[2017] KEHC 4791 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 1047 OF 2011

IN THE MATTER OF THE ESTATE OF MUOKI NDOLO (DECEASED)

MBULA MUOKI NDOLO

BONIFACE MUOKI MWANGANGI ...............................ADMINISTRATORS

VERSUS

KENYA POWER AND LIGHTING COMPANY LIMITED....RESPONDENT

AND

CHAIRMAN, SECRETARY AND TREASURER,

KAKINDUNI PRIMARY SCHOOL……………..….………......PROTESTOR

RULING

The Administrators of the estate of Muoki Ndolo (hereinafter refered to as “the Deceased”) filed an application by way of a Notice of Motion dated 13th November 2015 as amended on 31st May 2016. The said Notice of Motion sought the following orders:

1. THAT, this Honourable Court be pleased to issue orders restraining the Respondent from digging holes and erecting electricity poles on the parcel of land known as MUPUTI/KIIMA KIMWE/2064 pending the hearing and determination of this application.

2. THAT, this Honourable Court be pleased to order the Respondent to compensate the Estate of the deceased for the damage occasioned.

The application is supported by the affidavit and further affidavit sworn on 31st May 2016 and 19th May 2016 respectively by the 1st Administrator, wherein she stated that that the Respondent dug holes in the process of erecting poles on the land known as MUPUTI / KIIMA KIMWE / 2064 which is registered in the name of Muoki Ndolo the deceased, and that the Respondent did not seek consent as required by law and this amounts to intermeddling. The 1st Administrator also annexed a copy of a survey report dated 17th May 2016 which confirms that some electricity posts have already been erected on land parcel No. MUPUTI/KIIMA K1MWE/2064 and had encroached on the said land.

The application is opposed. The Respondent filed a replying affidavit sworn by through Jude Ochieng, its Legal Officer on 31st August 2016. It was stated therein that the Respondent is authorized to erect poles and/or lay supply lines on ,over under or across public streets, roads, railways and other passage ways, and legally acquires way leaves and/or rights of way to mount or erect electricity distribution lines. Further, that the Administrators are not entitled to compensation from it, as the Respondent sought and obtained the consent of the Protestor who is the bona fide owner of the portion of land where the electricity poles and power transformer stands.

The Respondent further filed a Notice of Preliminary Objection dated 31st August 2016 claiming that this Court did not have jurisdiction to grant the orders sought, and in particular the injunctive orders, and thus the application is fatally defective and ought to be struck out as it is not hinged in a suit.

The Protestor also filed replying affidavits sworn by David Musau Kiveli on 7th April 2016 and 16th June 2016. The Protestors are opposed to the compensation of the Administrators by the Respondent on the ground that Kakinduni Primary School is the bona fide owner of the portion where the electric poles and transformer stand, having bought the same from the deceased. They annexed photographs showing that the Respondent has already installed electricity on the area on dispute.

On 16th November 2016, directions were issued by this Court that the Application and the notice of preliminary objection be canvassed by way of written submissions. D.M. Mutinda & Company Advocates for the Administrators filed submissions dated 8th December 2016, while Mbugua, Atudo & Macharia Advocates for the Respondent filed submissions dated 6th February 2017. The Protestors’ Advocate, Mutinda Kimeu & Company Advocates fled submissions dated 16th February 2017.

The Issues and Determination

I have read and carefully considered the pleadings and submissions made by the Administrators, Respondent and Protestor. The issues to be decided are firstly, whether this Court has jurisdiction to grant the orders sought, and if so secondly, whether the Respondent is liable to pay damages, and lastly, who as between the Administrators and Protestor is entitled to any damages payable. On the first issue, the Administrators submitted that the Notice of Preliminary Objection dated 31st August 2016 was claiming that the Court does not have jurisdiction to grant the injunctive orders. Further, that the prayer for injunction orders was only pending determination of this application and are thus overtaken by events as is the objection.

The Respondent submitted that a succession court has jurisdiction to deal and determine any issues relating to probate and administration of the estate of a deceased person. Further, that the issue at hand relates to interests in land only, as the Respondent has no interest in the succession of the estate of the deceased. Reliance was placed on Article 162(2)(b) of the constitution and section 4 (1) of the Environment and Land Court which established the Environment and Land Court, and in particular section 13 of the said Act states that the said Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and other laws applicable in Kenya relating to environment and land.

Reliance was also placed various judicial decisions on the issue of jurisdiction of a court including the case ofOwners of the Motor Vessel"Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1 . It was submitted that the instant application as drawn and filed indicates issues that concern ownership/ interference with land which is not an issue under the succession forum but rather under the Land and Environment Court as created by the Constitution and therefore ought to be heard by the Environment and Land Court since it may need viva voce evidence. Further, that this Court cannot issue the order of compensation to the applicant as prayed in the application before the issue of ownership is determined by a court of competent jurisdiction

The Protestors did not address the issue of jurisdiction of this Court in their submissions.

In Salome Wambui Njau (suing as the Administratrix of the Estate of Peter Kiguru Njuguna (Deceased) v. Caroline Wangui Kiguru,Nairobi ELC suit NO. (2013) eKLR, , I held that in matters of succession disputes touching on land, the Environment and Land Court pursuant to Article 162 (2) of the Constitution and the High Court as the Succession Court under section 47 of the Law of Succession Act would appear to have a concurrent jurisdiction. It would thus depend on the circumstances of each case which Court is best suited to hear and determine the dispute.

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 instant application touches on two disputes. The first is the dispute between the Administrators and the Protestors as to the distribution of the deceased’s land, with the Protestors claiming a portion of land that they allege they purchase from the deceased. This dispute is one between the personal representatives of the deceased and a creditor of the deceased, and is a succession dispute to be determined solely within the framework of the Law of Succession Act, and particularly the confirmation proceedings as provided for by section 71 of the Act and Rule 40 of the Probate and Administration Rules.

The second dispute is as between the Administrators, Protestors and Respondent as to payment of damages for the construction of electricity poles on the deceased land. This is not a succession dispute, but one which touches on the procedures on construction of electricity poles on private land, and on payment of compensation for any such construction. I agree that this dispute, which is essentially the subject matter of the instant application, is outside the jurisdiction of this Court and should be pursued in the Environment and Land Court, as it is a dispute between an owner of land and an occupier of the land, and not one of succession.

The prayers in the Administrators’ Notice of Motion dated 13th November 2015 as amended on 31st May 2016 is accordingly denied with no order as to costs.

Orders accordingly.

Dated, signed and delivered in open court at Machakos this 19th day of June 2017.

P. NYAMWEYA

JUDGE