[2022] KEHC 1575 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MIGORI

SUCCESSION CAUSE NO. 53 OF 2015

IN THE MATTER OF THE ESTATE OF: RIOBA CHACHA SIRARE (DECEASED)

IN THE MATTER OF LAND PARCEL NO. BUGUMBE/MASABA/107

IN THE MATTER OF LAND PARCEL NO. BUGUMBE/MASABA/164

IN THE MATTER OF AN APPLICATION FOR REVOCATION OF GRANT

BETWEEN

CHRISTINE RIOBA MARITA.................................................................1ST PETITIONER

MARITHA RIOBA....................................................................................2ND PETITIONER

MAGAIWA RIOBA..................................................................................3RD PETITIONER

-VERSUS-

MAGAIWA RIOBA CHACHA........................................................................PROTESTOR

JUDGEMENT

This cause relates to the estate of Rioba Chacha Sirare (Deceased) who died intestate. This judgement is in respect to the summons for confirmation of grant dated 18/4/2017 issued to Christine Rioba, Maritha Rioba and Magaiwa Rioba Chacha on 22/2/2017.

At the heart of the dispute in the estate of Rioba Chacha Sirare (Deceased) is land parcel numbers BUGUMBE/MASABA/107 and BUGUMBE/MASABA/164.

Before I delve deeper in this matter, I think it necessary to capture the history of this matter for purposes of clarity. The petitioners filed for letters of administration in respect of the deceased’s estate and grant was issued to the three petitioners on 8/5/2015. Thomas Matinde Rioba, Rioba James Sirare, John Mohonge Rioba and Magaiwa Rioba Chacha lodged an objection to the grant dated 12/8/2015, Later on 13/11/2015 Simon Matinde Ngoko and Esther Stori through the firm of Omonde Kisera, joined the proceedings as Interested Parties.

On 14/1/2016, the 3rd Petitioner, Magaiwa filed a supplementary affidavit to the Interested parties affidavit. On 12/2/2016, the same Magaiwa filed a Summons for revocation of the grant dated 8/5/2015. A Preliminary Objection was filed to the said Summons for Revocation and the other parties replied to the said application and on 15/2/2017 when the application came up for hearing, the parties entered into a consent as follows:-

a) The summons for revocation dated 1/2/2016 be and is hereby marked as withdrawn.

b) The first two administrators and/each of them to file and serve an application for confirmation of the grant within twenty one (21) days of today.

c) Once served, the third administrator to file a protest or otherwise within twenty one (21) days of such service as well as all the other beneficiaries of the estate.

d) A fresh grant to be issued in the joint names of Christine Rioba, Martha Rioba and Magaiwa Rioba Chacha and the one issued on 8/5/2015 be and is hereby revoked.

Pursuant to the above consent, a fresh grant of Letters was issued to the petitioners dated 22/2/2017 and the grant issued to them on 8/5/2015 was revoked. The first two administrators were supposed to file a summons for confirmation of grant within twenty one (21) days but by 27/11/2017 no summons had been filed and the 3rd administrator was allowed to file and serve the summons within twenty one (21) days and the same was filed, dated 18/4/2017.

On 11/4/2018, the court was informed that the 1st Petitioner Christine Rioba had died and leave was granted for substitution but none was done. The court then gave directions that the Summons for confirmation dated 18/4/2017 be heard by way of viva voce evidence and interested parties were directed to file their respective protests. Magaiwa was deemed to be the plaintiff while the protestors i.e. Simon Matinde Ngoko (13/11/2015) Esther Stori (13/11/2015) and Maritha Rioba (14/2/2017) all deemed as protestors.

As directed by this court on 30/7/2018, for the purposes of the protest proceedings, Magaiwa Rioba Chacha was deemed to be the plaintiff and any protestors were deemed to be the defendants.

Pursuant to the court orders issued on 22/10/2018, the affidavits filed by Simion Matinde Ngoko on 13/11/2015, Esther Stori on 13/11/2015and Martha Rioba on 14/2/2017 were deemed as the protestors in this cause and the deponents as the defendants.

Further, the court directed that the Kuria East/West District Surveyor do visit the parcel BUGUMBE/MASABA/107 and ascertain the exact portions occupied by the beneficiaries of the estate and file a report in court. The Surveyor’s report dated 25/3/2019 was filed in court evenly.

On record, are also the witness statements of Marwa Wambura and Solomon Gakune Marwa all dated 24/4/2019 and filed evenly.

In his affidavit dated 13/11/2015, Simion Matinde Ngoko (the ‘1st Protestor’) based his protest on the fact that one of the suit parcels of land that is L.R. NO. BUGUMBE/MASABA/164 is listed as one of the deceased’s assets whereas the same was a property of his deceased brother, one MATIKO NGOKO which was later on transferred to his name. In support of this, the 1st protestor asked the court to refer to the annexed documents marked ‘SMN1 and 2’ being the certificates of official searches. However, the same are not annexed in his affidavit. Thus, the 1st protestor deponed that the said land does not form part of the deceased’s estate.

Esther Stori (the ‘2nd Protestor’) filed an affidavit dated 13/11/2015. She deponed that she is the wife of Rioba Chacha the deceased, who was the registered owner of L.R. No. BUGUMBE/MASABA/107 which he held in trust for his two other brothers; that she is entitled to inherit a portion of L.R. No. BUGUMBE/MASABA/107; that BUGUMBE/MASABA/164 does not belong to the deceased as the same was registered in the name of the 1st protestor after he inherited it from her late brother; that there is no claim that can be made on L.R. No. BUGUMBE/MASABA/164 by the brothers of her deceased husband who are not her family members.

Maritha Rioba (the ‘3rd Protestor’) filed her affidavit on 14/2/2017. She deponed that she is the 4th wife of the deceased, with her co-wives being Esther Stori as the 1st wife, Moronga Rioba - Deceased and Aoko Rioba - Deceased; that the 1st petitioner (Christine Rioba) is the wife of Marwa Chacha Sirare - deceased who is the brother of the deceased herein from the same mother; that the father to the deceased had two wives, that is, the mother of the deceased and his deceased brother, Marwa and another wife who had a son who shared a similar name with the deceased.

Further, the 3rd protestor tried to distinguish between the two brothers now deceased. Each adopted a different name upon baptism with the deceased becoming JACOB RIOBA CHACHA SIRARE and his step brother being ERNEST RIOBA CHACHA SIRARE; that ERNEST RIOBA CHACHA SIRARE is also deceased and was the husband of MAGAIWA RIOBA; that the deceased (Jacob) was the sole registered owner of L.R. No. BUGUMBE/MASABA/107 which he acquired on his own and was later on joined by his deceased father (Chacha Sirare) and siblings and they continued to live thereon to date; that L.R. NO. BUGUMBE/MASABA/164 has never been registered in the name of the deceased and cannot be part of the estate of the deceased; that the parties herein are members of the same family of Chacha Sirare who have been living on the estate land and each family has their defined portions with clear boundaries; that this is not a case for revocation of grant but the court can revisit the distribution of the estate and add any lawful beneficiaries who may have been left out if at all.

Magaiwa Rioba Chacha (PW1) testified as the 3rd administer/plaintiff. She testified that the deceased herein was her husband; that she lives on plot no. 107; that both her husband and father-in-law were buried on that plot. As for Plot no. 164, she testified that one Rioba Chacha Sirare (Jacob) lived there with his three wives namely Moronge Chacha, Catherine Aoko and a third one she could not recall. That those in plot 107 are Marita Rioba, Nagatika, Katherina Aoko and Rioba Rioba; that Rioba Chacha Sirare went to Tanzania with his family and Matiko Ngoko occupied his plot no. 164.

This succession cause proceeded by way of viva voce evidence.

It was her further testimony that upon the return of Rioba Chacha Sirare,(Jacob) he found Matiko Ngoko had registered plot no. 164 in his name. He then asked the deceased to allow him to put a home in her plot no. 107 as he pursued the return of his land. A tribunal case was thereafter filed and it was ordered that 2/3 of the land be given back to the family of Rioba Chacha Sirare (Jacob). She prayed that plot no. 107 be distributed as proposed by herself in the affidavit she swore on 15/5/2017 that is the land be shared between herself and her four sons and that plot 164 be shared between the sons of Jacob Rioba Chacha.

On cross - examination, she testified that Martha Rioba, Chacha Rioba and Magaiwa Rioba are her sisters in law and they have lived in plot 107; that the family of Rioba Chacha Sirare should go back to plot no. 164; that she had no evidence in the form of an agreement of the arrangement between Rioba (Jacob) leaving plot no. 164 to his brother-in-law before leaving for Tanzania. It was her testimony that plot no. 164 is in the name of the Matiko Ngoko which shows that he was the first registered owner in 1974 and not in the name of the deceased; that the tribunal gave the land to her son Thomas Rioba Chacha. She denied that plot no 107 has defined boundaries.

On re - examination, she confirmed that it was Thomas Rioba Chacha and Catherine Jacob, the second wife of Rioba Chacha Sirare who filed the Tribunal case. That the petitioners are the daughters in law of Rioba Chacha Sirare. She admitted that the whole family of the deceased Rioba Chacha Sirare live on Plot 107.

Thomas Matinde Rioba testified as PW2. He is the son of Ernest Rioba Chacha Sirare. He testified that the family of Chacha Sirare was allocated plot no. 164 by his grandfather Chacha Sirare (Deceased) but Matiko Ngoko his brother in law unlawfully registered it in his name when Chacha Sirare was in Tanzania and that upon his return, he was accommodated on plot 107 as he pursued his land. That there was a tribunal case which awarded him and Catherine Aoko, wife Chacha Sirare plot no. 164 and it was not appealed against. He further testified that there is an agreement on return of parcel No. 164 between Samwel Oruba Kemoni and Thomas Matinde Rioba dated 13/10/2004. There are boundaries on the land to date. Further, Bihita also knows as Esther Stori lived on plot no. 164 as the 2nd wife of Chacha Chacha and she was buried on that land together with the other children of Rioba Chacha Sirare.

On cross - examination, PW1 testified that all the parties in this case live on plot no. 107, that Rioba Chacha Sirare put boundaries when he sold part of the land; that Plot no. 164 is in the name of Simon Ngoko and the first registration was in the name of Matiko Ngoko; that the award in the tribunal case was lodged in Kehancha Court and the decree stated that he was to get 2/3 with Catherine Aoko wife to the deceased. He denied that plot no. 107 is family land but it is his father’s land. On re - examination, PW1 stated that he filed the tribunal case to assist the family of Rioba Chacha (Ernest) and Catherine Aoko but Catherine died before she could move to the land.

Samuel Rioba Marwa testified as PW3. He reiterated that his grandfather left plot no. 107 and 164 to his first and second wives respectively; that the deceased herein married Magaiwa the plaintiff herein; that plot 107 belongs to Ernest Rioba Chacha Sirare the deceased, and plot no. 164 belongs to Jacob Rioba Chacha Sirare. On cross - examination, PW3 confirmed his testimony in chief and in particular, that plot no. 164 was left by Rioba Chacha (Ernest) to Matiko Ngoko which was later registered in Matiko’s name. He denied knowing whether or not the plot was ever registered in the name of Rioba Chacha (Ernest). On re-examination, PW3 testified that the Rioba Chacha on the official search of plot no. 107 refers to Ernest.

Maritha Rioba (DW1) testified as the 2nd petitioner. She stated that the deceased had four (4) wives, her being one of them. She was married to the deceased in the year 1974. The wives were: -

i. Moronge - 1st wife.

ii. Esther Stori alias Bihira.

iii. Aoko - 3rd wife.

iv. Maritha Rioba - 4th wife.

It was her testimony that her father-in-law had two wives Mogoye and Matinde,the first and second wife respectively. Her deceased husband was from the house of Mogoye and the protestors are from the house of Matinde; that Mogoye had two children namely Marwa and Rioba Chacha; that Marwa’s wife was Christine Rioba (the 1st petitioner who is also now deceased); that Matinde had one son Rioba Chacha who is also known as Ernest. Her husband was also called Rioba Chacha but adopted the name Jacob. The deceased herein had a land registered in his name BUGUMBE/MASABA/107 being plot no. 107. Her husband did not have any other land apart from plot no. 107 and both families of her father in law, Chacha Sirare, lived therein and there are defined boundaries on the land which have been in existence.

She further testified that she is not aware of BUGUMBE/MASABA/164. She conducted a search and found plot 164 to be in the name of Simon Matinde Ngoko. She denied that the protestors have ever been the registered owners of plot no. 107 but it was registered in her husband’s name. She produced the surveyor’s report in evidence and asked the court to distribute in accordance with the boundaries on the ground.

In cross - examination, the 2nd petitioner testified that there is Rioba Chacha Jacob and Rioba Chacha Ernest. Rioba Chacha Sirare also known as Rioba Chacha Jacob was her husband. There was a time her husband committed a crime and fled to Tanzania with her but later on his father went for him. The family of Ernest Rioba Chacha and the Patriarch Chacha Sirare were living on plot no. 107. Upon returning from Tanzania, her father-in-law allocated a portion of plot no. 107 to her husband by then Ernest Rioba Chacha lived on the land with his one wife and six children; that the boundaries on plot no. 107 were put in place by the deceased. She denied that plot no. 107 was registered in the name of Ernest.

On re - examination, she testified that she together with Chacha Rioba were the petitioners herein. All the family members of Chacha Sirare are settled on plot no. 107. Plot no. 164 belongs to Bihita’s father (Esther Stori) and is not part of the estate of the deceased herein and that the family of the deceased cannot inherit land owned by Bihita’s relatives.

Solomon Gakune Marwa testified as DW2. He stated that Chacha Sirare had two wives Mogoye Chacha and Matinde Chacha. Mogoye had two sons namely Marwa Chacha and Rioba Chacha Jacob while Matinde had only one son namely Rioba Chacha Ernest. The family of Chacha Sirare moved to Masaba and they stayed in one parcel of land. The land was demarcated between the two (2) wives and the demarcations are there upto date; that the family of Mogoye has a right to stay on the land; that Jacob settled on that land in the first instance before he left for Tanzania; that Ernest stayed with their father on that land and that is why Jacob is seen as a stranger. Jacob has no other land to live in as he was a son of the Patriarch Chacha Sirare and he is entitled to live on the land.

On cross - examination, he testified that Chacha Sirare was his uncle; that he moved from Mabera to Masaba. It was his testimony that according to the Kuria culture, a son cannot own land in the lifetime of his father even if he was entitled to own land. All property of the son belonged to the father. He reiterated that Jacob went to Tanzania but returned in 1974 with a family from Tanzania and settled in his father’s land in Masaba and put up a house; that Ernest had already settled on the said land but it belonged to Chacha Sirare and not Ernest. The first boundary was put by the chief; that Simon Ngoko lived very far and Rioba Chacha Jacob married one of the daughters of Simon Ngoko; that Christine Rioba, now deceased, was married to Marwa the eldest son of the family of Chacha Sirare. On re - examination, he testified that the land in Masaba was first established by Jacob. His father and Ernest joined him later. He reiterated that in the Kuria custom it is the son who owns land.

In support of her case, the Objector who is also the Plaintiff, filed submissions dated 19/4/2020 on 15/5/2020. She raised three issues for determination. The first issue was on who is the proprietor of BUGUMBE/MABERA/107 and BUGUMBE/MABERA/164. It was submitted that on 30 /9/1974 one Rioba Chacha became the registered owner of BUGUMBE/MABERA/107. All through the proceedings, Jacob was the one being referred to as Rioba Chacha Sirare while Ernest was referred to as Rioba Chacha; that as at the year 1974, it was Ernest living on BUGUMBE/MABERA/107; that if Chacha Sirare had already gifted his two wives as submitted, the only logical conclusion would be that the actual registered proprietor of BUGUMBE/MABERA/107 is Ernest and not Jacob. Further, Jacob was welcomed into the land by Ernest and his father. It would be unlikely that Jacob was granted priority of being registered in a parcel of land over his brother Ernest.

The plaintiff further submitted that the decision of the tribunal over BUGUMBE/MABERA/164 still stands and the family of Jacob have not pursued their 2/3 claim; that she is not one of the four (4) wives of Jacob. She is Ernest’s only wife; that there was misinformation on the face of the petition dated 30/12/2014 in which the plaintiff was listed as the 3rd wife of Jacob; that the petitioner hid the fact that the subject estate was in the name of Rioba Chacha and not Rioba Chacha Sirare and misdirected the court in thinking they are one and the same person.

The plaintiff also submitted that the petitioners are not dependants of the Estate of Ernest Rioba Chacha as is provided under Section 29 (c) of the Law of Succession Act. The 1st and 2nd Petitioners indicated to the court that they entered BUGUMBE/MABERA/107 on a temporary basis as Jacob was following up on his land BUGUMBE/MABERA/164. Therefore they cannot be dependants of the estate of Ernest.

The plaintiff submitted that the objection is valid. The petitioners want to benefit from the estate of both Jacob and Ernest but she has adduced sufficient evidence to prove that BUGUMBE/MABERA/107 belongs to Ernest while 2/3 of BUGUMBE/MABERA/164 belongs to the estate of Jacob.

The objector further submitted that the summons for confirmation of letters of administration is marred with glaring irregularities and the estate of Ernest being BUGUMBE/MABERA/107 cannot be distributed to the petitioners as they were not dependents to the estate. The estate ought to be distributed in her favour together with her six children.

The Defendants (2nd Petitioner) filed their written submissions dated 6/8/2020 on 7/8/2020. The Defendants submitted that Rioba Chacha Sirare was a common name shared by the two half-brothers save for their first names one being Jacob and another being Ernest. None of the first names appears on the title of BUGUMBE/MASABA/107; that their Rioba Chacha Sirare is Jacob whilst the plaintiff submitted that it is Ernest; that there is no denial that both half-brothers settled on the land with their father who distributed the land among his wives; that it was Jacob but not Ernest who was the registered owner. The Petitioners submitted that it was Jacob the elder son of the two - half brothers who invited their father to join him on the land and according to Kuria Customs, the father took charge of the land and distributed the same among his wives.

On whether the defendants were entitled to inherit BUGUMBE/MASABA/107, they submitted that it has been demonstrated that though the registered name is of Rioba Chacha Sirare, the same was assumed to have been in the name of the Patriarch Chacha Sirare. The land became a family land with discernable boundaries. The Surveyor’s report detailed the occupancy of the land; that there is evidence that there are clearly marked boundaries which have existed for years.

On the issue of title Number BUGUMBE/MASABA/164, the defendants submitted that the title is held in the name of a 3rd party. The law does not permit the court to deal with properties other than the ones registered in the name of the deceased. On whether the defendants have proved their case against the plaintiff, they submitted that they are entitled to inherit and share land number BUGUMBE/MASABA/107 without revoking the grant. The mode of distribution and occupancy should be as confirmed by the Surveyor’s report filed. The court should proceed and include the protestor s as co-administrators and proceed to confirm the grant in terms of the Surveyor’s report.

The protestors (interested parties) did not file any submissions.

I have carefully considered the summons for confirmation of grant dated 18/4/2017, the affidavits of protest, the viva voce evidence, the documents produced in evidence and the respective rival submissions before this court. The complexity of issues in this cause, raise a myriad issues for determination but the court shall narrow them as follows: -

i. Whose estate is being administered;

ii. What regime of law applies in this case;

iii. Who owned Land Parcel Number BUGUMBE/MASABA/107;

iv. Whether Land Parcel Number BUGUMBE/MASABA/164 forms part of the estate of the deceased;

v. Whether the protests are merited;

vi. The distribution of the estate of the deceased.

It is imperative to mention at this stage that the correct land parcel numbers in this cause are BUGUMBE/MASABA/107 (plot no. 107) and BUGUMBE/MASABA/164 (plot no. 164). This court is guided by the searches that were produced and marked as ‘PEXH-1’ and ‘PEXH-2’ respectively seeing that none of the parties attached copies of the titles.

Unfortunately, throughout the submissions of the objector or the plaintiff, Learned Counsel is referring to land parcel numbers BUGUMBE/MABERA/107 and BUGUMBE/MABERA/164 which are non - existent parcels of land in this cause. Strangely enough, these searches were produced by their own witnesses. This court cannot over-emphasize the importance of filing proper and accurate submissions especially in such emotive cases, in order to guide and aid the court in reaching a proper decision.

The following are the undisputed facts: -

i.That there was a Patriarch by the name of Chacha Sirare who had two wives namely: Mogoye Chacha and Matinde Chacha being the first and second wife respectively. All the aforementioned persons are now deceased.

ii.The Patriarch’s wives each bore sons who shared similar names Rioba Chacha Sirare. Upon baptism, the son of the first wife adopted the name Jacob and the son of the second wife adopted the name Ernest. They are both deceased.

The first wife Mogoye, had another son Marwa Chacha husband to Christine Rioba who was 1st Petitioner both deceased.

iii.Jacob Rioba Chacha Sirare had four (4) wives who included the 2nd petitioner while Ernest Rioba Chacha Sirare had only one wife who is the plaintiff herein Magaiwa Rioba Chacha.

iv.It is also not in dispute that at one point in the lifetime of Jacob Rioba Chacha Sirare, he fled to Tanzania but returned to Kenya in the year 1974 and settled in plot no. 107 together with his father and his two other brothers Ernest Rioba Chacha Sirare and Marwa Chacha Sirare.

v.Upon the demise of the Patriarch Chacha Sirare, and all his sons being Jacob Rioba Chacha Sirare, Marwa Chacha Sirare and Ernest Rioba Chacha Sirare they were all buried on plot no. 107.

vi.It is also not disputed that all the family of Chacha Sirare are resident on Plot 107 on demarcated portions.

The first and second issues for determination shall be addressed jointly. Admittedly, there is confusion on which of the two half - brothers bearing the name Rioba Chacha Sirare’s estate is being administered. The parties herein have not produced death certificates of either brothers to guide this court on which Rioba Chacha Sirare is being referred to.

In the application for of grant of letters of administration filed on 12/2/2015, it is noted that the said Rioba Chacha Sirare died on 5/8/2002. On the other hand, in the application for objection to making a grant filed by Thomas Matinde Rioba, Rioba James Sirare, John Mohonge Rioba and Magaiwa Rioba Chacha, they claim this cause refers to the estate of Ernest Rioba Chacha who died on 6/6/1980. Thomas Matinde Rioba testified that the Patriarch Chacha Sirare died in 1982. It seems that Ernest Rioba Chacha Sirare preceded both his father Chacha Sirare and Jacob Rioba Chacha Sirare.

From the court record, this cause was filed by Christine Rioba, Martha Rioba and Magaiwa Rioba wives of sons of Chacha Sirare i.e. Marwa, Jacob and Ernest Rioba Chacha Sirare, and Jacob Rioba Chacha Sirare (deceased). Even though the estate was only referred to as the estate Rioba Chacha Sirare, it can only be inferred that the intention of the petitioners was to file for letters of administration intestate for the plot 107 and 164.

The asset listed on the petition filed in 12/2/2015 is BUGUMBE/MASABA/107 (plot no. 107). The search on plot no. 107 shows the owner to be one Rioba Chacha who was issued with the title on 30/9/1974 (PEXH2). There is no copy of the title of either parcels of land attached or even copies of the identity cards of either of the deceased persons. It is a common practice that on the face of a land title deed, the identity card number of the owner is usually indicated. These are crucial documents that parties ought to have produced in order to prove their case. This court has no idea whether the parties intentionally omitted to file the said titles or not.

Be that as it may, from the testimonies of the parties, Rioba Chacha was a generic name given to both half-brothers. The distinction to their identities being their adopted English names upon baptism either ‘Jacob’ or ‘Ernest’which do not appear on the search certificate of plot no. 107. Prima facie, it is not possible to conclude which Rioba Chacha was registered as the owner of Plot No. 107. It is also not possible to conclude that the land was registered in the name of their father who bore the name “Chacha Sirare” and not “Rioba Chacha Sirare.” Section 107 of the Evidence Act, Cap 80 Laws of Kenyaputs the evidentiary burden on the party who alleges. This court is not convinced that either party has given sufficient evidence on who between Jacob and Ernest is the ‘Rioba Chacha Sirare referred to as the registered owner of the land.

At this point, all the court can do is ride on assumptions and infer from the conduct of the parties before the demise of the Patriarch Chacha Sirare and the two brothers. It is undeniable that Mogoye was the first wife of Chacha Sirare while Matinde was the second wife. The plaintiff testified that the Patriarch had two plots no. 164 and 107 but neither was registered in his names; that the first wife was allocated plot no. 164 while the second plot no. 107 to the second wife but on cross-examination it was her testimony that all the family members live on plot no. 107 to date. This was also the testimony of Thomas Matinde who admitted that the children of the first wife died and they were all buried in plot no. 107. Simion Rioba Marwa affirmed this position, that all the family of Chacha Sirare live on plot no. 107 and everyone cultivates on the land. He also admitted the presence of many boundaries on the land and whoever dies in the family is also buried there. DW2 Solomon Gakune also confirmed that the plot 107 is divided into two portions each belonging to the two houses of the wives of Chacha Sirare.

As earlier stated, it is not in dispute that the families of the three brothers being the sons of the Patriarch Chacha Sirare together with their wives and children are settled in Plot No. 107 and some are even buried there. This has been confirmed by the testimonies of all the aforementioned persons.

Solomon Gakune brought an interesting perspective that according to Kuria Customs, during the lifetime of a father, a son cannot own land even if it belonged to them. All the property of the son belonged to the father.

The place of customary law within African tradition set - up cannot be ignored. The existence of customary law in our Kenyan culture and communities is acceptable and codified under Article 2 (4) of the Constitution of Kenya 2010 to the extent that application of Customary Law is acceptable if it is not inconsistent with the Constitution and other laws. In addition Article 159 (2) of the Constitution implores the courts to be guided by the principles of alternative dispute resolution one of them being traditional methods of dispute resolution.

The plaintiff submitted that since Jacob returned to Kenya in 1974, it was not possible that it was him who was the registered owner of plot no. 107 instead of Ernest. Ernest had all along been in the plot with their father hence entitled to be the first registered owner of plot no. 107. The plaintiff also claimed that there were no discernable boundaries on the said land unlike what other witnesses told the court.

This court takes a different view from the evidence in court the Patriarch Chacha Sirare and all his wives and their respective families have lived on plot no. 107 and those who have died are buried thereon. If at all it were true that the whole of plot no. 107 belongs to Ernest Rioba Chacha Sirare who preceded Jacob Rioba Chacha Sirare and the Patriarch, they would not have allowed Jacob or even the other deceased brother Marwa Chacha Sirare to be buried on the said land. In any case, if Ernest died in the year 1980 to date, it is approximately forty - one (41) years since the death and no objection has ever been raised on the existence of Jacob’s family and Marwa’s family on plot no. 107. Besides, all the deceased persons have always been buried on plot no. 107. Customary law recognizes the idea of trust where a person holds a piece of land in a fiduciary capacity for example where a father would cause the land to be registered in the names of the eldest son who would hold the land on behalf of the other sons. This kind of trust has been recognized by the courts. I am guided by the Court of Appeal decision in the case of Mukangu vs Mbui C. S. No. 281 of 2000 KLR 622 where the Court said:-

“However, since the same registration recognizes trusts in general terms as is done in the proviso to section 28 and section 126 (1) of the Registered Land Act without specifically excluding trusts originating from customary law and since African Customary Laws in Kenya, generally, have the concept or notion of a trust inherent in them where a person holding a piece of land in a fiduciary capacity under any of the customary laws has the piece of land registered in his name under the Registered Land Act with the relevant instrument of an acquisition, either describing him or not describing him by the fiduciary capacity, that registration signifies recognition, by the Registered Land Act of the consequent trust with the legal effect of transforming the trust from customary law to the provisions of the Registered Land Act because, according to the proviso to section 28 of the Registered Land Act such registration does not “relieve a proprietor from any duty or obligation to which he is subject as a trustee”. A trust arose from the possession and occupation of the land by Gerald which had the protection of Section 28 and 30(g) of the Act.”

In the instant case, I find that the register property of plot 107 Rioba Chacha Sirare, Walter Ernest or Jacob, hold the said land in a fiduciary capacity under customary trust on behalf of the family of the father Chacha Sirare (Patriarch) who include the families of Jacob Rioba Chacha Sirare, Ernest Rioba Chacha and Marwa Rioba Sirare.

There is no evidence as to when the person referred to as deceased in this case died 1980 or 2002. If he died in 1980, then the Law of Succession Act had not come into force because it came into effect in December, 1981. It would therefore mean that the applicable law would be African Customary Law. However, since this court has no idea when the deceased died, it will proceed under the Laws of Succession Act.

In Felista Muthoni Nyaga vs Peter Kayo Mugo (2016) eKLR, the Court said

“It is now well settled that the registration of a party as owner of land does not relieve him of his duty or obligation to which he is subject as trustee. That is clear from Section 28 of the now repealed Registered Land Act under which the suit land is registered which is similar with the provisions in Section 25 of the new Land Registration Act 2012 also Muiruri V. Kimemia (2002) 2 KLR 677, the Court of Appeal held that a trust must be proved by evidence.”

InKanyi Muthiora (1984) KLR 712Court of Appeal the court said:-

“The registration of the land in the name of appellant under the RLA (Cap 310) did not extinguish the respondents’ rights under Kikuyu Customary Law and neither did it relieve the appellant of her duties or obligations under Section 28 as trustee.”

From the report filed by the Surveyor dated 25/3/2019 and the sketch map attached thereto, there are clearly defined boundaries on plot no. 107 which have never been challenged. The total acreage of the land is approximated to be 13. 0 HA. which translates to 32. 1 Acres. On one side of the land is 6. 6 HA being occupied by one house and 6. 4 HA being occupied by the other house. I find no reason to believe that the land wholly belonged to either Jacob or Ernest. It could be at the time of the demarcation that boundaries were made.

On whether the Land Parcel Number BUGUMBE/MASABA/164 forms part of the estate of the deceased: The search produced (PEXH1) indicates that the title is in the name of the 1st protestor Simon Matinde Ngoko. It was the testimony of both the plaintiff and Thomas Matinde that plot no. 164 was first registered in the name of Matiko Ngoko and not in the name of Rioba Chacha Sirare. Thomas Matiko Ngoko claims that plot no. 164 was subject of dispute before the Land Dispute Tribunal in Masaba, Land Dispute Case No. 15/08/09 of 29/04/09 and he was awarded the land together with one of the wives of Jacob Rioba Chacha Sirare, 2/3 of the plot.

From the foregoing, it is clear that there is a pitted dispute on the ownership of plot no. 164 between some of the beneficiaries from the family of Chacha Sirare and family of one Simon Matiko Ngoko on the claims the land was either stolen from Jacob Rioba Chacha Sirare who was allocated the land by the Patriarch.

Clearly, There seems to be some interest in plot no. 164 by Chacha Sirare’s family which is yet to be resolved but the same cannot be raised here. It ought to have been raised during the succession proceedings if any, in the Estate of the first registered owner Matiko Ngoko (Deceased). It would be far - fetched for this court to involve itself in issues of ownership of land. It was held in the case of Alexander Mbaka vs Royford Muriuki Rauni & 7 Others (2016) eKLR that:

“It is only where one has established claim against the estate that has already crystalised that he can litigate it before a Family Court. The claim is to be considered as a liability to the estate. This Court, in my view, cannot be called upon to ascertain whether or not one has a right to an estate of the deceased where such right has not yet crystalized. The right must be shown to have crystalized before the Family Court can entertain it.”

The claim on the true ownership of plot no. 164 can only be litigated and finalized before the Environment and Land Court. In Re: Estate of Mbai Wainaina (Deceased) (2015) eKLR Musyoka J aptly stated:-

“Even if there was material establishing that there was such a trust, I doubt that that would be a matter for the probate court. The mandate of the probate court under the Law of Succession Act is limited. It does not extend to determine issues of ownership of property and declarations of trusts. It is not a matter of the probate court being incompetent to deal with such issues but rather that the provisions of the Law of Succession Act and the relevant subsidiary legislation do not provide a convenient mechanism for determination of such issues. A party who wishes to have such matters resolved ought to file a substantive suit to be determined by the Environment and Land Court.”

Therefore, whether land parcel number BUGUMBE/MASABA/164 does form part of the estate of the deceased is in the negative. The protests are merited.

In conclusion, the court observes that Christine Rioba the 1st petitioner in the cause is now deceased but she had not been substituted as a petitioner. She is also not a wife of either Jacob Rioba Chacha Sirare or Ernest Rioba Chacha Sirare but wife to one Marwa Chacha Sirare one of the sons to the first wife of the Patriarch. Since she participated in the proceedings as the 1st petitioner and even the grant of 22/2/2017 issued in her name, It would seem that the intention was that she be listed as one of the beneficiaries of the estate. There seem to be no objection from the families of Jacob and Ernest.

Thomas Matinde Rioba also testified that Esther Stori the 2nd protestor and 2nd wife of Jacob Rioba Chacha Sirare is deceased. No confirmation of this has come from any other party. The court shall take it that she is deceased. He also testified that Catherine Aoko the 3rd wife of Jacob Rioba Chacha Sirare is also deceased.

In her testimony in chief, Maritha Rioba the 2nd petitioner mentioned one Moronge as the 1st wife of Jacob Rioba Chacha Sirare. She has not been mentioned elsewhere; not even the chief’s letter has listed her or her children if she had any, as beneficiaries in the household of Jacob Rioba Chacha Sirare. She has also not filed any papers. This court shall assume that she is also deceased.

In the end, the beneficiaries of the estate are as follows: -

a. Jacob Rioba Chacha Sirare

Maritha Rioba - 4th wife and all the surviving children of Jacob Rioba Chacha Sirare from the 1st to 4th wives.

b. Marwa Chacha Sirare

All the surviving children of Marwa Chacha Sirare if any.

c. Ernest Rioba Chacha Sirare

Magaiwa Rioba Chacha and all the surviving children of Ernest Rioba Chacha Sirare.

Plot 107 measures 13 Ha (32. 1 Acres).

The surveyor’s report dated 25/3/2019 shows that plot 107 is divided in the middle into two parts. The said report is corroborated by the evidence of DW2, Solomon Gakune Marwa, an old man aged about 97 years who testified that the land was divided into two equal parts in accordance with the two houses of Chacha Sirare (Mogoye’s house and Matinde’s house).

To this end, the following orders do issue: -

1. This court will maintain the subdivision of the land into two portions as is on the ground as found by the Surveyor.

2. The Kuria East/West District Surveyor to visit the land parcel no. BUGUMBE/MASABA/107 and further sub - divide the land to each of the beneficiaries as they currently occupy their respective portions and issue individual separate titles to each of them.

3. For avoidance of doubt, if at all, there are other rightful beneficiaries who are not mentioned in this cause but they have been living on defined portions on the land parcel no. BUGUMBE/MASABA/107, they shall be issued with their own titles.

4. Each beneficiary shall bear their own costs of sub - division and subsequent transfer. All parties in this cause shall bear their own costs, this being a family matter.

I wish to apologize to the parties for the delay in delivering this judgement whose hearing was concluded on 10/2/2020. Due to unavoidable circumstance my brother Mrima J who heard the matter to its conclusion, requested that I write this judgement which request I graciously accepted. I took time to acquaint myself with the file as the parties will appreciate that I did not hear the case hence the delay.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 17TH DAY OF MARCH 2022

R. WENDOH

JUDGE

Judgment delivered in the presence of

Ms Okota for the petitioners.

Mr. Omonde Kisera for the plaintiff/objector absent

Emma Court Assistant.