[2022] KEHC 13870 (KLR)

John v Nyaga & another (Civil Appeal E105 of 2022) [2022] KEHC 13870 (KLR) (5 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13870 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal E105 of 2022

LM Njuguna, J

October 5, 2022

Between

Mary Marigu John

Appellant

and

Lenah Nyawira Nyaga

1st Respondent

Kenneth Kaunda Nyaga

2nd Respondent

(The judgment of Hon. J. Gichimu (SPM) delivered on 08. 02. 2022, in SPMCC No. 23 of 2019 at Runyenjes)

Judgment

1. The appeal herein arose from the judgment of Hon J Gichimu (SPM) delivered on February 8, 2022, in SPMCC No 23 of 2019 at Runyenjes, in which cause, the respondents had filed a protest against the summons for confirmation of grant dated February 21, 2020. The appellant has sought the following orders;i.The appeal be allowed and that the orders made on February 1, 2022 in relation to LR KAGAARI/WERU 3742 be set aside.ii.An order be made that the dispute in relation to LR KAGAARI/WERU 3742 be heard in an ELC court.iii.Cost of the appeal.

2. The respondents’ cause of action was premised on an application for confirmation of grant that had been filed by the appellant herein. The respondents thus opposed the mode of distribution as had been proposed by the petitioner/appellant herein for the reason that they are the administrators of the estate of Esther Igandu Willy who was a beneficiary of the estate of John Raini by virtue of her having purchased LR KAGAARI/WERU/3742 but the deceased died before the transfer of the said land into the name of the said Esther Igandu Willy; that the said parcel had been given to her via a consent entered on November 11, 1998 in the Principal Magistrate’s Court at Runyenjes in Succession Cause No 16 of 2017. That the appellant herein was aware that Esther Igandu Willy was supposed to benefit from the estate herein.

3. The matter proceeded to hearing and in its ruling delivered on February 8, 2022, the court allowed the protest for the reason that the consent order has never been set aside and further, the Kes 50,000. 00 that had been ordered to be paid to Jane Kaari by Esther Igandu Willy be pursued as a civil claim.

4. Being dissatisfied with the said ruling, the appellant filed the appeal herein in which she has listed nine (9) grounds of appeal in the memorandum of appeal dated February 11, 2022.

5. The appeal proceeded by way of written submissions. In his submissions, the appellant submitted that the order the trial court relied on in the protest was issued 23 years ago and that the same was extracted on February 10, 2020 and that no reason was given why the orders for payment were never complied with. Reliance was placed on section 7 of the Limitation Action Actciting reason that the recovery of land in this case was time barred given that 12 years had since elapsed. The appellant in support of her case relied on the case of Dickson Ngige v Consolidated Bank (formerly Jimba Credit Corporation Ltd and Another (2020) eKLR.

6. It was also argued that Succession Cause 16 of 2017 was neither filed by the appellant nor her mother; that even the chief’s introduction letter was clear on the date when the appellant’s mother died. It was submitted that the succession cause thus was improperly filed and the orders therein are null and void including the purported consent order for the reason that at that time, the said Kaari was already dead and thus could not have filed the cause.

7. It was argued that no sale agreement was ever placed before the trial court as should be the case in reference to Section 3(3) of the Law of Contract Act. That from the foregoing, the respondents were not even aware of the initial consideration or whether there was any sale agreement between the parties. In reference to the ground that the court erred for the reason that it lacked jurisdiction in that matter before it as the same ought to have been dealt with by an ELC court instead of a probate court, it was submitted that the probate court’s function is mainly to distribute the estate of the deceased person. Reliance was placed on the case ofIn re Estate of G.K.K. (deceased) [2017] eKLR.

8. The appellant faulted the trial court for having not applied Rule 41 (2) and 42 (2) of the P& A Rules which empowers the court to remove the property from distribution and have it determined in a separate civil suit. Reliance was placed on the case of In Re Estate of Francis Peter Njuguna [2016] eKLR. Further that, the consent was made 23 years ago and so the value of the land has since appreciated and thus it would be unfair to dispose the said land at that price. In the end, it was prayed that the appeal herein be allowed.

9. The respondents on the other hand submitted that the appeal herein has no merit and the same should be dismissed with costs. That the Succession Cause Number 43 of 1996 had been filed by Esther Igandu Willy who is the mother of the respondents herein and that she had filed the same in her capacity as a creditor to the estate of John Raini but later on, the mother of the appellant took over the administration of the estate of the deceased. That, clearly, the mother of the appellant had included the name of Esther Igandu Willy as a beneficiary of LR KAGAARI/WERU/3742 but unfortunately, the appellant’s mother passed on before the transfer could be effected and in the same breadth, the respondents’ mother also passed on.

10. That the respondents had started following on the said land from the year 2012 and wherein the appellant informed them that they were yet to substitute their deceased mother and so, the respondents filed an application to compel the appellant to substitute her mother as an administrator when the registry realized that the appellant had filed a new suit in respect to the same estate being Runyenjes PMC Succession Cause No 23 of 2019 from which, the appeal herein emanates. It was submitted that the appellant did not go to court with clean hands.

11. It was further submitted that the Limitation of Actions Act does not apply herein for the reason that the court file in respect to Succession Cause No 43 of 1996 which later changed to Succession Cause no 16 of 2017, Runyenjes, had not been closed and/or finalized until the confirmation of the grant on February 8, 2022. On the issue as to whether Jane Kaari filed the Succession Cause No 16 of 2017 yet she had passed on, it was submitted that the same was neither here nor there for the reason that she was the administrator in Embu PMC Succession Cause 43 of 1996 which was later transferred to Runyenjes Magistrate’s Court in the year 2017 and given a new number being 16 of 2017. That the cause was not filed in Runyenjes in the year 2017 but rather transferred there from Embu.

12. On the issue as to whether there was a sale, it was submitted that indeed there was a sale and that is why the issue of the balance of the purchase prize came about. That the trial court did not err in any way as there could be no balance of the purchase price without a sale. In reference to the ground that the trial court lacked jurisdiction, it was submitted that any dispute arising from the ownership of LR KAGAARI/WERU/3742 was settled on November 11, 1998 when the consent order was recorded by the parties to the succession cause. Reliance was placed on the case of In re estate of Stone Kathuli Muinde (deceased) 2016 eKLR. Further, the respondents submitted that the court was right in asking the appellant to follow the issue of payment of Kshs 50,000/= as a civil debt.

13. In reference to the fact that the court ought not to have allowed the protest based on an order that was not implemented or enforced 23 years later, it was submitted that the appellant equally contributed to the lapse of time by giving false promises to the respondents that they were in the process of making an application to substitute the administrator who was her deceased mother. That the respondents have been in possession and have been living on the said piece of land since 1985 to date and that even the appellant’s parents never attempted to evict them and the same evidenced the fact that indeed the mother of the respondents bought the said suit land from the parents of the appellant. In the same breadth, it was submitted that the appellant is not a credible person for the reason that she claimed that her brother Raphael Ndwiga could not have received part of the purchase price after the death of their mother as stated by the respondents for the reason that he disappeared in the year 1995 yet he signed form 38. As such, she does not deserve the orders she is seeking for.

14. The court has considered the grounds of appeal and the submissions by both the appellant and the respondents and it finds that the main issue it has been called upon to determine is whether the orders sought herein can obtain.

15. As a first appellate court, this court has a duty to examine matters of both law and facts and subject the whole of the evidence to a fresh and exhaustive scrutiny, before drawing a conclusion from that analysis. The court has, however, to bear in mind the fact that it did not have an opportunity to see and hear the witnesses first hand. This duty is captured by section 78 of the Civil Procedure Act which espouses the role of a first appellate court which is to:‘…… re-evaluate, reassess and reanalyze the extracts of the record and draw its own conclusions.’

16. This was buttressed by the Court of Appeal in the case of Peter M Kariuki v Attorney General [2014] eKLR where it was held that:“We have also, as we are duty bound to do as a first appellate court, to reconsider the evidence adduced before the trial court and revaluate it to draw our own independent conclusions and to satisfy ourselves that the conclusions reached by the trial judge are consistent with the evidence…….(See Ansazi Gambo Tinga & another v Nicholas Patrice Tabuche [2019] eKLR).

17. In reference to jurisdiction, it was submitted by the appellant that the trial court had no jurisdiction and that the most appropriate court to determine the matter herein ought to have been an ELC court. Of importance to note is the fact that the suit land herein belongs to the estate of John Raini and therefore, in reference to rule 73 of the P&A this court is seized with the jurisdiction to determine the appeal herein. The said sections thus provides;“Nothing in these rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

18. Further, this court has wide inherent powers in succession matters to make such orders as may be expedient, to ensure that the ends of justice are met and prevent abuse of court process by parties under section 47 of the Law of Succession Act and rule 73 of the Probate and Administration Rules. Section 47 of the Law of Succession Act provides as follows:The High Court shall have jurisdiction to entertain any application and determine any dispute under this act and to pronounce such decrees and make such orders therein as may be expedient:

19. In Salome Wambui Njau (suing as the administratrix of the estate of Peter Kiguru Njuguna (deceased) v Caroline Wangui Kiguru, Nairobi ELC suit No (2013) eKLR, the court was of the view that in matters of succession disputes touching on land, the Environment and Land Court pursuant to article 162 (2) of the Constitution and the High Court as the Succession Court under section 47 of the Law of Succession Act would appear to have a concurrent jurisdiction. It would thus depend on the circumstances of each case which court is best suited to hear and determine the dispute.

20. Musyoka J in this regard in In Re estate of Alice Mumbua Mutua (deceased) [2017]eKLR expounded as to when a matter is best placed for a succession cause and when it ought to be referred to another court with concurrent jurisdiction as follows:“…..The Law of Succession Act, and the rules made thereunder, are designed in such a way that they confer jurisdiction to the probate court with respect to determining the assets of the deceased, the survivors of the deceased and the persons with beneficial interest, and finally distribution of the assets amongst the survivors and the persons beneficially interested. The function of the probate court in the circumstances would be to facilitate collection and preservation of the estate, identification of survivors and beneficiaries, and distribution of the assets.Disputes of course do arise in the process. The provisions of the Law of Succession Act and the Probate and Administration Rules are tailored for resolution of disputes between the personal representatives of the deceased and the survivors, beneficiaries and dependants…….

21. On whether there was a sale between the parties and to which, the appellant submitted that there existed no sale agreement and that the transaction, if any, was contrary to the provisions of section 3(3) of the Law of Contract Act, be that as it may, and further assuming for a moment that the appellant’s assertion is true; then what would be the fate of the alleged transaction? I find guidance in Civil Appeal Number 22 of 2013, Peter Mbiri Michuki v Samuel Mugo Michuki [2014] eKLR, where the Court of Appeal held that;“Section 3(3) of the Law of Contract Act provides that no suit based on a contract of disposition of interest in land can be entertained unless the contract is in writing, executed by the parties and attested to. Section 3(7) of the Law of Contract Act excludes the application of section 3(3) of the said act to contracts made before the commencement of the subsection. Section 3(3) of the Law of Contract Act, came into effect on 1st June, 2003. …. Prior to the amendment of section 3(3) of the Law of Contract Act in 2003, the subsection read as follows: -(3)No suit shall be brought upon a contract for disposition of an interest in land unless the agreement upon which, the suit is founded, or some memorandum or note thereof, is in writing and is signed by the party to be charged or by some person authorized by him to sign it;Provided that such a suit shall not be prevented by reason only of the absence of writing, where an intending purchaser or lessee who has performed or is willing to perform his part of a contract-(1)Has in part performance of the contract taken possession of the property or any part thereof; or(11)Being already in possession, continues in possession in part performance of the contract and has done some other act in furtherance of the contract.” (emphasis added)

22. Similarly, in the instant case, even if the said sale agreement by the appellant and the respondents was vitiated and/or never existed at all as has been submitted by the appellant herein, I still hold the view that the respondents only had to prove to this court that they have been in possession of the said LR KAGAARI/WERU/ 3742 of which in my view, the same has been proved. [Also seeAnne Jepkemboi Ngeny v Joseph Tireito & Another[2021] eKLR].

23. On whether Jane Kaari was responsible for filing of the Succession Cause No 16 of 2017 in that the appellant submitted that by then she was already dead, section 66 of the Law of Succession Act sets out the order of preference with regard to who ought to apply and be appointed administrator in intestacy. Priority is given to surviving spouses, followed by the children of the deceased and a creditor who in my view Esther Igandu Willy having made part payment for the purchase of the said land from the deceased who was the owner of the said land forming the estate herein, qualified to be a creditor. As such, it was not contrary to the law for her to file the petition. [See section 66 of the LSA].

24. On whether the trial court erred by not applying rules 41(2) and 42 (2) of the P&A rules, the procedure for determination of an application for confirmation in the Probate and Administration (P & A) Rules requires hearing of the application for confirmation of grant as set out in rule 41 of the Probate and Administration Rules, 1980:“41. Hearing of application for confirmation(1)…….(2)The court may either confirm the grant or refer it back for further consideration by the applicant or adjourn the hearing for further evidence to be adduced or make any other order necessary for satisfying itself as to the expediency of confirming the applicant as the holder of the grant or concerning the identities, shares and interests of the persons beneficially entitled and any other issue which has arisen including the interpretation of any will.

25. In view of the disputed facts herein whose resolution is not possible by affidavits, there is need in accordance with rule 41 of the Probate and Administration Rulesto “hear the applicant and each protester and any other person interested, whether such persons appear personally or by advocate or by a representative”. The court shall, accordingly, invoke the power under section 71 (1) (d) of the Law of Succession Act to postpone the confirmation of grant until the resolution of the disputed facts which impact on the nature, size and share of estate of the deceased person that shall be distributed to the beneficiaries.

26. In the case herein and as I already determined that the matter herein was properly before a probate court and not an ELC court as has been submitted by the appellant herein. After perusing the record herein, I find that the trial court took viva voce evidence and the matter was determined to its logical conclusion and gave its reasons for arriving at the said determination. As such, I find that the trial court acted within the law to reach such a determination. [See In re Estate of Jonathan Kipruto Chemjor (Deceased) [2020] eKLR].

27. On whether the court erred in making an order that the amount Kshs 50,000/= be pursued as a civil suit and failed to consider the current value of the suit land, the court in Inre Estate of Barrack Deya Okul (Deceased) [2018] eKLR stated that,“My clear understanding of this requirement is that once a petitioner is notified of the existence of a liability (debt) by a creditor or once the petitioner comes to learn of an existing proven liability (debt) owed by the estate, it is mandatory to include such a liability or debt as required above.A decree against a deceased person, in the absence of a variation, setting aside or otherwise being stayed is in my view a proven liability against the estate of the deceased. It must be included in the list of liabilities in form 5 alluded to above.Such a debt shall, as provided for in section 86 of the Law of Succession Act, be paid before any legacy. For emphasis, that section provides;“Section 86: Debts of every description enforceable at law and owed by or out of an estate shall be paid before any legacy”I have no doubt in my mind that a decree of court against a deceased person is a debt enforceable at law. From sub-section (b) above, it is quite clear that the duties of personal representatives would include getting in all free property of the deceased including debts owing to him and moneys payable to his personal representative by reason of his death and in the same vein under sub-section (d), to ascertain and pay out of the estate of the deceased, all his debts”.

28. In the circumstances herein, it is clear that the parties herein were aware of the debt owed to the estate of the deceased herein; as such, debt which the appellant submits that no amount was ever paid by the respondents’ mother while the respondents submit and presents evidence before this court that the whole amount has been paid save for Kshs 13,500/= (which amount the respondents are still ready to pay). In the given scenario, I hold the view that the said debt is enforceable in law as the same has not been denied. [SeeIn re Estate of Edward Lenjo Musamuli (Deceased) [2021] eKLR].

29. I note that the appellant submitted that the amount of the said debt should not stand at an amount of Kshs 50,000/= but the same should reflect the current value of the land but of importance to note is the fact that this debt was realized from a transaction that occurred almost twenty three years before. This court is not sitting as a civil court but as a probate court. The issue of the current value of the land and the interest, if at all, can only be canvassed in a civil court.

30. It has also been argued that the order herein took twenty three years before the same could be executed and that no good reason has been fronted for the same. The Limitation of Actions Act provides that under section 4 provides actions of contract and tort and certain other actions(1)The following actions may not be brought after the end of six years from the date on which the cause of action accrued(4)An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due.

31. In the case herein, there is no doubt that the consent order was entered on November 11, 1998 between the mother of the respondents and the representative of the estate of John Raini who is the mother of the appellant herein. That Jane Kaari was to amend form 9 filed on October 23, 1996 in accordance to the said consent orders confirming the grant. That thereafter, as submitted by the respondents is the fact that the appellant herein, contributed towards the delay of realizing the said orders by buying time to dispossess the respondents of the said land. The same was displayed when it was discovered that the estate herein had two concurrent files running at the same time. In my view and of importance is the fact that the respondents have been living on the said land for all these years and the matter has been going on in court and as such, the Limitation of Actions Act does not apply herein.

32. In the end, I hereby uphold the determination of the lower court. This being a family matter, each party shall bear its own costs of the appeal.

33. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 5TH DAY OF OCTOBER, 2022. L. NJUGUNAJUDGE………………………………………………..for the Appellant…………………………………………….for the Respondent