[2018] KEHC 5657 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

SUCCESSION CAUSE NO.142 OF 1998

IN THE MATTER OF THE ESTATE OF PHILIP MUCHIRI

NGARI ALIAS MUCHIRI GATHUMU(DECEASED)

ANTHONY MWAI MUTUGI................................APPLICANT

VERSUS

FRANCIS MWANGI MUCHIRI.......................RESPONDENT

J U D G M E N T

What is before me is the Summons for Revocation of Grant dated 2. 11. 2011 seeking orders that: -

1. The grant of letters intestate confirmed on 26. 6.2006 be revoked.

2. Costs of the application be provided for.

The application is supported by the affidavit of Mutugi Muchiri and the grounds that: -

a. It was obtained fraudulently by concealment from the court of something material to the case.

b. That the applicant is a beneficiary of the deceased.

The supporting affidavit provides the details of the alleged fraud. That the deceased was survived by the applicant, the respondent and their r sister one Wambui Muchiri- married. That he had the following properties: -

L.R.Kiine/Nyagio/1140, L.R.Kiine/Nyagio/1141, L.R.Kiine/Nyagio/1142 all subdivisions of L.R. Kiine/Nyangio/393 and LR.Konyu/Gakuyu/39 registered on 12. 5.1959

That the respondent had distributed the estate to himself, to his son John Mwangi Kanoga and to a stranger Reuben Irungu Maina to the disadvantage of the applicant who was the only other beneficiary. He proposed that parcel No.1140 be inherited by himself, 1141 by the respondent, 1142 and 39 be shared equally between them.

The applicant Mutugi Muchiri died on 11. 8.2013 before the application could be heard. His son Anthony Mwai Mutugi made an application for substitution after obtaining grant of letters ad litem for his father’s estate. On 14. 10. 15 the court allowed his application dated 18. 8.2014 and he replaced his father.

A perusal of the record showed that on 26. 6.2006 certificate of confirmation of grant was issued to the applicant and respondent whereby the estate of the deceased was distributed as follows: -

Kiine/Nyangio/1140 0. 610 Ha- John Mwangi Kanoga- absolutely

Kiine/Nyangio/1141 0. 610Ha –Francis Mwangi Muchiri- absolutely

Kiine/Nyangio/1142 0. 77Ha –Mutugi Muchiri- absolutely

Konyu/Gakuyu/39 0. 42Acres –Reuben Irungu Maina- absolutely

The matter was heard by way of viva voce evidence.

Anthony Mwai Mutugi testified and reiterated the contents of his father’s affidavit in support of the Summons for Revocation of the grant. He added that he was living on no. 1140, the respondent on no. 1141 and both families were tilling nos. 1142 and 39. He said that his aunt Wambui Muchiri had no interest in the estate and that the same ought to be shared equally between the two brothers, his father and his uncle.

On cross examination he told the court that his father’s family, his mother and siblings were all living on no. 1140 which the respondent had distributed to John Mwangi Kanoga. He said that his grandfather the deceased had left his father’s family on that parcel of land while the respondent’s family was left on 1141.

He said that his grandmother had occupied 1142 but the deceased had said upon her demise the land was to be shared equally between their sons, the two brothers. The same applied to No.39. He said his father’s lawyer had closed his office and left town without the knowledge of his father and before the case had been finalized, hence he only learnt about the confirmed grant when it had already happened and without his input.

PW2 Livingstone Mbuthia testified that he was from the same clan as the deceased, and they were from the same village. He reiterated what was in the applicant’s affidavit only adding that Reuben Maina Irungu was a stranger, and the deceased never sold his land. He confirmed that the family of the applicant lived on no. 1140.

PW3 Simon Mwangi Kahiu adopted the statement of PW2.

The Respondent Francis Mwangi Muchiri testified that in 1998, the deceased Philip Ngari shared out his shamba into three portions as follows: 1140 to himself, 1141 to the respondent, 1142 to Mutugi Muchiri, and No.39 was left undistributed.

That Mutugi Muchiri refused the 1142 until they had a discussion with the Mutugi’s counsel. That their father pre-deceased their mother Maritha Keru. That in 1997, their mother arranged for them to obtain title deeds. He said his brother refused to get his title deed.

Their mother tried to start succession proceedings That this is evidenced by the letter from the Chief Kiine South Location of 8/1/1997 Ref.BMD.4/2/Vol VI/265 which says: -

“Re: LAND SUCCESSION/393/KIINE/ NYANGIO PHILIP MUCHIRI NGARI- DECEASEDThe following is the list of the legal heirs to the deceased who are to succeed his above parcel: -

i. Martha Keru Muchiri- wife

ii. Mutugi Muchiri- son

iii. Francis M. Muchiri-son

Please assist them in succession of the parcel since I have no objection.

Signed Chief Kiine South Location 8/1/97”

And later over no. 1140 as evidenced by a letter of 17/11/1997 from the same chief addressed to SRM Kerugoya with ref “LR KIINE/NYANGIO/1140 PHILIP NGARI –DECEASED”and the search and receipt for KIINE/NYANGIO/1140 which he produced as evidence.However, she was told she had to file succession for the entire estate of her deceased husband. She never got to do that because she fell sick. Her children did not come to her aid. She decided to sell LR. KONYU/GAKUYU/39 registered in the name of PHILIP MUCHIRI NGARI (Deceased) at the price of Kshs. 60,000/- to REUBEN IRUNGU MAINA vide the agreement entered into on 5/2/1998, she is said to have received Kshs. 20,000/-.

According to him, by the time she died she had disagreed with his brother the applicant, and their mother told him, the respondent to distribute the estate and to give everyone what belonged to him. He accused the sons of the applicant of taking No.1140 by force. He said the family failed to refund the Ksh. 20,000/- to the purchaser and therefore the land became his by default.

On cross examination he said that John Mwangi Kanoga was his son by his 1st wife Jane Wambura. That Reuben Irungu Maina was a cousin to his 2nd wife Grace Wairimu. He confirmed describing the two as grandsons of the deceased in his own affidavit in support of the petition dated 23. 7.1998. He said that his wife’s cousin was like his own child. He stated that he stayed on 1141, his brother’s family on 1142, that John was given 1140 by the deceased (respondent’s parents). That his mother sold No.39 with the consent of the clan or muhiriga. That the purchaser gave him a further Kshs. 20,000/- to take care of his mother’s funeral on account of the purchase of no. 39. He confirmed that no one lived on No.39, and that the family of his brother cultivated 1140.

Parties agreed to file written submissions. The applicant’s counsel filed his, the respondent despite getting served and sufficient time did not file any.

The applicant submits that the evidence has established that the respondent obtained the grant fraudulently by misrepresenting two persons as grandsons of the deceased and as being beneficially entitled and failing to disclose the interest of the deceased’s daughter.

It was also submitted that the respondent had sold parcel No.Konyu/Gakuyu/39 to Reuben Irungu Maina who had subsequently obtained title. The applicant relied on the Court of Appeal case of Musa Nyaribari Gekone & 2 others -Vs- Peter Miyienda & Another (2015) eKLR.

I have carefully considered the evidence on record, the submissions by counsel and the authority cited. The only issue for determination is whether the grant confirmed on 26. 6.06 ought to be revoked?

The grounds for revocation of grant are set out under s. 76 of the Law of Succession Act and include obtaining the same by way of fraud or concealing information material to the issuing of the grant from the court.

It is clear from the record that the deceased had 3 children who survived him- the 2 parties herein and their sister. He pre deceased his wife and she died before succession of the deceased’s estate. Hence the deceased’s estate is governed by Section 38 of the Law of Succession Act.

The respondent’s claims that the deceased shared out his property in 1998 to his children and his wife is not supported by any evidence. What is clear from the record is that the deceased had in 1995 subdivided his property Kiine/Nyangio/393 into three portions Kiine/Nyangio/1140 -0. 610Ha,1141 -0. 610Ha and 1142- 0. 77Ha, all registered in his names. The evidence on record shows that it is only after his death that a flurry of activities flowed to have these properties dealt with in a certain manner.

1. The letter signed by chief KIINE SOUTH LOCATION dated 2/3/1998 stating that the deceased had subdivided his land into the three portions with the intention of transferring the same to Mutugi Muchiri –no. 1140, Francis Mwangi –no. 1141, John Mwangi –no. 1142.

2. The letter signed by chief Kerugoya Location dated 29/6/1998 showing that both the deceased, his wife had passed away and their rightful heir was “Reuben Irungu Maina Glandson (sic)”.

3. The sale agreement allegedly entered into on 5th February 1998 between the deceased’s wife Maritha Keru and Reuben Maina for no 39 registered in the names of the deceased where one of the conditions of the sale was that she would “apply for temporary letters of administration for succession and all necessary transaction to effect the land parcel to be registered in the name of the purchaser.”

It is not a surprise therefor that when the respondent filed the petition on 24/7/1998, he obtained only the consents of John Mwangi and Reuben Maina. There was no mention of his sister. His brother later came on board and the grant was issued to both of them 9/10/2000.

The Respondent then filed summons for confirmation of grant dated 4. 2.2002 where he distributed the estate in the manner that ended up in the confirmed grant of 26/6/2006 and that is under challenge. Looking at the evidence this was contrary to what he referred to as his parent’s wishes as ‘written’ in the chief’s letter of 2/3/1998. It is also evident that no evidence was available to support any sale of land by the deceased.

If the purported sale by the deceased’s wife vide sale agreement of 2/5/1998 of parcel no. 39 was above board, then the clan would have been signatories to the same. There would have been supporting evidence that the clan had sat and made certain decision. The consents of the deceased children would have been there. Surprisingly the only witness to the sale is the seller, the buyer and an advocate. In any event there was no consent from the Land Control Board displayed as evidence to support the same the transaction.

Section 6 of the LAND CONTROL ACT CAP 302 LAWS OF KENYA says; Transactions affecting agricultural land

(1) Each of the following transactions that is to say—

(a) the sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing with any agricultural land which is situated within a land control area;

(b) …………………………………………………………………………,

(c) …………………………………………………………………………,

is void for all purposes unless the land control board for the land control area or division in which the land is situated has given its consent in respect of that transaction in accordance with this Act. (emphasis added).

See High Court Nyeri Succession Cause No. 41 of 2012 In the Matter of the Estate of John Ndegwa (Deceased) Francis Ndirangu Nga’nga’ vs. Stephen Ndegwa Kariuki

The Chief’s letter of 26/9/1998 appears to me to have been another effort to ensure the said Reuben inherited the Konyu property through all means. The purported sale, and the representation of Reuben as a grandson of the deceased was fraudulent to say the least.

Maritha Keru could not transfer the proprietary interest in LR Konyu/Gakuyu/39 to Reuben Maina before the grant was confirmed. Section 37 of the Law of Succession Act is clear;

37. Powers of spouse during life interestA surviving spouse entitled to a life interest under the provisions of section 35 or 36 of this Act, with the consent of all co-trustees and all children of full age, or with the consent of the court shall, during the period of the life interest, sell any of the property subject to that interest if it is necessary for his own maintenance:

Provided that, in the case of immovable property, the exercise of that power shall always be subject to the consent of the court. (emphasis added).

Neither could the respondent as the administrator receive money for the purchase of the deceased’s property as it is clear the deceased never sold any land to anyone before he died, and it is prohibited by s. 82 (b) (ii) which states;

no immovable property shall be sold before confirmation of the grant;

The sale agreement produced in court between the deceased wife and Reuben Maina is further evidence of all the fraudulent efforts made by the respondent and the said Reuben to ensure he obtained that parcel of land without following the due process. Reuben Irungu Maina was not grandson of the deceased, did not purchase the property from the deceased, was not beneficially entitled to the estate.

John Mwangi Kanoga even as a grandson of the deceased was not beneficially entitled to the estate and can only inherit through his father, the respondent as there is no evidence he was gifted of the alleged parcel of land by the deceased before his demise.

It has been alleged that the sister to the two parties renounced her interest to the estate. No such renunciation was produced. And until it is waived, her right to inherit her father’s property remains.

Hence, in conclusion I do find and hold that:-

i. The grant was obtained fraudulently.

ii. The Respondent misled the court by stating that John Mwangi Kanoga and Reuben Irungu Maina survived the deceased as beneficiaries to his estate, and failed to disclose the deceased’s daughter.

iii. The two are not beneficially entitled to the estate of the deceased.

iv. The deceased’s beneficiaries are his three children to whom the estate ought to devolve in equal shares.

v. The grant and all the consequential actions flowing from the grant are hereby revoked

vi. A fresh grant to be issued in the following terms.

1. The estate of the deceased be shared equally among the three beneficiaries: – Mutugi Muchiri, Francis Mwangi Muchiri and Wambui Muchiri (subject to renunciation)

2. The applicant’s share be registered in the name of Anthony Mwai Mutugi to hold in trust for beneficiaries of Mutugi Muchiri in equal shares.

3. Distribution to maintain the current occupation of the families of both the applicant on 1140 and respondent on 1141.

Each party to bear its own costs.

Dated delivered and signed at Nyeri this 4th June 2018

Mumbua T. Matheka

Judge

In the presence of:

Court Assistant: Atelu

Both Parties

Mr. Mwaura for Applicant.

Mr. Mwaura- I pray for summons for Wambui Muchiri to appear in court to be served by the Chief Kaweru Location in Murang’a County to appear on 14th June 2018. This will enable the court to make final orders.

Court: Application granted: Summons to issue as prayed. M on the 14th June 2018