[2014] KEHC 8324 (KLR)

IN THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

SUCCESSION CAUSE NO: 651 OF 2008

IN THE MATTER OF THE ESTATE OF WILLIAM SHAMBARI…………………………………………………………………DECEASED

AND

ALICE MUHONJA…………………..…………….…RESPONDENT

VERSUS

KENNETH LITSWA ASEGA………………..…………..APPLICANT

RULING

The late William Shambari died on the 2/7/1992. His son Samuel Madaga Sabali filed succession cause No. 77/1999 before the Vihiga SRM court. He was issued with a grant that was confirmed on 27/8/2002. The plaintiff herein filed an application seeking to have the confirmed grant revoked as the same was obtained fraudulently. The matter proceeded to full hearing.

The plaintiff testified that she is a daughter of the deceased. Samuel was her younger brother. The deceased had six children. Two sons and four daughters. The deceased owned Plot No. KAKAMEGA/KIGOYE/643. The other son was Esau who was deceased but left his wife PW3 (Trufosa Sabale). The plaintiff further testified that her mother was called Zilipa and she was alive in 1999 when Samuel filed the succession cause. In 2008 Samuel died and the defendant tried to stop the family from burying on the suit land. The defendant claimed to have bought the suit land from Samuel. It is her evidence that she lives on the land and it had not been sub divided. She would like the land to revert to her father’s name and the children who are alive to benefit. She is not married and she has nowhere to go. She was not aware of the succession cause filed by her late brother.

PW2 EPHRAHIM KEGODE testified that the plaintiff lives on the suit land but her house was demolished by the defendant. The family of Esau also lives on the land. He did not participate in the Vihiga succession cause. The plaintiff cultivates the suit land. PW3 Trufosa Sabale testified that her husband was Esau Kaguta who died in 1999. They had 8 children. Three of the children are deceased. The late William Sabali was her father in law and he owned the suit land. When Samuel filed the succession cause he did not involve them. She came to learn that Samuel had sold the land when Samuel died and the defendant stopped them from burying his body on the land. PW2 is their neighbor. Her father in law had two wives and Esau’s mother was different from that of Samuel. As far as she is concerned there is only one parcel of land.

The defendant testified that he knows the plaintiff and the witnesses. He knew the late Samuel Madaga who was his neighbor. He bought the suit land from Samuel Madaga after he had concluded his succession cause. He bought the land on 4/6/2007 and produced the sale agreement. He did not participate in the succession cause before the Vihiga court. The plaintiff consented to the filing of the succession cause and allowed Samuel to take over the land. The grant was confirmed and Samuel’s mother had life interest on the land.

The defendant’s further evidence is that the plaintiff lives with PW3 who is her sister in law. PW3 is the wife of Esau who was given his own land this being Plot No. KAKAMEGA/KIGOYE/644. He produced a search dated 13/6/2012 that shows that the land is registered in the name of Esau. The plaintiff is a sister to Samuel Madaga. He bought the land for Ksh 310,000/= and the agreement was done before an advocate. There was a balance of Ksh 70,000/= that was to be paid on 31/12/2009 but Samuel died in 2008. Two other sisters of Samuel have been asking to be paid the balance of the purchase price. He has paid them Ksh 20,000/= and is willing to pay the balance.

MESHACK MUGETA testified as DW2. He knows the parties. He witnessed the sale of the land to the defendant. It is his evidence that PW3 lives on the upper part which is plot No, 644. The plaintiff herein lives with PW3. No one lives on the suit land but the plaintiff is cultivating the land. He attended the burial of Samuel Madaga and he witnessed the dispute as to where Samuel was to be buried.

Counsels for both parties filed written submissions. Counsel for the plaintiff submitted that the other beneficiaries of the estate of William Sabali were not aware that Samuel had filed the succession cause. The act of Samuel of selling the land to the defendant means that the other beneficiaries have been dis inherited. There was element of secrecy as the land was transferred before the entire purchase price had been paid. The other beneficiaries are entitled to inherit the suit land.

Counsel for the defendant maintains that the defendant is a lawful purchaser of the suit land. The plaintiff is seeking of a revocation of the grant yet the administrator is deceased. The plaintiff is not seeking to substitute her late brother. The plaintiff should have sought to substitute her brother before seeking the revocation of the grant. The case is therefore defective. Counsel contends that the land was transferred to the defendant 6 years after the grant had been confirmed. The defendant was not privy to the succession cause before the Vihiga court. Section 93(1) of the Succession Act protects the interests of the defendant.

The evidence on record shows that the late Samuel Sabali had six children. Samuel filed succession cause number 77/99 before the Vihiga court. The area assistant chief wrote a letter dated 20/8/1999 addressed to the Vihiga court indicating that Samuel Madaga was the only son of the deceased. Zilipa Vuyigi is indicated to be the widow. The deceased left plot No. KAKAMEGA/KEGOYE/643 measuring 0. 8 ha. Samuel was issued with a grant on 13/11/2001 and it was confirmed on 27/8/2002. The other beneficiaries who were alive were mentioned in the forms filed before the Vihiga court. They are Grace Embale, Alice Muhonja and Finika Embolani who are the deceased’s daughters.

The evidence also shows that on 4/6/2007 Samuel Madaga sold the land to the defendant at a price of Ksh 310,000/=. By that date the defendant had paid Ksh 240,000/= leaving a balance of Ksh 70,000/=. It is also indicated at paragraph 5 of the agreement that the property had already been transferred to the defendant. The main issue for determination is whether the grant herein can be revoked and whether the suit property should revert to the deceased. The court also has to determine whether the property should remain with the defendant.

The evidence shows that the late William Sabali was survived by other dependents. Samuel Madaga was not the only beneficiary of the deceased estate. There is a consent dated 9/11/2001 indicating that the other beneficiaries had allowed Samuel to file the succession cause. This consent simply indicates that Samuel was to be the administrator of the estate. The plaintiff denied signing the document. Even if the consent was genuine, I do find that it did not empower the late Samuel to disinherit the other beneficiaries. It is clear to me that Samuel was not entitled to the entire estate and the other three sisters were to benefit. The evidence also shows that Esau was given his own title this being plot No. 644 measuring 0. 31 ha. It seems the plaintiff and PW3 are not aware of the fact that there are two different plots.

Counsel for the defendant contends that section 93 of the law of Succession Act protects the purchaser of a property from a holder of a confirmed grant. Section 93(1) states as follows;

93(1) All transfers of any interest in immovable or movable 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, not withstanding any subsequent revocation or variation of the grant either before or after the commencement of this Act.

The main issue is whether the above section sanctions fraudulent acts of those who obtain grants. The section should not be read in isolation and should be interpreted together with the entire Act. The Act provides for the manner in which the estate of deceased persons should be administered. The Act defines beneficiaries/dependents of deceased persons. The intention of the Act is that all the beneficiaries are entitled to inherit the property of a deceased person. Section 76 of the Act provides for situations where a grant can be revoked. Where the court is satisfied that there was fraud or the grant was obtained through concealment of material facts or untrue allegations, the grant can be revoked. It follows that where the grant is revoked then the acts of the administrator are equally reversed. Such effect will automatically affect the interest of those who would have dealt with the administrator of the estate. If Section 93 of the Act is to be interpreted literally then one would say that even an outsider and a non-beneficiary of a deceased estate can transfer the property and divest the actual beneficiaries of the estate so long as he can flash a confirmed grant. My view is that if the court is satisfied that the grant was obtained fraudulently and should be revoked then whoever benefited from the revoked grant should be affected. In such a case where the person holding a confirmed grant transfers a property to another person then the transfer is affected if the grant is revoked. The provisions of section 93 do not sanctions unlawful acts and what was intended was where a grant is properly and lawfully issued. The underlying objective of the law of Succession Act is to ensure that beneficiaries of deceased persons inherit the property. The evidence on record shows that the plaintiff was not aware of the succession before the Vihiga court and the court cannot shut the door simply because her brother sold the land to the defendant.

The sale was done in 2007. The record of the land registry shows that on 23/11/2001 Samuel Madaga registered himself as the owner of the suit property being the administrator of the original owner. On the 27/8/2002 Samuel registered himself as the owner. On 14/1/2008 the property was transferred to the defendant. The defendant is a neighbor to the plaintiff and was aware that Samuel had sisters. He did not bother to inquire from the sisters and simply dealt with Samuel who had the title deed. I do find that the defendant is not an innocent purchaser for value without notice. He lives in the neighbourhood and the evidence shows that it is Alice who is cultivating the land.

The evidence shows that Samuel died in 2008. I have not been able to get the exact date when Samuel died. The property was also transferred to the defendant on 14/1/2008. No transfer documents or consent of the Land Control Board had been exhibited. All what has been shown is the sale agreement. It is not clear whether the relevant consents were obtained. I do find that Samuel was only entitled to transfer his share of the estate and could not transfer the shares of the other beneficiaries. The act of transferring the property by Samuel from his status as an administrator to that of being the absolute owner was fraudulent as it disinherited his sisters. The late Samuel was supposed to distribute the estate to the other beneficiaries and process separate title deeds.

In the end, I do find that the family of Essau should take plot number KAKAMEGA/KEGOYE/644. The remaining plot number KAKAMEGA/KEGOYE/643 shall be distributed to the four beneficiaries named in the application for the grant as follows:-

PLOT NO. KAKAMEGA/KEGOYE/643

GRACE EMBALE

ALICE MUHONJA TO SHARE

FINIKA EMBOLANI EQUALLY

SAMUEL MADAGA SABALI (deceased)

I do order that the land to revert to the names of the deceased. The title deed issued to the defendant is hereby revoked. Since Samuel sold his share to the defendant, that share shall be transferred to the defendant. The two other sisters of Samuel who are willing to take the balance of the purchase price are also free to transfer their shares to the defendant. The plaintiff, Alice Muhonja to have her share of the estate separately and that share to include where she resides. The grant is hereby revoked and a fresh grant shall be issued to the three daughters namely Grace Embale, Alice Muhonja, Finika Embolani and the defendant Kenneth Litswa Asega jointly. Each party to meet his/her own costs. Parties are at liberty to make any further application.

Delivered, dated and signed at Kakamega this 15th day of October 2014

SAID J. CHITEMBWE

J U D G E