[2017] KEHC 1636 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 554 OF 2007

IN THE MATTER OF THE ESTATE OF THELATEWILLIAM MUTIE NGILAI (DECEASED)

KENYA AFRICAN NATIONAL TRADERS & FARMERS UNION....APPLICANT

VERSUS

CHRISTINE MWIKALI MUTIE..............................................1st RESPONDENT

HARRISON MUEMA MUTIE..............................................2ND RESPONDENT

FRANCIS NGIGE WAWERU.............................................3RD RESPONDENT

RULING

The Application

The Applicant herein is Kenya African National Traders & Farmers Union, and the 1st and 2nd Respondents are administrators of the Estate of William Mutie Ngilai ( hereinafter referred to as “the Deceased”), while the 3rd Respondent is a purchaser of a property registered in the Deceased’s name. The Applicant filed a Summons for Revocation of Grant dated 9th November 2015 seeking for the following substantive orders:

a. THAT this court do issue a temporary injunction restraining the Administrators herein, their servants or agents or anyone claiming title through them from interfering further, transferring, further charging trespassing on the suit land ,or in any way carrying out further subdivision or constructing roads on the suit land pending the hearing and determination of this suit.

b. THATthe rectified grant issued by this Court on 5th December, 2014 be revoked and /or annulled.

c. THAT upon granting prayers herein this Court be pleased to revoke and /or cancel the title issued in the name of Francis Ngige Waweru on 18th June, 2015.

d.THAT this Court be pleased to issue any other order that it may deem necessary.

The grounds for the application are that the Administrators have committed fraud; have acted in breach of their duties as trustee; are evicting the bona fide owners and demolishing their developments on the suit land; and are constructing roads on the suit land

The application is supported by an affidavit sworn on 9th November 2015 by Peter Mugeka Maina ,the Secretary General of Kenya National Traders and Farmers Union (hereinafter “KANTAFU”) who stated that the Applicant purchased all the parcel of land described as Plot No.497 measuring 40 Acres from one Musembi Mani ( now deceased), who had been allotted the said parcel of land by Lukenya Ranching and Farming Co-operative Society. He annexed a copy of the sale agreement.Further, that the said Musembi Mani had bought the said land from Mutie Ngilai (now Deceased) , and he also attached copies of a letters from Mutie Ngilai and Musembi Mani requesting Lukenya Ranching and Farming Co-operative Limited to transfer their plots to the Applicant.

The deponent stated that the Applicant took possession of the said land and proceeded to subdivide the plot among its members and issued them with share certificates . Further, that the said members proceeded to take possession and develop their respective subplots. The copies of the share certificates and of photographs of the developments on the said plot were attached.

After making numerous visits to the offices of Lukenya Ranching and Farming Co-operative to follow up on the issuing of the title of the plot of land, the Applicant decided to carry out a search of the plot of land which revealed that the piece of land Plot No.497 was registered under William Mutie Ngilai and the said plot had acquired a new number Mavoko Town Block 3/1956. The Applicant then filed a suit in HCCC No.306 of 2012- Kenya African National Traders & Farmers Union vs Martha Wanza Musembi & 3others seeking recovery of the land .The deponent attached copies of the pleadings in the said case.

It was averred that in the course of hearing the said suit the Applicant discovered that William Mutie had passed on in September 1994, and that his widow Christina Mwikali Mutie and his son Harison Muema Mutie had been appointed administrators of his estate. That the grant of letters of administration to the two administrators was subsequently confirmed and distribution carried by the court in March 2009, and that at the time Mavoko Town/Block 3/1956 was not listed as part of the property of the deceased estate.

However, that the said land was transmitted to Christine Mwikali Mutie and Harrison Muema Mutie as administrators of the Estate of William Mutie Ngilai on 13th January 2015 after they applied for rectification of the grant to include Mavoko Town/Block 3/1956, and the Interested Party attached copies of application for rectification and the certificate of rectification. Further, that in September 2015 the deponent received information that Christine Mwikali and Harrison Muema had issued a notice of eviction to the Applicant’s members residing on the said land, a copy of which was annexed, , and upon conducting a search it was discovered that the said land had been sold by the Administrators to one Francis Ngige Waweru who in turn had charged it to M/s African Banking Corporation Limited for the sum of Kshs 32,000,000/= on 27th August ,2015

According to the Applicant, the said transaction was fraudulent since the Administrators were well aware that it had been sold the land .

The Administrators filed a replying affidavit on 21st December, 2015 dated 15th December, 2015 wherein they deponed that they were the legally appointed administrators of the estate of the Deceased and confirmed on 31/3/2009. Further, that the Certificate of Confirmation of Letters of Administration was amended on 5th December 2014 to include Land Reference Number Mavoko/ Block 3/1956 which had been erroneously omitted in the original Certificate.

The Administrators stated that the present application was frivolous, vexatious and an abuse of court, because the Deceased did not sell the subject land to the Applicant, and that the said transaction was not sanctioned by the Land Control Board as required under the Land Control Act, Cap 302 of the Laws of Kenya

Further, that the Applicant cannot seek an injunction in a succession cause and is not a beneficiary of the estate of the deceased to seek revocation. Lastly, that the suit land had already been sold to one Francis Ngige Waweru (hereinafter referred to as “the Purchaser”), and the Applicant’s grievances can only be ventilated in a Civil Court.

The said Purchaser, Francis Ngige Waweru filed a replying affidavit sworn on 26th January, 2016. He deponed that he was the duly registered owner of the parcel of land known as MAVOKO TOWN BLOCK 3/1956. Further, that on or about 17/7/2014 the Administrators of the said parcel of land expressed interest to sell it to him, and told him that the land had been inadvertently omitted in the grant, but from a search it was shown that the land belonged to their late father. He annexed a copy of the search which showed that the parcel of land was registered in the name of William Mutie Ngilai on 23rd January 2006, and that the Title Deed was issued to him on 13th February, 2006.

The said Purchaser further averred that he visited the parcel of land together with the administrators, and he found fifteen (15) people on the land who the administrators said had been misled by some brokers, but were willing to pay the purchase price to the administrators and get title deeds in their names, failure to which they would be evicted. An agreement for sale dated 17th July 2014 was then entered between the Purchaser and Administrators, which he annexed, whereupon the administrators obtained registration of transfer and the Title Deed was issued to the Purchaser on 19th June ,2015. The Purchaser attached a certified copy of the extract of the property section to the land register for Mavoko Town Block 3 /1956 to show the said registration and issue of title deed.

The Purchaser stated that he followed all the relevant steps in effecting transfer and annexed copies of the following documents in support of the statement: the application for consent, and a consent letter from the Land Control Board at Athi River; a valuation requisition for stamp duty; the stamp duty declaration assessment and pay-in slip; and the deposited cheques payment for the Stamp Duty;

According to the Purchaser, upon registration of the transfer of the land he obtained consent to subdivide the parcel of the land from the Land Control Board, and proceeded to sub-divide the entire parcel of the land and was in the process of being issued with new title deeds. He annexed a copy of the application for the consent, the consent letter, as well as of the subdivision.

The Purchaser contended that he did not have any knowledge of the Applicant’s existence at the time of the sale of the subject land, and therefore he was a bona fide purchaser for value without notice and legal owner of the piece of land, and whatever claims the Applicant has against the Administrators does not affect his title. Further, that in any event when the Applicant realised that the title was registered in the name of William Mutie Ngilai on 13th February, 2006, it should have registered a caution on the Title.

The Evidence

This Court on 4th February 2017 directed that the Applicant’s summons would proceed to hearing by way of viva voce evidence. During the hearing the Applicant called two (2) witnesses. Mr. Ibrahim Wanene Kaingati who was the then Treasurer of KANTAFU testified to the fact indeed the said parcel of land was sold to the KANTAFU by Mr Musembi Mani (since deceased) who had bought it from Mr William Mutie (the Deceased), and that before then the land was previously known as plot No. 497 and was held and allotted to Lukenya Farmers.

He referred to annextures to the Applicant’s supporting affidavit and in particular the sale agreement signed by the directors of the KANTAFU before transfer was effected and the letters of transfer .Mr Ibrahim went on to say that upon conducting a search they discovered that the land was registered under Francis Waweru. Further, that the discovery was shocking because earlier on they had filed a suit HCCC 306 of 2012, and a consent was given therein to the effect that the Administrators accepted the fact that the subject land belonged to the Applicant. In addition, that the said consent and pleadings were served upon the administrators and the consent was signed by the administrator’s advocates.

He further testified that during the application for confirmation of grant by the administrators the subject land was not included, and the administrators latter applied for rectification of the grant to include the said land. Mr Ibrahim indicated that they had paid Lukenya Ranching for the transfer of the land as evidenced by receipts annexed to the Applicant’s supporting affidavit, and proceeded to allocate land to some of its members who had been on the land since then as shown in annexed photographs to the Applicant’s supporting affidavit. Further he indicated that according to their search the land had been charged to African Banking Corporation by one Francis Ngige Waweru.

Upon cross examination by Mr Thuo, the learned counsel for the Administrators, Mr. Ibrahim indicated that at the time of the buying of the property, he was not working with KANTAFU but he learnt everything through the records kept in the offices. He further indicated that they had not obtained title and the land was not demarcated. Further, he indicated that they discovered later in 2006 that the title was given to the Deceased in 2006 much later after his death in 1994. He indicated that they did not place a caveat on the land because the Administrators knew very well that they had bought the land since they were served the pleadings and the consent was signed by their advocate.

On further cross-examination by Mr Getange, the Advocate for Mr. Francis Ngige, Mr. Ibrahim indicated that the said Purchaser was well aware of the court case No HCCC 306 of 2012 because he even admits so in his witness statement. Mr Ibrahim went on to indicate that Mr Thuo for the administrators was the advocate for the Purchaser.

Mr. David Musembi was the Applicant’s second witness, and he testified that he was the son of Musembi Nani and administrator of his father’s estate. He further testified that the land now known as Mavoko Town Block 3/1956 previsously known As plot No. 497 was sold by Mutie Ngilai to his father Musembi Nani. Further, that his father later sold it to KANTAFU. He also indicated that the family gave consent in HCCC 306 of 2012 that the subject property belonged to KANTAFU . On cross examination he indicated that he was not present when the land was sold to his father and did not sign any agreement of sale.

The 2nd Administrator testified for the Administrators, and reiterated the contents of their replying affidavit in his evidence and adopted his witness statement filed in Court on 24th May 2016. Upon cross examination by Mrs Wambugu, the Advocate for the Applicant, he confirmed that he is the first born son of Mutie Ngilai and that he knew of the land plot no. 497, but that they did not include it in the summons for confirmation of grant because at the time it did not have a title deed.

He denied that the administrators were served with the pleadings in HCCC 306 of 2012. He also confirmed that the signature in the letter of transfer of Plot 497 to Musembi Mani annexed to the Applicant’s supporting affidavit resembled that of his father, but that he did not know the rest of the persons who had signed the transfer, and the Administrators did not sign the said transfer. He confirmed that the Administrators sold the land known as Mavoko Town Block 3/1956 to Francis Ngige Waweru.

Francis Ngige Waweru (the Purchaser) also testified in Court and reiterated the contents of his replying affidavit. On cross examination by Mrs Wambugu , the Purchaser confirmed that when he went to the parcel of land known as Mavoko Town Block 3/1956 he saw some structures thereon and talked to about 3 people staying on the land. Further, that he established that the sellers were administrators of the deceased and did a search before entering into the sale agreement. He also stated that by the time he was given the title deed for the land he had made all the purchase price payments by cash. Lastly, that he was aware of HCCC 306 of 2012 as he was enjoined in the case by the Applicant, and served with the pleadings therein.

The Issues and Determination

The parties were directed to file and serve written submissions after the hearing. D.K Thuo & Company Advocates for the Administrators filed submissions dated 4th September 2017, while Bw’Oigara & Getange & Company Advocates for the Purchaser filed submissions dated 7th September 2017. The Advocates for the Applicant, W.G. Wambugu & Co Advocates, filed submissions dated 25th April 2017.

The Administrators during the hearing and in their submissions raised a preliminary objection on the jurisdiction of this Court, and the Court directed that the same be heard and determined together with the Applicant’s summons.

The Administrators in their submissions invoked Article 162(2) and (3) of the Constitution that provides that land matters should be dealt with by the Environment and Land Court. They also submitted that the Applicant does not qualify to be an interested party who can seek revocation of the grant, because he is not a heir or creditor of the estate of the deceased. That his only action available to it is to seek redress in the Environment and Land Court as against the administrators of the deceased’s estate.

The administrators further submitted that the suit no HCCC 306 of 2012 was filed long after the deceased had passed on, and that this therefore nullified the consent entered therein. Several judicial authorities were cited for this position. In conclusion the Administrators contended that there was no proof that the administrators knew that the land had been sold to the Applicant, and in the same spirit there is no proof that the Applicant after buying the land had secured or transferred its interest.

The Purchaser urged in his submissions that the instant court lacked jurisdiction to cancel the title issued to Mr Francis Ngige Waweru on 18th June,2015. On this point they relied on Articles 162 (2)(b) and 3 of the Constitution that establish and provides for the jurisdiction of the Environment and Land Court ,and Section 13(1) and (2 )of the Environmental and Land Court Act (No. 19 of 2011) that establish the functions of the Environmental and Land Court .

Further, that no evidence had been adduced that the Purchaser had knowledge of the fact that the land had been sold to the Applicant, and neither was there a caution registered on the land. Therefore that the Purchaser was a bona fide purchaser and having obtained the title which confers ownership and was superior to the allotment letters produced by the Applicants.

Reliance was in this regard placed on section 26(1) of the Land Registration Act 2012 that the title was prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, and such title can only be challenged on the ground of fraud ,misrepresentation or if proved that the title had been acquired illegally, unprocedurally or through corrupt scheme. Hence, that a letter of allotment does not accord proprietary interest. Various judicial decisions were cited in this respect.

The Applicant on its part submitted that it had proved their case to warrant the granting of the orders sought, and invoked the provisions of section 76(b) and (c) of the Law of Succession Act, which states a grant obtained fraudulently by the making of a false statement or by concealment from the court of something material to the case, or obtained by means of untrue allegation of a fact is a ground for revocation of the grant.

Reliance was placed on the decisions in Sabina Nduku Sammy & Another vs Mary Sammy Musila & Another ,(2016) e KLR and in Re Estate of Kanchoi Kimiti (Deceased),(2017) EKLR where the court revoked a certificate of confirmation of grant that had been obtained through concealment of the fact that the suit land had already been disposed of by the deceased to the Applicant, and the Court also ordered the cancellation of a Certificate of Lease that had subsequently been used.

I have read and carefully considered the pleadings and submissions made by the Petitioner and Objector. The issues to be decided are firstly, whether this Court has jurisdiction to hear the Applicant’s summons, and if so, secondly, whether the Applicant is entitled to Land Reference Number Mavoko/ Block 3/1956, and lastly, whether the confirmed grant issued to the Administrators should be revoked.

On the first issue as to whether this Court, sitting as a succession Court, is the correct forum to adjudicate the Applicant’s claim, 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.

27. 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. However, claims by and against third parties, meaning persons who a neither survivors of the deceased nor 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.

28. The Probate and Administration Rules recognize that, and that should explain the provision in Rule 41(3), which provides as follows –

‘Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or property comprising it to abide the determination of the question in proceedings under … the Civil Procedure Rules …’

29. 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.

The issue as to this Court’s jurisdiction can therefore only be determined by first answering the question of the nature of the Applicant’s claim over the disputed property vis-à-vis the Deceased. This Court in this respect notes that the Applicant essentially alleges that the land known as Mavoko Town Block 3/1956 was sold by the Deceased during his lifetime to one Musembi Mani and did not belong to the Deceased. In effect that the said land was therefore not available for distribution.

Evidence brought however shows that a title to the said land was issue to the Deceased, and later transferred to the Purchaser upon confirmation of grant. Therefore the question that will need to be decided first in this dispute is who as between the Deceased and Musembi Mani is entitled to Mavoko Town Block 3/1956, which is purely a dispute as regards ownership of land and not one of succession to the Deceased property, and therefore outside the jurisdiction of this Court. It is also a dispute that arose during the Deceased’s lifetime and before the succession proceedings herein.

Disputes primarily and solely concerning ownership and title to land fall within the jurisdiction of the Environment and Land Court as provided by Article 162 (2)(b) of the Constitution and section 13(1) and (2 )of the Environmental and Land Court Act. Likewise, the question as to whether the letter from Mutie Ngilai and Musembi Mani requesting Lukenya Ranching and Farming Co-operative Limited to transfer their plots to the Applicant conferred to it an interest in Mavoko Town Block 3/1956 is one that will have to be determined by the said Court . Lastly, to answer these questions, including the claims of fraudulent registration of title in the Deceased name, this Court will need to operate outside the framework of the Law of Succession Act, which makes the Applicant’s application not appropriate for determination by this Court sitting as a succession Court.

In addition, as regards the capacity and status of the Applicant to bring an application for revocation for grant, this Court is alive to the ranking of beneficiaries of an intestate as provided under Part V of the Law of Succession Act, and section 36 of this part specifically provides that where an intestate has left a surviving child or children but no spouse, the net intestate estate shall be equally divided among the surviving children. It is only where an intestate has left no surviving spouse or children, that the net intestate estate shall devolve upon the kindred of the intestate in the order of priority under section 39 of the Act.

Section 66 of the Law of Succession Act however also recognises adverse interests to the estate of a deceased including those of creditors at section 66 as follows-

“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference-

(a) surviving spouse or spouses, with or without association of other beneficiaries;

(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;

(c) the Public Trustee; and

(d)creditors:

Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will. “

The Applicant did not in this respect bring any evidence that it entered into a sale agreement with the Deceased for the purchase of Mavoko/ Block 3/1956, and therefore cannot be considered a creditor for purposes of bringing an action against the Deceased’s estate.

This Court cannot in the circumstances entertain the Applicant’s application nor grant the orders sought therein. I accordingly strike out the Applicant’s Summons for Revocation of Grant dated 9th November 2015 with costs to the Respondents.

Orders accordingly.

Dated, signed and delivered in open court at Machakos this 2nd day of November 2017.

P. NYAMWEYA

JUDGE