[2017] KEHC 8184 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

SUCCESSION CAUSE NO.488 OF 2010

IN THE MATTER OF THE ESTATE OF THE LATE JONATHAN KINYUA WAITITU - (DECEASED)

JOYCE WAITHERA KINYUA

JOSEPH MAINA KINYUA

RUTH NJERI KINYUA.............................................PETITIONERS

VERSUS

FESTUS NDEGWA WAITITU

LUCY WAMBUI MUIGA

RICHARD GACHAU KAMORE

ELIZABETH WANGARI WAMBUGU

SIMON NDIRANGU WAITITU.................................OBJECTORS

JUDGMENT

BACKGROUND:

1. Joyce Waithera Kinyua, Joseph Maina Kinyua and Ruth Njeri Kinyua (hereinafter petitioners) petitioned for letters of administration in respect of the estate of Jonathan Kinyua Waititu on the 29th September, 2010.

2. Festus Ndegwa Waititu, Lucy Wambui Muiga, Richard Gachau Kamore, Elizabeth Wangari Wambugu and Simon Ndirangu Waititu lodged an objection to the making of the grant on the ground that the current registered owner of L.R. Chinga/Gikigie/342 holds the title in trust for the objectors. The objectors restrict their objections to this piece of land only.

THE OBJECTORS' CASE

3. The objectors called four (4) witnesses. It is the objectors' case that the deceased herein was their brother. Land parcel No. Chinga/Gikigie/342 was owned by their (Deceased and objectors') father. The deceased was registered on the title to hold in trust for the whole family. By the time, their father had already passed on. This is the evidence of O.W.1, O.W.2 and O.W.4.

O.W.3, the area Chief of Chinga NorthWest Location stated that Land Parcel No.LR Chinga/Gikigie/342 is within his jurisdiction. It was registered in the name of the deceased. The deceased held the same in trust.

THE PETITIONER'S CASE

4. The petitioners called Joseph Maina Kinyua (one of the administrators) who adopted his affidavit on record as his evidence. The gist of that affidavit is that the subject land belongs to the deceased and should be distributed as such to the deceased's heirs. It is urged that no evidence was tendered in support of the alleged trust.

OBJECTOR'S SUBMISSIONS

6. It is submitted for the objectors that it had been agreed that the 1st born son in each house of the parties' father was to be registered as owner of a piece of land to hold in trust for their respective houses.

It is urged that the Chief confirmed that the objectors and the deceased and their mother appeared before the Chief and agreed that the land belonged to all of them.

It is submitted that such a trust is recognisable in law.

I am referred to case law being Saitoti Lesham Karokia & 3 others V. Moses Isaack Ole Rakita, Machakos HCCC Case No.349 OF 2009 where it was held:

It is now generally accepted by the court in Kenya that there is nothing in the registered Land Act which prevents the declaration of a trust in respect of registered land, even if it is a first registration and noting to prevail giving effect to such a trust by requiring the trustee to do this duty by executing the transfer documents.”

THE PETITIONER'S SUBMISSIONS

6. It is submitted that the objectors have failed to prove the existence of the alleged trust. The suit land is registered in the names of the deceased with no indication that the land was held in trust for others.

I am referred to the decision in Felista Muthoni Nyaga V. Peter Kayo Mugo, [2016] eKLR where the court observed:

“It is now well settled that the registration of a party as owner of land does not relieve him of his duty or obligation to which he is subject as trustee. That is clear from Section 28 of the now repealed Registered Land Act under which the suit land is registered which is similar with the provisions in Section 25 of the new Land Registration Act 2012. .................

While it is the law that the registration of a party as the proprietor of land does not defeat a claim of trust nor relieve such proprietor of his obligation as a trustee, there must be evidence upon which a court can conclude that infact the registered proprietor of the land subject of the suit before it is infact holding the same as a trustee for the benefit of others. In Wambugu V. Kimani (1992) 2 KLR 58 and also Muiruri V. Kimemia (2002) 2 KLR 677, the Court of Appeal held that a trust must be proved by evidence and in Mbothu & others V. Waitimu & 11 others, 1980 KLR 171, The Court of Appeal stated as follows:

“The law never implies, the court never presumes a trust but in case of absolute necessity. The courts will not imply a trust save in order to give effect to the intention of the parties. The intention of the parties to create a trust must be clearly determined before a trust will be implied.”

Since the plaintiff's claim was based on trust, the law places the onus on her to prove the existence of such trust........................ It is however clear from the evidence herein that the plaintiff has neither pleaded nor proved any of the particulars as to how the trust subject matter of this claim arose with respect to the suit land. There is really no evidence upon which this Court can make a finding that the defendant holds the suit land in trust for him.”

I also flag out the decision in In the matter of the Estate of Manasseh Osiako Nyawira (deceased) [2012] eKLR to which I am referred to, where it was held as follows:

“I do not find that the deceased would have held the suit property in trust for the plaintiff. That would have been clearly indicated in the title register and therefore it would be speculative and premature at this juncture to belief the plaintiffs. In any case trust has to be established. The plaintiffs have failed to establish such trust or any intended trust at all.”

Counsel has also referred the court to the case of Patrick Mathenge Gachii & 3 others V. Karumi Wambugu & Another [2010] eKLR where Makhandia, J. observed:

“The burden of proving trust rests on the protesters. In my view they have failed miserably to prove such trust. Their entire evidence was hearsay which a court of law cannot act upon. The mere fact that the protesters are in occupation of the suit premises is no proof of trust. In any event it is apparent that the 2nd protester only came to the suit premises in 1986. It is also instructive that the deceased got registered as the proprietor of the suit premises in 1978 when the 1st protester's father and 2nd protester were all adults. One wonders then, why the two could not at the time claim their portion of the suit premises if indeed they were clear in their minds that their deceased brother held the suit premises in trust for himself and themselves. The trust having not been proved, there is no basis for the protests. Accordingly, they are dismissed.”

I am urged to dismiss the objection to the petition as the alleged trust has not been established on a balance of probabilities.

ANALYSIS

7. I have had occasion to consider the petition and the objection thereto.

To begin with, it is quite clear from the pleadings that in the strict sense of the word, we do not have an objection to the making of the grant but an objection (or should it be a protest?) to the distribution of land parcel No.Chinga/Gikigie/342 on the basis that the said parcel does not form part of the estate of the deceased but was held by him in trust for himself and objectors.

The grant made to the petitioners is thus not contested. The objectors are laying claim not as heirs to the deceased but as “owners” of the land.

ISSUES FOR DETERMINATION:

8. So then what are the issues for determination?

On the material before court, the issues for determination would be 2 viz:

1. Whether I have the jurisdiction to determine the issue of existence of the alleged trust in these proceedings.

2. If in the affirmative, whether the alleged trust has been proved to show that the deceased held L.R. Chinga/Gikigie/342 in trust for himself and the objectors.

DETERMINATION:

7. The issue of jurisdiction needs to be dealt with first and right away for the simple reason that without jurisdiction, the court lacks the mandate to adjudicate on the matter. I will buttress this point by quoting from the celebrated case of The MV Lilians [1989] KLR in which Nyarangi JA famously had this to say on jurisdiction:

“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. 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 tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

He goes on to say::

“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”

8. In our instant case, the objectors base their objection to the making of grant on ground that in so far as land parcel, No.L.R. Chinga/Gikigie/342 is concerned, the same does not form part of the estate of the deceased but was held by deceased on trust for himself and the objectors who are his siblings. This is therefore a challenge to the deceased's title.

The question that readily springs to mind is whether these succession proceedings are the appropriate way to challenge the title of the deceased to the said property

9. This court (M.K. Ibrahim J. as he then was) in decision cited with approval by this court in In the Matter of the Estate of Peter Igamba Njoroge, Succession Cause No.432 of 2009 (unreported) had this to say on the issue of probate court's jurisdiction to resolve a claim based on land held in trust. He stated:

“I have also considered the second question which really is of locus standi or interest. The objectors are not claiming any interest as dependants or direct beneficiaries of the deceased. They do not claim that they have any right to inherit any property or asset of the deceased. The correct position in law is that the Estate of their father to which they have obtained letters of administration has a claim against the estate of the deceased herein. The claim is that the deceased held the two properties in question in trust for himself and the objectors' father.

In my view this claim cannot in law or fact deny the rights of the true beneficiaries of the deceased estate from obtaining letters of administration and having the same confirmed.

The objectors are able in law to prosecute their claim and secure any rights without interfering with the rights of the Petitioners to exercise control and protection of the estate of the deceased. The objectors also are not entitled to be made joint administrators as they are neither dependants, beneficiaries of the deceased nor have any other capacity to be entitled to be so appointed.

Secondly, I do not think that these Succession proceedings are the appropriate way to challenge the title of the deceased to the said properties. Their claim of a trust is or ought to be the subject matter of a separate suit or proceedings. The objectors have to prove the trust and thereafter seek revocation of the title and/or partition thereof. This requires declaratory orders of the existence of trust. This is not the function of a Succession court where the claimant is neither a beneficiary or dependant. Succession proceedings are also not appropriate for the resolution of serious contested claims against an Estate by third parties.

In this case, the objectors ought to institute separate proceedings to articulate or vindicate their claims/rights. They are lucky that the claim or trust is not caught by the laws of limitations of actions. However, this court appreciates that they require a reasonable time to institute proceedings before any distribution of the Estate.

I therefore do hereby hold that this court has no jurisdiction to determine the claim of trust or to give any relief in respect thereof. It is unfortunate that the question of jurisdiction was raised at the end of the hearing. It is always appropriate and reasonable for jurisdictional issues to be raised at the beginning of hearing or trials. Preferably, they should be raised in the pleadings at the outset.

Be that as it may, the fact that it is raised at the end does not change anything. If a court has no jurisdiction, then it has none. The conclusion of hearing does not confer any jurisdiction to the court. This will only go to the question of costs.”

10. From the foregoing, it is clear that the mandate of the probate court is limited. A distinction ought to be made between a claim against the estate of a deceased and a claim on inheritance in respect of the estate of the deceased.

11. To reaffirm this legal position, I again take refuge in the decision in H.C. Succession Cause No.864 of 1996 [2015]eKLR where the court held that:

“Even if there was material establishing that there was such a trust, I doubt that the resolution of this issue would be a matter of the probate court. The mandate of the probate court under the Law of Succession Act is limited. It does not extend to determining issues of ownership of property and declaration of trusts. It is not a matter of the probate court being incompetent to deal with such issues but rather that the provisions of the Law of Succession Act and the relevant subsidiary legislation do not provide a convenient mechanism for determination of such issues. A party who wishes to have such matters resolved ought to file a substantive suit to be determined by the Environment and Land Court.

Consequently and for the reasons above stated, I must find and hold that this court has no jurisdiction to resolve the proprietory interest on land based on the alleged trust.

In this case therefore, the only path legally open to the applicants is to institute separate proceedings to articulate their claim/rights in the right forum and which is the Environment and Land Court.”

The upshot is that this court lacks jurisdiction to resolve the proprietary interest on land based on the alleged trust. The available option was for the objectors to articulate their claim by instituting proceedings against the estate of the deceased suing the administrators to obtain orders on declaration of a trust leading to enforcement of their proprietary interests on the land.

12. Even assuming that I had the requisite jurisdiction, has the alleged trust been proved? It was incumbent upon the objectors to prove on a balance of probability that the trust existed. This degree of prove is well enunciated in the case of MillerV. Minister of Pensions [1947] cited with approval in D.T. Dobie & Company (K) Ltd. V. Wanyonyi Wafula Chabukati [2014] eKLR. The court stated:

“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say:

'We think it more probable than not',the burden is discharged, but, if the probabilities are equal, it is not.

Thus, proof on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties' explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”

13. Our very own Section 107 of the Evidence Act (Cap 80 Laws of Kenya) places the burden of proof on the party who wants the court to rely on the existence of any set of facts to make a finding in his favour, to prove those facts.

14. In our instant suit, save for the objectors' witnesses merely stating that the deceased held the land in trust for them being their elder brother, there is no cogent evidence to prove this. D.W.3, the Chief who was born much later after the alleged trust was created did not help matters. His assertion that the parties appeared before him and acknowledge the trust is not backed by independent evidence.

15. As held in the case of Felista Muthoni Nyaga V. Peter Kayo Mugo [2016] EKLR, while it is the law that the registration of a party as the proprietor of land does not defeat a claim of trust nor relieve such proprietor of his obligation as a trustees, there must be evidence upon which a court can conclude that infact the registered proprietor of the land subject of the suit before it is infact holding the same as a trustee for the benefit of others. See also Susan Gacheri Mugambi V. Maureen Florence Kagwiria & 2 others, [2016] eKLR.

16. By the time the certificate of title was issued in 1978, the objectors were adults. There is no explanation why they never claimed their portion of the subject land if indeed they were clear in their minds that their deceased brother held the land in trust for himself and themselves.

I cite with approval the findings of Makhandia, J in the case of PatrickMathenge Gachui V. Karumi Wambugu & Another [2010] eKLR (supra) where the court observed:

“The burden of proving trust rests on the protesters. In my view, they have failed miserably to prove such trust. Their entire evidence was hearsay which a court of law cannot act upon. The mere fact that the protesters are in occupation of the suit premises is no proof of trust. In any event it is apparent that the 2nd protester only came to the suit premises in 1986. It is also instructive that the deceased got registered as the proprietor of the suit premises in 1978 when the 1st protester's father and 2nd protester were all adults. One wonders then, why the two could not at the time claim their portion of the suit premises if indeed they were clear in their minds that their deceased brother held the suit premises in trust for himself and themselves. The trust having not been proved, there is no basis for the protests. Accordingly they are dismissed.”

17. Consequently and for the above stated reasons, it is my finding that the objectors' claim over the land is not one which the probate court would have jurisdiction to hear and determine and even if this court were clothed with the necessary jurisdiction, there is no evidence in support of the trust alleged.

18. With the result that the objection herein is dismissed. This being a family matter, each party is to bear its own costs.

Dated, Signed and Delivered at Nakuru this 18th day of January, 2017.

A. K. NDUNG'U

JUDGE