[2023] KEHC 27181 (KLR)

In re Estate of Njoroge Mbugua (Deceased) (Succession Cause 1697 of 2008) [2023] KEHC 27181 (KLR) (Family) (1 November 2023) (Judgment)

Neutral citation: [2023] KEHC 27181 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 1697 of 2008

PM Nyaundi, J

November 1, 2023

IN THE MATTER OF: THE ESTATE OF NJOROGE MBUGUA (DECEASED)

Between

Catherine Nyamwitha Mbugua

Applicant

and

Charles Njoroge

1st Respondent

David Kiratu

2nd Respondent

James Kamau

3rd Respondent

Judgment

1. For determination is the Summons for revocation or annulment of Grant dated 8th February 2018 presented Under Section 76 of the Law of Succession Act and Rule 44(1) of the Probate and Administration Rules. The summons is grounded as hereundera)That the Administrator has passed awayb)The grant during the obtaining of the grant herein, there was a lot of influence to our deceased mother and therefore the grant obtained fraudulently by making or presenting of a false information and / or statement, and or by the concealment from the Court of something material to the case.c)The grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently.d)That the proceedings to obtain the grant were defective in substance in that the consent obtained were so obtained by falsehood in that the daughters were cheated into signing the consent with a promise of getting a share of the property.e)That the Administrator passed away on 22nd April 2014 and therefore the grant has become inoperative and therefore the same should be revoked.

2. The Application is supported by the Affidavit of Catherine Nyamwitha Mbugua sworn on even date.

3. The 1st Respondent, Charles Njoroge has sworn an affidavit in opposition on 25th October 2019. In response the Applicant swore a further affidavit on 3rd March 2020.

4. On 20th June 2018 the Court made an ordera)That the Administrators shall be appointed by the Court under Section 66 of the Law of Succession Acti.Charles Njorogeii.Grace Wanjikuiii.David Kiratu Mbuguaiv.Jane Robib)That a new grant be issued substituting Priscilla Nyambura Mbugua who is now deceased.

5. The matter proceeded by way of viva voce evidence in open Court on 25th July 2023.

Summary Of The Applicant’s Case 6. OWI Catherine Nyamwitha Mbugua. She testified that she is a daughter of the deceased. The Petitioners are her brothers. She testified that after the death of her mother the brothers have threatened to evict her from the land. They have also demolished her son’s house. She denies that she signed a consent to give her brothers the estate.

7. She testified that it had been agreed that the property vest in her mother to hold for the benefit of her children. Her mother died on 22nd April 2014 before she transmitted the property. After her mother died, there was no move to replace her as an administrator until she made the Application for revocation.

8. She testified that the title that the 1st Respondent has in relation to Parcel 252 is fraudulent as a search she undertook on October 2017 showed the property was still registered in the name of the deceased. She undertook a subsequent search on 28th February 2020 and the land was still registered in the name of the deceased. She seeks that the estate be divided equally among the children of the deceased.

9. On Cross examination, she confirmed that the deceased is her father and the proprietor of the subject parcel of land. She states that when they came for confirmation of grant they were made to understand that the land was being vested in their mother. She reiterated that she separated from her husband in 1998 and denied that she returned to the home in 2016. She denied that the parcel of land 252 has been sub divided into different parcels.

10. Her search certificate does not indicate the date on which she commissioned the search. She has constructed a house and vegetable kiosk on the parcel. The 1st respondent has been threatening her with eviction, she lives on the parcel with her 3 brothers and her children.

11. On reexamination she asserted that she has no relation with her estranged husband. She undertook the search on 28th February 2020.

Summary Of The Respondent’s Case 12. RW1 Charles Njoroge Mbugua. The objector is his sister and the deceased is their father and he died in 2007. His Affidavit sworn on 25th October 2019 adopted as his evidence in Chief. He contests the claim by the Objector.

13. It is his testimony that he inherited the land from his father. It his evidence that due process was followed in obtaining the grant. The land was allocated in accordance with his father’s wishes. No one challenged the proposal at confirmation. The objector was present and she did not object.

14. He stated that he and 3 others were appointed as administrators in 2018 and they proceeded to transmit the land to the rightful beneficiaries. He now holds parcel Dagoretti/ Kangemi/1947.

15. His father did not allocate any land to the girls as they were all married. He lives on the farm with his brothers. The Objector has no claim to the land. He testified that the Objector returned to the land in 2017 after the father had died but while the mother was alive.

16. He accommodated her on his share of the land at the request of the mother. He is the one that constructed the house she lives in and the Kiosk.

17. On cross examination he stated that the land was 1st registered in the name of the mother and then transmitted to him. The parcel No. 252 no longer exists as separate titles have issued. Each brother has an individual title.

18. When he accommodated the Applicant, he thought it was a temporary measure and that she would go back to her matrimonial home. He asserts that her claim is time barred it should have been raised in 2013. On cross examination he indicated he was not certain on the date that she returned to the home, but it was not during the life time of their father.

19. He asserted that their mother distributed the land in accordance with the wishes of their deceased father. The wishes of the father were captured in the Summons for Confirmation and no one objected. He confirmed that the affidavit in support of the Summons for Confirmation did not include the proposal on distribution.

20. He confirmed that he had constructed a toilet next to the house that the Applicant is living. He denied threatening the Applicant with eviction.

21. On reexamination, he reiterated that the distribution was in accordance with the wishes of the deceased. The property was divided between the 3 brothers

22. RW2- David Kiratu Mbugua, he is a brother to the Objector/ Applicant, the deceased is their father. He confirmed that the original parcel of land was Dagoretti/ Kangemi/252. The deceased distributed the land among his sons prior to his death.

23. At the time the deceased died he and his brothers were residing on the parcel of land. All the girls were married at the time. At the time the deceased died the Objector/ Applicant was at her matrimonial home. She was given a farm in Naivasha; Naivasha/ Maraigishu/ Block 4/123. The farm was given to her son named after their father.

24. She has not moved to the land in Naivasha. Among the sisters she is the only one claiming a share of their father’s estate. The estate has been distributed in accordance with the Certificate of Confirmation of Grant. It was Charles Njoroge who was allocated the parcel Kangemi/252 D

25. He asserted that her claim was unfounded and she should move to Naivasha

26. On cross examination. He stated that the deceased did not reduce his wishes to a written will. He gave verbal instructions to their mother. He confirmed that they were appointed as administrators in 2018, the Estate has been distributed as per certificate of confirmation of Grant. The assets are as enumerated in the certificate of confirmation of Grant dated 12th June 2023.

27. The objector stays on the parcel that belongs to James. He is opposed to her getting a portion of the land at Kangemi. She declined the parcel of land in Naivasha. They are prepared to transmit it to her once she agrees. The parcel will be registered in her son’s name.

28. Block /252 is still registered in the name of their mother. It was given to all the children named after the deceased.

29. Titles for the parcel of land were secured in 2017. Their mother died in 2014.

30. On reexamination. He stated that initially their mother was the sole administrator. There was no objection to the confirmation. The objector/ Applicant was present in Court. He has no objection to the son getting the parcel of land in Naivasha.

31. At the close of the hearing parties were directed to file submissions. The Applicants submissions are dated 8th August 2023. Those of the Respondent are dated 4th September 2023.

Summary Of The Objector/ Applicant’s Submissions 32. The Applicant has identified the following as the issues for determination;a)Whether the Objector is a dependant and qualifies to benefit from the deceasedb)Whether the Objector consented to the mode of distribution as itemized in the certificate of confirmation of grant dated 12th June 2013c)Whether any transactions done after the passing away of the first appointed administrator are validd)Whether the Objector/ Applicant has met the threshold for revocation of the grant to be issued.

33. On the 1st Issue reliance is placed on the decision in Re Estate of Solomon Ngatia Kariuki (Deceased) [2008] eKLR and Gitonga M’Murithi vs Faith Ngira Murithi [2015] eKLR on the equal right of daughters to inherit family land irrespective of their marital status.

34. On the 2nd issue, the Applicant contends that the objector did not consent to the schedule of distribution and in any event the affidavit in support of the summons did not refer to the mode of distribution. That she was misled into believing that the Court was vesting the property to her mother who would then distribute the properties to all the children of the deceased.

35. On the 3rd Issue, the Applicant contends that the subdivisions of the parcels of land are invalid as they were effected when the grant was inoperable and reliance placed on the decision on the Estate of Veronica Njoki Wakagoto- Deceased

36. On the 4th Issue, it is contended that the Applicant has met the threshold. It is argued that the Court should revise the distribution of the estate as the same did not provide for the daughters of the deceased.

Summary Of Respondent’s Submissions 37. The Respondent identifies the following as the issue for determinationa)Whether the Applicant has presented sufficient evidence to warrant revocation or annulment of the grant

38. The Respondent relies on the decision in the Matter of the Estate of L.A.K (Deceased) [2014] eKLR and in the Estate of Albert Imbuga Kisigwa vs Recho Kavai Kisigwa Succession Cause No.158 of 2000

39. It is contended that the Applicant has been indolent in presenting the Application, as she took 5 years to present the Application. It is contended that the Applicant has not stated the grounds on which she seeks to revoke the grant.

Analysis And Determination 40. Having considered the Pleadings herein, evidence tendered and submissions filed. I discern the following as the issues for determinationa)Whether the Court should revoke the grant of letters of Administration issued on 31st October 2018b)Whether the Court should review the orders issued on 12th June 2013 and cancel the certificate of Confirmation of Grant.c)Whether the estate has been transmitted in accordance with the Certificate of Confirmation of Grantd)What if any are the consequential orders that the Court ought to make

41. On the 1st Issue, whether this Court should revoke the grant issued herein?Grant of letters of Administration herein was issued herein on 31st Day of October 2008 to the Priscilla Nyambura pursuant to Petition presented by her on 21st July 2008. The Administrator died on 22nd April 2014. This Application for revocation was filed on 8th February 2018. The Affidavit in Support of Petition was signed by the Petitioner and the Applicant herein. The Applicant also signed the Consent to the making of the grant dated 14th July 2008.

42. On 20th June 2018, pursuant to the Applicants Application dated 8th February 2018, the Court revoked the grant issued to Priscilla Nyambura Mbugua and appointed Charles Njoroge, Grace Wanjiku, David Kiratu and Jane Robi as Administrators to the Estate of the Deceased.

43. It is evident from this chronology of events that the Court by reason of the Death of the Administrator did revoke the grant and issue fresh letters of administration as detailed above. In the circumstances, I decline to issue the orders sought as they have been overtaken by events.

44. On the 2nd issue as to whether the Court should review the orders confirming the grant issued on 12th June 2013?

45. Priscilla Nyambura Mbugua (deceased) filed Summons for Confirmation dated 24th May 2013. That Application was accompanied by Consent to Confirmation of Grant dated 24th May 2013 signed by Charles Njoroge Mbugua, David Kiratu Mbugua and James Kamau Mbugua and consent to the Mode of Distribution of Estate dated 24th May 2013. The Consent to mode of Distribution is signed by Priscilla Nyambura Mbugua, Charles Njoroge, David Kiratu and James Kamau.

46. Vide Paragraph of the said consent it was proposed to distribute the Estate in the following mannerName Description of Properties Share of heirs

1. Priscilla Nyambura Mbugua Dagoretti/ Kangemi/252 Block ABC Absolute

2. Charles Njoroge Dagoretti/ Kangemi/252 Block D Absolute

3. David Kiratu Dagoretti/ Kangemi/252 Block E Absolute

4. James Kamau Dagoretti/ Kangemi/252 Block F Absolute

5. Charles Njoroge Mai Mahiu Block 621 Absolute

6. David Kiratu Naivasha Maragishu Block 615 A Absolute

7. James Kamau Naivasha Maragishu Block 615 B Absolute

8. Priscilla Nyambura Mbugua Naivasha Maragishu Block 4/123 Absolute

47. The Summons for confirmation was heard by Hon Justice Musyoka J. on 12th June 2013. The Court record indicates that the following were in attendancei.Priscilla Nyamburaii.Charles Njorogeiii.Grace Wanjikuiv.Margaret Njeriv.Eunice Njanjavi.Esther Nguhivii.Elizabeth Njokiviii.Catherine Nyawithaix.Rose Wanjirux.Grace Wairimuxi.David Kiratuxii.Jane Robixiii.James Kamauxiv.Maureen Wambuixv.Vivian Waceke

48. The record indicates that Priscilla Nyambura addressed the Court indicating that the Application that was for hearing was dated 24th May 2015 for confirmation of Grant and ‘the daughters have no objection.’

49. The Court made the following ordersi.The beneficiaries, especially the daughters have indicated that they have no objectionii.The Application dated 24th May 2013 is hereby allowediii.Grant made on 31st October 2018 is confirmediv.Estate shall devolve as proposed

50. The Applicant does not deny that she was in Court. Her stance that she was misled as to the import of the proceedings on 12th June 2013 is not borne out by the record as reproduced above. In the circumstances I find that the orders of the Court as issued on 12th June 2013 are valid.

51. On the 3rd Issue Whether the Transmission of the Estate is compliance with the Certificate of Confirmation of Grant issued on 12th June 2023?The 1st Respondent counters the Applicants assertion that the parcel of land Dagoretti/ Kangemi/ 252 is registered in the name of the deceased and averred that in fact the said parcel no longer exists and it was subdivided and separate titles issued, including Dagoretti/ Kangemi/1987 which was registered in his name and Title Deed issued on 1st March 2017.

52. It is evident from the Certificate of Confirmation of Grant that a portion of the land Dagoretti/ Kangemi/252, identified as Block ABC was to have vested in the Administrator, Priscilla Nyambura Mbugua. Instead the 3 sons of the Deceased went ahead and shared out the entire parcel between themselves and have proceeded to secure titles.

53. This is the bone of contention and brings into focus what the mandate of the Probate Court is. The jurisdiction of the probate Court is well settled by law and judicial precedent. In the decision in Re Estate of Alice Mumbua Mutua (Deceased) [2017] KLR (Musyoka J) said as follows on the same:“[8]... The primary mandate of the probate court is distribution of the estate and once an order is made distributing the estate, the court’s work would be complete. The proposition therefore is that not every dispute over property of a dead person ought to be pushed to the probate court. The interventions by that court are limited to what I have stated above.”

54. In re Estate of Daniel Khasievera Anusu (Deceased) [2022] eKLR Musyoka J[8]The High Court handled this matter while sitting as a probate court. Its remit as such is limited, to distribution of the assets of the estate. it pronounced itself on that in the ruling of 25th May 2017. The land is to be shared equally. A certificate of confirmation of grant issued. Once a grant is confirmed, the work or role of the probate court would largely be at an end. It is not the role or function or mandate of the probate court to superintend over how the land is to be thereafter distributed on the ground. The provisions of the Law of Succession Act, Cap 160, Laws of Kenya, and the Probate and Administration Rules do not deal with that. They do not provide for it. The probate court is pretty functus officio, once it confirms the grant.[9]What follows confirmation of a grant is transmission of the assets to the named beneficiaries as per or according to the certificate of confirmation of grant. Transmission of property as per the certificate of confirmation of grant is a concept in land or property law. It is not regulated by succession law, hence the silence in the Law of Succession Act and the Probate and Administration Rules on it. It is not a succession matter whatsoever, and, therefore, transmission of assets as per the certificate of confirmation of grant should not tax the mind of the probate court at all. I even doubt whether the High Court has any jurisdiction to touch anything to do with transmission of property after confirmation of the grant.

55. In the instant case, the issue is whether the Estate has been transmitted in accordance with the Certificate of Confirmation of Grant. No explanation has been given by the respondents as to where the share due to Priscilla Nyambura Mbugua is. The situation obtaining in the instant case is almost similar to that in In re Estate of Peter Machisu Shirekuli (Deceased) [2022] eKLR the Court stated thus[8. ]The applicant should not even be thinking of cancellation of the certificate of confirmation of grant or even the setting aside of the orders from which it germinates. He would like the distribution of 1996 to remain largely intact, except for changes to accommodate the death of the two beneficiaries, and the sale of land to the Sisters of the Divine Saviour. To effect such changes, there would be no need to revoke the certificate, for revocation applies where something went wrong with the process, but not where circumstances have changed. The applicant is not complaining that there was anything wrong with the orders on distribution, so the issue of setting aside the confirmation orders or cancelling or revoking the certificate of confirmation of grant should not arise. What he should be seeking should be the amendment of the certificate of confirmation of grant to accommodate the changed circumstances. Even then, the certificate of confirmation of grant cannot be effected without varying the orders made by the court at confirmation of grant. So, it should not be an issue of merely cancelling the certificate of confirmation and issuing a fresh, one with amendments, without the orders from which it was extracted being reviewed or varied. The applicant should, therefore, be asking me to vary or review the confirmation orders so as to provide basis for amendment of the certificate of confirmation of grant. The certificate of confirmation of grant has no life of its own, independent of the confirmation orders. It cannot survive without its parent, the confirmation or distribution orders.[9. ]In any case, I do not see any need to interfere with the confirmation orders or the certificate of confirmation. There is no need to review confirmation orders because a beneficiary named in it has died. What should happen is that the share allocated to the dead beneficiary should be transmitted to the name of the estate of the dead beneficiary or the administration of his estate, for distribution in a cause in the estate of such dead beneficiary. That is what should happen with respect to the shares allocated to Peter Shilombole Nandi and Emmanuel Amalemba Machisu. There is no need to review the confirmation or distribution orders or amending the certificate of confirmation of grant to devolve the shares to their successors and heirs. That would amount to conducting a succession within another succession, that is to say succession to the estates of the dead beneficiaries being conducted within the instant cause in the estate of their late father.

56. I have already found that the orders issued by the Court on 12th June 2023 are unassailable. As is evident from the foregoing upon the death of the Administrator her share should have been allocated to her Estate. The current status is that the land was sub divided and separate titles issued to the 3 Respondents. This transfer is for interrogating. However, it is now well settled that the probate court’s jurisdiction does not extend to determining disputes over ownership of land. This was reiterated in the case of re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR, where the Court held: -“[14]The primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries. As of necessity, the estate property must be identified. Thus, where issues of ownership of the property of the estate are raised in a succession cause, they must be resolved before such property is distributed. And that is the very reason why rule 41(3) of the Probate and Administration Rules was enacted so that claims which are prima facie valid should be determined before confirmation.”

57. The facts in this case almost mirror those in re Estate of Charles Mburu Shadrack (Deceased) (Succession Cause 1 of 2018) [2022] KEHC 3374 (KLR) (28 April 2022) (Ruling), where at paragraph 49, G.W. Ngenye- Macharia LJ (as she then was) cited with approval the decision in In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR where the Court stated[27]... A determination of the question as to whether there was a valid sale of the registered land in accordance with the relevant land legislation, is an issue that is well outside the jurisdiction of the High Court. Both statutes carry provisions which state the jurisdiction of the court with regard to the application and interpretation of the two statutes. These provisions are to be found in sections 2 and 101 of the Land Registration Act and sections 2 and 150 of the Land Act.

58. In re Estate of Peter Machisu Shirekuli (Deceased) [2022] eKLR Musyoka J observed further[11]...It should be clarified that the issue raised by the Sisters of the Divine Saviour has nothing to do with succession to the estate of the deceased herein. It is a transmission issue, and transmission is not a succession matter, but a land issue. Transmission is a concept in land legislation. It is provided for under the Land Registration Act, No. 3 of 2012 and the Land Act, No. 6 of 2012. It does not feature at all in the Law of Succession Act. Any disputes that arise with respect to transmission of property should be handled in accordance with the legislation which governs transmission, that is to say the Land Registration Act and the Land Act, in courts that administer the said legislation. According to sections 2 and 101 of the Land Registration Act and sections 2 and 150 of the Land Act, the said court is the Environment and Land Court and any subordinate court to which jurisdiction has been extended by the said legislation.

59. Having found that the Court is not vested with the Constitutional or statutory mandate to determine the issue that is in contention I make the following orders: -a)The Application dated 8th February 2018 is dismissed in its entiretyb)Each party to bear their own costsc)Any party aggrieved by these orders has leave of twenty- eight days to Appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS ... 1ST ... DAY OF ... NOVEMBER 2023. ......................P. NYAUNDIJUDGE