[2022] KEHC 10449 (KLR)

In re Timothy Kipketer Ngeno Alias Kipketer Arap Ngeno Alias Kipketer Ngeno (Deceased) (Citation Cause 24 of 2021) [2022] KEHC 10449 (KLR) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10449 (KLR)

Republic of Kenya

In the High Court at Kericho

Citation Cause 24 of 2021

AN Ongeri, J

June 17, 2022

IN THE MATTER OF THE ESTATE OF TIMOTHY KIPKETER NGENO alias KIPKETER ARAP NGENO alias KIPKETER NGENO ..... DECEASED

CITATION TO ACCEPT OR REFUSE LETTERS OF ADMINISTRATION INTESTATE (RULE 21 OF THE PROBATE AND ADMINISTRATION RULES)

Ruling

1. The Citor/Applicant filed a Citation dated 20/4/2021 supported by the Affidavit of the Citor of even dates seeking the following Orders:-i.That this application be certified as urgent and service of this Application be dispensed with in the first instance.ii.Protection Orders to issue against the Respondents herein prohibiting interference and intermeddling with the Assets of the Estate of the Deceased.iii.The Court be pleased to make a declaration that the direct transfer of Parcel Numbers Kericho/Roret/380 and Kericho/Roret/94 to the Late Silvah Chepkemoi Ngeno (then widow of the deceased) effected on 13/11/1998 without due Succession Process was unlawful, null and void and that it amounts to intermeddling with the Property belonging to the Deceased Person within the meaning of Section 45 of the Law of succession Act.iv.The Court be pleased to make a further declaration that the closure of title Number Kericho/Roret/380 and subdivision of the same Title into Title Number 1408 registered in the name of the 2nd Citee/Respondent, 1409 registered in the name of the Late Silvah Chepkemoi Ngeno, 1410 registered in the name of the 1st Interested Party herein, 1411 registered in the name of the 2nd Interested Party herein and 1412 registered in the name of the 3rd Interested Party herein effected on 1/2/1999 was unlawful, null and void and further this Court be pleased to cancel these new Titles and the registration and survey map do revert back to kericho/Roret/380 in the name of the Deceased Kipketer Ngeno.v.The Court be pleased to make a further declaration that the further subdivision of Title Number Kericho/Roret/1409 into Kericho/Roret/1500 registered in the name of the late Silvah chepkemoi Ngeno, Kericho/Roret/1502 both registered in the name of the 1st Interested Party herein and Kericho/Roret/1503 registered in the name of the 4th Interested Party herein was unlawful, null and void and further this court be pleased to cancel these new Titles and the registration and survey map do revert back to Kericho/Roret/380 in the name of the Deceased Kipketer Ngeno.vi.The Court be pleased to further declare that the Transfer of Title Number Kericho/Roret/94 into the Joint names of the 5th and 6th Interested Parties herein effected on 28/12/1998 was unlawful, null and void and further this Court be pleased to cancel the entries made against the title and the registration do revert back to the name of the Deceased Kipketer Arap Ngeno.vii.This Honourable Court be pleased to order the eviction of the 1st, 2nd, 3rd, 4th, 5th and 6th Interested Parties herein from the Deceased Properties and further grant a permanent injunction restraining the 1st, 2nd , 3rd, 4th, 5th and 6th Interested Parties their children, assigns, agents and/or any other person acting on their behalf from entering into the Deceased’s Properties being Kericho/Roret/94 and Kericho/Roret/380, or in any other way interfering with or otherwise intermeddling with the properties belonging to the Deceased Person.viii.In Order to meet the ends of Justice in the interim period, this Honourable Court be pleased to Order the District Surveyor to demarcate portions of the Deceased Land for the Citor herein and children of her Deceased and surviving sisters namely measuring 5 Acres each for immediate occupation in order to end their current landlessness.ix.The OCS Roret do assist in the enforcement of this Court’s Orders.x.The Costs of this Application be provided for.xi.The Honourable Court be pleased to make such further or other Orders as it may deem just and expedient in the circumstances of this case.

2. The Supporting Affidavit of the Citor averred as follows:-i.That Timothy Kipketer Ngeno alias Kipketer Arap Ngeno died intestate on the 31st of October 1985 leaving behind twelve beneficiaries;ii.That since the demise of the deceased in 1985, none of the heirs has taken out letters of administration in respect of the estate of the deceased, but on the 14th of September 1998 the area chief wrote a letter to the lands registry, giving directions on how the estate of the deceased was to be distributed;iii.That the land registry acted on the chief’s letter and on the 13/11/1998 it transferred two of the properties namely Kericho/Roret/380 and Kericho/Roret/94 directly to the widow of the deceased without going through a succession process.iv.That the land registry, without the benefit of any court process and/or order proceeded to subdivide land [arcel Kericho/Roret/380 into parcels number 1408, 1409, 1410, 1411 and 1412;v.That the illegality extended further by registering parcel 1408 in the name of the 2nd Citee/Respondent herein, 1409 in the name of the late widow of the deceased, 1410 in the name of the 1st interested party/respondent who is a stranger to the estate, 1411 in the name of the 2nd interested party/respondent who is also a stranger to the estate, and 1412 in the name of the 3rd interested party/respondent, also a stranger to the estate of the deceased.vi.That the registry proceeded to subdivide land parcel 1409 into parcels number 1500 registered in the name of the late widow of the deceased, 1501 and 1502 registered in the name of the 1st interested party/respondent, while 1503 was registered in the name of the 4th interested party/respondent who is the 1st interested party/ respondent’s spouse;vii.That the registry illegally transferred parcel number Kericho/Roret/94 to the late widow of the deceased, and later transferred it in the joint names of the 5th and 6th interested party/respondent who are both strangers to the estate;viii.That the direct transfer of parcel numbers Kericho/Roret/380 and Kericho/Roret/94 to the late Silvah Chepkemoi Ngeno without due succession process is unlawful, null and void and amounts to intermeddling with the property belonging to the deceased person within the meaning of section 45 of the law of succession Act;ix.That the further subdivision of land parcel Kericho/Roret/1409 into title numbers 1500, 1501,1502 and 1503 and the transfer of title number Kericho/Roret/94 into the joint names of the 5th and 6th interested parties was unlawful, null and void and the court be pleased to cancel the entries made against the title and the registration do revert back to the name of the deceased Kipketer Arap Ngeno;x.That the interested parties are not innocent parties but fully complicit in the intermeddling of the estate of the deceased, and the court should order their eviction and restrain them, their children, assigns, agents and any other person acting on their behalf from entering into the deceased properties being Kericho/Roret/94 and Kericho/Roret/380 or in any other way interfering or intermeddling with the properties belonging to the deceased person;xi.That unless this court intervenes by granting orders prayed for, the citees/respondents together with the interested parties will continue intermeddling with the property belonging to the deceased person within the meaning of section 45 of the Law of Succession Act and the citor and her other siblings will continue suffering with their current landlessness.

3. The 2nd Citee Jonathan Arap Keter filed a Replying Affidavit dated 29/9/2021 in which he deposed as follows;-i.That he is the 2nd born son to the late Mr. and Mrs. Timothy Ngeno alias Timothy Kipketer arap Ngeno;ii.That the late Timothy Kipketer Arap Ngeno subdivided his land during his lifetime amongst himself, Silvah Chepngeno Ngeno, David Keter and Samwel Kipkemoi Keter in the year 1985 but had not completed conveyance process;iii.That the late Timothy Kipketer arap Ngeno directed that the shares allocated to Silvah Chepngeno Ngeno was to be held in trust on behalf of his unmarried daughters;iv.That the late Silvah Chepngeno Ngeno in the year 1998 requested the area chief, Kisiara location to assist her in the conveyance process and the chief wrote a letter to the land registrar, Kericho District land office informing him on how the land was to be distributed as per the arrangement made by the deceased;v.That they all, including the citor, presented themselves before the district land registrar offices in Kericho wherein they were issued with titles deeds upon fully complying with the directives by the Land Registrar;vi.That all the deceased survivor’s interests were factored in by the deceased and that Silvah Chepngeno Ngeno, David Keter and Samwel Kipkemoi Keter sold land to respective third parties who permanently reside thereon;vii.That the citor did not raise any complaints over 20years ago and her actions are calculated to destabilize their families through anticipated litigations as their late mother and brother sold their land to the interested parties who permanently reside there;viii.That the applicant’s application is brought in bad faith, mischievous, incompetent and is not brought in the interest of the estate.

4. The Application was canvassed by way of written Submissions.

5. The Citor/Applicant submitted as follows:-The Citor/Applicant submitted that the deceased property is protected under section 45(1) of the Law of Succession Act, and that if the orders prayed for are not granted, the Citees/Respondents together with the interested parties will continue intermeddling with the property of the deceased person, and the Citor and her siblings will continue suffering due to landlessness. It was also submitted that the two citees have not specifically responded to the citation notice requiring them to take out letters of administration and she should therefore be granted leave to file succession cause in respect of the estate of the deceased within a specified period of time.

6. The Citees and the Interested Parties submitted in writing as follows: -That this court lacks the jurisdiction to hear and determine the applicant’s application due to the fact that most issues raised by the applicant relate to dispute in ownership of title and not citation. It was also submitted that the application is an omnibus application which is incurably defective and should be struck out.

7. The citee submitted that the citor has equal rights as the 1st and 2nd citee to take up letters of administration without citing them since she is also a beneficiary as defined by law. It was stated that the property the citor alludes to does not exist as the same was subdivided and passed by the deceased during his lifetime to the 1st citee and his three brothers, two of who are currently deceased, and the beneficiaries in turn sold the land to the 1st -6th interested parties who are bonafide purchasers for value without notice.

8. It was also submitted that the citor filed her application 35years after the deceased demise and therefore these proceedings are an afterthought, malicious, filed in bad faith and not in pursuit of justice and as such should be dismissed.

9. The issues for determination are as follows:-i.Whether the declarations sought should issue.ii.Whether the Interested Parties should be evicted.iii.Whether the Citor and her children should be allocated portions of the Estate pending the hearing of this Citation.iv.Who pays the costs of the Citation.

10. The Citor is seeking declarations that land Parcels belonging to the deceased were illegally transferred to the Late Silvah Chepkemoi Ngeno and to the names of the Interested Parties was unlawful, null and void.

11. I find that the widow of the deceased is said to have made the transfers in 1998.

12. It is not clear how the transfers were made to her and the Interested Parties.

13. The said widow Silvah Chepkemoi Ngeno is now deceased and it is not clear whether any petition has been filed in respect of her Estate.

14. If the properties are now in the name of the Widow who is also deceased it is necessary to have a Personal Representative of the estate of Silvah Chepkemoi Ngeno (Deceased).

15. The Interested Parties who are said to have acquired Titles illegally are not beneficiaries of the Estate of the deceased herein Timothy Kipketer Ngeno and this Court has no Jurisdiction to deal with property ownership involving 3rd parties.

16. Article 165 (5) of the Constitutionprovides as follows :- The High Court shall not have jurisdiction in respect of matters—(a)Reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or(b)Falling within the jurisdiction of the courts contemplated in Article 162(2).

17. Article 162 (2) of the constitution states that “Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to:-(a)Employment and labour relations; and(b)The environment and the use and occupation of, and title to, land.”

18. Section 4 of the Environment and Land Court Act provides as follows: -(1)There is established the Environment and Land Court;(2)The Court shall be a superior court of record with the status of the High Court; and(3)The Court shall have and exercise jurisdiction throughout Kenya

19. Section 13 (2) of the Act provides for the jurisdiction of the ELCcourt and states as follows:-In exercise of its jurisdiction under Article 162 (2) (b) of the Constitution, the court shall have power to hear and determine disputes-a.Relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuation, mining, minerals and other natural resources;b.Relating to compulsory acquisition of land;c.Relating to land administration and management;d.Relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; ande.Any other dispute relating to environment and land

20. Musyoka, J, in Re Estate Of Mbai Wainaina (deceased) [2015] eKLR, stated as follows: “The mandate of the probate court under the Law of Succession Actis limited. It does not extend to determine issues of ownership of property and declarations 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.”

21. In In re Estate of Kinogu Mukiria (Deceased) [2022] eKLR, the court addressed itself as follows: - “Pursuant to Article 165(5) of the Constitution, this court lacks jurisdiction in matters to do with the use and occupation of, and title to, land. It is also apparent that when a dispute regarding ownership in respect of the property of a deceased person arises, then the court can set aside the share in dispute to await the outcome of the resolution of the dispute from the court with jurisdiction. As such, the dispute as to ownership of land can only be determined by the Environment and Land Court. Once the ownership of the suit property is ascertained by the Environment and Land Court, the probate court may proceed to distribute the said property to the rightful dependants.”

22. I therefore find that this Court cannot issue the declarations sought against the Widow of the Deceased and the Interested Parties for reasons that no Petition has been filed in respect of the estate of the widow Silvah Chepkemoi Ngeno who is now deceased and further this Court has no Jurisdiction to deal with the Interested Parties.

23. On the issue as to whether the Interested Parties should be evicted, this Court has already made a finding that the said Interested Parties are not properly sued in this case because Land Disputes with 3rd Parties are handled by the ELC. Court and not the Family Court.

24. The Citor is seeking allocation of property in the Interim period.

25. She has averred in her Affidavit in support of the Citation that the deceased herein died in 1985 and the widow transferred the properties in 1998. It is not clear where she has been residing since the properties were disposed off and why no action was taken at the time the properties were being transferred.

26. The Citor/Applicant has also stated that the properties were transferred to Silvah Chepkemoi Ngeno who is now deceased and no Petition has been filed in respect of Silvah Chepkemoi Ngeno (deceased.

27. I find that there is need to file a Petition in respect of the Widow so that a Personal Representative is appointed for any dealings with properties which are in her name to be determined.

28. I therefore find that this Court cannot allocate property to the Citor/Applicant in the circumstances until the Estate of the Widow has been put in order.

29. I find that there is no evidence that there are any properties in the name of the deceased herein.

30. The Notice of Motion dated 20/4/2021 be and is hereby dismissed.

31. On the issue of costs, each party to bear its own costs of the application.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 17TH DAY OF JUNE, 2022A. N. ONGERIJUDGE