[2016] KEHC 8449 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO.336 OF 2013

BETWEEN

JUSTINA WANJIRU NDUNG’U ………………………...….....……….... PETITIONER

AND

THE CHIEF REGISTRAR OF LANDS ……………..........………….….. 1ST RESPONDENT

PATRICK NJIIRI NDUNG’U ………….……………….....…………..... 2ND RESPONDENT

CHARLES KARIUKI …………….….……………………………..…... 3RD RESPONDENT

MARGARET NYAMBURA MBURU …..………......………………..... 4TH RESPONDENT

JUDGMENT

Introduction

1. The Petitioner, Justina Wanjiru Ndung’u, has instituted the present proceedings against the 1st Respondent, the Chief Registrar of Lands; the 2nd Respondent, Patrick Njiiri Ndung’u; the 3rd Respondent, Charles Kariuki; and the 4th Respondent, Margaret Nyambura Mburu, alleging violation of her constitutional rights, as shall be seen shortly.

2. In her Petition dated 30th May 2013, she therefore seeks the following orders:

(a) A declaration that the continued refusal by the Respondents to distribute the Estate of the late Ndung’u Kagori amongst all the children from the House of his late wife, Waithera Ndung’u, is a fundamental breach of the Constitution and its dictates as enshrined under Articles 1, 2, 3, 10, 19, 20, 21, 27, 40 and 60 of the Constitution and violates the said provision.

(b) A declaration that the Petitioner’s right to property as guaranteed under Article 40 of the Constitution has been violated by the 2nd to 4th Respondents.

(c) A declaration that enforcement of the Constitution of Kenya and laws relating to land and succession in so far [the] right of inheritance and distribution of property does not discriminate on the basis of gender or marital status and the Petitioner and her niece are guaranteed their share of and are entitled to their share from the Estate of the late Ndung’u Kagori.

(d) A declaration that the fundamental right to life, human dignity, equality and freedom from discrimination and the right to property as protected and envisaged by Articles 27, 28, 40 and 43 of the Constitution encompasses the elimination of gender discrimination in law, customs and practices related to land and property in land, and that women have an equal right of inheritance as men.

(e) An order compelling the 2nd, 3rd and 4th Respondents to re-distribute the property of the late Kagori Ndung’u that was left to the House of their mother, Waithera, among all her children and/or dependants.

(f) Any further orders, directions, declarations and remedies as this Honourable Court may deem fit and just in the circumstances.

(g) Costs of the Petition.

The Petitioner’s Case

3. In her Affidavit in support sworn on 2nd May 2013, the Petitioner stated that she is the daughter of the late Kagori Ndung’u, who died in 1977 and his wife, Waithera Ndungu, who died in 1972.

4. It was her other deposition that her father, the said Kagori, was a polygamous man while her mother had several children being Peter Mburu (deceased), Patrick Njiiri (the 2nd Respondent), Charles Kariuki (the 3rd Respondent), Rachel Wangeci Ndungu (deceased), Agnes Wambui and Anne Njeri.

5. She also contended that her father died leaving a Will outlining the mode of the distribution of his Estate and the Estate was duly distributed as stipulated in the said Will. That her mother’s House received its allocated share and the same was to be held in trust for all her siblings by her brothers, Peter Mburu, and the 2nd and 3rd Respondents. That her three sisters have since passed on, without heirs save Rachel Wangeci who left behind a daughter, Sylvia.

6. It was her further deposition that after the said distribution, her brothers, despite holding the property in trust, have refused to distribute the same among the surviving siblings and they have even gone to an extent of registering some of the properties in their joint names. That she has also requested them to allocate each sibling their entitlement of properties but they have declined to do and even the requests by her Advocates, M/s Khaminwa and Khaminwa, to have the same transferred has been rebuffed.

7. The Petitioner has concluded therefore that since the deceased distributed his Estate fairly amongst his children, she has been unfairly denied her rightful share thereof and in that regard, she contended that the withholding of her share is in violation inter alia of her right to property as guaranteed under the Constitution. For the foregoing reasons, she has urged the Court to allow the Petition and grant the orders sought therein.

The 3rd and 4th Respondents Case

8. The 3rd and 4th Respondents filed an Affidavit in reply sworn by Charles Kariuki on 28th October 2013 and Written Submissions dated 24th April, 2014.

9. It was their contention that the present Petition ought to be struck out with costs as it does not raise any constitutional issues, is scandalous, vexatious, frivolous and an abuse of Court process.

10. It is also the Respondents’ contention that at the time of the deceased’s death, the Petitioner was an adult aged 22 years while the 3rd Respondent was aged eight years and that specific gifts were made to the 3rd Respondent by their father at his tender age and hence the argument that he was to hold any property in trust for the Petitioner and others is an absurdity.

11. It was also their case that a Succession Cause had been filed in the District Magistrate’s Court at Kandara, being Succession Cause No. 204 of 1977 and on 26th October 1977, the distribution of the deceased’s Estate was confirmed and the Petitioner neither raised any objection therein nor filed any appeal, review or revocation of the Grant in regard to the confirmation and as such, they contended that the question of distribution of the Estate is res judicata.

12. The Respondents contended further that even if there was a trust created, which they have denied, the Petitioner’s claim is barred by virtue of Section 20 (2) of the Limitation of Actions Act, Cap 22, Laws of Kenya and that by preferring a Constitutional Petition as opposed to an ordinary suit for recovery of land, the Petitioner is attempting to circumvent the law and excuse her indolence as she has no plausible explanation for having sat on her alleged right to property for 37 years, and that in any event, the Petitioner has no cause of action against the 2nd, 3rd and 4th Respondents at all as they were not the Administrators of their father’s Estate and the Prayers and declarations sought cannot therefore issue against them.

13. The foregoing notwithstanding, it was also their contention that their father died on 25th October, 1976 and not in 1977 as alleged by the Petitioner and that it is misleading for the Petitioner to assert that he left his Estate to the two houses to be divided amongst members of each House because in his Will, their father clearly outlined the manner in which he wished his Estate to be distributed and that in any event, the Will is still valid and has never been challenged by the Petitioner or any other offspring of their deceased father.

14. Further, that according to the Will, 14 acres of land was to be transmitted to Waithera’s House, comprising of Peter Mburu and his brothers, Njiiri and Kariuki; and four shares at Mihando Estate were to be distributed to Peter Mburu. It was their other assertion in that regard that the 14 acres comprised of a stone house and 2,000 coffee trees.

15. Furthermore, that it is incorrect for the Petitioner to allege that only Waithera’s House, unlike all the other Houses, got its share of the Estate yet the Petitioner is truly aware that each beneficiary under the Will got his or her share. In addition, the Respondents stated that the deceased dealt with his property comprehensively and completely and that he never created any trust for any of his beneficiaries and especially, not for the Petitioner, who was old enough and competent to hold her own legacies and bequests.

16. The 3rd and 4th Respondents also contended that none of them was responsible for the distribution of the Estate as they were only beneficiaries and additionally, that they have gone ahead and registered in their names the various parcels of land bequeathed and granted to them and the said registrations were effected several years after the Court had confirmed the proposed mode of distribution, without any objection thereto by anyone including the Petitioner.

17. Further, according to them, after their parents’ demise, some of their siblings have met severally over the years to discuss mutual matters concerning the need for continued unity and cohesion within Waithera’s Household and that during several meetings in the year 2000, it was agreed that although the deceased had expressed his wishes and the same had been effected, they, out of good heart, would cede part of their lawful inheritance to their sisters who were still alive. That in that regard, they agreed to give the Petitioner and the late Rachael Wangeci a total of seven acres of land but the Petitioner declined the offer and that in 2002, the Petitioner changed her mind, approached them and requested them to be given a portion of land measuring 3 acres and later she, unconditionally, took possession of the said parcel of land where she has continued to cultivate and derive benefits from, for more than ten uninterrupted years.

18. The Respondents also contended that they met in 2010, under the patronage of Hon. George Mwicigi, the head of the family after their father’s demise, and it was agreed that the Petitioner would retain the said three acres and since Rachael Wangeci had passed on before any property was given to her, a total of two acres was to be given to her daughter, Sylvia Waithera Ndung’u. That in any event, Sylvia is an adult Kenyan who resides in the United States and has never at any time made any claim to her grandfather’s Estate and that the two acres in her name were freely given to her.

19. It was their other assertion that whereas the Constitution guarantees every person the right to institute proceedings claiming that a right or a fundamental freedom in the Bill of Rights has been denied, violated or threatened with infringement, in the present case, none of the Petitioner’s rights has been infringed and that in any event, the Petitioner is in fact infringing upon the Respondents’ right to property under Article 40 of the Constitution, and further that the Petitioner is a person of means and cannot allege that she has been denied the right to a livelihood.

20. In their Written Submissions, they reiterated their earlier depositions in their Affidavit and submitted that their deceased father’s Estate was distributed in accordance with his Will and the same was also construed in accordance with Section 22 of the Law of Succession Act and Rule 10 of the Construction of Wills Rules and hence the distribution was in line with the law and therefore, under the Will, there was no trust created for the Petitioner.

21. The 3rd and 4th Respondent submitted further that the Grant of the Estate was confirmed by a competent Court in 1977 and the Estate devolved to its beneficiaries and the Petitioner was by then an adult capable of challenging and objecting to the said confirmation and hence, the present Petition is an invocation of the provisions of Part 3of the Law of Succession Act through the back door and it is therefore an abuse of Court process.

22. They reiterated that they were not executors or personal representatives of the deceased and as such, by dint of Sections 79 and 83 of the Law of Succession, they did not have any role to play in the distribution of the Estate. Furthermore, while relying on Mae Properties Limited v Joseph Kibe and Another [2012] eKLR and Section 20 (2) of the Limitation of Actions Act, it was their other submission that the present claim is time barred.

23. It was also the 3rd and 4th Respondents’ position that the Petitioner has failed to plead with precision in regard to the alleged manner in which her constitutional rights have been violated and that in any event, the Petitioner ought to have invoked the appropriate grievance and redressal channels as opposed to filing a constitutional Petition in a purely succession matter. In that regard, they relied on the decisions in Uhuru Muigai Kenyatta v Nairobi Star Publications Limited [2013] eKLR in support of those assertions. Further, that the Petitioner has completely ignored the provisions of Order 37 of the Civil Procedure Rules and that the remedies sought herein are also available to her under the Law of Succession Act and the Civil Procedure Act.

24. They further submitted that a claim of violation of constitutional rights can only be maintained against the 1st Respondent and not against the 2nd, 3rd and 4th Respondent and also that the Petitioner has not proved a violation of any of the rights stated in her Petition as none have been violated and the complaints therein are not of the nature that demand constitutional sanctions, and equally, that there is a provision for their niece, Sylvia, who has in any event not come to Court alleging that she is dissatisfied with the provision made for her.

25. While placing reliance on Tom Kusienya and 11 Others v Kenya Railways Corporation and 2 Others [2013] eKLR, they also submitted that the Petitioner’s claim is not about violation of human rights but a veiled attempt to pursue a claim for alleged breach of trust or a beneficial interest under the Law of Succession outside the statutorily prescribed time limits and as such, the Petition must fail.

26. While urging the Court to dismiss the Petition with costs to them, they further relied on the decision in Brampton Investment Limited v Attorney General and 2 Others, Petition No. 228 of 2011 for the proposition that the issue of costs ought to be approached on the basis of substance rather than form and a Respondent ought not to be disadvantaged by costs merely because the Petitioner chose not to commence proceedings in a different form.

27. For the foregoing reasons, they urged the Court to dismiss the instant Petition.

Determination

28. Based on the Party’s respective pleadings as reproduced above, the key issue for determination is whether there has been any infringement of the Petitioner’s constitutional rights as alleged.

29. It will be however noted that at the core of the Petitioner’s case is the question of distribution of the Estate of Kagori Ndung’u and in that regard, her main grievance is that her right to own property as guaranteed under Article 40 of the Constitution has been infringed as certain properties she alleges were held in trust for her by the 2nd and 3rd Respondents have not been transferred to her.

30. In that context, it is uncontested that the deceased aforesaid died leaving behind a Will and the subject matter of this dispute was also the subject of the proceedings in Succession Cause No. 204 of 1977 at Kandara District Magistrate’s Court wherein, on 26th October, 1977, a Certificate of Grant of Confirmation was issued by the Court and the deceased’s Estate was duly distributed. It is also not in dispute that at the time of the deceased’s death, the Petitioner was an adult while the 3rd Respondent was eight years old. Was there a trust thereby created for the benefit of the Petitioner and others?

31. I note in answer thereto that the deceased’s Estate was distributed according to the Will attached to the Affidavit in support of the Petition. In the said Will, the deceased bequeathed his properties to his successors in the following terms:

At page 2:

“At home, Plot No. 128: 60 acres

Waithera i.e Peter Mburu and his brothers (Njiiri and Kariuki) get 14 acres.”

At page 5:

“Land at Kandarai Mbugiti Scheme

Loc 16/Mbugiti/41, 38. 20 acres.

The remaining portion of this same shamba to belong to

Peter Mburu and his brothers i.e Waithera’s sons.”

At page 6:

Coffee Trees

Waithera gets 2,000 trees

At page 7:

Shop Buildings at Kirwara Market

(i) Bar Building to belong to Waithera

At page 8:

Shop Buildings at Kigio Market

(iv) The small cane mill to belong to Felice Wanjiru for the purpose of assisting Waithera’s children.

(v) Main house at home to belong to Waithera (Peter Mburu and other Waithera’s children.

At page 9:

Shares at Mihando Estate:

Waithera (i.e Peter Mburu) 4 shares.

32. A plain reading of the above statements would show that the deceased intended that certain properties would vest on the persons named therein. In some instances, the deceased also explicitly stated that some of the properties were to revert to his sons, without mentioning the Petitioner, and in some instances, he bequeathed the properties to Waithera (their mother), and in some instances to Waithera’s children, including the Petitioner. No trust known to law was thereby created by the said Will.

33. Further, the Law of Succession Act was assented to on 13th November 1972 but came into operation on 1st July 1981. The deceased herein died on 25th October 1976 and his estate was distributed pursuant to the confirmation of grant order made on 26th October 1977. In that regard Section 2(2)of the said Act is relevant. It provides thus:

“(1) …

(2) The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commence or proceed so far as possible in accordance with this Act.

(3) …

(4) …”

34. Since the deceased left behind a written Will, the operative law would have been common law and after 1981, any proceedings could properly be filed under Law of Succession Act, Cap.160. No proceedings so far as I can see were instituted under any written law until the present Petition and the issue before me is simply whether the Petitioner, having chosen to invoke the Constitution, has proved that she is entitled to the Orders set out in the Petition. Has she?

35. To answer that question, one has to revert to the prayers in the Petition and address each one of them seriatim. I note that the alleged violations of the Constitution are:

(i) Right to Equality – Article 27

(ii) Right to human dignity – Article 28

(iii) Right to Property – Article 40

(iv) Entitlement to Economic and Social Rights – Article 43

(v) Constitutional Principles in Articles 1, 2, 3, 10, 19, 20 and 21.

36. The consequential orders sought should the alleged violations be found to be true are that the estate should be redistributed so that the Petitioner and her niece, Sylvia, would receive what they consider their entitlement to the estate. I should however simply remove further reference to Sylvia by stating that whatever the Petitioner’s assertion, there is nothing on record to show that Sylvia is unhappy with the 2 acres of land given to her as her benefit from the deceased’s estate through her deceased mother. I will therefore restrict myself to the issues raised by the Petitioner alone.

37. Before I do so however, I should dispose of the contention by the Respondents that the Petitioner, as an adult in 1977, should have objected to the distribution then and not now. And that the objection should in any even have been made under the Law of Succession Act and not under the Constitution.

38. To my mind, the latter contention is a non-issue because having chosen to invoke the Constitution 2010, the Petitioner then has the duty to show that she is within her rights to do so and that is a matter for this Court to interrogate on the merits. As to the timing of her complaints, there is an expectation, even in constitutional matters that a party coming to Court late in the day would explain itself. No such explanation has been preferred by the Petitioner – See Charles Gachathi Mboko v AG [2014] e KLR.

39. That fact notwithstanding and guided by Article 159of theConstitution on the need to do substantive justice, I will interrogate the merits of the Petitioner’s case as placed before me the obvious delay in bringing forth her Petition notwithstanding. I should also add that the applicability of the 2010 Constitution has not been contested.

Right to Equality and to Non-Discrimination

40. In the context of the present Petition, this issue is not complicated. I say so because the Petitioner has asked the question whether in matters of land and property in land, women have an equal right of inheritance as women.

41. That issue is settled both in the Constitution and case law as Article 27(4)and(5)as read withArticle 60 (i)(f)of theConstitution provides thus;

Article 27(4)and(5)

(1) …

(2) …

(3) ….

(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in

Article 60(1)(f)

(1) Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable, and in Principles of land Policy accordance with the following principles—

(a) …

(b) …

(c) …

(d) …

(e) …

(g) elimination of gender discrimination in law, customs and practices related to land and property in land; and

(g) …

42. It follows from the above therefore that women are lawfully entitled to inherit property, including land from their parents and/or spouses.

Right to Property

43. Article 40of theConstitution provides as follows:

(1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property––

(a) of any description; and

(b) in any part of Kenya.

(2) Parliament shall not enact a law that permits the State or any person—

(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or

(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).

(2) The State shall not deprive a person of property of anydescription, or of any interest in, or right over, property of any description, unless the deprivation—

(a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or

(b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that—

(i) requires prompt payment in full, of justcompensation to the person; and

(ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.

(3) Provision may be made for compensation to be paid tooccupants in good faith of land acquired under clause (3) who may not hold title to the land.

(4) The State shall support, promote and protect theintellectual property rights of the people of Kenya.

(5) The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.

44. The property in issue here is the estate of the Petitioner’s deceased father and it is her case that she was entitled to part of it but the Respondents have argued that since she has received 3 acres of land out of the estate she cannot now claim that she has been disinherited.

45. On my part, I have already stated that discrimination on the basis of gender is outlawed in our realm and the consequential right to property out of a deceased’s estate is thereby assured including for married daughters of a deceased person. The Petitioner falls in that category of persons but that is the easier part of her case.

46. I say so because prior to the enactment of the Law of Succession Act, the operative law was common law as well as the customs and practises of the people of Kenya in this case the Agikuyu. But a Will prevails over both and so it is to the Will that one must look to see the Petitioner’s entitlement, if any. And that is where the difficulties for the Petitioner start.

47. In a Constitutional Petition such as the one before me, it would be expected that a party alleging a violation of a specific right would show the illegality committed by the other side hence the alleged violation. In that regard, it is uncontested that in 1977, the grant that was confirmed by the Kandara District Magistrate’s Court is what was used as the basis to distribute the estate of the Petitioner’s father.

48. It is also agreed that the Petitioner was 22 years at the time while the 3rd Respondent, who was allegedly a trustee for the part of the estate due to the House of Waithera, the Petitioner’s mother, was 8 years old. Without even going further than that, where is the evidence that a trust was ever created (specifically in the confirmed grant) in favour of an 8 year old and his two elder brothers where the beneficiaries would include his 22 year old sister? Had any evidence to show that such a trust had been created, I would then have expressed the absurdity of that situation but there being no such evidence, I will not belabour the point any further.

49. Turning back to the confirmed grant leading to the distribution of the deceased’s estate, I know no law that grants this Court the jurisdiction to declare that such a distribution is in violation of Article 40 of the Constitution when I do not have any evidence that the subordinate Court in 1977 misapplied any existing law at the time.

50. Even if I am wrong, the Petitioner has not denied that she is enjoying 3 acres of land out of her father’s estate and she has also failed to show that she is entitled to any other property outside the confirmed grant including the bar building at Kirwara market and shop at Kagio market.

51. In the event, I see no violation of Article 40of theConstitution and such a claim must fail.

Right to Human Dignity

52. The right to human dignity has been defined to be, together with the right to life, the essence and basis of all other rights. Article 28 of the Constitutionthus provides as follows:

Every person has inherent dignity and the right to have that dignity respected and protected.

53. In the context of the present Petition, how this right was violated is unclear to me. In the event, and since no evidence of breach of the above right has been placed before me, the Petitioner’s claim must fail.

Economic and social Rights

54. The above rights are generally called third generation rights and are provided for under Article 43of theConstitution as follows;

(1) Every person has the right—

(a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;

(b) to accessible and adequate housing, and to reasonable standards of sanitation;

(c) to be free from hunger, and to have adequate food of acceptable quality;

(d) to clean and safe water in adequate quantities;

(e) to social security; and

(2) …

(3) The State shall provide appropriate social security to persons who are unable to support themselves and their dependants.

55. How the above rights apply to the Petitioner’s case, I know not. How the Respondents violated such rights that are ordinarily obligations of the State, I also do not know. I do not know because no evidence nor submissions were made on the point. The claim must consequently fail.

Conclusion

56. I have addressed all the constitutional questions arising and it is obvious that save for the uncontested claim on gender equality, the Petition as framed is misguided. If any advise is needed however, the Law of Succession Act and a return to the grant confirmed by the Magistrate’s Court at Kandara in 1977 may well be the only recourse to the Petitioner’s complaints subject to their specific merits which in the present Petition, within the Constitution 2010 only, I have found wanting.

57. Turning back to the Prayers in the Petition, the Petitioner, at prayer (a) thereof, has sought inter alia various declarations including that, the denial of her entitlements to the share of the deceased’s property is a breach of Articles 1, 2, 3, 10, 19, 20, 21, and 60 of the Constitution. In that regard, Article 1 provides for sovereignty of the people, Article 2 deals with the sovereignty of the Constitution, Article 3 is on the defence of the Constitution, and Article 10 deals with national values and principles of governance. Other than merely stating the said provisions, the Petitioner has not pleaded with precision in regard to the manner in which they have been contravened and as such, the Court cannot reach a conclusion as to any violation thereof.

58. Additionally, Article 19 is on the tenets of rights and fundamental freedoms while Article 20 is on the application of the Bill of Rights. The Petitioner has not demonstrated how the said provisions have been or can even be contravened as per her case. Finally, Article 60 of the Constitution provides for the principles of land policy and the Petitioner has also not demonstrated how the provision has been violated and as such, I am unable to find any violation in that regard and the order sought cannot issue.

59. As regards Prayers (c) and (d) the same merely seek a restatement of the law on equality I have made reference to Article 27of theConstitution on non-discrimination and it is not enough to merely quote the law where I have found no violation thereof.

60. Similarly, there being no evidence of violation of Articles 27, 28, 40and43of theConstitution, prayer (d) in its entirety cannot stand.

61. I have declined the invitation to enter into the realm of the Law of Succession, purportedly via a Constitutional Petition which in essence seeks to overturn a duly confirmed grant and re-destribute the estate of the late Kagori Ndung’u and so prayer (e) of the Petition must fail. Prayer (f) which is in general terms similarly fails.

62. As for costs, I note that the Petitioners and Respondents are siblings and according to the Respondents, they continuously meet to review family matters including the issue of inheritance of their father’s estate. To tax the Petitioner with costs would in the circumstances be unfair so let each party bear their own costs.

Disposition

63. Since I see no merit in the Petition dated 30th May 2013, the same is dismissed. Let each party bear its own costs.

64. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 6TH DAY OF DECEMBER, 2016

ISAAC LENAOLA

JUDGE

DELIVERED AND SIGNED AT NAIROBI THIS 7TH DAY OF DECEMBER, 2016

EDWARD MURIITHI

JUDGE