[2018] KEHC 997 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

SUCCESSION CAUSE NO. 132 OF 2010

IN THE MATTER OF THE ESTATE OF NYAMARERE ABUGA (DECEASED)

FRANCIS RATEMO NYAMARER..........1ST PETITIONER/RESPONDENT

NYAMBISA NYAMARERE......................2ND PETITIONER/RESPONDENT

VERSUS

HUDSON NYAUNDI MORWANI...........................OBJECTOR/APPLICANT

RULING

1. The 1st and 2nd respondents were issued with grant of letters of administration and through an application dated 28/04/2010 applied to have the grant of letters of administration confirmed. The certificate of confirmation of grant was issued on 20/05/2011.

2. The objector/applicant filed an application dated 13/07/2016 seeking to have the respondent’s grant of letters of administration made 13/10/2010 and confirmed on 20/05/2011 revoked. The applicant’s application is based on the following grounds:

1. That the petitioner petitioned to this Honourable Court for letters of administration in respect of property that did not form part of the deceased estate.

2. The petitioners obtained a grant on a nonexistent plot no. captured as 5A Suneka Market.

3. The petitioners concealed material facts from the court that at the time of filing the petition and also at the time of filing the petition and the time of confirmation of grant there was no such plot existing in the name of the deceased.

4. The Petitioners concealed material facts from the court that they has sold and transferred plot no. 5A at Nyambunwa market to one MARTIN MACHUKI and OROO NYAGUKU and that such change of ownership has moved to two people in 1992.

5. The property whose ownership has changed hands cannot be subject to a succession cause in respect of the former owner.

6. The petitioners acted fraudulently in filing this petition.

3. The Application was supported by an affidavit of Hudson Nyaundi Morwani. The Application was further supported by the affidavit of Joyce Kerubo the widow to Oroo Nyaguka. She stated that her husband and Martin Machuki (deceased) leased Plot No. 5 A Nyambunwa Market from the petitioners. However on 01/03/1984 Martin Machuki paid Kshs 28,000/- to the petitioners as consideration of sale of the property and the petitioners on 15/10/1992 caused the property to be transferred to Martin Machuki and Oroo Nyaguku. That on 09/02/2009 the property was transferred to the objector/applicant.

4. The 1st Petitioner filed his undated replying affidavit on 10/08/2016 and states that sometime in 1954, the deceased borrowed some money Kshs 1,050 from Manoah Ondieki, Omache Mweruti and Obare Ounga and the deceased died before paying the amount to his creditors. That in 1968 the property was subdivided into Plot Number 5 A in favor of the deceased and Plot No. 5B in favor of Manoah Ondieki, Omache Mweruti and Obare Ounga. On 22/07/2007 the Petitioner reported the loss of the deceased plot card at Kisii Police Station and in 2009 they were informed by the County Council that the Plot No. 5 A Nyambunwa Market was registered in the name of Martin Machuki and Oroo Nyaguku. The 2nd Petitioner also put in his replying affidavit dated 9th August 2016. The 1st Petitioner through a further replying affidavit dated 05/10/2016 stated that the property referred to by the objector is plot number 5 B as indicated in the agreement for sale produced by the objector. He further stated that there exists a rectified grant following the objector’s application dated 29/08/2016.

5. The parties agreed to have the matter proceed by way of written submissions.

6. The Applicant argues that their application is grounded on Section 76 (c) of the Law of Succession Act as the grant ought to be revoked for reasons that the grant was obtained by means of untrue allegation of a fact essential in a point of law to justify the grant and the grant notwithstanding that the allegation was made in ignorance or inadvertently. It is submitted that the deceased was not legally competent to dispose of the suit property during his lifetime as he had already entered into an agreement to sell the property and to transfer the same to the objector. The Applicant relied on the case of George Ndungu Kinuthia & Another vs Mary Njoki Karanja Nbi CA No. 270 of 1997 and Kingee Mwangi vs Charles Wainaina F. Mungai (2012) eKLR.

7. The Respondent submitted that the no sale or transfer of the property was valid as no grant of letters of administration had been issued. They further argued that the applicant has failed to prove his case for the revocation of grant. They relied on the case of Christopher Maina Kimaru v Josephine Wairimu Ngari & Another (2016) eKLRto argue that an application for revocation or annulment of a grant must demonstrate existence any or all the grounds stipulated under section 76 of the Law of Succession Act.

8. From the facts it is apparent that the dispute concerns the validity of the sale agreements and ownership of Plot No. 5 A Nyambwana Market. The parties acknowledge that there exists a case in the Environment and Land Court at Kisii Case No. 75 of 2016 and I will therefore not delve into the issues concerning the interest claimed by the Applicant in Plot No. 5 A Nyambwana Market as the same will be handled by the ELC court. In Re Estate of Pius Ondiek Sure (Deceased) [2016] eKLRMajanja J. relied on the case of Jackson Kamau Nthiga v Humprey Kirimi Mbuba &AnotherChuka HC Succ. No. 660 of 2015 [2016]eKLR,wherethe court observed as follows;

“Ms Rimita referred this court to various decisions on the point. These includesFrancis Musyoki Kilonzo & Anor v Vincent Mutua Mutiso[2013] eKLR, Nancy Waithira Marete v Catherine Kathoni Marete & Anor[2014] eKLR and Muriuki Musa Hassan v Rose Kanyua Musa & 4 others[2014] eKLR.The net holding in those decisions was that the jurisdiction of a family court dealing with a Succession Cause is limited. Such a court’s sphere of inquiry is limited to ascertaining what assets are available to the estate, who the beneficiaries are and the mode of distribution of the estate. Such a court cannot delve into establishing the validity of a claim such as the one before this court. In the case before this court, there are serious issues that need to be established and or ascertained by either the lower court or the court which has jurisdiction to entertain a claim to land. That however, does not bar a family court from ascertaining if one is a creditor of an estate. In the circumstances of this case, the Interested Party and the Objector have not yet been so determined by a court of law. This court cannot determine their claims in these proceedings. [Emphasis mine]

9. It is not in dispute that at the time of the deceased death the property belonged to the deceased. The Respondents claim that Plot Number 5, Nyambunwa Market, Retail Trade. The property was subsequently subdivided and Plot Number 5 A, Nyambunwa Market, Retail Trade was on 14/06/1968 registered in the in the name of the deceased, Nyamarere Abuga. This is not in contention as Joyce Kerubo in her supporting affidavit stated that Plot No. 5 A Nyambwana Market was registered in the name of Nyamarere as at 14/06/1968.

10. Being the only beneficiaries of the estate I uphold the certificate of confirmation of grant issued to the Petitioners. I do not think that these succession proceedings are the appropriate way to challenge the title of the deceased’s properties and hold that the issue concerning ownership of Plot No. 5 A Nyambwana Market should be dealt with in the appropriate forum which is the Environment and Land Court. I therefore decline to revoke the grant as sought by the applicant. Each party to bear their own costs.

Dated signed and delivered at Kisii this 15th day of November 2018

R. E. OUGO

JUDGE

In the presence of;

Applicant in person

Mr. Kimayio h/b Mr. Omwoyo For the Respondents

Rael Court clerk