[2022] KEHC 14754 (KLR)

In re Estate of Samuel Martin Kipsang Arap Maseri – (Deceased) (Succession Cause 816 of 1985) [2022] KEHC 14754 (KLR) (Family) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14754 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 816 of 1985

MA Odero, J

October 7, 2022

Between

Ronny Kepyegon Tonui

Applicant

and

Jason Kibet Misoi

1st Respondent

Land Registrar, Bomet District

2nd Respondent

Attorney General

3rd Respondent

Judgment

1. Before this court is the summons dated November 30, 2021 by which the Applicant Ronny Kipyegon Tonui seeks the following orders:-“1. A declaration that Land Reference No. Kerichocheptalal/359 is not among the assets of the Estate of Samuel Martin Kipsang Arap Maseri identified in the Will dated April 29, 1983, and is therefore not subject to Testate Succession.

2. A declaration that the letters of Administration intestate and the certificate of confirmation of Grant of Probate with Will be granted to the 1st Respondent dated March 20, 1987 and rectified on January 27, 2021 are null and void ab initio.3. This Honourable court be pleased to review and set aside the order issued on January 27, 2021 to rectify the Letters of Administration intestate and the Certificate of Confirmation of Grant of Probate with Will appointing the 1st Respondent as a personal representative of the Estate of Samuel Martin Kipsang Arap Maseri and including property known as Kericho/cheptalal/399 as an asset of the estate of Samuel Martin Kipsang Arap Maseri.4. This Honourable court be pleased to direct the 2nd Respondent, the land Registrar Bomet District, to cancel the title issued to Jason Kibet Misoi on May 4, 2021 in respect of Land Reference Kericho/cheptalal/3995. That the costs of this application be provided for.”

2. The summons which was premised upon section 74 of the Law of Succession Act, Rules 43, 63 and 73 of the Probate and Administration Rules and Order 45 of the Civil Procedure Rules was supported by the Affidavit of even date sworn by the Applicant.

3. The 1st Respondent/Executor Jason Kibet Misoi opposed the application through the Replying Affidavit dated June 8, 2022. The 2nd Respondent Land Registrar, Bomet District and the 3rd Respondent The Hon Attorney General did not file any reply to the application. The matter proceeded by way of written submissions. The Applicant filed the written submissions dated June 30, 2022 and the Supplementary submissions dated July 19, 2022 whilst the 1st Respondent filed written submissions dated July 18, 2022.

Background 4. This Succession Cause relates to the estate of the late Samuel Martin Kipsang Maseri (hereinafter ‘the Deceased’) who died testate on May 17, 1985 at the Nairobi Hospital. A copy of the Death Certificate Serial Number 137399 is annexed to the Petition for Probate with written Will dated May 20, 1985. The Deceased left a Written Will dated April 29, 1983. The original copy of said Written Will is annexed to the Petition for Probate.

5. The Deceased was survived by two (2) widows namely Esther Tapnyole Maseri and Susan Wangui Maseri and several children. The 1st Respondent is one of the sons of the Deceased.

6. In his written Will the Deceased appointed his widow Susan Wangui Maseri an Executrix of his estate. Grant of Probate was made to the 2nd widow Susan Wangui Maseri on July 31, 1986 which Grant was thereafter confirmed on March 20, 1987. On March 15, 2005 the Executrix passed away as is evidenced by the copy of her Death Certificate Serial Number 0171XXX annexed to the Supporting Affidavit dated December 14, 2014.

7. Following the demise of the Executrix to the Will the 1st Respondent who is a son to the Deceased filed in the High Court a summons for Rectification of Grant dated December 14, 2014 seeking the following orders:-“1. That Jason Kibet Misoi be appointed the Executor of the Estate of Samuel Martin Kipsang Arap Maseri in place of the late Susan Wangui Maseri who died on March 15, 2005.

2. That a parcel of land known as Kericho/Cheptalal/359 which had been omitted in the list of the assets of the estate be included in the list as part of the assets of the estate.

3. That this Honourable court be pleased to allow and permit the said parcel of land known as Kericho/Cheptalal/359 to be sold and the proceeds from the sale be distributed to the surviving beneficiaries as per the attached consent to mode of distribution filed herein.”

8. That application for rectification of Grant was allowed and a fresh Grant of letters of Administration Intestate was issued in the name of the 1st Respondent on January 27, 2021. The rectified Grant was duly confirmed on the same date and confirmed Grant indicated that the estate of the Deceased was to be distributed in accordance with the Written Will dated April 29, 1983. The rectified confirmed Grant further stated as follows:-“The property known as Kericho/Cheptalal/359 be and is hereby included in the list of assets of the estate of the Deceased.The above property to be sold and the proceeds of sale be distributed to the beneficiaries.”

9. The Applicant objects to the inclusion of the property known asKericho/cheptalal/359 (hereinafter referred to as ‘the suit property’) as a part of the estate of the Deceased as said property was not mentioned in the Will. The Applicant further asserts that the move to rectify the Grant was deficient since the Grant of probate with Written Will issued to Susan Wangui Maseri became useless and inoperative upon the demise of the Executrix.

10. The Applicant further argues that the court had earlier approved the distribution of the estate in line with the Written Will of the Deceased. However, upon rectification of the Grant the court approved the sale of the suit property and the distribution of the proceeds of sale to the beneficiaries of the estate contrary to the intentions stated by the Deceased in his Written Will.

11. Finally, the Applicant alleges that the 1st Respondent obtained the orders for rectification of the Grant by material non-disclosure by misrepresenting that the suit property belonged to the Deceased when in actual fact the Deceased himself made no mention of the suit property in his Written Will. That this effectively amounts to re-writing the will of the Deceased.

12. The Applicant submits that the orders made on January 27, 2021 rectifying the Grant and confirming the said Grant in the name of the 1st Respondent was void ab initio. That the subsequent actions of the Applicant in moving to procure Title to the suit property in his own name are also invalid and void ab initio.

13. On his part the 1st Respondent asserts that following the demise of the Executrix named in the Written Will, he was properly appointed by the court as Administrator and obtained a confirmed Grant in his name. That the court also made orders regarding the distribution of the property known as Kericho/chepatlal/359, which was the remaining asset of the Deceased pending distribution. The 1st Respondent states that as the duly appointed Administrator he had a duty to conclude the administration of his fathers estate.

14. According to the 1st Respondent the suit property had been leased to the Applicant. Once the lease expired, the Applicant was requested to hand back vacant possession of the land or to purchase the same. The Applicant did not respond favourably to either request thus the 1st Respondent put up the suit land for sale. This led to the Applicant filing a suit in the Environment and Land Court being ELC No. 022 of 2022, which is still pending determination.

15. The 1st Respondent submits that the present application has not been brought in good faith as the Applicant is not even a member of the family of the deceased and is not a beneficiary of the estate.

Analysis and Determination 16. I have carefully considered this application, the Affidavit filed in reply as well as the written submissions filed by both parties.

17. The Applicant has argued that the rectified Grant issued to the 1st Respondent was null and void ab initio since upon the death of the Executrix named in the Will the Grant became null and void.

18. It is quite correct that upon the demise of the original Executor and in the absence of a co-Executor the Grant would by virtue of Section 76 (e) of the Law of Succession Act Cap 160 Laws of Kenya the death of an Executor/Executrix would render a Grant useless and inoperative.

19. However, I note from the record that when the 1st Respondent filed the summons for rectification of Grant to allow for his substitution as the Executor, no objection was raised by any party, the Applicant included. Annexed to the summons for rectification dated December 14, 2020 is a consent also dated December 14, 2020 which has been signed by all the beneficiaries to the estate. The beneficiaries all gave their consent to the appointment of Jason Kibet Misoi (the 1st Respondent herein) as the Executor of the Deceased’s Estate. In the circumstances, I am satisfied that the 1st Respondent was properly appointed to replace the Deceased Executrix with the consent of all parties. Upon confirmation of the rectified Grant the 1st Respondent was given the mandate to continue with the Administration of the estate of the Deceased.

20. I am mindful of the fact that this is a very old matter. The Deceased died way back in 1985 and to date the estate has not been finalized. To revoke the Grant issued to the 1st Respondent at this stage would be tantamount to taking the matter several steps backwards instead of forward.

21. Under Section 47 of the Law of Succession Act, the High Court has inherent powers to make appropriate orders in the interest of justice and for the preservation of the deceased’s estate. It reads as follows.“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient: Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.”

22. Similarly Rule 73 of the P&A also provides:-“Nothing in these Rules shall limit or otherwise affect the inherent power o the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

23. Having been appointed with the full agreement and consent of all the beneficiaries, I find and hold that the 1st Respondent is now the duly appointed Executor of the Deceased’s Will.

24. The main reason why the Applicant has taken issue with the Grant issued to the 1st Respondent is the inclusion of the suit property as an asset belonging to the estate of the Deceased. According to the Applicant, the suit property does not form part of the estate of the Deceased and is therefore not available for distribution amongst the beneficiaries.

25. The Applicant cites the fact that the Deceased did not make mention of the suit property in his Written Will. This alone does not amount to proof that the asset does not belong to the estate. I have carefully perused the record. Annexed to the summons for rectification dated December 14, 2020 the 1st Respondent annexed a copy of an official search dated August 28, 2020 in respect of the suit land. The search shows that the property is registered in the name of Samuel Martin Kipsang Arap Maseri who is the Deceased herein. Therefore, there exists prima facie evidence that the suit land belonged to the Deceased. The Applicant on the other hand has not availed any evidence to prove his allegations that the suit land did not belong to the Deceased. Therefore, this court cannot make a declaration that the suit land is not part of the estate.

26. The Applicant has prayed to have the Title issued to the 1st Respondent in respect of the suit property cancelled. The Applicant effectively is challenging the claim by the 1st Respondent that the suit land belonged to the Deceased.

27. Matters relating to the ownership use and occupation of land have now under Article 162 of the Constitution of Kenya 2010 been mandated to be determined by a specialized court being the Environment and Land Court (‘ELC’).

28. Section 13 of the Environment and Land Court Act provides for the jurisdiction of that court as follows:-

13. Jurisdiction of the Court(1)The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.(2)In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes―(a)relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;(b)relating to compulsory acquisition of land;(c)relating to land administration and management;(d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and(e)any other dispute relating to environment and land. [Rev. 2012] No. 19 of 2011 Environment and Land Court 9 [Issue 1]

29. Therefore, the correct and proper forum before which the Applicant ought to ventilate his claim to the suit land is the ELC. The Environment and Land Court is the only court exclusively mandated by law to determine the question of ‘ownership’ of the suit land.

30. In Re Estate Of Stone Kathubi Muinde (Deceased) [2016] eKLR Hon Justice William Musyoka held that:-“Such claims to ownership of alleged estate property, as between the estate and a third party, should be resolved through the civil process in a civil suit properly brought before a civil court in accordance with the provisions of theCivil Procedure Actand theCivil Procedure Rules. This could mean filing suit at the magistrates’ courts, or at the Civil or Commercial Divisions of the High Court, or at the Environment and Land Court. If a decree is obtained in such suit in favour of the claimant then such decree should be presented to the probate court in the succession cause so that that court can give effect to it.” (own emphasis)

31. The Applicant is not a member of the Deceased’s family. He has not claimed to be a dependent of the Deceased. The Applicant basically has no locus standi in this Succession Cause. The Applicants remedy therefore lies in the ELC. Indeed the Applicant did file suit before the Environment and Land Court in Kericho which suit is still pending. Once the question of ownership of the suit land has been determined by the Environment and Land Court then the decree from the Environment and Land Court may be presented to this Probate Court for adoption and implementation. Accordingly, this court sitting as a Probate Court cannot direct the Registrar of Lands Bomet to cancel the title issued to the 1st Respondent on May 4, 2021 in respect of Kericho/Cheptalal/359 as this is the exclusive preserve of the Environment and Land Court.

32. Finally I find no merit in the present application. The summons dated November 30, 2021 is hereby dismissed in its entirety. Each party to bear its own costs.

DATED IN NAIROBI THIS 7TH DAY OF OCTOBER 2022. ......................................MAUREEN A. ODERO__JUDGE