[2022] KEHC 1425 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

SUCCESSION CAUSE NUMBER 287 OF 2011

IN THE MATTER OF THE ESTATE OF THE LATE GACHU MUCHENA (DECEASED)

CHARLES GITHINJI WAHOME.................................APPLICANT

VERSUS

JOSEPH MBATIA GACHU ...ADMINISTRATOR/RESPONDENT

SOLOMON NJIHIA GACHU..ADMINISTRATOR/RESPONDENT

J U D G M E N T

1. Gachu Muchena died on 22nd December 2002. He was a polygamous man with three (3) wives. He was survived by members of his family from the three (3) houses as per the letter from Chief Murungaru Location dated 16th September 2010.

2. His estate comprised of Nya/Olarangwai/1934 & 1936 and Bahati Block 1/1729.

3. Grant of Letters of Administration was issued to Joseph Mbatia Gachu and Solomon Njihia Gachu on 20th November 2011.

4. On 20th December 2012, they filed Summons for Confirmation of Grant dated 19th December 2012 seeking to distribute the estate of the deceased. After setting out all the beneficiaries of the deceased from the three houses they proposed at paragraph 5 of their Affidavit in Support that the estate be inherited by all the beneficiaries in equal shares, but the two (2) administrators would hold the same in their trust.

5. On 13th June 2014 Charles Githinji Wahome filed Summons for Revocation of Grant on the grounds that;

a) The grant was obtained fraudulently by the concealment of a material fact that the applicant had a beneficial interest in 0. 5 acres in L.R. No. Nyandarua/Oloragwai/1936.

b) That the proceedings were defective because the applicant was never named as a beneficiary nor did he participate in the proceedings.

c) That the application for grant of letters of administration was defective as the consent of the applicant was not sought as to who should become the administrator of the estate.

6. The applicant supported his application with an Affidavit sworn on 9th June 2014, in which he reiterated the grounds and deponed further that;

i. In February 2002 the deceased entered into a Sale Agreement with him for the sale of 0. 5 acres to be hived from LR/Nyandarua/Oloragwai/1936 for the consideration of Kshs. 60,000/=. He annexed a copy of the Sale Agreement and averred that he had paid the full price.

ii. That he had paid cost of Kshs. 57,000/= and the balance of Kshs. 3,000/= was to be paid upon obtaining the mother title from the bank.

iii. That the two wives of the deceased had consented to the sale.

iv. That he was given possession of the 0. 5 acres on which he proceeded to put up a permanent house and moved in with his family.

v. That the deceased herein died before he could retrieve the mother title from the bank, hive off the 0. 5 aces, and transfer the same to him.

vi. That he learnt in 2012, about the succession proceedings and the grant issued to the respondents.

vii. That the 1st administrator had been harassing him and even had him charged in Naivasha Criminal Case 1273 of 2012 for cutting trees from his portion of land but he was acquitted.

viii. That having occupied the land for over 12 years, the Summons for Confirmation of Grant had not made any provisions for him for his portion of 0. 5 acres.

7. He filed another Affidavit sworn on 23rd June 2014 annexing the Judgment from the Criminal Case, and the proceedings.

8. In a Replying Affidavit sworn on 2nd September 2014, the administrators denied that their father had sold any land to the applicant, in particular 0. 5 acres to be hived from Nyandarua/Oloragwai/1936 at Ksh. 60,000/= further:

i. That the Sale Agreement annexed to his affidavit did not have any reference to LR Nyandarua/Olorangwai/1936.

ii. That there was no sketch plan showing where the 0. 5 acres was to be hived from.

iii. That no Consent was obtained as required by Section 6 of the Land Control Board Act Cap 302.

iv. That even if there had been a contract, six (6) years had passed, and the applicant had no valid claim against the estate of the deceased.

9. Parties agreed to proceed by way of viva voce evidence.

10. At the close of the hearing, parties sought time to file Written Submissions. The applicant’s were filed by A. K. Wahome Advocate from the firm of Karanja & Otunga Advocates dated 6th June 2021 and filed on 14th June 2021 I did not see the submissions of the respondent said to have been filed on 21st June 2022.

11. Having considered all the evidence and the Submissions, the only issue is whether the applicant has established that he bought a parcel of land of 0. 5 acres from the deceased, to warrant his prayers.

12. The applicant in his testimony reiterated what was captured in his Supporting Affidavit. He confirmed that the Sale Agreement was entered into on 4th February 2002 and the seller, the deceased had no witnesses. It was only signed by one witness, Joseph Ndegwa Wagura, the broker, then thumb printed by the seller and signed by the purchaser. On this date, it was indicated that the deceased had sold the land for Kshs. 60,000/=, had received Kshs. 15,000/= and the balance would be paid by monthly installments to be completed by September 2002.

13. On 3rd March 2002, another entry was made, that the applicant had paid Kshs. 20,000/= for the “½ acre of land I am buying.”The witnesses were Joseph Wagura, Grace Waithira Guchu, Hannah Wangari Guchu, all indicated to have thumb printed the agreement. On 1st July 2002 another entry was made indicating that Joseph Ndegwa Wagura had given the deceased Kshs. 11,000/= on behalf of the applicant, and this time, it was signed by Joseph Wagura, the deceased and the applicant. Another entry shows that on 3rd November 2002 Kshs. 7,000/= is paid to deceased who thumb printed, and the witnesses whose names appear over the page despite there being space the bottom of the page namely; John Ndegwa, Stanley Kirigi, Peter K. Gachuhi, Hannah Wangari Gachu (w/o the seller). On this date it was indicated that the deceased acknowledged receipt of Kshs. 57,000/= leaving a balance of Kshs. 3,000/=.

14. On cross examination the applicant expressed surprise that the total amount said to have been paid was adding up to only Kshs. 53,000/= and not Kshs. 57,000/=. He alleged that a surveyor had demarcated the land but there was no mutation form, he confirmed that there was no consent to transfer obtained before the deceased died and that he himself had not abided by the alleged Sale Agreement in terms of the monthly instalments.

15. His other witness was Joseph Ndegwa Wagura. He was the broker, and the person who drew the Sale Agreement. He claimed on 4th February 2002 the deceased requested him to draw the agreement the Sale, and he was the witness for both the seller and the buyer. He also claimed that on 11th July 2002 the buyer who was in Nairobi sent him to pay Kshs. 11,000/= to the deceased. He confirmed that at some point in 2002 deceased was admitted in hospital and used to have memory lapses. He confirmed that the buyer had built on the land before he completed payment.

16. The applicant’s other witness was Joseph Gichuki Gachu, the elder brother of the administrators/respondents. He testified that he knew the applicant in 2001 when the deceased told him he had sold land to him. That the deceased died before he could transfer the land to the applicant. That the deceased had showed the applicant the land. He claimed that when his father sold the land the 1st administrator was not called to the signing of the agreement because he was not mature. On cross examination the witness told the court that he knew the applicant when he occupied the land. He said their father had told him he was selling the land because it was he, the witness who was in possession of the title deed. He confirmed that he lived in Kitale, and before their father died he had not been home for 5 months. He did not know when their father died. He said he did not visit their father in hospital, he was not aware he was admitted in hospital for two (2) months because he was not informed. He could not recall the Land Registration number for the parcel he claimed he had been given to use to get a loan. Pressed as to whether he was present when the Sale Agreement was made he said they should call those who were present. He said he did not know how old the 1st administrator was in 2002. He denied that their father had any mental issues, but confirmed that he was not at home when Mzee felt sick and was taken to hospital. That he came home after Mzee had died. He denied what Joseph Wagura had told the court that after Mzee died he, and the deceased’s wives discussed the issue of this land sale.

17. The 1st administrator’s testimony was that he was not aware that any land had been sold.

18. The 2nd administrator testified that he lived at home with their father. He testified about the father’s illness. He told the court how the applicant was brought by a broker, Joseph Ndegwa to lease land, that applicant leased the land, cultivated it in 2002. In 2003 he brought offcuts and began to construct a house. That when their father died, they called in anyone who was owed by him. The applicant never raised any claim. When the administrators were appointed the 2nd administrator asked the applicant to account for his occupation of the land. When he said he had bought the land the 2nd administrator told him they were not aware of any sale and it was upto him to provide proof. That the applicant demolished his house and left in 2012, and in 2014 placed a caveat on the land.

19. On cross examination this administrator confirmed that he knew the applicant in March 2002, when he came to lease the land, brought by the broker Joseph Wagura. He confirmed that he was not a party to the Sale Agreement. That the deceased used to sign documents, not thumb print, that the applicant had constructed the house after the deceased died. He said the applicant demolished his house himself, that had he, the 2nd administrator done so, the applicant would have taken action against him. He testified that his eldest brother could not have known about the issues at home because he rarely came home. That the Sale Agreement did not identify the land that was allegedly sold.

20. From the foregoing, has the applicant established his claim to warrant the prayers sought?

21. His application is brought under Section 76 of the Law of Succession Act, on account of concealment of facts, fraudulent actions by the applicants and defect in the application for the grant. The ground underneath these allegations is that he bought land from the deceased, and that the respondents, while aware of this, left him out of these proceedings and are out to deny him his rightful share of the estate on that ground.

22. The respondents concede that the applicant did cultivate a portion of their family’s land before the deceased died. That the applicant put up his house when the deceased had died. However, any sale or purchase is denied and it is their contention that it is upon the applicant to prove his claim.

23. The law is that he who alleges must prove.

Section 107 of the Evidence Act states as much;

“S.107. Burden of proof

(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) …”

24. The applicant has placed before the court a Sale Agreement dated 4th February 2002. In his testimony he spoke of the 1st agreement and the 2nd agreement. What he refers to us as 1st agreement is the one dated 4th February 2002 the one, according to him, initiated the sale of land. It is evident on the alleged sale of land agreement that the parcel of land is not identified, yet the deceased was he registered proprietor of the three (3) parcels of land that form his estate.

25. The question is, if it was truly a sale, why would the Sale Agreement not identify the parcel of land out of which the land was to be hived from? Was it, LR Nya/Oloragwai/1934 or LR Nya/Oloragwai/1936, or Bahati Block 1/729? Nowhere in the various documents presented by the applicant do the documents identify the parcel of land from which the 0. 5 acres is to come from. The applicant alleged that some elders were sent to show him the land, not a single one of those elders was called to testify. He also said a surveyor took measurements, but he never followed the mutation, this surveyor was not called to testify. The alleged identification of the land as that bordering someone else’s land cannot be proof of sale, it could equally be evidence of the lease for farming.

26. The applicant also claimed in his affidavit he had paid the full price of Kshs. 60,000/=. At the same time he claimed to have paid Kshs. 57,000/= leaving a balance of Kshs. 3,000/= to be paid at the time of getting the title deed. However, the evidence he placed before court showed that he had paid Kshs. 53,000/=. Clearly even his evidence of having paid for the land is inconsistent, it is also incredible. For instance, when it says that Joseph Ndegwa paid Kshs. 11,000/= on behalf of the applicant who was away, yet the applicant’s name appears on the document as though he was present. On another piece of paper it says Kshs. 7,000/= has been paid, but the witnesses have not signed on the page where the agreement is, but overleaf, and even without any expertise, the writings are distinctively different on their face.

27. From the agreement the applicant had committed to pay the balance of Kshs. 45,000/- by monthly instalment to be completed by September 2002. However, from his own papers after March 2002, he only paid in July and in November, and the November payment is doubtful as it is evident that by that time the deceased was sickly and admitted in hospital.

28. I have carefully considered the evidence, the application if he is to be believed went against his own agreement. From the evidence before me I find that the applicant has not placed evidence before this case to prove that he bought land from the deceased before he died.

29. The occupation of the land to cultivate is not denied, but the alleged sale is not established.

30. There is the criminal case proceedings that the applicant annexed to this application, does his acquittal mean that he bought the land? Clearly not. It goes to show that he was in occupation of the land. Going through the proceedings and the judgment, I found no evidence that he produced before that court to show that he had bought the land from the deceased. The case tuned on an issue related to whether the trees he had been accused of cutting were in a government forest.

31. The evidence of the eldest brother of the administrators is questionable. He is a man who did not live at home. He did not have a close relationship with his father, if his father could stay in hospital for two (2) months and he would not know, or he was not even aware of when his father died as the eldest son. He also was not truthful about the age of the 1st administrator.

32. I find therefore that the applicant having failed to prove that he purchased land from the deceased;

i. The allegations of concealment/defect or fraud by the administrators in obtaining the grant have not been established.

ii. The Summons for Revocation of Grant has no merit and is dismissed with costs to the respondents.

iii. The Summons of Confirmation of Grant is allowed, all beneficiaries are entitled to an equal share of the estate. The same he held in trust by the administrators for themselves and the beneficiaries in equal shares.

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

MUMBUA T. MATHEKA

JUDGE

In the presence of:-

Court Assistant Edna

Wahome for the applicant

Joseph Mbatia Gachu

Solomon Njihia Gachu