[2022] KEHC 12266 (KLR)

In re Estate of Ngundi Kitheka alias Ngundi Kitheka (Deceased) (Civil Appeal 29 of 2019) [2022] KEHC 12266 (KLR) (9 May 2022) (Judgment)

Neutral citation: [2022] KEHC 12266 (KLR)

Republic of Kenya

In the High Court at Kitui

Civil Appeal 29 of 2019

RK Limo, J

May 9, 2022

IN THE MATTER OF THE ESTATE Of NGUNDI KITHEKA alias NGUNDI KITHEKA (DECEASED)

Between

John Muema Kimanzi

Appellant

and

Ileli Kitheka Ngati

Respondent

(Being an Appeal that arose from the decisions in the Ruling of the Senior Resident Magistrate Hon. Ombata that was delivered on 28th of May 2019 in Succession Cause No. 213 OF 2014 in Kitui CM’s Court.)

Judgment

1. This appeal arose from the ruling of Hon Ombata-Senior Resident Magistrate dated May 28, 2019 which basically were eviction orders pursuant that court’s decision dated February 13, 2017. That decision determined the rights or interests of the parties in this appeal in relation to the estate of the late Ngundi Kitheka Ngati alias Ngundi Kitheka(deceased).

2. The subject of this appeal is the ruling delivered and dated the May 28, 2019. That ruling arose from an application dated October 17, 2018 where the respondent in this appeal sought eviction orders against the appellant herein, on the grounds that the appellant was a trespasser after the court’s decision dated February 13, 2017.

3. To give a clear perspective of the subject in this appeal, it is necessary to give a brief background about the substance of the dispute between the parties herein. The cause before the subordinate court was a succession cause in respect to the estate of the late Ngundi Kithaka Ngati alias Ngundi Kitheka (deceased). In that cause the respondent had petition for letters of administration of the said estate in his capacity as a brother to deceased and was granted letters of administration.The appellant filed an objection on the grounds that being a nephew to the deceased he was entitled to a share of the estate and that his own father one Kimanzi (deceased) had an interest on the estate.

4. The trial court entertained the objection and rendered itself vide its ruling dated February 13, 2014 where it found that the appellant was a distant relative to the deceased as opposed to the respondent who was a brother to the deceased and ranked first in order of priority of beneficiaries of the estate of the deceased. It is also worth to note that the deceased had died without any wife or children. The appellant father was found to be a step brother to the deceased and was the only one who could stake claim on the estate of the deceased.

5. The record shows that after sometime upon dismissing the objection the trial court confirmed the grant on the July 3, 2018. The appellant for record did not contest the decision of the trial court dated February 13, 2017.

6. After the grant was confirmed and the property comprising the estate distributed to the respondent, the respondent on July 3, 2018 filed an application dated October 17, 2018 which gave rise to the eviction orders against the appellant which order is now the subject of this appeal. Suffices to state that upon the respondent’s application for eviction, the trial court found that its decision had remained unchallenged and proceeded to issue eviction orders.

7. The appellant felt aggrieved and filed this appeal. He has raised the following grounds namely: -a.That the learned magistrate misdirected herself in law and fact when she held that the land parcels No Matinyani/Kalimani/184 belonged to the respondent and proceeded to allow the eviction of the appellant while the land in question is an ancestral land where all the parents of the appellant were buried thereon.b.The learned magistrate erred and misdirected herself in prints of law and fact when basing her ruling on the fact that the appellant did not appeal against her earlier ruling dated February 13, 2017 dismissing the objection of the appellant in lower court file proceeding while at the same time she failed to observe that it was riddled with fraud as the respondent intentionally left out the appellant who is a beneficiary.c.The findings and conclusions reached by the learned magistrate were against the prayers of the applicants in his replying affidavit and weight of the oral evidence the appellant gave before the court.

8. In his written submissions the appellant, has accused the respondent for what he terms as fraudulent act of grabbing his parcel of land. He contends that a clan’s letter dated January 20, 2019 indicated that the parcel of land comprising the estate was ancestral land and faulted the trial court for issuing eviction orders against the weight of evidence.

9. He submits that his earlier objection was well grounded as it raised what he terms valid grounds which were based on the position taken by the clan.

10. He contends that the respondent took advantage of Covid-19 pandemic to evict him and that he was not in a position to properly defend his rights.

11. It is his submission that the respondent’s position is based on technicalities and has urged this court to be driven by substantive interests of justice.

12. The respondent on the other hand has opposed this appeal mainly on the grounds that the appellant’s objection was heard and dismissed by the trial court on the February 13, 2017 and that the appellant did not contest that ruling.

13. He contends that he proceeded with the execution process and that the trial court found that the appellant had no right to benefit from the estate and should be evicted.

14. The respondent contends that this appeal is misplaced because the appellant did not challenge the court’s decision to dismiss his objection and confirming the grant.According to the respondent litigation must come to end as the succession proceedings were concluded and the appellant did not challenge the decision on his objection and that his challenge on eviction is without basis.

15. This court has considered this appeal and the grounds raised including the written submissions of both parties.

16. The appellant in his memorandum of appeal dated May 30, 2019 states that he is aggrieved by the trial court’s decision dated May 28, 2019 but in his submission he has majorly attacked the decision of the lower court dated February 13, 2014.

17. As I have clearly highlighted above the appellant’s objection to the respondent’s application for letters of administration in respect to the estate of Ngundi Kitheka (deceased) was heard and determined on the merits. His claim on the estate was dismissed on February 13, 2017. He did not contest that decision. The respondent went ahead and applied for confirmation of grant and the same was confirmed on July 3, 2018. Again the appellant did not raise any issue to the confirmation of grant which distributed the estate to the respondent.

18. The respondent upon confirmation of grant then through an application dated October 17, 2018 applied for eviction orders against the appellant. At that stage it was quite evident that the decision of the trial court dated February 14, 2017 had extinguished any right of the appellant to lay claim on the estate. He was a trespasser on the estate because he had no right whether legal or beneficial over that estate and the trial court was obligated to issue eviction orders. The trial court cannot be faulted for issuing eviction orders because at that stage, its decision that the appellant had no right over the estate had not been challenged. As a matter of fact, the same has not been challenged even in this appeal and the net effect is that the decision stands and is binding and has the force of law. The respondent’s right over that parcel known as Matinyani/Kalimani/184 was contested by the appellant and the trial court rendered itself as I have observed above. I cannot go into the merits of that decision because it is not the subject of this appeal.This court finds no merit in this appeal. The same is disallowed with costs to the respondent.

DATED, SIGNED AND DELIVERED AT KITUI THIS 9TH DAY OF MAY, 2022. HON JUSTICE RK LIMOJUDGE