[2023] KEHC 19695 (KLR)

In re Estate of the Late Kitulu Nzuki (Deceased) (Succession Cause 50 of 2019) [2023] KEHC 19695 (KLR) (30 June 2023) (Ruling)

Neutral citation: [2023] KEHC 19695 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 50 of 2019

MW Muigai, J

June 30, 2023

In The Matter Of The Estate Of The Late Kitulu Nzuki (Deceased)

Between

Philip Kitulu

1st Administrator

George Musyoka

2nd Administrator

and

Mutava Kitulu

Administrator

Ruling

1. The deceased herein died on 22. 04. 1994.

2. Philip Kitulu Nzuki , Mutava Kitulu And George Musyoka Kimeu filed a petition for letters of administration on 18. 12. 2019. The grant of letters of Administration were issued on 11. 06. 2020 by Justice D.K. Kemei.

Summons For Confirmation Of Grant 3. On 1. 12. 2020 Summons for confirmation of Grant was filed by Philip Kitulu Nzuki And George Musyoka Kimeu.

4. It is said that the deceased was survived by;A.Ndunge Kinyamasio DaughterB.Mutava Kitulu SonC.Munguti Kitulu SonD.George Musyoka Kimeu GrandsonE.Wayua Kimeu In LawF.Veronica Nzilani Muya DaughterG.Robert Nzuki Kitulu SonH.Sammy Mutunga Kitulu SonI.Philip Kitulu Nzuki SonJ.Boniface Mbonge Muia Grandson

5. The assets of the estate were listed as ;a.Machakos/Nguluni/768b.Kangundo/Matetani/1078c.Kangundo/Matetani/1404d.Kangundo/Matetani/1169e.Kangundo/Matetani/ 1408

6. The Applicants proposed distribution as follows;PropertyDistributionMachakos/Nguluni/768Registered in the name of Mutava Kitulu 2 ¼ HAGeorge Musyoka Kimeu 4 ¼ HAMutunga Kitulu 4 ¼ HAManthi Mutava ¼ HAKangundo/Matetani/1078Registered in the names of Mutava Kitulu & George Musyoka KimeuKangundo/Matetani/1404To be shared equally among Muia Kitulu,Mutunga Kitulu , Philip Kitulu Nzuki Kitulu & Munguti KituluKangundo/Matetani/1169To be registered in the name of George Musyoka KimeuKangundo/Matetani/ 1408To be shared equally among Mutava Kitulu , George Musyoka Kimeu, Muia Kitulu Kitulu, Philip Kitulu, Munguti Kitulu & Kitulu Nzuki

7. The consent dated 18. 11. 2020 was signed by all the above named persons save for Mutava Kitulu .

8. On 25. 11. 2021, the application for substitution and removal of the name of the administrator Philip Kitulu (deceased) was granted.

9. The estate is said to be worth Kshs 29,500. 000.

Affidavit Of Protest Against The Confirmation 10. Mutava Kitulu filed an Affidavit of Protest dated 9. 2.2021 and deposed that the Administrators intend to have the grant confirmed and leave him out. Further that the proposed mode of distribution does not reflect the wishes of their deceased father and where each beneficiary and their family reside or utilizes.

11. It was deposed that Kangundo/Metetani /1078, 1404, 1169 and 1408, each beneficiary resides and utilizes particular portions which they were assigned to by their father. His proposal was that a Surveyor be appointed to visit the parcels of land in Kangundo and bring a report of the interest of each of the beneficiaries on the ground.

12. He stated that before their father died, they had a family meeting where all his brothers were informed that out the 10 acres at Machakos/ Nguluni/768, nine (9) acres belonged to the protestor while their father owned one(1) acre which was sub divided between his two wives Nthunya Kitulu and Kavindi Kitulu equally. He deposed that he has resided on the said land since 1954 and no one from the family has ever claimed interest from his portion.

13. He contended that Philip Kitulu sold ½ an acre to Manthi Mutava (deceased), the protestor’s son, for Kshs 45,000 as he was tired of travelling to KOMA. In addition, as per the sale agreement, the land belongs to him as they sold their whole share from LR. Machakos/Nguluni/768. He said he was in the process of changing ownership to his name but his father died before signing transfer documents. He said that if the brothers had any claim on the said land, he would not have resided on it for over 65 years.

14. He opined that he was apprehensive that if the grant is confirmed, he would be denied the right of owning LR NO Machakos/Nguluni/768 which he bought and has utilized solely to their exclusion. He was surprised that his brothers were claiming a share yet they knew the history of the land, how he bought 27 acres with 2 uncles Musyoki Nzuki and Muli Nzuki from Munuvi Ndumbu after their father refused to give money claiming that the land was not good. They were aware that their uncle Musyoki Nzuki took cows that belonged to their father Nzuki Kiko to buy three (3) acres which bordered the 27 acres they had jointly bought.

15. He said the error occurred at the time of sharing, each of his uncles got ten (10) acres and his share of nine (9) acres was joined with his father’s 1 acre and erroneously registered under his father’s name when he was away from home. When he returned, the deceased herein called for a meeting and explained the error to all his brothers and thereafter subdivided his share of 1 acre between his 2 wives.

Replying Affidavit 16. The Reply was filed on 29. 04. 2021 deposed by PHILIP KITULU in which he contended that the protestor conceived the idea of disinheriting them in 2014 when he approached the chief of Nguluni location, which is a location where neither he nor the deceased herein resided or has ever resided and misinterpreted that he was the only son of the deceased herein. He then proceeded to Kangundo law courts and petitioned of letters of administration without involving any of his siblings which was confirmed on 29. 04. 2015. The protestor approached the County Lands Registrar with the confirmed grant to finalize his plan of disinheriting them.

17. It was deposed that the Application for registration by transmission was returned unregistered as their brother Mutunga Kitulu had the original title deed in his custody. The protestor then filed an application to commit Mutunga Kitulu to civil jail for failing to produce the said title which was heard ex parte and allowed. Mutunga Kitulu was committed to civil jail until the title deed was availed and that is how they learnt that the Protestor had filed for letters of administration without involving them.

18. They then filed for summons for revocation of grant and the same was revoked vide a Ruling dated 13. 12. 2018. In addition the court found that the property ought to be distributed equally and that the protestor had not produced evidence to show he bought the property. It was deposed that after the statutory period of appeal ran its course, the protest of applied to have the lower court down its tools on grounds that pecuniary jurisdiction was way beyond Kangundo law court despite being the one who filed the petition for letters of administration in the court. It was contended that the protest was an appeal from the lower court’s ruling.

19. On the distribution of Kangundo/Matetani/ 1078, 1404,1169 and 1408, it was contended that the same reflects where each beneficiary resides as their father has shown them and the same is equitable division among the two households. That the protestor was given Kangundo/Matetani/1167 and Kangundo/Matetani/1079 where he resides and has changed to his own names.

20. The 1st Administrator denied there ever being a meeting or sharing of Machakos/Nguluni/768 where they have been herding cattle. He denied that their father divided land between the two wives. In 2009, when Nthunya Kitulu , their mother was unwell and in a bid to ensure the property they would be entitled to was not sold to strangers, they agreed to sell ¼ acre to Manthi Mutava , the protestor’s son. The protestor was present during the sale and did not raise any objection and it was agreed that the share shall be deducted from their share which informed the subdivision. He said he had no issue with the grant being confirmed in the names of the three administrators.

21. It was contended that Machakos/Nguluni/768 belonged to their father and his brothers and they shared it among themselves. Their father had no intention of transferring the property to the Protestor. The 1st Administrator denied that the protestor resided on the property over 15 years as the only homestead in the suit property belongs to a purchased ¼ acre from Manthi Mutava whom they sold a share.

Hearing Protestor’s Case 22. PW1, Mutava Kitulu stated that he lives in Matetani, Kangundo. He had filed an affidavit of protest dated 24. 3.2022 and a statement of 4. 10. 2022 to be relied on by the court. He said he was the child of the deceased and he bought the land that he occupies from his father. He said he had attached the sale agreement.

23. Upon cross – examination by Mr. Munguti he stated that he came from Metatani his chief is Bethwel Kingole. He said he had not come from Komarock Nguluni (where the disputed land is). He used to stay at Komarock and permanently stays at Kangundo. There was valuation of the properties that there was a home which was his and after he fell sick, he went home. He said there is a permanent house with three rooms by county valuer. He said there were 3 houses, a kitchen and a cow shed. Apart from the succession cause, we have Kangundo case over this matter. At Kangundo, he obtained a grant as the sole beneficiary. He made reference to the letter that he presented to Kangundo Law Courts. He said they filed the case in Kangundo and wanted a title deed and the grant was issued and later revoked. The confirmation of grant was filed on 22/2/2017.

24. He said that he bought the land Machakos /Nguluni/768 from his late father and registered it in his name. He did not have the agreement to show that he had bought the land. He said his father died on 22. 4.1994 and did not transfer it in time. Machakos /Nguluni/768 443 Ha is registered in the name of Kitulu Nzuki Id 548xxxx. He said Philip Kitulu, the 2nd Administrator son of the deceased who is now deceased sold to Manthi Mutava .

25. Upon cross examination by Mr. Nzioka Advocate, he said that he bought the land and paid the money to his father. It was his testimony that the bought the piece of land and his father bought another piece of land.

26. PW2 was Muteti Mutava, he said he lives at Matetani and is a farmer. He adopted his statement of 4/3/2021 and further stated that when he grew up, he found PW1 there and he was farming and had said it was his land/shamba. Kitulu Nzuki had 1 acre on the land / shamba of the late Nzuki which was divided into two, each widow got ½ an acre. The 2nd house of Nthenya Kitilu sold to Manthi Mutava his brother and it was sold by Philip and there was no objection. His father filed succession cause in Kangundo as the other beneficiaries had sold and left the land. At Kangundo, each one had been settled but they did not bring the surveyor.

27. Upon cross examination by Mr. Munguti, he said that in Kangundo they did not have any problem but the issue is about this land. In the Affidavit of Muteti against confirmation of grant filed on 4. 3.2021, plot 768 Kitulu Nzuki sold to Manthi Mutava land in Koma at Kshs 45,000 in 2009. Manthi Mutava on 13/5/2019 bought from Philip Kitulu at Kshs 25,000. He said they all live in Matetani. The chief wrote a letter to go to Kangundo lower court and did not state the other beneficiaries.

28. PW3,Paul Matheka who lives in Wangi Sub location, Nguluni stated that he knew Mutava Kitulu from his shamba and they are neighbors. From the 1980s, he knew the land is Mutava Kitulu on the land grazing cows and tiling the land with his family.

29. Upon cross examination by Mr. Munguti, he said he is retired and sells shambas. Kitulu said he wanted to sell land but did not tell him to get a purchaser. He said that the land has a three bedroom house and he did not know if any other land. That there was only 1 home of Mutava Kitulu where he bought but he was not there when he bought it.

Petitioner’s Case 30. George Musyoka Kimeu, the grandson of the deceased who had two wives. He said he prepared the summons for confirmation of grant of 1/12. 2020 and every beneficiary signed except the protestor.

31. Upon cross – examination he said each one knows their portion. They called the protestor and head the surveyor and he refused. They were all on the land as they were left for by their grandfather. He was not there when Machakos Nguluni was bought nor when Manthi was selling the land nor when the alleged sale took place. His grandfather has 16 children, he said.

32. He contended that Mathi Mutava gave him ¼ which was sold to him by Philip and he removed ¼ ha. At Komarock there is no house for Mutava. He said he was in court on behalf of his father Kimeu Kitulu summoned by Wayua Limited. The land is 9 acres that they divided between the 2 houses, 4. 5 acres.

Protestor’s Submissions dated 1. 11. 2022 33. It was submitted that the only point of divergence amongst the beneficiaries was on the mode of distribution and while relying on his affidavit and testimony in court and further contended that the share sold to his deceased son was ½ an acre and not ¼ as deposed by the 1st and 2nd Administrators which he was utilizing. It was submitted that this evidence was not controverted and no other family member ever utilized the land save for himself. That it was not in dispute that the deceased settled and bequeathed his children particular parcels of land.

34. It was submitted that the proposal for distribution of land in Nguluni was for nine acres as opposed to 10 acres. With regard to the portions in Kangundo , parties are in agreement on the settlement of the beneficiaries and the point of divergence is the size of the acreage of each beneficiary as per the wishes of the deceased herein and sharing the properties equally would be a recipe for disaster. The proposal by the Respondent’s that a survey was done in his absence with regard to the property in Kangundo confirms the protestors apprehension that some of the beneficiaries may be uprooted from where they love and utilize.

35. The protestor submitted that he was not invited for the survey exercise nor was evidence was adduced to show that he was invited and refused to attend. Further that no sketch was done by a surveyor to show the acreage of each beneficiary as per the proposal of distribution of the parcels of land in Kangundo. He therefore asked the court to find that the protest was merited.

2Nd Administrators Submissions dated 7. 11. 2022 36. It was submitted that the bone of contention is the property known as Machakos/Nguluni/768. The 2nd administrator raised 2 issues. Firstly, as to whether the Honourable Court had jurisdiction to hear and determine matters regarding validity of title or to challenge issues of ownership of Machakos/Nguluni/768, while relying on the cases of Motor Vessel “Lilian S” vs Caltex Oil (Kenya) Limited [1989] e KLR, Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & others (2012) e KLR and Re estate of Stone Kathuli Muinde (deceased) (2016) e KLR, It was submitted that protestor did not provide any agreement or prove that there was a family meeting where the deceased informed his siblings that out of the 10 acres, 9 acres were his. That during cross examination, it was established that the protestor had earlier filed a succession being succession cause no 10 of 2014 where he misled the court to believe that he was the only child of the deceased. It was submitted that without any documentary proof, the evidence of the protestor should not be relied upon as he is not a person capable of telling the truth. That the property is registered in the name of the proprietor and the protestor has never had the deceased transfer the property to him if indeed he was the owner neither has he ever filed a suit to prove that the said property was ever held in trust for him

37. In addition, that the court lacks jurisdiction to determine matters relating to impeachment of title or the issue of declaration of trust. That only the Environment and Land court is duly constituted to hear and determine such issues. It was contended that the protest was misplaced.

38. Secondly, as to whether the protest had merit, it was submitted while citing section 40 of the Law of Succession Act that the deceased herein had two wives. In the 1st household, there is the 1st wife Kavindu Kitulu and 9 children as dependents and in the 2nd household is Nthunya Kitulu , the 2nd wife and 8 children. While relying on the contentions in the Replying affidavit it was stated that Machakos/Nguluni/768 belongs to the deceased herein as evidence by the title deed given at the Machakos District Land Registry on 13. 07. 2016. Reliance was placed on section 26 of the Land Registration Act.

39. It was submitted that the protest was an afterthought and a plot to delay the confirmation of the fresh grant applied for by the 1st Administrator (deceased) and the 2nd Administrator. It was further submitted that the protestor had not proven that he single handedly purchased the property and what he is insinuating is just an assumption and all the witnesses confirmed that everyone is well settled on the ground and there is no dispute whatsoever over the same. That the protestor and the 2nd Administrator come from the same household and the proposed mode of distribution is equitable to both households and this was further evidence during the hearing.

40. It was submitted that the protestor is not prejudiced by the mode of distribution. He was given ownership of Kangundo/Matetani/1167 and Kangundo/Metetani/ 1079 which he has since registered in his name and his attempt at claiming Machakos/Nguluni/768 reeks greed and is unfair to the rest of the beneficiaries. That there is evidence that the protest of has been residing in Isinga location and not on the parcel known as Machakos/Nguluni/768. That he testified that he has on all occasions been coming from Kangundo on all occasions to attend court. The court was urged to dismiss the protest with costs and distribute the grant as per the Summons of the grant.

Determination 41. I have considered the Summons for Confirmation of Grant, the affidavit of protest, the evidence in court, the submissions of parties as well as the court record. The issues for determination before this court are as follows;a.Whether this court has jurisdiction to handle this matterb.Whether the protestor is the owner of the land known as Machakos/Nguluni/768c.Whether a surveyor should be sent to the estate properties

42. First and foremost, parties have admitted that there was a succession cause that was filed being Kangundo SPMCC 10 of 2014, in the estate of Kitulu Nzuki (deceased). The Administrator annexed a copy of a ruling from the court that revoked the grant issued on 19. 04. 2015. The court also dealt with the issue of distribution and found that there was no evidence given that Mutava had purchased the property. The court stated as follows in conclusion that;“The distribution of the property will follow the provisions of section 40(1) of the Law of Succession Act given that the deceased had 2 wives, a polygamous family, each house will therefore be treated as a unit. Section 38 of the Law of Succession Act shall also apply as aptly proposed by Philip for the estate to be divided equally among the two houses; Mutunga’s house and Mutava’s house. Since Philip has told this court that they have since sold part of the property, it follows that the sold portion shall be apportioned to the second house of Philip and Mutunga to be taken out of Philip’s share.”

43. The issues raised by parties before this court appear to be the same as the ones that were raised in Kangundo SPMCC 10 of 2014, in the estate of Kitulu Nzuki (deceased). The Administrators alluded to the Protestor claiming that the Subordinate court did not have pecuniary jurisdiction however no evidence has been placed before this court to indicate the same. There are alleged proceedings from the succession cause in Kangundo but the same is not certified by the court and as such cannot be relied upon by this court. What is before the court is a ruling that seems not to have been appealed from and neither has it been reviewed.

44. As it stands, there is a lingering question as to why the Summons for confirmation of grant were filed in the High Court after the Confirmed grant of the same estate was revoked in the subordinate court. There is non-disclosure on the part of the Administrators, which included the protestor at the time of filing the current cause. It would have been prudent to attach all the evidence and ruling (s) by the Subordinate court to give the court a clear picture of what transpired therein.

45. The doctrine of Res Judicata is set out in the Civil Procedure Act at Section 7 as follows:“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them can claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

46. Explanations 1-3 in the Civil Procedure Act also provides explanations with respect to the application of the res judicata rule as follows:“Explanation. (1)—The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.Explanation.(2)—For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.Explanation. (3)—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.’’

47. This court in the case of A N M v P M N [2016] eKLR stated that;“The doctrine implies that for a matter to be res judicata, the matters in issue must be similar to those which were previously in dispute between the same parties and the same having been determined on merits by a Court of competent jurisdiction. The Court in the English case of Henderson Vs Henderson (1843-60) ALL E.R.378, observed thus:“…where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.”

48. The Protestor filed a document dated 6. 5.2009 titled“Kikamba-English translationPlot No. 768 (Nguluni) KOMAMr. Kitulu Nzuki has sold to Manthi Mutava land in Koma the share that belongs to them at a proce of Kshs 45,000/-……………..”

49. There is another document dated 13. 5.2009 indicating“Kikamba-English translationManthi Mutava today 13/5/2009 have given Philip Litulu the remaining money Kshs 25,000 and we have finished…..”

50. This Court notes that the said documents are not signed or stamped or initialized nor authenticated. The court has noted the contents of the document but it has no probative value and as such cannot be relied upon by this court.

51. In the end, I find that the issue of whether the Protestor is the owner of Machakos/Nguluni/768 was dealt with by a court of competent jurisdiction and since this case is not an appeal, this court cannot deal with that question again.

52. Secondly, noting that there are two parallel causes dealing with this estate. From the record is a letter received by Machakos Law Courts on 9. 03. 2020 titled;“REF: Certifcate Of Principal Registrar That No Grant Has Been Made Or Applied For.……………..Please refer to FORM 73 dated………….requesting a certificate (FORM 30) for estate of Kitulu Nzuki registered under your succession number 50 of 2019 at Machakos HIGH COURT.We are unable to issue FORM 30 as requested as available records indicate that a grant for the estate of the deceased referred above has been made under Succession Cause Number 86 of 2017 at Kangundo MAGISTRATE COURT”

53. This Court upholds the decision of Kangundo SPMCC 10 of 2014, in the estate of Kitulu Nzuki (deceased) that distribution of the estate shall be among the beneficiaries equally under Section 40 LSA as the deceased was polygamous – had 2 wives.

54. Thirdly, all the beneficiaries seem not to have an issue with Kangundo/Matetani/1078, Kangundo/Matetani/1404, Kangundo/Matetani/1169 and Kangundo/Matetani/ 1408 and the mode of distribution. The Subordinate Court in Kangundo also dealt with the issue of distribution of Machakos/Nguluni/768.

55. Machakos/Nguluni/768 shall be subject to distribution of the deceased’s estate intestate equally between the beneficiaries 2 houses in a polygamous family. The Protestor did not prove gift inter vivos of 9 acres by the father – deceased. The protestor did not prove purchase of the suit property. If he did he should establish the claim in ELC Court.

56. Thirdly, the said property Machakos/Nguluni/768 was listed in the name of the deceased at the demise of the deceased on 22/04/1994.

57. The valuation report upon Machakos /Nguluni/768 filed 18. 7.2019 by B. Gachau, valuation Officer, Machakos County where the terms of reference are indicated as;“pursuant to instructions received from the office of the Director-Valuation Ministry of Lands dated 11th June 2019 to carry out a valuation as per court order dated 3rd of June 2016 Succession Cause no 10 of 2014 for administration purposes.”

58. The date of inspection is said to be 3rd July 2019 measuring approximately 10. 9 acres and there was no encumbrance at the time of inspection. The said property is said to be valued at Kshs 16,000,000.

59. All the beneficiaries are settled on various portions of Kangundo/Matetani/1078, 1404, 1169 and 1408 and that the survey that was done was only on Machakos/Nguluni/768, This Court directs that a surveyor be appointed to visit the parcels of land in Kangundo/Matetani and Machakos/Nguluni and bring a report of the interest of each of the beneficiaries on the ground as well as maintenance of status quo for further direction.

Disposition1. The Summons for Confirmation is granted and the protest dismissed for lack of evidence of allocation of 10 acres as gift by deceased or as sale/purchase which would be determined by ELC Court.2. Kangundo SPMCC 10 of 2014, in the estate of Kitulu Nzuki (deceased) decision is upheld that the estate of the deceased to be distributed among the beneficiaries under Section 40 LSA as the deceased was polygamous.3. The Estate properties before distribution that consist of ;i.Machakos/Nguluni/768ii.Kangundo/Matetani/1078iii.Kangundo/Matetani/1404iv.Kangundo/Matetani/1169v.Kangundo/Matetani/ 1408Shall be subject to Surveyor in the presence of ALL beneficiaries survey each beneficiary’s portion and file a report on all the estate properties that comprise of the deceased’s estate within 60 days. Status quo shall be maintained each beneficiary to remain in situ until their interest is determined by distribution of the estate of the deceased.

4. Further Mention in 60 days from date of this judgment on 27/9/2023.

DELIVERED SIGNED & DATED IN OPEN COURT IN Machakos ON 30TH JUNE 2023 (VIRTUAL/PHYSICAL CONFERENCE)M.W. MUIGAIJUDGEIn The Presence Of:Mr. Munguti For The PetitionerNo Appearance For The ProtestorGeoffrey/Patrick – Court Assistant(S)