[2021] KEHC 6308 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

(Coram: Odunga, J)

SUCCESSION CAUSE NO. 136 OF 2011

IN THE MATTER OF THE ESTATE OF PHILIP NGULI KIVULU (DECEASED)

JULIUS NZONGE KIVULU......................................PETITIONER

VERSUS

KIMUNDUU NZIOKA................................................OBJECTOR

RULING

1. By summons for revocation and/ or annulment of grant dated 5th of August 2019 expressed to be brought pursuant to section 76 of the Law of Succession Act (cap 160) and Rules 43 and 73 of the Probate Administration Rules, the objector herein, Kimunduu Nzioka, seeks the following orders;

a. The grant issued on 24th of August 2011 and confirmed on 14th of May 2015 be revoked and/or annulled.

b. All title deeds and transfers effected by the use of the said Grant confirmed on 24th of May 2015 be recalled and/or cancelled.

c. Costs be provided for.

2. The same was supported by the affidavit of Kimunduu Nzioka dated 5th of August 2019 wherein he states that land parcel Nzaui/Nziu/415 (hereinafter referred to as the “subject property”) which the Administrator, the Respondent herein, inserted in the petition as the deceased’s asset, was registered in common in his name and that of the deceased.

3. According to the Applicant, Nzaui/Nziu/195 and 196and the subject property, Nzaui/Nziu/415, were originally unsurveyed pieces belonging to his late father, one Nzioka Kimunduu who he had two (2) wives namely; his mother, Kivawa Nzioka and Mutindi Nzioka, both deceased. He stated that he is the only son of the late Kivawa Nzioka while the late Kivulu Nzioka was the only son of Mutindi Nzioka. Kivulu Nzioka, it was deposed, had one wife by the name of Katuku Kivulu, also deceased, with whom he had two (2) sons; Philip Nguli Kivulu (the deceased herein) who is his cousin and Joseph Nzonge Kivulu. According to the Applicant, the deceased herein married Munyiva Ngulibut since they had no children, and since they could not sire children, Munyiva Ngulientered a woman to woman marriage (iweto) and therefore the deceased herein had two (2) wives.

4. It was deposed that on 14th and 15th of March 1996, their clan of Euani Ma Mulimet his family and that of his late step brother who was represented by the wife, Katuku Kivulu over the Nzaui/Nziu/195andNzaui/Nziu/196as a result of which the land was divided into two unequal shares between the Applicant and Katuku Kivulu. Upon realisation that land parcel No. Nzaui/Nziu/196which was allocated to the Objector/Applicant was smaller thanNzaui/Nziu/195which was allocated to the deceased herein, it was then resolved that the Applicant should solely own the subject property, land No. Nzaui/Nziu/415. As a result, both families have been farming on the subject property. Pursuant to the foregoing, the step brother and his family who prior to the said meeting were jointly cultivating the subject property, vacated the same and since then it is the Applicant who has been solely utilising the same. The Applicant therefore averred that pursuant to the resolution of the clan, he is entitled to the whole of the subject property which position, he alleged, was never challenged by the deceased herein. It was his position that the Petitioner herein is simply contesting the same due to greed.

5. According to the Applicant the Respondent was in possession of the documents in support of the said resolution. Despite the foregoing, the Petitioner recently entered into the subject property and started farming and fencing thereon. Upon conducting a search in November 2018, the Applicant discovered that the subject property had been subdivided into 2 parcels being Nzaui/Nziu/1035,andNzaui/Nziu/1036,with the latter being registered to one Joshua Wambua Mutunga who bought the land from the Petitioner. The Applicant insisted that he is entitled to the whole of the subject property since he does not have any other parcel of land to live and practice farming except the subject property. He states that the grant was obtained fraudulently and in concealment of material facts as he was not involved. In addition, he stated that the administrator omitted other properties which form part of the deceased estate’s records despite the same being in his custody.

6. The Petitioner/ Respondent in response filed a replying affidavit dated 2nd of December 2019 in which he stated that the deceased was married to one wife and they did not sire any children and thus he is entitled to inherit all his property as per section 29 of the Law of Succession Act. He stated that the subject property was purchased by the objector/ Applicant and the deceased as a tenancy in common and therefore the dependents of the deceased are entitled to acquire the deceased’s share of the property hence the applicant’s allegations are misconceived.

7. It was averred that the grant of letters of administration were issued on 24th August, 2011, confirmed on 28th September, 2012 and subsequently rectified on 14th May, 2015 by the inclusion of the objector was included as a beneficiary of the subject property. In the Respondent’s view, the Objector is not being honest when he claims that he does not have any other parcel of land where he can do his farming, as he owns Nzaui/Nziu/196where he undertakes his farming activities. It was therefore averred that the Applicant has not approached the Court with clean hands.

8. According to the Respondent, application did not meet the threshold under section 76 of the Law of Succession Act and should not be accorded reliefs by the court. He disclosed that he had always communicated to the Objector/Applicant on the need to subdivide the suit property with the help of a surveyor but he has always been adamant to participate in the process.

9. On behalf of the Applicant/Objector, reliance was placed the case of Re Estate of Angelo Titita Kilungu DCD [2020], and it was submitted that the Respondent obtained the grant fraudulently by making a false statement or by concealment from the court of material facts such as the fact that the subject property was acquired as a joint tenancy and that the matter had been resolved at the meeting of the two families. In addition, the Respondent concealed the fact that he sold a portion of the land to Joshua Wambua Mutunga causing the subject property to be divided into 2 portions being Nzaui/Nziu/1035 & 1036.

10. As regards whether the title deeds and transfers effected using the said grant should be recalled or cancelled, the Applicant relied on section 47, 93 of the Law of Succession Act,Rule 73 of theProbate and Administration Rules and the case of Adrian Nyamu Kiugu vs Elizabeth Karimi Kiugu and Another [2014] eKLRandMonica Adhiambo vs Maurice Odero Koko [2016] eKLR.The applicant also prayed for costs pursuant to Rule 69 of the Probate and administration Rules.

11. On his part, the Respondent submitted that the Applicant/Objector herein has a duty to prove that the grounds set out in section 76 of the Law of Succession Actare adhered to before the grant issued is revoked and he cited the case of Albert Imbuga Kisigwa vs. Recho Kavai Kisigwa, Succession Cause No.158 of 2000 where Mwita. J in his decision noted thus:

“Power to revoke a grant is discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of the beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interests of justice.”

12. It was submitted that the applicant did not satisfactorily prove that he should own the whole parcel of land in question since he did not produce any evidence in support of his claim that the deceased had two wives and he was not keen on noting that the said minutes of the meeting held by the clan had not been signed by the main parties present. According to the Respondent, he acted in good faith and had also included the objector’s portion on the schedule of distribution hence no concealment of material facts was occasioned on his part hence the orders sought by the objector should fail.

13. Based on the case of Jamleck Maina Njoroge vs. Mary Wanjiru Mwangi (2015) eKLR it was submitted that the Applicant/Objector had not established the fact that the grant of the deceased’s estate was irregularly obtained on the basis of concealment of material facts to the case with fraudulent intent. The court was therefore urged to find against the Applicant/Objector and dismiss the application herein with costs.

Determination

14. I have considered the application, the affidavits both in support of and in opposition to the present application and the submissions filed.

15. Section 76(a), (b) and (c) of the Law of Succession Act provides as hereunder:

A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—

(a) that the proceedings to obtain the grant were defective in substance;

(b )that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;

(c) that 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;

16. In this summons, the following are the issues for determination;

a. Whether the grant should be annulled or revoked

b. Whether all the title deeds and transfers effected by use of the said grant confirmed on 24. 05. 15 should be recalled and/or cancelled.

17. It is not in dispute that there is a grant of letters of administration issued by this court on 24th August, 2011 and a certificate if confirmation of grant issued on 28th September, 2012 to Julius Nzoge Kivulu. A summons for rectification of grant was filed on 28th of May 2013 by the administrator seeking to add the name of the objector as one of the beneficiaries getting half a share of the subject property that is the root of this objection is Nzaui/Nziu/415. The same was rectified and a certificate of grant issued on 28th October, 2013. A summons of rectification of grant dated 18th September, 2014 was filed seeking to re rectify the name of one of the beneficiaries and this was done and a rectified grant issued on 14th May, 2015.

18. According to the Applicant, land parcel Nzaui/Nziu/415 was jointly acquired by him and the deceased. That acquisition was in common. Prima facie such ownership gives rise to several ownership as opposed to a joint one. What that means that where one of the proprietor dies, the property is to be divided between estate of the deceased in the proportion of their ownership and where there is no such evidence, equally.

19. According to William Blackstone, Commentaries on the Laws of England 179, B, Adams Ed 1983 1785:

“Simply put tenancies in common differ in nothing from sole estates, but merely in the blending and unity of possession. As a result of these several separate interests, and unlike the joint tenancy, there is no right of survivorship between or among tenants in common when one tenant in common dies, his or her interest is administered as part of his or her estate and will either devise by Will or descend by the Laws of intestacy.”

20. While dealing with Section 91(1) of theLand Registration Act 2012 the Court in the case of Isabel Chelangat vs. Samwel Tiro Rotich & 5 Others [2012] eKLRexpressed itself as hereunder:

“At this juncture, I must distinguish between joint ownership of land and land held in common. These are two different types of tenancies by which two or more people are entitled to simultaneous enjoyment of land. To expound on this point I have borrowed heavily from two texts. Megary & Ward,The Law of Real Property and Cleshire & Burn’s, Modern Law of Real Property. According to Burn, “… a joint tenancy arises whenever land is conveyed or devised to two or more persons without any words to show that they are to take distinct and separate shares ….” Further, that “there is a thorough and intimate union between joint tenants. Together, they form one person. A joint tenancy imparts to the joint owners, with respect to all other persons than themselves, the properties of one single owner. Although as between themselves joint tenants have separate rights, as against everyone else they are in the position of a single owner. Joint tenancy carries with it the right of survivorship and “four unities”. The right of survivorship (just accrescendi) means that when one joint owner dies, his interest in the land passes on to the surviving joint tenant. A joint tenancy cannot pass under will or intestacy of a joint tenant so long as there is a surviving joint tenant as the right of survivorship takes precedence. The four unities that must be present in a joint tenancy are;

(i). The unity of possession.

(ii). The unity of interest.

(iii). The unity of title.

(iv). The unity of time.

On unity of possession, each co-owner is entitled to possession of any part of the land as the other/s. One co-owner cannot point to any part of the land as his own to the exclusion of the other/s. if he could, then this would be separate ownership and not co-ownership. No one co-owner has a better right to the property than the other/s, so that an action for trespass cannot lie against another co-owner. Unity of interest means that the interest of each joint tenant is the same in extent, nature and duration, for in theory of Law, they hold just one estate. Unity of title means that each joint tenant must claim his title to the land under the same act or document. This is satisfied by having the joint tenants acquiring their rights by the same conveyance and being so registered as joint tenants. Unity of time means that the interest of each tenant must vest at the same time. Tenancy in common on the other hand is different from joint tenancy. In a tenancy in common, the two or more holders hold the property is equal undivided shares. Each tenant has a distinct share in the property which has not yet been divided among the co-tenants. In other words, they have separate interests only that it remains undivided and they hold the interest together. The largest factor that distinguishes a joint tenancy from a tenancy in common is the absence of the doctrine of survivorship in the latter. The share of one tenant is not affected by the death of one of the co-owners. The share of the deceased, devolves not to the other co-owner, but to the estate of the deceased co-owner. Although the four unities required for a joint-tenancy may be present, only one, the unity of possession is essential. A joint tenancy can be converted into a tenancy in common by the doctrine of severance. But unless this is done the rights of joint holders so remain.”

21. Therefore, unless there is evidence to the contrary, in cases of proprietorship in common, like the instant case, the general rule is that the deceased and the Applicant had equal interests in land parcel Nzaui/Nziu/415. The Applicant however contends that during the reallocation of the Nzaui/Nziu/195andNzaui/Nziu/196between the Applicant and Katuku Kivulu,the Objector got a smaller parcel of land. Accordingly, a clan meeting resolved that he should get the whole of land No. Nzaui/Nziu/415. The applicant has exhibited what purports to be the documents evidencing the said arrangement. That document however does not bear any signature from the said Katuku Kivulu or her representative. Accordingly, that document has no probative value even if the court was to find that the clan had the power to determine rights in land.

22. The Applicant has further contended that some of the properties of the deceased were left out by the Respondent. He has however not given particulars of these properties. Instead, in his first affidavit, he failed to indicate that he was also the proprietor of land parcel no. Nzaui/Nziu/196 and in fact denied that he had any other land apart from land parcel No. Nzaui/Nziu/415. He in fact swore on oath that he did not own any other property apart from land parcel No. Nzaui/Nziu/415. It was only after the Respondent exhibited evidence regarding land parcel No. Nzaui/Nziu/196 that the Applicant disclosed his interest therein. That is not the conduct expected from a party who seeks favourable exercise of the court’s discretion. As held by Mwita, J, Albert Imbuga Kisigwa vs. Recho Kavai Kisigwa, Succession Cause No.158 of 2000:

“Power to revoke a grant is discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of the beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interests of justice.”

23. Having considered the evidence placed before this Court, the only credible evidence is that land parcel No. Nzaui/Nziu/415 was owned in common by the deceased and the Applicant. As expected, the Respondent allocated both parties equal interests in the said parcel of land. There is no credible evidence that would dislodge this legal presumption.

24. Accordingly, I agree that the evidence presented by the Applicant does not meet the threshold that would justify the revocation or nullification of the grant.

25. Consequently, the Summons fails and is dismissed with no order as to costs considering that the parties herein are related.

26. It is so ordered.

READ, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS THIS 14TH DAY OF JUNE, 2021.

G V ODUNGA

JUDGE

In the presence of:

Mr Mukula for the Objector

Ms Kamene for Mr Mulei for the Respondent

CA Geoffrey