[2019] KEHC 6990 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

SUCCESSION CAUSE NO. 1063 OF 2012

IN THE MATTER OF THE ESTATE OF THE LATE KINYUA KABUKI (DECEASED)

HILARY KINYUA KIIGE................................................APPLICANT

VERSUS

ZAWERIA WANGARI MATHENGE........................RESPONDENT

AND

GEORGE MUCHIRI MARIIRA..................INTERESTED PARTY

RULING

1. The estate relates to the late Kinyua Kabuki (Deceased)who died on the 15th June, 1974; and was survived by only one daughter Zaweria Wangari Mathenge (‘Zaweria’); the deceased’s estate comprises of only one parcel of land known as Title No. Chinga/Kagongo/43 (‘the suit property’); Zaweria petitioned for Letters of administration and a Grant was issued to her as the administrator of the deceased estate on the 4/03/2013; and the same was confirmed on the 16/01/2014;

2. The applicant (‘Hilary’) filed the application on the 6/08/2014 under the provisions of Section 76 (a) (b) & (c) of the Law of Succession Act (‘Act’) and Rules 44(1) of the Probate and Administration Rules; in the application he seeks for the revocation of the Grant on the following grounds;

(i) the proceedings to obtain the Grant were defective in substance;

(ii) the Grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;

(iii) the Grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

3. To support his claim the applicant relied on the grounds on the face of the application and on his supporting affidavit made on the same date; directions were taken on the 2/11/2015 that the matter proceed for hearing by way of ‘viva voce’ evidence; at the end of hearing the parties were directed to file and exchange written submissions; hereunder is a summary of the applicant’s case and the petitioner’s response;

APPLICANT’S CASE

4. The applicant’s evidence was that the deceased was his grandfather and the suit property was registered in the grandfather’s name; the deceased herein only had two daughters and the only surviving one was the respondent who was a cousin to his late father; Paul Kinyua (‘Paul’) was a nephew to his father and to the respondent as well and a grandson to the deceased; Paul was born in 1953 and since his mother had passed on Paul was raised by Simon Kiige (‘Simon’) the applicant’s father from when he was young upto his adulthood; his father educated Paul from primary school upto Technical School; he did not know why Paul was not raised by the respondent who was his maternal aunt;

5. The deceased also resided with Simon from 1967 due to his blindness and was looked after by Simon for seven years until he passed on in 1974 and was buried on the applicant’s father’s parcel of land which is Chinga/Kagongo/42; the applicant’s father utilized the suit property Chinga/Kagonga/43 before the deceased came to reside with them and had planted a total of 3000 tea bushes thereon which the applicant’s mother plucked; Zaweria never utilized the suit property and had planted nothing on the land;

6. There was a dispute between Paul and Simon over the suit property and the matter was referred to the Chief on the 28/06/2001 and the proceedings were annexed as ‘PExh.1’; that Zaweria was present at the hearing and didn’t make any claim to the suit property; the finding by the elders and the chief was that Paul was entitled to 1. 1 acres of the suit property and the applicant’s father was entitled to 0. 8acres;

7. When the deceased passed on Paul filed Succession Cause No.612/2001 which relates to the same intestate herein and the chief’s letter indicated two beneficiaries to the estae namely Paul Kinyua and Simon Kiige; that instant succession cause was filed upon the demise of Paul and his father;

8. The applicant wanted a stake in the suit property as a token of appreciation for the work his father had done in raising Paul and for looking after Zaweria’s blind father for seven years who was also buried on their land; his stake was also based on the elders findings and the proceedings (PExh.1) were produced into court;

9. That he knew George Muchiri (‘George’) the Interested Party and confirmed that George had leased the land with the tea from Paul and not from his father or his mother; that the Tea Lease document was in the name of George’s wife Joyce Wanjiku Muchiri; that George had purchased the land through Zaweria but she had not consulted or involved either the applicant’s father, his mother or his brothers or sisters; his mother and brothers had sued George in the ELC Court in Othaya and had obtained a restraining order; that despite the Lease his mother was the one plucking the tea and not Joyce because of the injunction;

10. Under cross-examination the applicant stated that he was not aware that Paul had filed Succession Cause No. 612/2001 over the suit property; nor was he aware of the consolidation of the two succession causes or that his father and Paul had both been appointed administrators therein; and that the Grant had not been confirmed as both petitioners had passed on;

11. To support his case the applicant called Joseph Mwenyeri Wanjahi (PW2); his evidence was Hillary’s father was his brother and that the applicant was his nephew; that he knew Zaweria who is the only surviving daughter to the deceased; that Paul was the son of a deceased daughter of the deceased; that he also knew George whom he described as an interested party;

12. That a meeting was held at the chief’s office with elders where it was agreed on how the deceased’s property would be shared and the portion be given to Simon for the work he had done; by that time of the meeting the deceased had already passed on; it was unanimously agreed that Simon be given 0. 8 acres and that there are minutes of that meeting produced into court;

13. After this witness testified the applicant closed his case; his prayer was that the Grant issued to Zaweria be revoked because she was aware of the existence of the other succession causes which had not been disposed of and that she also knew of his interests which she had not taken into consideration in the instant cause;

PETITIONERS/RESPONDENTS CASE

14. The evidence of the Zaweria was that the deceased was her father; that her father only had two daughters; one being herself and the other was Paul Kinyua’s mother who passed on when he was a minor; she couldn’t recall Paul’s age at that time; he stayed with her until he was of school going age; when he started school Simon came for him; that the pastor paid his school fees and she also used to support Paul; she told the court that she did not know whether Simon paid his school fees;

15. That her late father lived with her but when he got very sick he went to stay with Simon; he stayed there for only one year and not seven as stated by Simon before his demise and was buried on Simon’s land;

16. She never resided on the suit premises but cultivated the land; that the tea on the suit property was planted by Paul when he finished school; that she did not know how Paul obtained the Green Leaf Card or whether it was given to him by Simon; that after her father’s death that it was the Interested Party George who cultivated the land; and before she sold the suit property to George it was Paul who was cultivating the land; that she sold the land together with the tea plantation which belonged to Kinyua;

17. She denied any knowledge of Succession Cause 612/2001 or that Paul had filed a Succession Cause over her father’ estate; she recalled that there was a meeting at the Chief’s concerning her father’s land; and that she was present but wasn’t given anything;

18. The Interested Party testified as (DW2) his evidence was that he knew Simon and Paul but did not know that they utilized the suit property; that his wife had leased the land from Paul and used to pick the tea; he did recall the length of this period; that he bought the suit property from Zaweria and paid the purchase price of Kshs.1. 35million and had obtained the Title for the land;

19. Under cross-examination he stated that he had no documentation, no Sale Agreement, no receipt for Stamp Duty or receipt to show payment of monies; but he stated that he had paid Zaweria the money;

ISSUES FOR DETERMINATION

20. After hearing the evidence of the parties and upon reading their respective written submissions this court has framed the following issues for determination;

(i) Whether to revoke the Certificate of Confirmation of the Grant;

(ii) Distribution of the estate of the deceased;

ANALYSIS

Whether to revoke the Certificate of Confirmation of the Grant;

21. The applicant seeks to revoke the Grant under the provisions of Section 76 of the Law of Succession Act (Act) on the grounds that the respondent concealed from the court facts related to the estate of the deceased; that there were other pending succession causes relating to the deceased’s estate and that there were other persons with beneficial interest in the estate; that Zaweria concealed to the court the existence of the other succession causes;

22. Zaweria under cross-examination denied knowledge of Succession Cause No 612/2001 filed by Paul relating to her father’s estate; this court called for the file relating to Succession Cause No.612/2001 and notes that Zaweria was being economical with the truth;

23. What is of interest is that upon calling and perusal of the Succession Cause No. 612 of 2001 it is noted that Zaweria filed an application for the Revocation of the Grant on the 25/05/2015 under the provisions of Section 76 of the Act and therein makes the following averments under oath; she deponed as follows;

“9. That the Petitioner in Succession Cause No. 625 of 2001, who is my nephew, informed me of the filing of the Succession Cause and I gave him permission to do so.

10. That I later learnt from the Petitioner in Succession Cause No. 625 of 2001 there was another Cause No.612 of 2001 filed by Simon Kiige Karianjahi.

11. That on 14/07/2005 the two Succession Causes were consolidated and a grant of letters of administration given to the two Petitioners jointly. A copy of the grant is attached and marked Z.W.M.1”

24. Going back to Zaweria’s evidence she confirmed that she attended the meeting convened by the Chief; this was after the demise of her father who due to his ill health had resided with the applicant’s father; she acknowledged the fact that her father was even buried on the applicant’s father’s land; the agenda of the meeting was the apportionment of her father’s land being the suit property herein; her evidence was that she was apportioned nothing;

25. She proceeded to file this instant Succession Cause in September, 2012 during the pendency of the other Succession Causes without disclosing the existence of these other succession causes; despite her denial from her above averments it can be safely deduced that she in actual fact knew of the existence of the both causes from 2001 when she was briefed by Paul;

26. By also confirming that she was present at the meeting at the chiefs this amounts to an admission that she knew that both Paul and Simon had an interest in the suit property; in the aforesaid affidavit she also deponed that she had filed a Protest but it was wrongly titled as Succession Cause 525 of 2001 and was therefore mis-filed;

27. In Succession Cause 612/2001 Simon and Paul filed for the Confirmation of the Grant on the 5th July, 2012 and their proposed mode of distribution was between the two of them with no consideration for Zaweria; unfortunately the matter was not concluded due to the demise of Paul on the 26/07/2012 followed by the demise of Simon on the 23/08/2013; therein it is further noted that Zaweria successfully applied for the revocation of the grant issued to Paul and Simon; and instead of proceeding with her claim in the same cause and also having the instant cause consolidated with the two causes she opted to pursue this instant cause independent of the two;

28. In the circumstances this court is satisfied that the respondent had knowledge of material and important facts related to the deceased’s estate which she deliberately concealed from the court with the intention of benefitting solely from the estate of the deceased.

29. This court is satisfied that the Grant and the Confirmation of the Grant ought to be revoked as both were obtained by concealment from the court of something material to the case;

Whether the Interested Party’s interest is protected;

30. The Interested Party’s evidence was that his wife started off by leasing the land from Paul and also picked the tea; he admitted to knowing both Paul and Simon and the developments on the subject property; he thereafter bought the land from Zaweria;

31. The applicant contends that George was not a bona fide purchaser for value without notice; and that the onus was upon him to prove otherwise in view of the fact that he knew the applicant’s father and that he had planted the tea and the nappier grass;

32. The applicable law that protects bona fide purchasers for value is found at Section 93(1) of the Law of Succession Act which reads as follows;

“ 1 All transfers of any interest in immovable property made to a purchaser either before or after the commencement of this Act by a person to whom representation has been granted shall be valid, notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this Act.

33. Also Section 24 of the Land Registration Act is the applicable Law that protects a bona fide purchaser for value and it reads as follows:-

a) The registration of a person as the proprietor of land shall rest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and

b) The registration of a person as the proprietor of a lease shall rest in that person the leasehold interest described in the lease together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements liabilities or incident of the lease.”

34. This court is persuaded by the case of Jecinta Wanja Kamau vs Rosemary Wanjiru Wanyoike & Anor (2013)eKLR where the Court of Appeal held as follows;

“Before the appellant could seek protection as a purchaser under section 93 of the Act she had first to prove that she is a purchaser. In this case, there was no prima facie evidence that she was a purchaser.”

35. In this instance for George to benefit from the protection of these two provisions of law the onus was upon him to prove that he was the purchaser; George it is noted at trial never produced any Sale Agreement or receipts in support of payment to sufficiently establish his claim of having purchased the subject property from Zaweria;

36. In the absence of any documentation in the form of a Sale Agreement, or receipts or Land Board Forms or lawful consents to establish whether the purchase ever took place or that it was not a cover up transaction; it therefore follows that the court has no evidence to accord George the protection of the provisions of Section 93 of the Act;

FINDINGS & DETERMINATION

37. In the light of the forgoing this court makes the following findings;

(i) This court finds that the Grant dated the 4/03/2013 and the Confirmation of the Grant dated 16/01/2014 were both obtained in a manner that renders both defective as at the time of obtaining the grant and confirmation there was concealment of pertinent facts;

(ii) The application for Revocation of the Grant is found to have merit and it is hereby allowed;

(iii) The Grant dated 4/03/2013 and Certificate of Confirmation of Grant dated 16/01/2014 are both hereby revoked; a fresh Grant shall be issued in the joint names of Zaweria and Hillary;

(iv) This court finds that the interested party is not protected by Section 93 of the Act; the Title No.Chinga/Kangongo/43 shall therefore revert back to the Estate of the deceased;

(v) Either administrator is at liberty to file for the confirmation of the Grant within the next 90 days from the date hereof;

(vi) The parties at liberty to apply for further directions;

(vii) Each party shall bear their own costs;

It is so ordered accordingly.

Dated, Signed and Delivered at Nyeri this 9th day of May, 2019.

HON. A. MSHILA

JUDGE