[2022] KEHC 14227 (KLR)

In re Estate of Simon Ndururu Kariuki (Deceased) (Succession Cause 155 of 2017) [2022] KEHC 14227 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14227 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Succession Cause 155 of 2017

CM Kariuki, J

October 13, 2022

N THE MATTER OF THE ESTATE OF SIMON NDURU KARIUKI (DECEASED) DAVID GITAHI NDURU................................................................PETITIONER VS JOEL WAWERU KARIUKI..............................................................PROTESTOR

Judgment

1. The matter relates to the estate of Simon Nduru Kariuki, the deceased herein, and in particular LR No Nyandarua/Leshau/Mbuyu Block 2 (Karai)/152, the suit land herein measuring approximately 6 acres, was purchased and registered jointly in the name of the deceased and the protestor herein. The two held the suit land as tenants in common, and before the deceased's death, they had caused subdivision of the said parcel of land into 50 (50×100ft) plots, out of which they had sold and disposed of 38 plots leaving 12 plots.

2. The petitioner herein is the deceased son and the holder of a grant dated April 29, 2019 concerning the deceased's estate. In the summons for confirmation dated July 22, 2020, he proposed that the deceased share on the suit land be registered to him absolutely. The protestor herein filed a protest sworn on November 5, 2020 where he claimed to be a joint registered proprietor of the suit land, which had been subdivided into (50×100ft) plots, and 38 properties had been sold to buyers before the deceased demise.

3. The petitioner argued that the succession herein deals with ½ share of the suit land and not the entire 6. 6 acres as insinuated by the protestor. Therefore, he submitted that the buyers should wait for the ½ share of the deceased to be transferred to his personal representative so that they can pursue both the protestor and the personal representative to transfer their entitlement on the entire parcel of land before the environment and land court upon proof of purchase.

4. The petitioner urged the court to dismiss the protest noting that no sale agreements in favour of the buyers have been produced and there is a need for the receipts purported to be proof of purchase to be interrogated in an environment and land court after confirmation of the grant.

5. On the other hand, the protestor contended that the only question pending before this court is how the suit land should be devolved. It was submitted that the deceased's interest in 19 plots out of his share of 25 plots that were part of the 38 plots sold was terminated at the deceased's time of death; in essence, the only part of the suit land that can form part of the deceased's estate is only six plots out of the remaining 12 plots that have not yet been sold since the other six plots ought to go to the protestor herein. Accordingly, reliance was placed on Johnson Muinde Ngunza & Another v Michael Gitau Kiarie & 12 Others [2017] eKLR and Mpatinga Ole Kamuye v Meliyo Tipango & 2 Others [2017] eKLR.

6. Furthermore, the protester alleged that the only issue pending is that the subdivision of the suit land had not been registered at the time the deceased passed away, and that forms the reason why the said parcels have not been identified by way of registration numbers and that the process of registration was underway and a surveyor had been hired.

7. In conclusion, the protestor submitted that his entitlement is 6 (50×100ft) plots, the estate of the deceased is 6 (50×100ft) plots, and 38 (50×100ft) plots should go to the purchasers as per the documents filed. He urged the court to order a statement of accounts led by the administrator to allow the purchasers to claim their parcels during the said process, as the sale of the 38 plots was undisputed. The agreement capturing the same is equally uncontested.

Determination 8. From the foregoing, only one question falls for determination: how the suit land should be distributed concerning the deceased estate.

9. The protestor based his protest on the fact that together with the deceased, they were joint owners of the suit land. It is undisputed that the protestor and the deceased had purchased the suit land together as tenants in common. While the protestor further alleged that he, together with the deceased, had subdivided the suit land into 50 plots and subsequently sold 38 parcels leaving 12 unsold and, therefore, only the latter were available for distribution, the petitioner argued that the succession herein deals with ½ share of the suit land and that there were no sale agreements in favour of the buyers that have been produced. Therefore, there is a need for the receipts purported to be proof of purchase to be interrogated in the Environment and Land court after confirmation of gradient.

10. I have carefully perused the record and the documentary evidence the protestor presented. It appears the protestor and the alleged purchasers were enjoined as interested parties in the initial succession proceedings; the th protestor was appointed as a co-administrator of the estate in those proceedings grant was issued to him and Francis Wangondu, who appears to be the deceased's son. However, the grant was revoked by the court suo moto and not by a material defect in the grant itself but by operation of the law as it had been over one year since the grant of letters of administration intestate was made, and no application for confirmation of grant had been filed.

11. In the circumstances, it is apparent that from the beginning, the petitioner, who was also part of that proceeding, had acknowledged the purchase of part of the suit property and the alleged purchases. I am curious as to what has changed since then.

12. In reestate of Kinogu Mukiria (deceased) [2022] eKLR, the court cited the case of Priscilla Ndubi and Zipporah Mutiga v Gerishon Gatobu Mbui, Meru Succession Cause No 720 of 2013, where it was held that: -“The primary duty of the probate court is to distribute the estate of the deceased to the rightful beneficiaries. As of necessity, the estate property must be identified. Thus, where issues of ownership of the property of the estate are raised in a succession cause, they must be resolved before the such property is distributed. And that is why rule 41(3) of the Probate and Administration Rules was enacted so that prima facie valid claims should be determined before confirmation."

13. In light of the foregoing, it is easy to act impulsively and deny the protestor's claims; consequently, the alleged purchaser may seek any provision in the estate property. Therefore, I believe the protestor has established his claims on a balance of probabilities.

14. I have taken a record of the proceedings in Nyeri High Court Succession Cause No 251 of 2006 in which the petitioner was a party.in those proceedings, the petitioner was well aware of the protestor and interested parties and had no objection to their claim over a part of the deceased's estate. I also appreciate that in those proceedings, the court revoked the grant issued by its motion since the administrators then did not apply for its confirmation when the same became ripe or confirmation. Thus, it is apparent that the initial grant was revoked by operation of law and not by any defect attributed to it or its issuance. The main issue that the court has to grapple with is whether the petitioner can now be allowed to object to the inclusion and consideration of the protestor and, by extension, to the interested parties, having initially had no issue with them in the revoked grant. In my view, by his conduct, the petitioner is estopped by the doctrine of estoppel from denying the interested parties' claim over a portion of the deceased's estate.

15. The reality of this case compels the court to act in the best interest of justice and make a conscientious decision not to cause injustice while distributing the deceased’s estate. Therefore, I am persuaded that this court should distribute the deceased estate, considering what is available for distribution in the first place.

16. Accordingly, the court finds that the protest has merit, and the same is allowed. Thus, the court makes the orders:i.The petitioner's entitlement is 6 (50×100ft) plots being the estate of the deceased, The protestor gets his share of 6 (50×100ft) plots, and 38 (50×100ft) plots are entitlement to the purchasers.ii.The grant is to be confirmed to that effect.iii.Parties to bear their costs.

DATED, SIGNED, AND DELIVERED AT NYAHURURU THIS 13TH DAY OF OCTOBER, 2022. ..................................CHARLES KARIUKIJUDGE