[2017] KEHC 1991 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

FAMILY APPEALS DIVISIONS

CIVIL APPEAL NO. 69 OF 2016

IN THE MATTER OF THE ESTATE OF GITAU GICHIRA (B) DECEASED

JOSEPH MUCHAI GITAU………………...….….….1ST APPELLANT

DAVID NJAU………………………………….…….2ND APPELLANT

VERSUS

MACHAGA GACHIRA……………………….………...RESPONDENT

(Being an appeal from the ruling/orders of the Honorable Jacinta Kwena (Mrs.) Senior Resident Magistrate’s at Githunguri Chief Magistrate’s Courts dated 2nd JULY, 2012 in The Succession Cause No. 28 Of 2011)

BETWEEN

JOSEPH MUCHAI GITAU……....….1ST PETITIONER/RESPONDENT

DAVID NJAU………….....................2ND PETITIONER/RESPONDENT

VERSUS

MACHAGA GACHIRA............................……OBJECTOR/APPLICANT

JUDGMENT

1. This appeal arises from the judgment of the Senior Resident Magistrate at Githunguri Chief Magistrate’s Court delivered on the 2nd July 2012 in Succession Cause no. 28 of 2011.

2. In a Memorandum of Appeal filed on the 16th July 2015 the appellants’ state they are aggrieved by the Ruling and appeal against the Ruling on the following grounds.

i. That the learned Honorable Magistrate erred in fact and law in finding that the suit property was registered in trust of the objector.

ii. That the learned Honorable Magistrate erred in law and fact in finding that the objector’s parents were buried in the suit property as a factor in creation of a trust and yet there is a court order barring the objector from burying their father on the suit property.

iii. That the learned Honorable Magistrate erred in law and fact by failing to consider that the suit property was not previously registered in the names of the petitioners’ grandfather to make it family land and the petitioner’s father did pay for the title thus making it private property.

iv. That the learned Honorable Magistrate erred in law and fact by filing to consider that the objector’s father had attained the age of majority and he could have had his share transferred to him either at the issuance of the title or at a later state before his demise.

v. That the learned Honorable Magistrate erred in law and fact by failing to consider that the property has never been sub-divided.

vi. That the learned Honorable Magistrate erred in law and fact by failing to consider there was no constructive or registered trust established by the objector’s in their evidence.

vii. That the learned honorable Magistrate erred in law and fact in finding that the objector lived on the suit property yet what is constructed is a house for the petitioner’s mother and that the objector has just deposited building materials but have never constructed a house therein.

viii. That the learned honorable Magistrate erred in law and fact by failing to find that the defendant’s right to natural justice are offended/denied by failing to set aside ex-parte judgment as she is being condemned unheard.

3. This being the first appellate Court it is incumbent upon the Court to re-assess and re-evaluate the evidence on record and arrive at an independent conclusion, but as I do so it must be remembered that I have neither seen nor heard the witnesses. The following is what I gather from the Court file and Appeal Record.

4. Joseph Muchai Gitau and David Njau Gitau petitioned for Letters of Administration Intestate in Succession Cause No. 28 of 2011 in the estate of Gitau Gachira (deceased) also known as Gitau Gachira ‘B’. They filed the petition as sons of the deceased. In the affidavit in support of the petition they named the following as surviving the deceased; Wairimu Gitau (wife), Regina Wanjiku Waweru (daughter), Grace Waruguru Ndung’u (daughter) Joseph Muchai Gitau (son) David Njau Gitau (son) and Mary Wambui Gitau (daughter). On the 16th May 2011 Machaga Gachira filed an objection to the making of the grant of letter of administration claiming that the land parcel Githunguri /Ikinu/194 was registered in the name of deceased by their late father for him to hold in trust for his own behalf and on behalf of other beneficiaries him included. The Objector filed a petition by way of cross–application for grant dated the 18th of November 2011. He stated that he was the lawful brother of the deceased and that it is his creed that he is bound to be a co-petitioner to the deceased’s estate. In his Answer to the Petition he stated that he was not notified by the petitioner that the petition was filed. In an Answer to the Cross Application for Grant Joseph and David Gitau the petitioners stated that they are the sons of Gitau Gachira “B” the deceased and that the suit parcel L.R. No. Githunguri /Ikinu/194 was registered in the deceased’s name as his personal property and was not held in trust for his own behalf and on behalf of other beneficiaries.

5. This is a summary of the evidence; The Objectors are the children sons of Machage Gachira who was a brother to the deceased. They took over the objection proceedings after the death of their father Machaga Gachira. According to the objectors the suit property Githunguri/ Ikinu/194 (0. 36 hectares) was family land. Their family was not consulted when the petition was filed hence their father’s objection. The deceased was their uncle the elder brother of their father. Their grandfather had two wives Nyambura and Njeri. Their grandmother was Njeri. She had two sons their uncle and their father. The land they live was registered in the name of their uncle Gitau Gachira. The land was subdivided by their grandmother into two portions. The land they occupy is one acre. The deceased and the objector’s father each built on their portions of land after the demarcation. That by the time the land was being demarcated in 1958 the government was not giving identity cards to women and the culture amongst the Kikuyu community was that the first born son was just like a father who would stand in trust for the family in the absence of the father. By then their grandfather had died. The land for the house of Nyambura was registered in the name of Gitau Gachira who is holding the land in trust on behalf of his mother’s household. According to Regina L.R. Githunguri/ Ikinu/210 which was 0. 084 hectares was sold by Gitau Gachira, her father and grandmother in 1973 to Mugo Kiarie and the 3 shared the proceeds. He father used the proceeds to build a house in parcel no. 194. The objectors stated that they have lived in the said land with their grandmother, each family within their portions. They have planted coffee in the said land and are members of the Gititu Coffee. That in 1997 Regina tried to get the family of the deceased Gitau Gachira ‘B’ to subdivide the land officially but the said family refused to cooperate and instead produced a title deed in the name of the late Gitau Gachira. Regina thereafter placed a caution on the said land. These facts as per objectors were not disclosed to the court by the petitioners who claim to the only beneficiaries to the said parcel of land. Their father was buried in the said land.

6. The petitioner/ appellant evidence in summary was that; the suit property was belongs to the deceased and he has a title in his name. Machage the deceased’s brother had land in Muranga area and built a permanent house in Ithanga. That he left Ithanga and asked his mother to stay in their land temporarily. His children went to live in Ikunu when they were adults they should return to their land in Ithanga. Muchaga and his wife were buried in their land, they opposed the burial of Muchaga. Their grandmother allowed the burial of the respondents’ mother. Joseph Mucahi Gitau produced receipts D exhibit 1 to show his father paid for the title deed. It was stated that the respondents should go back to their land as they never asked for the said land when their father was alive. That at one time the matter was taken before the Chief who ruled that the respondents should go back to Ithanga.

7. This Appeal was canvassed by way of written submissions. The main ground of appeal is that the Lower Court ruled that the property in dispute was being held in trust by the deceased for and on behalf of the initial objector Machaga Gachira. On the evidence it is submitted that the issue of trust property does not exist as the Objector Gachira Machaga sold the land he was given by his father Gitau Gachira namely Ithanga plot no. 259 and then moved his family to the deceased’s land. That the Court did not consider this crucial evidence. That respondents are not the rightful heirs of parcel no. Githunguri/ Ikinu 194. The parties are cousins and are two separate families. That their view that the objector had land at Ithanga is corroborated by the chief’s letter dated the 30. 8.2010. That the respondents argument that they lived in the said land since birth is controverted by the letter the chief’s letter dated the 19. 10. 2015 which states that parcel no. 259 was occupied by the objector who sold it to Peter Chege Maina whose family lives there to date. That the objectors father gave each of his sons’ property the objector was given the land at Ithanga and the deceased the land at Ikinu and the 1st wife’s was given land ate Ngemwa. That the appellants being the heirs of the deceased should be allowed to administer the estate of the deceased as the parcel of land was private property and not family nor trust property. That the appellants’ evidence was disregarded by the lower court together with the documents that was represented that the deceased had the suit property registered in his name.

8. On the law it was submitted as follows that; the law that should apply to the deceased’s estate is not Kikuyu customary law but Part V of the Law of Succession Act which applies to a person who has died intestate after 1st July 1981. Under Part V grandchildren have no right to inherit from grandparents and that they can only inherit from their parents. That the title for parcel no. 194 was issued to the deceased in 1978 and the initial ownership certificate issued under the Native Land Tenure Rules 1956 was issued in the name of the deceased Gitau Gachira ‘B’ the appellants father. The initial objector did not raise any claim to the said land when the deceased was alive but only chose to do so after his death. The appellants relied on the case of, In the Estate of Dorcas Wanjiku 9 Deceased) Succession Cause 746 of 2010,where the court held that a decree does not override Section 35 of the law of Succession Act. It does not make the survivors of the deceased and it does not entitle them to take place of the biological children of the deceased. It does not make them heirs of the estate. That in this case the objectors are not the heirs of the deceased. That Section 2(1) of the Law of Succession Act outs the application of Kikuyu customary law to the estate of a Kikuyu dying after the 1st of July 1981. That if the land was held as claimed by the Respondents under the African Customary Law its inheritance is subject to African Customary Law and the procedural law governing succession would be the Magistrate Court Act Cap 10. That the objector never moved in his life time to claim under the Magistrates Court Act. The deceased held the land and was duly registered as the absolute proprietor under the Registered Land Act and the deceased’s land could not fall under a claim under customary law. To buttress this submissions the appellants relied on the following cases; Kimani vs. Gikanga (1965) E. A. 735 and the case of Ernest Kinyanjui Kimani vs. Muiru Gikanga and another (1965) E. A pg. 735. The holding in both cases was that if a party relies on customary law it must be accurately and definitely established for the courts guidance by the party relying on it and that if it is inapplicable of being judicially noticed it should be proved by evidence or expert opinions adduced by the parties. That the respondents did not provide any authoritative material to prove their case, but the appellants produced a title to prove their case. The appellants ought to have the lower court ruling vacated and the matter heard afresh, that a declaration be made that the respondents are not the beneficiaries of the estate of the deceased and that each family to bear its own costs.

9. The respondents in their submissions narrated and evaluated the evidence. They reiterated that the suit property was held in trust by their appellant father and that there was no evidence to the contrary. That the suit land never belonged to Gitau Gachira B but to a common denominator their grandfather Gachira Gitau. That Gitau Gichira B did not own any private land. That the chief’s letter attached dated 19th October 2015 was obtained long after the matter was determined by the law court and it does not prove land ownership in Kenya. It was submitted Kikuyu Customary Law, Tradition and common factors should apply since the suit property is inheritance land and not private property.

Determination

10. I have evaluated the evidence adduced in the Lower Court, submissions and the cases cited. The main ground of appeal is that the lower court erred in finding that the suit property was held in trust for the objector. The Respondent’s case is that the suit property was ancestral land that belonged to their grandfather and that the appellant’s father held in trust as the 1st born son. The appellant’s evidence is that the said property was bought by the deceased and he obtained a title in 1978. It is not in dispute that the Respondents live in a portion of the suit property. Their evidence in the Lower Court was that the initial objector lived in the said land having been given the portion after their grandmother divided the parcel of land into two. The appellant claimed that the Respondents were to live in the land temporarily after the initial objector sold his piece of land at Ithanga. The evidence of the Respondent was supported by the son of Gitau Gachira A who testified that the parcels of land 194 and 191 belonged to the grandfather. This evidence is persuasive. Looking at the documents that were produced in court there are two title deeds. The one for Gitau Gachira A shows that the title deed Githunguri/Ikinu/191 was obtained in January 1977. The title deed for Gitau Gachira B for parcel no. Githunguri/Ikinu/194 was obtained in November 1978. The green card that was produced shows that Gitau Gachira B was registered as the proprietor of parcel land No. Githunguri/Ikinu/194 in 1958. The green card of Githunguri/Ikinu/T.210 shows that this parcel of land was registered under Gitau Gichira B in 1959 and in 1973 the land was transferred to Benny Mugoh and the title was issued in 1974. The Respondent’s evidence was that parcel of Land T.210 was not her father’s portion of land but that it was sold by her grandmother, her uncle and her father. The green card on the said parcel land clearly shows that this land was registered in the name of Gitau Gachira B. These documents support the Respondent’s evidence that the deceased held the land belonging to their grandfather in trust of the family. There was no evidence that the deceased purchased land parcel 194 and that it was his own private property. There was further evidence that was not disputed that the Respondent family have stayed on their portion of land, they cultivate, have built and their parents have been buried in the said land. Evidence that the appellants objected to the burial of the initial objector was not tendered in the Lower Court. I find that the Magistrate did not err in finding that the deceased held the land in trust for himself and the brother. In the case of Mwangi & another Vs. Mwangi (1986) KLR 328i it was held that the rights of a person in possession or occupation of land are equitable rights which are binding on the land and the land is subject to those rights; the absence of any reference to the existence of a trust in the title documents does not affect the enforceability of the trust since the reference to a trustee under Section 125 (1) of the Registered Land Act is merely permissive and not mandatory. In the case of Machari Mwangi Maina & 87 others vs. Davidson Mwangi Kagiri Civil Appeal no. 26 & 27 of 2011the Court of Appeal observed the following; TheRespondent has all along had actual knowledge of the occupation and possession of plots in LR. No. 6324/10 which is a subdivision of LR. 6324/8. The Respondent has all along had actual knowledge of the occupation and possession of plots in LR. no 6324/10 by the appellants. When the respondent obtained title in LR No. 6324/10 on 21st November 2000, he knew of the claim by the appellants to plots in that parcel of land. If we are to count from the year 2000 when the title to LR No. 624/10 was issued or granted the appellants were in actual physical possession and occupation of plots within this land. This possession fortifies the finding that the appellants have an overriding interest protected under Section 30 (g) of the Registered Land Act.The Respondents are in actual possession and occupation of the portion of land where they have lived all along. The deceased could have obtained a title deed in his name but there is sufficient evidence that he held the land in trust for himself and the brother. I find that the magistrate did not err in her finding that the deceased held the property in trust for the family. The Hon. Magistrate considered the evidence in its totality and from the narrative made a finding the property was held in trust. The Respondent’s demonstrated their beneficial interest in the land and even though they are not deceased children they have proved their interest in the portion of land that they occupy to date. It was therefore proper for the Hon. Magistrate to order that one of the objectors be included as an administrator and that every heir is entitled to an equal share of the estate which is land title No. Githunguri/Ikinu/194. I therefore find no merit in the appeal and dismiss it. Since this is a family matter, each party to bear their own costs. It is so ordered.

Dated, signed and delivered this 2nd Day of November 2017

R. E. OUGO

JUDGE

In the Presence of:

Mr. Njenga h/b for Mr. Gitonga for the Appellants

Respondents in person Regina Wanjiku Machaga and Joseph Gachira Machaga

Ms. Charity Court clerk