[2014] KEHC 7568 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MILIMANI

SUCCESSION CAUSE NO. 619 OF 1991

IN THE MATTER OF THE ESTATE OF RICHARD KARANJA JAVAN – (DECEASED)

JUDGEMENT

1. This cause relates to the estate of Richard Karanja Javan, who died on 10th April 1990.

2. Representation to his estate was taken out on 2nd September 1991 by his widow Jane Njeri and his son David Kamau. The grant of letters of administration intestate issued by the court in the cause is dated 2nd September 1991.

3. The said grant was confirmed on 18th June 2007.

4. On 6th June 2013, Rachel Wanjiru lodged a Motion dated 5th June 2013 asking for the setting aside of the confirmed grant of letters of administration intestate pending the hearing and determination of the application for revocation. The Motion was supported by a verifying affidavit of even date. There is also a document headed “Revocation of grant letters of administration” dated 5th June 2013, which is in the form of an affidavit at it was sworn before a commissioner for oaths.

5. When the matter was placed before me on 7th June 2013, I directed that the same be served on the respondents for inter partes hearing on 8th July 2013.

6. When the matter came up on 8th July 2013, the applicant indicated that the same was an application for revocation of grant. As the party was unrepresented I decided to overlook the technical errors in her prayers and treated her application as that for revocation of grant. As required by the law, I gave directions on the disposal of the application. I directed that the same be disposed of by way of affidavits and oral evidence. I fixed the matter for hearing on 25th September 2013.

7. When the matter came up on 25th September 2013, the applicant satisfied me that she had served the application on the respondents and I allowed her to proceed. She took the witness stand and gave sworn evidence. She testified that the deceased, Richard Karanja, was her uncle, being the brother of her own mother. The property in dispute, that is to say Loc.2/Kinyona/461, was registered in his name after land adjudication, yet the same was family property as it originally belonged to her late grandfather, the father of her uncle and mother. Her case was that her uncle therefore held the said property in trust for himself and her mother. She testified that her mother did not challenge the registration of the as the sole proprietor of the parcel of land, and that at the time there was no problem with him being registered as owner.

8. The administrators did not file any papers in reply, and they did not attend court on 25th September 2013.

9. The record shows that Richard Karanja Javan, died on 10th April 1990. Representation was sought jointly by his widow and his brother on 11th June 1991. A grant of letters of administration intestate was made to them on 2nd September 1991.

10. Confirmation of the grant was sought on 25th April 2007. Among the assets to be distributed included Loc.2/Kinyona/461. The papers lodged in this matter show that the said property was registered in the name of the deceased on 7th March 1980. Consequently, upon his demise the same formed part of his estate and no was available for distribution to his heirs. The grant was confirmed on 18th June 2007 and a certificate to that effect was issued.

11. It is not in dispute that the deceased was the registered proprietor of the property in question. His registration as such was not disputed until after his death. The registration in question was under the registered and Registered Land Act Cap 300, Laws of Kenya (now repealed). It was a first registration by dint of Section 143 of the Registered Land Act, the said registration cannot be faulted. There is judicial authority on this in Obiero –vs- Opiyo & Others (1972) EA 227, where it was held that a first registration is indefeasible even if fraud is proved. There is therefore no merit in the applicant’s case. Even if she had a case that there a existed a trust in her mother’s favour the same ought to be established in a suit before the Environment and Land Court.

12. The applicant faults the confirmation of the grant on the ground that it was confirmed to a dead person, Daniel Kamau. There is some merit in this. The petition was moved by the widow of the deceased and a brother of the deceased by the name Daniel Kamau. It transpires that the said Daniel Kamau died on 19th June 2002. There is nothing on record to show that the said Daniel Kamau was substituted thereafter as administrator. The confirmation in 2007 was therefore to a dead administrator, which is irregular.

13. In the end I make the following orders:-

(1) I decline to revoke the grant made herein on the grounds adduced by the applicant.

(2) I cancel the certificate of confirmation of grant made on 18th June 2007 as the grant was confirmed to a dead person. All consequential transactions done on the basis of the said certificate are also hereby cancelled and/or nullified.

3. I confirm that Jane Njeri shall be the sole administrator of the estate and a grant of letters of administration to that effect shall issue to her.

4. As this matter relates to landed property situated at Kinyona, Murang’a County, I hereby direct that this matter be transferred to the High Court of Kenya at Murang’a for further handling.

DATED, SIGNED and DELIVERED at NAIROBI this31st DAY OF January, 2014.

W. MUSYOKA

JUDGE