[2022] KEHC 14196 (KLR)

Katuta v Kiilu (Civil Appeal E37 of 2020) [2022] KEHC 14196 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14196 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E37 of 2020

MW Muigai, J

October 13, 2022

Between

Jonathan Nyumu Katuta

Appellant

and

Miriam Wayua Kiilu

Respondent

(Being an Appeal from the ruling in Machakos Chief Magistrate’s Succession Cause No.141 of 2017 by Hon. C.A Ocharo made on 30. 1.2019)

Judgment

Petition 1. The deceased Charles Kiilu Katutaalias Kiilu Kavita died intestate on the October 16, 1995.

2. The deceased left behind the following beneficiaries:-(a)Miriam Wayua Kiilu – widow(b)Martin Mutile Kiilu – son(c)Joseph Mwongela Kiilu – son(d)Dorothy Nthambi kiilu – daughter(e)David Itumo Kiilu – son(f)Rachael Wavinya Kiilu – daughter(g)Shadrack Mutuku Kiilu – son(h)Jacqueline Kavoo Kiilu – daughter(i)Edith mutile Kiilu – daughter(j)Charity Mumo Kiilu – daughter

3. The deceased left parcel Nos Muputi/Kiima Kimwe/941 and Muputi/Kiima Kimwe/1724.

4. The grant of letters of administration was/were issued to Miriam Wayua Kiilu on March 8, 2018.

5. The certificate of confirmation was issued to Miriam Wayua Kiilu on September 13, 2018.

6. Summons for revocation of grant dated October 4, 2018 was filed by the objector Jonathan Nyumu Katuta.

7. The trial court delivered ruling on January 30, 2019 for the said application whereby the summons for revocation of grant was dismissed with costs to the petitioner.

8. On June 18, 2019 the objector Jonathan Nyumu Katuta filed an application seeking that the court orders granted on January 30, 2019 be reviewed or set aside.

9. The trial court delivered ruling on the said application on September 30, 2019 and dismissed the application with costs to the respondent.

Memorandum Of Appeal 10. The appellant herein being aggrieved by the ruling of Hon C. A Ocharo, SPM in Machakos Chief Magistrate’s Succ Cause No 141 of 2017 between Mary Wayua Kiilu (petitioner/respondent) & Jonathan Nyumu Katuta (objector/applicant) dated and filed on January 30, 2019 appeals there from to this court on law and facts and sets out the following principle grounds to be argued hereof.(1)The trial magistrate erred in law and facts when she dismissed the appellant’s summons for revocation of grant dated October 4, 2018 against the weight of evidence presented by the appellant.(2)The trial magistrate erred in law and facts when she dismissed the appellant’s application when after noting that there was a dispute of ownership on land parcel No Muputi/Kiima Kimwe/941 whose remedy was in another forum.(3)That the trial magistrate erred in law and facts when she held that as succession court she could not entertain a claim of ownership.(4)The trial magistrate erred in law and facts when against the weight of evidence placed before her held that the grant had been issued procedurally and lawfully without non-disclosure of material facts.(5)The trial magistrate erred in law and facts when she condemned the appellant to pay the costs of the application to the petitioner.

11. The appellant prayed that the orders by the trial magistrate be set aside and/or reversed, that the grant issued to the respondent be recalled and revoked; that the court to direct that the ownership of land parcel title No Muputi/Kiima Kimwe/941 be determined before a fresh grant issues and costs of this appeal be awarded to the appellant.

12. The supplementary record of appeal dated May 16, 2022 filed by the appellant on May 16, 2022.

Appellant’s submissions dated May 24, 2022 13. They submitted on the three issues as hereunder:-

a)Whether the appellant proved any ground for revoking of the grant.The grounds for revocation of grant are set out in section 76 of the Law of Succession Act, cap 160 Law of Kenya. Among the grounds, include:i)The proceedings to obtain the grant were defective in substance;ii)The grant was obtained fraudulently by the making of a false statement or by concealment form the court something material to the case;iii)The grant was obtained by means of untrue allegations of a fact essential in point of law to justify the grant not withstanding that the allegation was made in ignorance or inadvertently.

b) Whether the Trial Magistrate was justified in dismissing the application after noting that there was dispute of ownership.The trial court ruling (pages 62 – 65 in the supplementary record of appeal) at paragraph 2 starting with line 15, she correctly captured the position of the appellant that land parcel title number Muputi/Kiima Kimwe/941 had been erroneously registered in joint names of the deceased and the objector (appellant) while it is the objector who had purchased the same. In paragraph 2 at page 65 in the supplementary record of appeal, the trial magistrate rendered herself as follows:“I gather that the objector is questioning the registration of title of land property No Muputi/Kiima Kimwe/941 which was registered 40 years ago. This court cannot entertain claims of ownership of title in a succession cause. His remedy lies elsewhere and not in these proceedings.For this reason, I find the summons for revocation of grant totally misconceived and an abuse for the court process and is hereby dismissed with costs to the Petitioner.”

14. The appellant took the view that the trial court confirmed the appellant had a claim to the estate of the deceased that could be ventilated in another forum it was not justifiable to hold the application was misconceived and an abuse of the court process.

15. Upon finding that there was a claim, the court ought to put the implementation of confirmation of grant in abeyance and granted the appellant time to pursue his claim. Therefore, the resultant order was draconian and contrary to the spirit of article 159 CoK2010.

16. The appellant relied on the following case-law to fortify his position;a)Hon LJ J.N Onyango held inRe Estate of Charo Sanga Lugukia (deceased)2022 eKLR that the implementation of the grant was to be held in abeyance until the civil suit pending was determined.b)Hon LJ F Muchemi in In Re Estate of Kinogu Mukiria (deceased) 2022 e KLR stayed succession proceedings pending the protestors case in the right court.c)Hon J GV Odunga(as he then was ) in the case of Julius Muisyo Mwania v Isaac Loki Ndunda & Anor [2019]eKLR granted 30 days stay for the widow to ventilate her interest inELC Court.d)Hon J F Gikonyo In Re Estate of Julius Ndubi Javan (deceased) [2018] granted the partial confirmation of grant to the part of the deceased’s estate that was not in dispute and the issue of ownership of the disputed land was held off to await and be determined separately in another forum.

Respondent’s written submissions dated June 26, 2022 17. Vide a memorandum of appeal dated December 15, 2020 the appellant appealed against the ruling of Hon C. A Ocharo SPM and raised the issues for appeal as have been outlined hereinabove.

18. The jurisdiction of the Environment and Land Court - court to hear and determine disputes relating to the environment, use and occupation of and title to land is provided for under article 162(2) (b) for the Constitution of Kenya, 2010.

19. Section 13 of the Environment and Land Court Act also provides that;“The court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with article 162(2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. (2)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, valuations, 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; chases in action or other instruments granting any enforceable interests in land; and (e) any other dispute relating to environment and land.’’

20. InRe Estate of Mbai Wainaina (deceased)[2015] eKLR, the applicants in the summons for revocation of a grant were claiming that the deceased held the suit land in trust for them. Musyoka J held that;“Even if there was material establishing that there was such a trust, I doubt that the resolution of this issue would be a matter of the probate court. The mandate of the probate court under the Law of Succession Act is limited. It does not extend to determining issues of ownership of property and declaration of trusts (emphasize added). It is not a matter of the probate court being incompetent to deal with such issues but rather 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 Environmental and Land Court.”

21. In Re Estate of Alice Mumbua Mutua (deceased) [2017] eKLR the court held as follows;“............disputes of course do arise in the process. The provisions of the law of succession disputes and the probate and administration rules are tailored for resolution of disputes between the personal representatives of the deceased and the survivors, beneficiaries and dependents. However, claims by and against third parties, meaning persons who are neither survivors of the deceased not beneficiaries, are for resolution outside of the framework set out in the Law of succession Act and the probate and administration rules. Such have to be resolved through the structures created by the Civil Procedure Act and Rules, which have elaborate rules on suits by and against executors and administrators.”

22. In Pricilla Ndubi and Zippora Mutiga v Gerisho Gatabu, Meru succession cause No 720 of 2013 the court held that;“The primary duty of the probate court is to distribute the estate of the deceased to the rightful beneficiaries. As of necessity, the estate must be identified. Thus where issues on ownership of the property in the estate are raised in a succession cause, they must be resolved before such property is distributed. And that is the reason why rule 41(3) of the Probate and Administration Rules was enacted so that claims which are prima facie valid should be determined before confirmation. (emphasis added).What this means is that this court does not have jurisdiction to determine issues to do with ownership of land. Disputes relating to ownership of land and matters relating to land can only be heard by the Environment and Land Court which is established as a specialized court under article 162(2) of the Constitution and the Environment and Land Court Act, No 19 of 2011. Section 13(2) of the said Act specifically gives the said court the jurisdiction to determine issues to do with environmental planning and protection, climate issues, land use planning, title tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources. Section 13(2) (e) further gives the said court jurisdiction to determine any other dispute relating to environment and land.”

23. In the case of Godana Uchu v Mushlim Ali Buda a.k.a Mushilimu Ali [2016]eKLR the court observed as follows:-“In essence there is a challenge to the ownership of the entire estate by the deceased. The applicant has the onus to prove ownership of the part of the estate he lays a claim on. The question that readily arises is whether these succession proceedings are the appropriate way to ventilate the applicant's claim”.

Determination 24. The court considered the trial court record, pleadings on appeal and submissions by parties and the issue for determination is whether the decision of the trial court videruling delivered on January 30, 2019 in CMs CT MHC succession cause 141 of 2017 & ruling of January 30, 2019 and September 10, 2019 should be upheld or appeal allowed.

25. The appellant took issue with dismissal of the application of summons for revocation of grant dated October 4, 2018 against the weight of evidence presented. The appellant stated that the grant was obtained fraudulently by concealment of material facts, in that the suit propertyLR Muputi/Kiima Kimwe/941 was erroneously registered in the joint names of the deceased Charles Kiilu Katuta and Jonathan Nyumu Katuta, the appellant and yet it is the appellant who purchased the suit property.

26. The respondent submitted that the suit property was registered as joint property of the deceased and the appellant on May 25, 1977as proprietors in common and equal shares. The appellant alleged that he purchased the entire land parcel No Muputi/Kiima Kimwe/941 but the registration was erroneously in both names.

27. The Deceased Charles Kiilu Katuta died on October 16, 1995 18 years from 1977 when the alleged erroneous registration in both names over the same property was made/done. The appellant did not raise the issue of erroneous registration with the deceased and/or even thereafter.

28. The appellant waited for 45 years since the suit property land parcel No Muputi/Kiima Kimwe/941 was erroneously registered in joint names of both the deceased and the appellant in equal shares. To date, the appellant has never filed suit to challenge ownership and/or joint registration in any court.

29. The certificate of confirmed grant of September 13, 2018 housed at Pg 42 of record of appeal confirms what was/is available for distribution as part of the deceased’s estate is 0. 45 Ha ½ of Muputi/Kiima Kimwe/941 which was/is to be registered in the name of deceased’s widow Miriam Wayua Kiilu.

30. The law of revocation of grant under section 76 of Law of Succession Act is settled as follows;

31. In the case ofAlbert Imbuga Kisigwa v Recho Kavai Kisigwa, succession causeNo 158 of 2000, Hon Mwita J November 15, 2016, noted:(13)Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not a discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.

32. Hon Gikonyo J in the case of Alex Mwenda Mwirigi v Rodah Karimi Jadiel, succession cause No 337 of 2011, in a decision rendered on November 2, 2016 held that:(5)I will not re-invent the wheel. This is an application for revocation of under section 76 of the Law of Succession Act cap 160 of the laws of Kenya and I only need to ask whether it satisfies the threshold provided in law? given the arguments being presented, the most apt grounds to be met are, whether:a)The proceedings to obtain the grant were defective in substance;b)The grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case; andc)The grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently.

33. In his decision rendered on February 11, 2016, Hon Mativo J (as he then was) in the case of Martin Maina Ndegwa v Charles Thiongo Kanyoro & 3 others, succession cause No HC 121 of 2010, pointed out thus;I have also looked at the summons for revocation of grant and I am persuaded that it raises serious issues which need to be resolved by the court and in the event of the orders in question being enforced; the said application may be rendered nugatory. The applicant in the said application has alleged fraud and concealment of material facts. These are issues which need to be resolved at the hearing of the said application.E. A Francis in his book discussing fraud observes inter-alia as follows:-i.No definition is given, either by statute or judicial decision of what constitutes fraud, nor, it seems, is any such decision possible.

ii.Fraud, for the purposes of these provisions, must be actual and not constructive or equitable fraud.iii.Fraud must involve an element of dishonesty or moral Turpitude.In the case of Assets Co Ltd v Mere Roihi, Lord Lindley stated as follows: "......that by fraud in these Acts is meant actual fraud, i.e., dishonesty of some sort, not what is called constructive or equitable fraud-an unfortunate expression and one very apt misled, but often used, for want of a better term, to denote transactions having consequences in equity similar to those which flow from fraud." 34. In Stephen Mutua Kasembi v Samuel Makau Kasembi & another, Misc succession application No 407 of 2015,Hon LJ Nyamweya (as she then was) in her decision of July 27, 2016 stated that:As regards the ground that the applicant’s signature is a forgery, this is an allegation that must be strictly proved by forensic evidence from a document examiner, particularly since the allegation borders on an accusation of commission of a criminal offence, as was held in Re Michael Mwangi Githinji (Deceased), [2009] e KLR and In Re the Estate of P.W.M (Deceased), [2013] eKLR. No such forensic evidence was tendered by the applicant. (emphasis added)

35. The threshold of proof of any of the grounds under section 76 LSA for revocation of grant is on a balance of probability but where fraud and/or forgery is alleged the burden of proof is higher. The trial court observed in the impugned ruling in part;section 76 LSA is very clear as to the grounds upon which a grant of representation maybe revoked or annulled. I find the grant of representation herein was issued procedurally and lawfully without non- disclosure of facts.

36. The grant and confirmed grant to /of the deceased’s estate was/were obtained according to the provisions ofLSAto and for beneficiaries of the deceased’s estate. The objector/appellant’s interest in one of the assets that comprised of the deceased’s estate is alleged to be a proprietary interest. The appellant claims that he is the sole purchaser of Muputi/Kiima Kimwe/941 which was erroneously registered jointly with the deceased.

37. Surely, in all fairness, these facts if true were and cannot be within the knowledge of the beneficiaries of the deceased and the objector dealt with the deceased and one cannot be legally required to disclose what is not within one’s knowledge. It is unreasonable in the circumstances to allude to this omission as non- disclosure and concealment of material facts and therefore claim the grant was obtained fraudulently. I shall say no more on the point.

38. The 2nd limb of the appeal is that the trial magistrate erred that when she dismissed the appellant’s application when after noting that there was a dispute of ownership on whose remedy was in another forum.

39. The appellant contested the legal position taken by the trial court that as succession Court the court could not entertain a claim of ownership.Nyarangi JA’s in the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR (Nyarangi, Masime & Kwach JJ A) stated:“….Jurisdiction is everything. Without it, a court has no power to make one more step..”The Environment and Land Court is established under article 162(2) of the Constitution, 2010. The jurisdiction of the Environment and Land Court is provided for under section 13 of the Environment and Land Court Act

40. Inre Estate of Alice Mumbua Mutua (deceased) succession cause No 3142 of 2003 [2017] eKLR where Hon W Musyoka J held;“Clearly, disputes as between the estate and third parties need not be determined within the succession cause. The legal infrastructure in place provides for resolution elsewhere, and upon a determination being made by the civil court, the decree or order is then made available to the probate court for implementation. In the meantime the property in question is removed from the distribution table. The presumption is that such disputes arise before the distribution of the estate, or the confirmation of the grant. Where they arise after confirmation, then they ought strictly to be determined outside of the probate suit, for the probate court would in most cases be functus officio so far as the property in question is concerned. The primary mandate of the probate court is distribution of the estate and once an order is made distributing the estate, the court’s work would be complete. The proposition therefore is that not every dispute over property of a dead person ought to be pushed to the probate court. The interventions by that court are limited to what I have stated above.” [emphasis added]

41. Hon Joel Ngugi J (as he then was ) inJoseph Koori Ngugi & another v Stephen Ndichu J Mukima[2017] eKLR stated:“24. I am persuaded that this is the correct appreciation of the law and circumstances of this situation. I say so both for doctrinal and prudential reasons. Doctrinally, as alluded to above, a claim for an equitable interest in land is a claim against the legal owner of land and hence a dispute over ownership of the land. I am persuaded that the drafters of the Kenyan Constitution intended such questions to be determined in the ELC. The text of the Constitution and section 13 of the ELC Act seems perfectly clear to me on that question.

25. In addition, in my view, prudential reasons militate in favour of these kinds of disputes being heard at the ELC or at least in a separate suit. While I agree that the Law of Succession Act envisages a class of people beyond “traditional” beneficiaries to bring proceedings for revocation or annulment of a grant of representation in a probate cause, cases which present a straightforward challenge to the ownership of property by the deceased present a separate question and not a probate matter. To attempt to resolve such issues of contested ownership in the context of a probate case could obfuscate the real issues and lead a court to reach wrong or compromised conclusions. This is in part because probate proceedings are not designed for parties to be able to effectively litigate complex issues of ownership. In a separate suit, parties are better able to plead their case, go through discovery process and a fully-fledged hearing where evidence can be properly presented, contested, examined and veracity tested…” See Re estate of P N N (Deceased) [2017] eKLR.”

42. The objector/appellant’s claim to Muputi/Kiima Kimwe/941is a purchaser of the property which is jointly registered in his name and the deceased’s name. When the trial court heard and determined succession cause 141 of 2017, it was to transmit the deceased’s estate as beneficial interests to the beneficiaries of the estate. The trial court completed the process as provided by sections 51, 67, 70 & 71 of Law of Succession Act.

43. The objector/appellant is a 3rd party to the succession cause proceedings and claims a proprietary interest over one of the assets that comprise of the deceased’s estate; ½ of Muputi/Kiima Kimwe/941 that was distributed to the beneficiaries of the deceased’s estate as he alleged he bought all of the said property.

44. The jurisdiction of the trial court applying provisions of Law of Succession Act lacked the requisite jurisdiction to adjudicate proprietary interest in the said property and rightly so referred the dispute to the appropriate forum.

45. The appellant cited case-law from various High Courts dealing with contested properties during succession proceedings and urged this court to stay the implementation of the confirmed grant until his interest was heard and determined.

46. The appellant filed summons for revocation of grant after the distribution of the estate took effect. Whereas section 76 LSA provides for revocation of grant at any time if the court so decides, the appellant as objector was/had to prove any of the grounds of revocation outlined by section 76 LSA which from the pleadings submissions and rulings succession cause 141 of 2017 did not disclose or prove.

47. The circumstances of the matter or case before the trial court did not warrant staying implementation of the certificate of confirmation because, the appellant did not explain why the issue of erroneous joint registration of Muputi/Kiima Kimwe/941 with the deceased was not raised during his lifetime from1977 when 1st registration was done upto 1995 when the deceased passed on. Secondly, the appellant has not explained why he has not lodged his claim in ELC Court since 2019 after the trial court ruling to date.

48. Finally, is it fair and just to deprive the beneficiaries of the deceased’s estate distribution of ½ of Muputi/Kiima Kimwe/941 registered in the deceased’s name as joint owner with the appellant of the said suit property who has ½ of the property on the basis of purchase of the property, a claim that has not been proved in any court 45 years on? I think not.

Disposition 49. For these reasons, this court finds the trial court’s rulings of January 30, 2019 & September 10, 2019 in CMs CT MHC succession cause 141 of 2017 were/are on based on the law applied to the facts pleaded in pleadings filed and hence upheld.

50. The appeal is dismissed.

51. This matter being a family matter each party to bear own costs.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOSON 13THOCTOBER 2022 (VIRTUAL/PHYSICAL CONFERENCE)M.W. MUIGAIJUDGE