[2023] KEHC 19550 (KLR)

In re Estate of Thomas Wamunyu Ndegwa (Deceased) (Succession Cause 69 of 2017) [2023] KEHC 19550 (KLR) (30 June 2023) (Ruling)

Neutral citation: [2023] KEHC 19550 (KLR)

Republic of Kenya

In the High Court at Kiambu

Succession Cause 69 of 2017

A Mshila, J

June 30, 2023

In The Matter Of The Estate Of Thomas Wamunyu Ndegwa (Deceased)

Between

Teresia Nduta Kamau

Applicant

and

Joseph Wamburu Wamunyu

1st Respondent

Joseph C Ndegwa Wamunyu

2nd Respondent

Ruling

1. Before the court are summons for revocation of confirmed Grant filed on July 16, 2021and brought undersection 76 of the Succession Actand rules 49 & 73 of the Probate and Administration Rules.

2. The Applicant sought for orders that;-a.The Grant of Letters of Administration to Joseph Wamburu Wamunyu And Joseph C. Ndegwa on September 25, 2006and confirmed on June 24, 2020be revoked.b.A declaration that Land Parcel Chania/makwa/t.103 Was Held By The Deceased Thomas Wamunyu Ndegwa as trustee for the beneficial interest of the Applicant having sold it way back in 1965 to the Applicant who has settled on it and developed it by erecting permanent residential houses erected thereon.

3. The application is premised on the grounds that the Grant was obtained fraudulently by making false statement and by concealment of material facts to the case especially as it touches and concerns land parcel Chania/makwa/T.103. That the Grant issued on September 25, 2006was obtained without informing the Applicant or any person occupying or residing on the suit land; the Respondents on June 24, 2020obtained a confirmation of Grant directing the suit property to be shared equally amongst five houses of the deceased excluding the Applicant who has been in occupation since 1965. The applicant thus faces eviction.

4. The application is supported by the affidavit of Teresia Nduta Kamau, She Deposed That Together With Her Husband Kamau Nduma They Bought Plot No. Chania/makwa/T.103 from the deceased herein in 1965 and they gained possession having paid the full amount of the purchase price. That the deceased died in 1989 but had not effected transfer of the said plot. The Respondents were said to be aware of the sale and the possession thereof.

5. Joseph C. Ndegwa Wamunyu filed a replying affidavit dated February 23, 2022in opposition. He stated that he is one of the administrators of the deceased’s estate herein. That the deceased who is his father had informed him before his demise that he had never sold the suit land to Kamau Nduma as such the plot is still in the deceased’s name. He denied that there are any developments on the land as alleged by the Applicant save for a shop. He contended that the Applicant had failed to show any documentary evidence of the Sale Agreement or payment of the purchase price. Further, he contended that the Applicant lacks locus standi to deal with the affairs of her husband as she did not produce a grant of probate. In any case, she had failed to show any efforts in effecting transfer of the said plot since 1965 as such she was said to be statute barred as 12 years had lapsed in 1977.

6. The court directed the summons for revocation of grant be canvassed by way of written submissions.

Applicant’s Submissions 7. The applicant through her counsel submitted that the respondents concealed to the court that the suit land had been sold to the applicant and settlement by the applicant had taken place. Theapplicant submitted that the court has jurisdiction to order for the transfer of the suit land to the applicant.

Respondents’ Submissions 8. The respondents submitted that the applicant failed to explain why transfer had not been effected for over 24 years when the deceased was alive. The applicant was said to be indolent in following her claim and being statute barred as such the same cannot succeed. It was submitted that the claim herein falls under the jurisdiction of the Environment and Land Court. Reliance was placed in Succession Cause No. 836 of 2013 in the matter of the estate of Prisca Ong’ayo Nande (deceased) where Musyoka J dismissed theapplicant’s application as the court lacked jurisdiction on matters touching on land ownership.

Issues For Determination 9. After due consideration of the application, the replying affidavit and the rival submissions by both parties, the only issue for determination is whether the confirmed grant should be revoked.

Analysis 10. The Law of Succession Act provides for revocation or annulment of grants under section 76, which states as follows:“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—(a)a) that the proceedings to obtain the grant were defective in substance;(b)that 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;(c)that 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;(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either—(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or(ii)to proceed diligently with the administration of the estate; or(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(e)that the grant has become useless and inoperative through subsequent circumstances.”

11. In re Estate of Prisca Ong’ayo Nande (Deceased)[2020] eKLR in expounding Section 76 it was stated that:“Under Section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the Applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.”

12. The succession cause relates to the estate of Thomas Wamunyu Ndegwa(deceased). The applicant claims to have purchased the suit land from the deceased while the respondents who are administrators in the estate of the deceased have included the said asset as part of the deceased’s estate. This has caused the applicant to apply for revocation of the confirmed grant issued to the respondents as the administration of the deceased’s estate on the grounds that the grant was obtained fraudulently by making false statement and by concealment of material facts to the case especially as it touches and concerns land parcel Chania/makwa/T.103 which the applicant alleges to have purchased from the deceased.

13. It was the applicant’s submission that the deceased sold the suit land to her and her husband in 1965 where they settled and the deceased’s family was aware of the same but therespondents concealed the same to the court.

14. The respondent on the other hand submits that the Applicant is guilty of laches having bought the suit property when the deceased was alive but never effected transfer. Her claim was said to be statute barred. Further, the claim was said to belong to the Environment and Land Court.

15. The respondents deny the allegations that the deceased sold the suit property to the applicant. It is clear at this point that there is a dispute between the parties as to whether the suit property was sold to the applicant by the deceased before his demise. A closer look at the record shows that theapplicant did not produce any evidence to support her claim that the suit land belonged to her family. The suit property is still in the deceased’s name hence the reason why the Respondents treated it as part of the deceased’s estate.

16. In this regard, this court is being asked to determine who is the rightful owner of the suit property. This court has no jurisdiction to determine any disputes that center on ownership, occupation and use of land. This dispute is better placed in the Environment and Land Court as a court in succession claims only deals with distribution of ascertained assets belonging to the deceased’s estate.

17. Article 162(2) provides that:-“Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to –(a)…(b)the environment and the use and occupation of, and title to, land.”

18. Article 165 of the Constitution sets out the jurisdiction of the High Court.

19. Article 165(5) states as follows:“‘The High Court shall not have jurisdiction in respect of matters-(a)…(b)falling within the jurisdiction of the courts contemplated in Article 162(2).”

20. The Applicant herein claims ownership of a parcel of land that is registered in the name of the deceased. She alleges that the land was sold to her in 1965. This was before the death of the deceased as the deceased died 24 years later. One wonders why the Applicant did not effect transfer having paid the full purchase price and allegedly took possession of the said land.

21. This court makes reference to the case In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR where Musyoka J stated that;-Jurisdiction is at the core of exercise of power by a court. Where there is no jurisdiction the court cannot exercise power without violating the principles of rule of law and legality. It was in that context that the Court of Appeal, in Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] eKLR, stated:“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 its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

22. See also the case In re Estate of Obedi Ndwiga Rubarita (Deceased) [2021] eKLR where the court had this to say;-“Further, the issue as to the ownership once raised in a succession cause, they must be resolved before such property is distributed. (See In re Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR). The applicant ought to have presented the instant issue before the court with competent jurisdiction which is the Environment and Land Court.”

23. The Constitution 2010 and the Environment and Land Court Act gives the Environment and Land Court the mandate and jurisdiction to hear and determine issues relating to ownership of land; therefore this court is not the proper forum as it has no jurisdiction to entertain this claim.

Findings and Determination 24. For the reasons stated above this court finds that the summons for revocation of grant to be without merit and it is hereby dismissed with no orders as to costs.

25. The applicant can file her claim in a court clothed with the requisite jurisdiction.

26. Mention on July 24, 2023 for directions.

27Orders accordingly

DATED, SIGNED AND DELIVERED ELECTRONICALLY AT KIAMBU THIS 30THDAY OF JUNE, 2023. A. MSHILAJUDGEIN THE PRESENCE OF;Kamiru – for the ApplicantMrs Ombongi h/b for Miss Etole – for the Respondents