[2018] KEHC 3483 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 1511 OF 2007

IN THE MATTER OF THE ESTATE OF SAMUEL GITAU MUNENE (DECEASED)

RULING

1. The application I am called upon to determine is dated 12th January 2016. It is brought at the instance of Josephine Wairimu Ng’ang’a. She seeks to be enjoined as a party to the proceedings herein and to have Ngong/Ngong/26406 and 26407 allocated and transferred to her name out of the estate. Her case is that she was a bona fide purchaser of the said parcels of land from the deceased, who passed on before the same were conveyed to her name. She has attached to her application sale agreements allegedly executed between her and the deceased, sales receipts evidencing payment of the purchase price, applications to the relevant land control boards for consents to transfer the same, letters of consent from the said land control board and transfer documents executed by the deceased.

2. The reply to the application is vide an affidavit sworn on 14th October 2016 by the fourth administrator of the estate, Ian Mukora Munene. He avers that the said agreements had a completion date of ninety (90) days, which the applicant breached, for the agreements were executed in 2001 and the last payments were done in 2007. It is also averred that the purchase money was allegedly paid to an entity known as Family Wings Investments that the estate was not familiar with. He avers that the applicant had not availed evidence that the entity had authority to receive the money on behalf of the deceased. It is also averred that the copies of the receipts availed show that the full purchase price had not been paid. The deponent also raises issue with the consents of the land control board, on the basis that consents were obtained five (5) years after the sale agreements were entered into, which, he submits, is contrary to the relevant law. Finally, he says that the attached transfer documents are not dated and do not indicate the consideration for the envisaged transfers.

3. Then there is the affidavit sworn on 20th September 2017 by Maina Macharia. He is a former partner in Family Wings Investments which allegedly acted in the sale transaction upon the instructions of the deceased. He states that the deceased approached the firm to act as its agent to sell the land, which was to be subdivided first into smaller portions. The firm advised the deceased to engage an advocate for that purpose, which he did, the advocate instructed was Mr. Chacha Mwita, now Judge of the High Court. The subdivisions were done, and customers started coming forward, among them being the applicant herein. She executed the relevant agreements, paid a deposit but did not clear the balance within the ninety day completion date stipulated in the agreements. The deponent followed up with her and established that she had had issues at her place of work, but the deceased and his advocate allowed her to complete payment of the purchase price. The payments were made to Family Wings Investments who forwarded the same to the advocate who thereafter would forward the same to the deceased. The deponent states that he did not handover any money directly to the deceased. He states that he did not have his original documents for as a matter of policy the firm had destroyed them after expiry of seven (7) years. He states that the applicant had completed paying the total purchase price before the deceased passed on. He states that the transfer document was to be dated and the consideration indicated when the transferee was ready to lodge the document for registration. He has attached several documents to his affidavit to support his case.

4. Directions were given on 25th January 2017 that the application be disposed of by way of viva voce evidence. The deponents of the affidavits lodged in the application, that is to say the applicant and Maina Macharia, were availed, they testified in chief and were cross-examined. They gave vent to the allegations made in their respective affidavits. The parties have also filed written submissions and I have noted the arguments made therein.

5. The application seeks two principal prayers, that the applicant be enjoined as a party to the proceedings, after which the court should allocate the two parcels of land to her. The applicant is not a survivor of the deceased, and she is therefore not claiming a share of the estate as an heir but as a creditor, having allegedly bought a portion of the estates land. Her claim is resisted by the administrators. She does not have a decree of a court of law awarding the property to her, and the application before me is the avenue that she has chosen to establish her claim. I have gone through the documents that she has placed before me as proof of her case. I have also gone through the record of the oral evidence she has tendered, together with that of her witness. I am persuaded that she has an arguable case. However, I doubt whether I have the jurisdiction to determine whether or not the property in the lands had passed to her to warrant an order being made that the estate cedes the lands to her.

6. I am alive to the provisions of Article 162(2) of the Constitution, which states that –

‘Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to –

(a) …

(b) The environment and the use and occupation of, and title to, land.’

7. The said provisions ought to be read together with Article 165(5) of the Constitution, which states as follows –

‘The High Court shall not have jurisdiction in respect of matters –

(a) …

(b) falling within the jurisdiction of the courts contemplated in Article 162(2).’

8. The subject of the application dated 12th January 2016 revolves around title to land. It is a dispute as to whether the applicant had acquired title to Ngong/Ngong/26406 and 26407 from the deceased. By dint of Article 165(5) of the Constitution, I, sitting as Judge of the High Court, would have no jurisdiction to make a pronouncement as to whether the applicant had acquired such title. Parliament in compliance with Article 162(2) of the Constitution established the Environment and Land Court, which exercises the jurisdiction set out in Article 162(2). The applicant ought to have commenced action against the estate in a suit at the Environment and Land Court, and upon obtaining a decree in that suit in his favour moved the probate court to have her interest taken into account at the distribution of the estate.

9. The orders that I feel moved to make in the circumstances are as follows -

a) That the application dated 12th January 2016 is allowed in terms of prayer 1 thereof;

b) That, regarding Ngong/Ngong/26406 and 26407, the applicant is hereby directed to pursue her claim thereon against the estate in a suit properly brought under the relevant statutes before the Environment and Land Court;

c) That upon obtaining a decree in her favour from the Environment and Land Court she shall thereafter move this court to have the said decree enforced;

d) That in the meantime the property known as Ngong/Ngong/26406 and 26407 shall be removed from the schedule of the assets that make up the estate of the deceased to facilitate orders (b) and (c) above;

e) That costs of the application shall be in the cause; and

f) That in the event the applicant is aggrieved by the orders that I have made herein above she has the liberty to challenge the same at the Court of Appeal within twenty-eight (28) days of date hereof.

DATED, SIGNED and DELIVERED at NAIROBI this 5TH DAY OF OCTOBER, 2018.

W. MUSYOKA

JUDGE