.

15. The evidence placed before me in the application is that the subject land Machakoks/ulu/146 is registered in the name of Nduta Wang’uethe deceased herein. I have seen in the file herein, copy of a Land Certificate issued in June 1974 in Machakos under the Registered Land Act in that name.

16. The registered owner therein however, died on 29/11/1974 and a Death Certificate issued to that effect. Copy of the death certificate was filed. The registered owner of the land in contest is also the owner of the estate herein.

17. I am now request by the objector to revoke the confirmed grant of Letters of administration herein, because he has an interest in the subject land due to an alleged sale and subsequent refund by him of the money paid for the sale.

18. I am afraid that, this succession court is being invited to get into the arena of determining ownership to land, which is the province of the Environment and Land Court. This court cannot do so, as doing so will be a violation of Article 162(2) (b) of the Constitution of Kenya, as well as the written Law.

19. In my view, if the objector herein wants this court to revoke the confirmed grant of Letters of Administration on account of his claim of ownership of the subject land, he should first approach the Environment & Land Court to obtain clear orders regarding his ownership or interest in the subject land, and thereafter, come to this court to seek appropriate orders for the realization of his interest in the land. He cannot come to this court for revocation of the confirmed grant of Letters of Administration herein, before obtaining clear orders from the environment and Land Court on his ownership or other interest in the sort land

20. The applicant has also mentioned that the Land Disputes Tribunal had dealt with his claim, and that the Tribunal referred them to this Succession Court. In my view, the Land Disputes Tribunal does not have jurisdiction to deal with a claim of ownership to land. The Tribunal only has jurisdiction to deal with a claim for occupation, use and boundaries to land. Thus in my view the Tribunal was the wrong forum for any of the parties herein to pursue a claim of ownership to the land.

21. To conclude, I find that, though this court has jurisdiction to consider and determine an application for revocation of confirmed grant of Letters of Administration, the applicant/objector herein has not placed before this court evidence to satisfy the requirements for this court to exercise its jurisdiction to revoke the confirmed grant herein, as the ground relied upon being ownership of the land, has to be determined in the Environment and Land Court first, before the objector or applicant can come to this court to seek the revocation orders sought.

22. I thus find no merits in the application. I dismiss the application and decline to revoke the letters of administration and award costs of the application to the respondents.

DELIVERED, SIGNED & DATED THIS 8TH DAY OF NOVEMBER, 2022, IN OPEN COURT AT MAKUENI................................GEORGE DULUJUDGE