[2022] KEHC 12778 (KLR)

Mbaluto v Kasalu (Succession Cause 744 of 2015) [2022] KEHC 12778 (KLR) (1 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12778 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 744 of 2015

GV Odunga, J

September 1, 2022

IN THE MATTER OF THE ESTATE OF BENEDICT KISALU KANYI (DECEASED)

Between

Tom Mbaluto

Applicant

and

Joel Mulei Kasalu

Respondent

Ruling

1. The Applicant herein, Tom Mbaluto, moved this Court by way of Summons for Revocation of Grant dated August 26, 2019in which he sought to have the Certificate of Confirmation of Grant issued to Joel Mulei Kisalu on July 27, 2018revoked.

2. In his affidavit in support of the Summons, the Applicant averred that he entered into an agreement for sale of a portion of land known as Machakos/Kiandani/2294 and paid the full purchase price. However, the Administrator intentionally failed to disclose to this Court that the fact of the existence of the said agreement and as a result the certificate of Confirmation of Grant was issued on July 27, 2018by this Court.

3. It was the Applicant’s case that the said Grant was obtained fraudulently by means of an untrue allegation of fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently. According to the deponent, the failure to disclose to the Court that the deceased had sold a portion of the said land amounts to material non-declaration hence it is in the interest of justice that the orders sought be granted.

4. In response to the Summons, the Respondent/Administrator swore an affidavit opposing the orders sought. According to him, on November 23, 2016he was issued with grant of letters of administration intestate of the estate of his father, the late Benedict Kisalu Kanyi who died on February 20, 2004which grant was on July 27, 2018confirmed and certificate of confirmation of grant issued. As result, land parcel No. Machakos/Kiandani/2294 was ordered to be registered in his name to hold in trust for himself and other beneficiaries.

5. He denied that his father (deceased) and the Applicant entered into any agreement for the sale of the portion of land known as Machakos/Kiandani/2294. He noted that the Applicant had not called any person who was present as witnesses in the purported sale to enable him prove before this court that the agreement was signed by the deceased. It was further noted that though the said agreement was indicated to have been signed before assistant chief Kiandani sub-location Iveti location, the Applicant did not call the said Assistant chief as a witness in this court to prove the aforesaid. He wondered why none of the children of his father was present during the purported sale and stated that the original agreement had not been availed before the court.

6. The deponent noted that since the parcel of land subject to these proceedings Machakos/Kiandani/2294 was registered in the name of the deceased on September 1, 1989and title deed was issued on October 12, 1989, as at February 18, 1986the deceased had no land and therefore there was no way he would have sold a land which was not his till three years after the purported sale agreement. It was averred that since the deceased had no powers to dispose of the property when he clearly was not the owner and had no interest in the suit land, it follows that the applicant herein who purports to have derived his interest from the said person (deceased) cannot have any interest therein since a person cannot confer on a third party a better title than one he himself has.

7. It was averred that the deceased died on February 20, 2004and the Applicant has not demonstrated why he did not request him to transfer the land to him when he was alive.

8. It was averred that upon perusal of the record by the advocate instructed by the Respondent, it was discovered that the Applicant filed a purported consent dated December 15, 2020whose execution the Respondent denied and the Court was urged not to consider the same.

9. According to the Respondent, the Applicant does not reside on the said land and he does not use the same and there is no reason why he did not take possession when my father was alive if he purchased the same as he purports. It was noted that whereas the subject land is parcel No. Machakos/Kiandani/2294, the subject matter in the said agreement is plot No. 2294 within Kiandani sub-location hence not subject land in these proceedings.

10. The Respondent asserted that there is no way he would have disclosed to this court of any agreement since as a family they were not aware of any sale of parcel No. Machakos/Kiandani/2294 by the deceased or at all. He therefore denied that the grant was obtained fraudulently by the making of a false statement and/or by the concealment from court something material as the Applicant did not purchase any land from the deceased or at all.

11. It was averred that though this matter was gazetted in Kenya Gazette as required, there was no objection by the Applicant.

12. It was the Respondent’s averment that since the claim by the Applicant is for ownership of parcel No. Machakos/Kiandani/2294, he ought to have filed the suit before the Environment and Land Court for the issue of ownership to be determined since this court has no jurisdiction to handle this matter of ownership. The Respondent maintained that the purported agreement is not applicable to parcel Machakos/Kiandani/2294 as the deceased had no interest to sale the said land since the same was registered in his name on September 1, 1989and the deceased did not transfer any land to the Applicant nor obtain requisite consent from the land control board and therefore the agreement is void and null. It was further averred that the Applicant’s claim if any is time barred and under section 4(1) (a) of the Limitations of Actions Act (Cap 22) Laws of Kenya as the sale agreement was executed on 18th February, 1986 more than 33 years before date of filing the application that is September 24, 2019.

13. It was therefore the Respondent’s submissions that since there is no ground disclosed for revocation of the grant this Court ought to dismiss the application with costs.

14. On behalf of the Respondent, reliance was placed on re Estate of Edward Lenjo Musamuli (Deceased) [2021] eKLR and it was submitted, based on the affidavits on record, that the deceased had no powers to dispose of the property when he clearly was not the owner and had no interest in the suit land. He had no authority to purport to dispose of the property particularly land and if the deceased had no interest in the said land, as at 18/2/1986 it follows that the Applicant herein who purports to have derived his interest from the said person (deceased) cannot have any interest therein since a person cannot confer on a third party a better title than one he himself has.

15. According to the Respondent, the issues raised in the replying affidavit ought to have responded by a further affidavit. While reiterating the contents of the replying affidavit, it was submitted that the omission of failure to include Applicant as a creditor cannot amount to concealment or non-disclosure and cannot warrant revocation of the grant since the sale. Reliance was placed on the case of In re Estate of Edward Lenjo Musamuli (Deceased) [2021] eKLR and it was submitted that although a purchaser from the deceased during the live time of a deceased person may claim a purchaser’s interest, this claim should be proved beyond any reasonable doubt and in this matter there is doubt as to whether the deceased sold any land to the Applicant.

16. According to the Respondent, since the claim by the Applicant is for ownership of parcel No. Machakos/Kiandani/2294, he ought to have filed the suit before the Environment and Land Court for the issue of ownership to be determined as this court has no jurisdiction to handle this matter of ownership to determine whether there was sale or not.

17. In the absence of an order from the Environment and Land Court, it was submitted that there is no ground to interfere with the grant and reliance was placed on the case of In re Estate of Charo Kazungu Masha (Deceased) [2022] eKLR.

18. The Respondent also relied on the case of In re Estate of Nzioki Mwatu (Deceased) [2019] eKLR and submitted that the Applicant could only have a valid claim over Parcel No. Machakos/Kiandani/2294 if he purchased from the Administrator after the confirmation of the grant which is not the case.

19. It was revealed that after the Administrator gave instructions to his Advocate and after he perused the court file he found that the Applicant filed a purported consent dated December 15, 2020which was not signed by the Administrator and the same was not adopted as a court order hence cannot be a basis of the Applicants claim on Parcel No. Machakos/Kiandani/2294.

20. It was further submitted that the applicant did not demonstrate why he did not apply for the said purchase to be included in the petition and/or all for the same to be provided for in the distribution of the estate if at all it was a valid claim. According to the Respondent, this matter was gazetted in Kenya Gazette as required and there was no any objection by the Applicant.

21. It was further submitted that the Applicant claim if any is time barred under section 4(1) (a) of the Limitations of Actions Act (Cap 22) Laws of Kenya as the sale agreement was executed on 18th February, 1986 more than 33 years before the date of filing the application on September 24, 2019. This, according to the Respondent, was the reason the Applicant avoided filing the claim before the Environment and Land Court for determination as to whether he purchased any land from the deceased since it is doubtful as to whether he purchased any land. The Court was urged to find that the cause of action to claim land is over 12 years hence his claim is time barred under Section 9 (2) of the Limitations of Actions Act. In this regard the Respondent cited the case of In re Estate of Charo Kazungu Masha (Deceased) [2022] eKLR where the court held that:“The court in the case of In re Estate of Josephine Magdalena Motion (Deceased) [supra] stated;‘I am conscious that the Limitation of Actions Act does in some provisions provide for actions in respect of property of a deceased person. However, what these provisions envisage are ordinary suits, often referred to as administration suits, filed by administrators or beneficiaries in respect of estate property seeking a variety of reliefs. The Act sets time limitations for the bringing of such administration suits. Those provisions have nothing to do with reliefs that are created by the Law of Succession Act, and that are brought within the framework of the Law of Succession Act.’”

22. It was therefore submitted that there is no ground disclosed for revocation of the grant as the Applicant has not demonstrated that he purchased any land from the deceased as at 1989 when the deceased became the registered owner of parcel No. Machakos/Kiandani/2294 in 1986 the deceased had no interest in the parcel which he could pass by sale

23. The Court was therefore urged not to revoke the grant as prayed by the Applicant but instead allow the Administrators and the beneficiaries to finalized administration of this estate pursuant to the certificate of the confirmation of grant dated July 19, 2018.

24. Accordingly, it was urged that the Application herein dated August 26, 2019be dismissed by the court with costs.

Determination 25. I have considered the Summons, affidavit in support of and in opposition thereto as well as the written submissions.

26. Section 76 of the Law of Succession Act, Cap 160, Laws of Kenya provides as follows:“76. Revocation or annulment of grantA grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—(a)that the proceedings to obtain the grant were defective in substance;(b)that 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;(c)that 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;(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either—(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or(ii)to proceed diligently with the administration of the estate; or(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(e)that the grant has become useless and inoperative through subsequent circumstances.”

27. Before dealing with the merits of the case, the Respondent herein has taken up the issue of jurisdiction on the ground that since the claim by the Applicant is for ownership of parcel No. Machakos/Kiandani/2294, he ought to have filed the suit before the Environment and Land Court for the issue of ownership to be determined as this court has no jurisdiction to determine whether there was sale or not.

28. In Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited [1989] KLR 1, Nyarangi, JA expressed himself as follows:“By jurisdiction is meant the authority which a court has to decide matters that are before it or take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake both of these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where the court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given...Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”.

29. Similarly, in Owners and Masters of the Motor Vessel “Joey” vs. Owners and Masters of the Motor Tugs “Barbara” and “Steve B” [2008] 1 EA 367 the same Court expressed itself as follows:“The question of jurisdiction is a threshold issue and must be determined by a judge at the threshold stage, using such evidence as may be placed before him by the parties. It is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything and without it, a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Scanty or limited facts constitute the evidence before the court. A party who fails to question the jurisdiction of a court may not be heard to raise the issue after the matter is heard and determined. There is no reason why a question of jurisdiction could not be raised during the proceedings. As soon as that is done, the court should hear and dispose of that issue without further ado.”

30. Lastly, on the same issue, the Supreme Court in the case of Samuel Kamau Macharia v Kenya Commercial Bank & 2 Others, Civil Appl. No. 2 of 2011, observed that:“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings…Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.”

31. It therefore behoves this Court to consider and determine whether or not it has jurisdiction to entertain the instant proceedings.

32. There are two common scenarios that give rise to a claim by a purported purchaser to an estate of a deceased person. The first scenario is where the deceased had entered into a sale agreement with the purchaser but while the transaction was ongoing but before completion, the deceased passed away. In that case, the purchaser becomes a creditor for the estate and is entitled to lay a claim to the portion of the estate that his interest attaches to. While he does not become a beneficiary of the estate by virtue of his interest in the estate and therefore ought not to seek that his name be included in the list of beneficiaries, he may successfully protest to the manner in which the estate is proposed to be distributed if his interest therein is not catered for. That was the position adopted in Titus Muraguri Warothe & 2 Others vs. Naomi Wanjiru Wachira Nyeri HCSC No. 122 of 2002, where Makhandia, J (as he then was), while revoking the grant in question expressed himself as hereunder:“Section 76(c) of the Law of Succession Act and rule 44(1) of the Probate and Administration Rules allows any person interested in the estate of the deceased to have a grant revoked or annulled. The grounds upon which a grant can be annulled are set out in section 76 thereof. It is also important to note that a grant of representation, whether or not confirmed may at any time be revoked. In the instant case the applicants are purchasers for value of a portion of the deceased’s estate comprised in the grant. There is uncontested and unchallenged evidence that before the deceased passed on he had sold various portions of land to the applicants and he had been fully paid and had indeed put each one of the applicants in possession of their respective portions that they had purchased. The applicants have to date been in continuous and uninterrupted occupation of those portions and have extensively developed them. The respondent who is the wife of the deceased was all along aware of these transactions involving her deceased husband and the applicants. The deceased, pursuant to the sale agreement and as required by law made an application to the Land Control Board for necessary consents to the subdivision of the said parcels of land and subsequent transfer to the applicants of the portions they had purchased. However, he passed on just before he could attend the board meeting. Yet the respondent knowing very well the interest of the applicants in the suit premises when she petitioned for the grant of letters of administration and later had the same confirmed completely ignored that interest of the applicants in the suit premises. Had the applicants been made aware of the application for the confirmation by being served they would have brought to the fore their aforesaid interest in the estate of the deceased and the resultant grant would have taken care of these interests. Further, had the respondent been forthright and candid and included the applicants as beneficiaries of a portion of the estate of the deceased as purchasers for value, the court in confirming the grant would have taken into account their interest in the estate of the deceased. As it is, therefore, the grant was obtained fraudulently by the making of a false statement and concealment from court of something material to the cause. The respondent knew of the applicants’ interest in the estate of the deceased yet she chose to ignore them completely in her petition of letters of administration intestate. She also ignored them completely when she applied for confirmation of the grant. In her distribution proposal she completely ignored the part of the estate that was purchased by the applicants yet she was aware of the purchase as she was present when the transactions were concluded. In any event the applicants were put in possession of their portions of the suit premises by the deceased before he passed on and with full knowledge of the respondent and since then they have been in continuous and uninterrupted occupation of the suit premises which they have extensively developed over the years.”

33. In the first scenario the Purchaser may successfully stake his claim to the deceased’s estate in his capacity as a creditor of the estate. My position is supported by the holding In re Estate of Mukhobi Namonya (Deceased) [2020] eKLR that:“the omission of persons who claim to be claimants from or creditors of the estate is not a ground for revoking a grant. After all, creditors of an estate are entitled to have their debts settled. It is for this reason that debts and liabilities are given priority over distribution of the estate. Debts and liabilities ought to be settled first. Distribution is of the net estate, after the debts and liabilities have been met. The administrators have a duty to identify the creditors of the estate and to pay them off before proposing distribution, or to make provision for them at confirmation of grant. Such claimants and creditors have an obligation to place their claims before the administrators, and should the administrators fail to settle the same or acknowledge them, move the Environment and Land Court to prove their claims, since the High Court no longer has jurisdiction to determine questions around ownership of immovable property in view of Articles 162(2) and 165(5) of the Constitution. Who exactly is the creditor of the estate or what ought to be treated as a liability of the estate. The most obvious candidates are individuals or entities that transacted with the deceased during his lifetime. Debts that the deceased left unsettled are a burden that the administrators of his estate ought to take care of. Transactions that he left incomplete, such as for sale of land by him or to him, should be completed by the administrators. The administrators are able to do so through the powers conferred upon them by section 82 of the Law of Succession Act, being mindful of section 79, which vests the assets of the estate in the administrator. Section 83 imposes a duty on administrators to settle such debts before distributing the estate…One of the duties of administrators, set out in section 83(d) of the Law of Succession Act, is to ascertain and pay out of the estate all the debts of the deceased. Ascertainment of the debts of the estate is about identifying them, in terms of finding who the creditors were, how the debts were incurred, what documentation is available, before pay out can be done. If the debts arose during administration, and were necessitated by the exigencies of administration, such as where funds were needed to pay for the administration process, in terms moneys for court fees, advocates costs, land rents and rates, taxes, and attendant expenses, then section 83(c) of the Law of Succession Act would be relevant. That provision requires administrators to pay out of the estate all the expenses of obtaining the grant and all other reasonable expenses of the administration. Where estate assets have been dissipated to address the expenses envisaged in section 83(c) then it must be stated what these expenses were, how they arose and how they were settled. The same would apply where certain debts and liabilities of the estate needed to be settled and estate assets had to be sold to facilitate the settlement of such debts. Section 83(d) of the Law of Succession Act requires administrators to ascertain and pay, out of the estate, all the debts of the deceased. In addition, section 83, at paragraph (e), requires the administrators to render accounts of their administration within six months of their appointment.”

34. The second scenario arises where subsequent to the death of the deceased but before the estate is distributed, some beneficiaries enter into an agreement with third parties for the disposal of the estate or part thereof. Section 45 of the Law of Succession Act however, provide as follows:(1)Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.(2)Any person who contravenes the provisions of this section shall—(a)be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and(b)be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.

35. Section 79 of the same Act, on the other hand provides that:The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.

36. In Muriuki Musa Hassan vs. Rose Kanyua Musa & 4 others [2014] eKLR, Makau, J held that:“The interested parties are not direct creditors of the deceased before his death but purchasers from one of the deceased beneficiaries and the sale of the land to them is challenged in this application. In such circumstances the interested parties interest cannot be considered in this matter and the remedy for them if they would be aggrieved by final court’s decision and distribution, is to file suit against the said Muriuki Musa Hassan. That in any event Muriuki Musa Hassan is entitled to share of the deceased estate and he will definitely be interested in the interested parties interest so as to legitimize the sale of the land to the interested parties.”

37. In Re Estate of John Gakunga Njoroge (Deceased) [2015] eKLR Muriithi, J was of the view that:“A person can only lawfully deal with the estate of a deceased person pursuant to a Grant of Representation made to him under the Law of Succession Act…For the transactions between the applicants and the beneficiaries of the estate of the deceased entered into before the Grant of Letters of Administration to them and before the Confirmed Grant, the contracts of sale are invalid for offending the provisions of section 45 and 82 of the Law of Succession Act. Even if the sale transactions were by the administrators, the dealings with immovable property of the Estate is restricted by the provisions on the powers duties of the personal representatives under section 82 (b) Proviso (ii), which provides that:(ii)no immovable property shall be sold before confirmation of the grant.The persuasive authority of Wakiaga J. in Stephen Waweru Ng’ang’a v. Kimani Ng’ang’a, Nyeri HC P&A No. 1 of 2011 would be relevant in a claim against the beneficiaries who sold their interest so that they should not defraud the innocent purchasers of their money.”

38. In the same vein, Gikonyo, J in Paul Gituma Kiogora vs. Doris Mukiri Magiri & Another [2017] eKLR held that:“I see the claim by the Protestors is that of a purchaser and is based on a sale of land agreement with the widow of the deceased. Doubtless, the agreement was done after the death of the deceased and before confirmation of the grant herein. Such purchaser is not a beneficiary of the estate and should not be tried in a succession cause…As the protestors are not beneficially interested in the estate, their claim cannot be litigated in this succession cause or even be set aside by this court under rule 41(3) of the Probate and Administration Rules. Given the circumstances of the case and the fact that the sale of the land violated the Law of Succession Act, the court cannot draw from its inherent jurisdiction to assist an unlawful transaction. I do not, however, wish to say much about the legality or otherwise of such transaction or the validity and enforcement of the agreement in question in order to avoid any prejudice to any future litigation on it. There are, however, ample judicial decisions on the matter and I do not wish to rehash them.”

39. In arriving at the said decision, the learned judge cited the decision of Musyoka J in Re Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR that:“Such claims to ownership of alleged estate property, as between the estate and a third party, should be resolved through the civil process in a civil suit properly brought before a civil court in accordance with the provisions of the Civil Procedure Act and the Civil Procedure Rules. This could mean filing suit at the magistrates’ courts, or at the Civil or Commercial Divisions of the High Court, or at the Environment and Land Court. If a decree is obtained in such suit in favour of the claimant, then such decree should be presented to the probate court in the succession cause so that that court can give effect to it.”

40. I associate myself with the decision of Nyamweya, J in Boniface Munyao Muinde vs. Mutinda Muindi & 2 Others [2016] eKLR in which the learned judge expressed herself as hereunder:“The Citor did not bring any evidence that Kaesa Muindi, with whom he entered into a sale agreement, had a confirmed grant of representation with respect to the Deceased’s estate at the time of the alleged sale of the land known as WOTE/IIANI/415 on September 5, 2009. It is thus my finding that a portion of the said parcel of land could not have been legally sold to the Citor by the said Kaesa Muindi, and any purported sale of the said land is thus of no legal effect. The Citor therefore does not qualify to be a creditor of the deceased within the meaning of the section 66 of the Law of Succession Act, as he did not purchase the said portion of the deceased’s land from the deceased, or a person authorized to sell the said property, and on the contrary actually intermeddled with the estate of the deceased contrary to section 45 of the Law of Succession Act. He therefore has no interest in the estate of the deceased to entitle him to cite the Citees, and his Citation dated September 9, 2013 is thereby dismissed with costs to the Citees.”

41. It follows that in the second scenario, the Purchaser cannot successfully claim to be a creditor of the estate but he only becomes a creditor of the beneficiary who purported to have sold to him part of the estate. Accordingly, he has to wait until the estate is distributed and then lay his claim against the part of the estate that is confirmed to the said beneficiary.

42. The case before me is however not on all fours with either of the above two scenarios. In the instant case, the Applicant claims to have purchased the property in question before the deceased died. However, from the evidence adduced, whereas the alleged agreement was entered into on February 18, 1986, the parcel of land subject to these proceedings Machakos/Kiandani/2294 was registered in the name of the deceased on September 1, 1989and title deed was issued on October 12, 1989. There is no evidence that at the time of the alleged agreement the said property belonged to the deceased. Apart from that, the validity of the said agreement is in doubt as there is no evidence that the relevant consent to dispose of the land was sought and obtained within the prescribed time.

43. I therefore agree with the Respondent that in the circumstances of this case, the Applicant’s claim may only succeed if it is found that by the time the deceased registered the land in his name, he did so as a constructive trustee for the Applicant. That however, is not a matter that can be dealt with by this Court but can only be determined by the Environment and Land Court. I am guided by the position adopted in In re estate of P N N (Deceased) [2017] eKLR, where it was held that:According to Article 162(2) of the Constitution the Environment and Land Court (ELC) is vested with jurisdiction to determine disputes touching on ownership and the right to occupy and use land. Article 165(5) of the Constitution states that the High Court has no jurisdiction over matters that are the subject of Article 162(2) of the Constitution. It is my considered view that the matter of Ngong/Ngong/[particulars withheld]. falls within the purview of Article 162(2) of the Constitution, meaning that this court then, by virtue of Article 165(5) of the Constitution, does not have any jurisdiction over it. Determination of the question of the ownership of Ngong/Ngong/[particulars withheld]. as between the deceased and the other claimants should be referred to the ELC for resolution of the matter of as to who between the deceased and his father had bought the property from Paul Karanja Muiruri.”

44. Similarly, there could be a claim that before the registration of the subject land into the names of the deceased, if the land was acquired through the process of customary inheritance, it could well be subject of a customary trust. This Court is however aware of the holding by the Supreme Court in Petition No. 10 of 2015 - Isack M’inanga Kiebia vs. Isaaya Theuri M’lintari & Another with respect to the validity of customary trusts even in registered lands. In that Petition the Supreme Court held that:“37. Land in a traditional African setting, is always the subject of many interests and derivative rights. The content of such interests and rights is often a complex area of inquiry. Such rights could be vested in individuals or group units. The rights and interests frequently co-exist with each other. For example, the rights of members of a family do not necessarily derive from the corporate rights of the family as such, but by operation of the applicable law and customs. Besides, the enjoyment of the rights is dependent on the fulfilment of certain conditions unique to the group unit. Several rights of the members could be inferior to, or co-terminus with, or indeed superior to the sum total of the rights of a group. Hence, customary law does not vest “ownership”, in land in the English sense, in the family, but ascribes to the family the aggregate of the rights that could be described as “ownership.” (Bennett 1995:3 and Cocker 1966: 30-33).”

45. While consigning the decisions of Esiroyo vs. Esiroyo 1973 EA 388 and Obiero vs. Opiyo 1972 EA 277 to the dustbin of history where they rightly belonged, the Supreme Court held that:“[38]It is therefore our view that, the decisions in Obiero v. Opiyo, and Esiroyo v. Esiroyo; were based on faulty conceptual and contextual premises. Faulty conceptually because, they did not take into account the complex nature of customary rights to land, and faulty contextually because, in interpreting Sections 27, 28 and 30 of the Registered Land Act, the courts paid little or no attention to the relevant provisions of the retired Constitution regarding trust land. It is the registration of land in the trust land areas that had triggered the enduring tension between registered proprietors and claimants under customary law. It is no wonder that customary rights to land would exhibit resilience in subsequent decisions.[39]It is instructive to note that neither Section 115 nor 116 of the retired Constitution stipulates that upon registration of Trust land, any rights, interests or other benefits in respect of that land that were previously vested in a tribe, group, family or individual under African customary law shall be extinguished. All that the Section provides is that “no right, interest or other benefit under African customary law shall have effect for the purposes of the relevant sub Section (115 (2)) so far as it is repugnant to any written law”. On the contrary, the Constitution is categorical that each county council shall give effect to such rights, interests or other benefits in respect of the land as may, under African customary law for the time being in force or applicable thereto, be vested in any tribe, group, family or individual.[40]There can be no doubt that the obligation imposed upon a county council to give effect to rights under African customary law applicable to Trust land did not cease upon the application of the Land Consolidation Act and the Land Adjudication Act to that land. In fact, the duty to give effect to these rights, became more pronounced, during the land registration process. Given the fluidity and complexity of these rights, it is obvious that, such rights could not find expression in the Register in their totality. Such customary rights as could not be noted on the register would have to be recognized somehow, for they had already been recognized by the Constitution.[41]Thus, the obligations of a registered proprietor upon a first registration, as embodied in Section 28(b) (and the proviso thereto) and Section 30 (g) of the Registered Land Act, could only logically, be traceable to the “rights, interests, or other benefits under African customary law”. How then, given this historical context, and the constitutional and statutory provisions, could it have been so easy to declare that rights under customary law become extinguished for all purposes upon the registration of a person and that none could survive whatsoever?[45]In our considered view, the language of Section 117 (2) of the retired Constitution, was wrongly imported into Sections 27, 28 and 30 of the Registered Land Act (now repealed) by the Judges in the cited decisions. Had the judges’ view been informed by a proper appreciation of the nature, scope and content of the rights, interests and benefits to land under African customary law, subsisting before individualization of tenure, both the proviso to Section 28 and Section 30(g) of the Registered Land Act, would have been contextually interpreted. In this regard, there would have been no difficulty in construing a “customary trust” under the proviso to Section 28 of the Act. Surely, before a first registration, what other trust, if not “a customary one”, could have subsisted over land held under African customary law as to bind a registered proprietor?[46]From the authorities we have considered, it is clear that the courts, vide Section 163 of the Registered Land Act, have been more willing to import the doctrines of implied, resulting and constructive trust as known in English law, into Section 28 of the Act. But the notion of a customary trust, which should have been the first port of call, has only been gradually and hesitatingly embraced. Due to this judicial hesitancy, the vital elements and content of a customary trust have yet to be fully and clearly developed.[49]Be that as it may, it is undeniable that such rights of a person that subsisted at the time of first registration, as evidenced by his being in possession or actual occupation, are rooted in customary law. They arise under African customary law. They derive their validity from African customary law. They are “rights to which one is entitled in right only of such possession or occupation”. They have no equivalent either at common law or in equity. They do not arise through adverse possession, neither do they arise through prescription. For if they did arise through these processes, they would be overriding interests, not under Section 30(g), but under Section 30(f) of the Registered Land Act.”

46. In conclusion the Court held that:“[52]Flowing from this analysis, we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the trusts to which a registered proprietor, is subject under the proviso to Section 28 of the Registered Land Act. Under this legal regime, (now repealed), the content of such a trust can take several forms. For example, it may emerge through evidence, that part of the land, now registered, was always reserved for family or clan uses, such as burials, and other traditional rites. It could also be that other parts of the land, depending on the specific group or family setting, were reserved for various future uses, such as construction of houses and other amenities by youths graduating into manhood. The categories of a customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor.Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are:1. The land in question was before registration, family, clan or group land2. The claimant belongs to such family, clan, or group3. The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous.4. The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.5. The claim is directed against the registered proprietor who is a member of the family, clan or group.[53]We also declare that, rights of a person in possession or actual occupation under Section 30(g) of the Registered Land Act, are customary rights. This statement of legal principle, therefore reverses the age old pronouncements to the contrary in Obiero v. Opiyo and Esiroyo v. Esiroyo. Once it is concluded, that such rights subsist, a court need not fall back upon a customary trust to accord them legal sanctity, since they are already recognized by statute as overriding interests.[54]In the foregoing premises, it follows that we agree with the Court of Appeal’s assertion that “to prove a trust in land; one need not be in actual physical possession and occupation of the land.” A customary trust falls within the ambit of the proviso to Section 28 of the Registered Land Act, while the rights of a person in possession or actual occupation, are overriding interests and fall within the ambit of Section 30(g) of the Registered Land Act.”

47. As regards the The Land Registration Act, 2012, the Court held that:“[57]With the repeal of the Registered Land Act (Cap 300), Parliament enacted the Land Registration Act No. 3 of 2012. The provisions of Section 28 of the former, including the proviso thereto, were re-enacted as Section 25 of the latter; while the provisions of Section 30 of Cap 300 were re-enacted as Section 28 of the Land Registration Act. However, Parliament introduced two new categories of overriding interests, the first category is what are now called “spousal rights over matrimonial property”; while the second category is what are, rather curiously called “trusts including customary trusts”. Even more curious, is the fact that “the rights of a person in possession or actual occupation of land to which he is entitled in right only of such possession or occupation,” as earlier provided for under Section 30 (g) of the Registered Land Act, are no longer on the list of overriding interests under Section 28 of the Land Registration Act.[58]What are we to make of these changes? Several interpretations are plausible. It is now clear that customary trusts, as well as all other trusts, are overriding interests. These trusts, being overriding interests, are not required to be noted in the register. However, by retaining the proviso to Section 28 of the Registered Land Act (now repealed), in Section 25 of the Land Registration Act, it can be logically assumed that certain trusts can still be noted in the register. Once so noted, such trusts, not being overriding interests, would bind the registered proprietor in terms noted on the register. The rights of a person in possession or actual occupation of land, as previously envisaged under Section 30 (g) of the Registered Land Act, have now been subsumed in the “customary trusts” under Section 25 (b) of the Land Registration Act. Thus under the latter Section, a person can prove the existence of a specific category of a customary trust, one of which can arise, although not exclusively, from the fact of rightful possession or actual occupation of the land.”

48. Either way, the status of the land in question is a matter that can only be determined by the Environment and Land Court when properly moved.

49. In deciding whether or not to revoke grants, I associate myself with the position In re Estate of Mukhobi Namonya (Deceased) [2020] eKLR that:“under section 76 of the Act, a grant of representation is liable to revocation on three general grounds. The first ground would be where the process of obtaining the grant was attended by glaring difficulties, such as where the same was defective, say because the person who obtained representation was not qualified to be appointed as personal representative, or the procedural requirements were not met for some reason or other. It could also be because the petitioner used fraud or misrepresentation or concealed important information in order to obtain the grant. The second general ground is where the grant is obtained procedurally, but the administrator subsequently runs into difficulties during the process of administration of the estate. Such difficulties include his failure or omission to apply for confirmation of his grant within the period allowed in law, or where he fails to exercise diligence in administration of the estate, such as where he omits to collect or get in an asset, or where he fails to render accounts as and when he is required to do so by the law. The third general ground is where the grant has become inoperative or useless on account of subsequent circumstances, such as where the sole administrator died or loses the soundness of his mind or is adjudged bankrupt.”

50. I also agree with the decision of Mwita, J in the case of Albert Imbuga Kisigwa vs. Recho Kavai Kisigwa [2016] eKLR Succession Cause No.158 of 2000, Mwita J. on the guiding principles for the revocation of a grant when he expressed himself as hereunder;“[13]Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not 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.”

51. In the premises, I find that the Applicant herein has not satisfied me that he has sound grounds upon which the grant issued herein should be revoked.

52. Accordingly, the summons dated August 26, 2019 fails but is dismissed but with no order as to costs since I have not dealt with the validity or otherwise of the alleged agreement for sale.

53. It is so ordered.

READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 1ST DAY OF SEPTEMBER, 2022. G. V. ODUNGAJUDGEDelivered in the presence of:Mr. Mutinda Kimeu for the Administrator/RespondentCA Susan