[2022] KEHC 15961 (KLR)

In re Estate of Shaban Kassim Ribeiro (Deceased) (Succession Cause 221 of 2013) [2022] KEHC 15961 (KLR) (2 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15961 (KLR)

Republic of Kenya

In the High Court at Mombasa

Succession Cause 221 of 2013

JN Onyiego, J

December 2, 2022

IN THE MATTER OF: ESTATE OF THE LATE SHABAN KASSIM RIBEIRO (DECEASED)

In the matter of

In the Matter of Raphaelo Obore

Interested Party

Ruling

1. The late Shaban Kassim Ribeiro the deceased herein died intestate on November 4, 2012 and a grant of letters of administration issued to Yakub Kassim Sheban (administrator) on December 6, 2013. The same was confirmed on September 5, 2014 and a certificate of confirmation issued on September 9, 2014. The deceased was survived by the following;a.Mohamed Mwinyi Kassim-Sonb.Mwanajuma Athman Kenya Kassim-Daughterc.Asha Athman Kenya Kassim-Daughterd.Mashaka Athman Kassim-Daughtere.Yakub Kassim Sheban –Sonf.Esha Sheban -Daughter

2. The following properties were listed as comprising the estate;a.Plot XVII/6XX located at Majengo Mombasab.Plot No IIMN/7XX Located at Junda Mombasac.Kenya Commercial Bank Account No 1107XXXXXXX

3. Later, the applicant herein moved this court via a summons for revocation or annulment of grant dated September 14, 2021 and filed on the same day under certificate of urgency seeking the following orders;a.spentb.That the applicant herein, Raphael O obiero be enjoined as an interested party.c.That pending the hearing and determination of this application, an order or injunction do issue restraining the administrator/respondent whether by himself, his representatives, servants, agents and /or assigns from howsoever selling , alienating ,trespassing onto and/or in any other manner whatsoever interfering with or otherwise dealing with the property known as plot number 7XX/11/MN (the suit property).d.That this honourable court be pleased to make an order that grant of letters of administration intestate issued on 6th day of december,2013 to Yakub Kassim Sheban and confirmed on September 9, 2014 be revoked(or annulled).e.That this honourable court be pleased to make such orders as may appear to be fit and convenient to meet the ends of justice.f.That the costs of this application be provided for.

4. The application is premised on the grounds therein and the supporting affidavit of the applicant sworn on September 14, 2021. It is the applicant’s case that; the grant herein was obtained fraudulently by the making of false representation that Plot No 7XX/11/LR formed part of the estate; the deceased concealed from this honourable court the fact that the suit property had been sold to him on February 22, 2005 and; that in 2018 the said suit property was still in the name of one Saleh Said Sherman who had registered an encumbrance in the form of transfer and as such it could not be subject to succession.

5. He further contended that the said Saleh Said Sherman had sold the suit property to Shaban Kassim Ribiero, Ramadhan Kassim and Peter Tom whom he dealt with directly.

6. That he and his late wife Felister Odhiambo Haliango (deceased) were granted access to the suit property in the year 1995 by the deceased’s brother Ramadhan Kasim (deceased) to construct a nursery school to help the community on the understanding that they would be paying a monthly fee. That when Ramadhan Kasim (deceased) died, he entered into an agreement with Shaban Kassim Ribiero (deceased) herein on February 22, 2005 for the purchase of the suit property for the amount of Kshs 40,000. That Upon signing the same he made an initial deposit of Kshs 5,000 and issued with a receipt of the same. He claimed that he subsequently paid the balance of Kshs 35,000 to the deceased but could not trace the receipt as it got lost.

7. It was his case that he became aware of the grant issued herein after entry of judgement in CMCC NO 473 OF 2018, St Johns Mishomoroni Academy V Yakub Shaban (MSA) which was delivered against him on May 14, 2020. He further averred that he has been in occupation of the suit property since 1995 and had built a nursery school therein which the administrator /respondent has on several occasions trespassed into and illegally demolished structures therein putting the students learning at risk of both life and limb. That he reported the same to Nyali Police Station and was issued with OB No40/24/07/016 and OB No72/17/6/18. That the existence of the grant herein was depriving him his constitutional right to own property as he could not enjoy the benefits of the said property.

8. That unless the orders sought are granted, the administrator will continue to put the learners’ lives at risk and may also succeed in registering transmission in respect to the suit property thereby subjecting him to irreparable loss.

9. In response, the administrator filed a replying affidavit sworn on October 5, 2021 thus denying the fact that Plot No.7XX/II/LR was ever sold to the applicant. He stated that the grant herein was obtained upon disclosure of all relevant material facts and that the deceased and his sibling Ramdhan Kassim and one Peter Tom did not authorize the applicant herein to construct any structure on the ground and that the applicant is a stranger to the suit property.

10. He contended that the property was jointly owned by 3 persons thus any agreement for sale ought to have been signed by the 3 persons. That the agreement produced by the applicant was null and void ab initio and the same has no effect in law as no consideration was paid towards the sale agreement.

11. He stated that the applicant constructed the school under the authority of his late father on the terms that he would construct 2 class rooms of semi-permanent structures only to run a nursery school as he awaited the purchase of a better ground to construct permanent school. That the applicant violated the same and constructed eight classrooms. He averred that when the applicant was asked to vacate, he lodged CMCC No 473 of 2018 St Johns Mshomoroni Acadeny V Yakub Sheban which was heard and determined in favour of the administrator. That the applicant’s Civil Appeal No 83 of 2020 in the high court challenging the said judgement was dismissed on June 8, 2021 with costs.

12. He further stated that; the application has been brought as an afterthought with an ill motive calculated to delay execution of the decree in Civil Appeal No 83 of 2020; the applicant has no interest in the suit property; the application is incompetent and an abuse of court process and devoid of merit thus should be dismissed.

13. The administrator /respondent filed a preliminary objection dated March 25, 2022 and filed on the same day seeking to have the application dismissed on grounds that; the applicant is not a beneficiary of the late Shaban Kassim Ribiero and therefore has no interest over the estate and; the applicant has no capacity to institute this application.

14. On March 28, 2022 the court directed that the preliminary objection be argued within the main application as the issues in controversy were the same. The matter was canvassed by way of viva voce evidence.

15. OW1 being the applicant adopted his witness statement and produced his list of documents filed on March 22, 2022 respectively. He reiterated his position in the supporting affidavit and witness statement and urged the court to revoke the grant.

16. OW2 was David Were who adopted his witness statement dated February 24, 2022 and filed on March 22, 2022 as his evidence. He basically told the court that he did witness the applicant buy the subject land from the deceased.

17. The administrator/respondent did not testify nor call any witness.

18. Upon closure of the applicant’s case the court directed parties to file written submissions. The firm of Kadima & Advocates appearing for the applicants filed submissions on July 12, 2022. Counsel submitted that the applicant had met the criteria for revocation of the grant under section 76 of the law of succession. He further contended that the applicant’s evidence was uncontroverted and as such the respondent’s defence remained mere allegation.

19. Counsel relied on the case of L A K (Deceased)2014 eKLR (not annexed) where the court held that a grant may be revoked where the proceedings leading up to its making were defective ,or were attended by fraud and concealment of important matter, or was obtained by untrue allegation of fact essential to the point. It was submitted that the grant in question was obtained fraudulently by the making false representations that Plot No7XX/II/LR formed part of the deceased’s estate and by concealing material facts that the suit had already been sold to him.

20. The administrator/respondent through his advocates Khatib &Company Advocates filed his written submissions dated May 10, 2022 and filed on May 11, 2022. Counsel submitted on two issues;a.Whether the applicant has capacity to apply for revocation of the grantb.Whether the applicant has approved a case for grant of prayers sought.

21. On the first issue, counsel submitted that since the applicant is not a beneficiary, an interested party or an heir, he has no capacity to initiate proceedings to seek revocation of the grant under section 76 of the Law of Succession Act. That the claim herein being a claim on ownership, it should be filed and determined before a competent court being the Environment and Land Court.

22. On the second issue, counsel submitted that the applicant had failed to prove any grounds for revocation of the grant. That the grant was lawfully issued and due process of the law and procedure followed hence should not be revoked.

23. I have considered the application herein, the response thereof and rival submissions by both counsel. Issues that emerge for determination are;a.Whether applicant has locus standi to seek revocation of the grant.b.Whether the grant should be revoked.

24. On whether the applicant has locus standi , the respondent submitted that the applicant is not a beneficiary, an interested party or an heir of the estate of the deceased hence he has no capacity to initiate proceedings to seek revocation of the grant under section 76 of the Law of Succession Act. Section 76 of the law of succession act provides that a grant may be revoked by the application of any interested party or on court’s own motion. My understanding of this case is that there was an alleged agreement and exchange of money between the applicant and the deceased. On account of the alleged transaction, the applicant is qualified as an interested party for purposes of section 76 in his capacity as a creditor.

25. In the case of In re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR where the court had this to say;“A kind of objection has been taken out by the petitioners; that the applicant lacks locus standi to file an application for revocation or annulment of grant. Section 76 of the Law of Succession Act is very clear that:-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…[Underlining mine]Details have emerged that there was an agreement between the Applicant and the deceased for the sale of the suit land. Although, challenges to the said agreement and objection to the jurisdiction of this court to try such claims have been raised, one thing is clear- and this is alluded to by the petitioners- that money may have passed to the deceased which is recoverable as debt. Accordingly, at the very least, the applicant could be treated as a creditor, thus, an interested party for purposes of section 76 of the Law of Succession Act. Therefore, he is within his right to apply for revocation of grant as he has done.”

26. On whether the grant should be revoked, the issue that is in contention here is whether the deceased had sold the suit property to the applicant and whether the agreement dated February 22, 2005 between the deceased and the applicant is valid to warrant the revocation of the grant made on December 3, 2013 and confirmed on September 5, 2014. In my view, this court has no jurisdiction to determine the same hence the court with competent jurisdiction is the Environment and Land Court. In that regard, I am guided by the holding in the case of In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR where the court stated;“Was the applicant a bona fide purchaser of property from the deceased to warrant being treated as a creditor of the estate, who ought to be catered for from the estate? Documents were placed on record, to demonstrate that there were agreements of sale and that money changed hands. However, I have no jurisdiction to make a finding one way or the other, with regard to whether the alleged sales were valid and resulted in the applicant acquiring a stake in the estate. That is a matter which revolves around title to land. Under articles 162(2) and 165(5) of the Constitution, I have no jurisdiction over that question. The parties are better of placing the issue before another forum for determination of the question. I shall not pronounce as to whether the applicant was a bona fide creditor of the estate, entitled to be allocated shares in the estate, he shall have to prove his entitlement to the property he claims he bought from the deceased by commencing suits against the estate at the appropriate forum.”

27. Further in the case of In re Estate of Julius Ndubi Javan (Deceased) (supra), it was held that;“I am aware that this court does not have jurisdiction to determine the validity or enforceability of the said agreement. Environment and Land Court does; it is the court which is constitutionally mandated to determine such matters.”

28. It is trite that jurisdiction is everything and without it a court cannot move any further step. In the circumstances of this case, I will not delve into the issue of revocation as have already found that this court has no jurisdiction to determine the issue of ownership, sale, transfer and or title to land. I am guided by the case of In re Estate of Prisca Ong’ayo Nande (Deceased) (supra) where the court stated that;“Jurisdiction is at the core of exercise of power by a court. Where there is no jurisdiction the court cannot exercise power without violating the principles of rule of law and legality. It was in that context that the Court of Appeal, in Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd [1989] eKLR, stated:“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

29. In any event, parties are in agreement that they have been engaged in civil litigation over the subject property where the applicant sought an injunction against the respondent trespassing over the subject property but lost. A counter claim by the respondent seeking vacant possession against the applicant was upheld and an appeal by the applicant dismissed. Technically therefore, the applicant is trying to use a probate court to overturn the decision of the ELCbefore the magistrate’s court and upheld by the high court.

30. In my view, this court can not purport to arrogate itself powers it does not have in determining land ownership dispute. Since some pronouncement over possession has been made by two competent courts, I cannot assume further jurisdiction over the matter. These are points of law which do not necessarily require adduction of evidence. It is immaterial that the respondent did not call any witness. With the preliminary objection in place, the respondent had the option of testifying or not. Accordingly, the finding of this court is that due to lack of jurisdiction the application dated September 14, 2021 cannot stand hence the same is hereby dismissed with no order as to costs.

DATED, SIGNED AND DELIVERED IN MOMBASA THIS 2ND DAY OF DECEMBER 2022J.N.ONYIEGOJUDGE