[2015] KEHC 2312 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

SUCCESSION CAUSE NO. 85 OF 2005

IN THE MATTER OF THE ESTATE OF MBIYA WERE--DECEASED

AND

MILTON OUNDO MBIYA----------------------------------PETITIONER

VERSUS

OCHIENG OPONDO NYONGESA------------------.------- OBJECTOR

RULING

The Succession to the Estate of Mbiya Were (The Deceased) predates the enactment of the Law of Succession Act (Chapter 160 Laws of Kenya). The dispute herein is therefore, without doubt, long drawn. In the application dated 9th July 2013, the Petitioner herein seeks the following orders:-

This cause be consolidated with Busia Land Succession cause No. 38 of 1979. IN THE MATTER OF THE ESTATE OF MBIYA WERE (Deceased).

The Honourable Court be pleased to revoke and nullify the Certificate of Succession to L.R. No. MARACHI/BUJUMBA/2 issued to JACKSON OPONDO MBIYA IN the said Busia LAND SUCCESSION CAUSE NO. 38 OF 1979.

Pursuant to (b) above the Honourable Court be pleased to find and hold that the purported beneficiaries named in the said BUSIA LAND SUCCESSION CAUSE NO. 38 OF 1979 NAMELY JACKSON OPONDO MBIYA AND CHRISTOPHER OMONDI MBIYA are not entitled to a share in L.R. NO. MARCHI/BUJUMBA/2.

Costs be provided for.

This needs to be said about Land Succession Cause No. 38 of 1979. Those proceedings which were brought under the Provisions of the pre Law of Succession Statute were succession proceedings in respect to the Deceased. The original, and commendably well-kept file, shows that one Opondo Mbiya (hereinafter Opondo) moved the District Magistrate’s Court at Busia for Succession in respect to the Deceased’s Estate. The only property to the estate was described as Marachi/Bujumba/2. (But elsewhere in those proceedings erroneously described as Marachi/Bujumba/29). Pursuant to the application of Opondo, the District Magistrate ordered that the property be transferred and registered as follows:-

Fredrick Samuel Mbiya – 5 hectares

Jackson Opondo Mbiya 4. 9 hectares

Christopher Omondi Mbiya 4. 9 hectares

In the closing address, Counsel for the Petitioner submitted that any challenge to those proceedings needed to now be made in the current succession cause under the Provision of Section 76 of the Law of Succession Act as the former proceedings were commenced and concluded before the Act came into force. The Objector’s Counsel did not counter that argument. And on my part I will not criticize the manner in which the Petitioner has moved this court under the Provisions in respect to Revocation and Nullification of Grant.

It was agreed by consent that the application dated 9th July 2013 be disposed of by way of viva voce evidence. Christopher Omondi Mbiya (The PW2) told Court that he is a son to the Deceased. In his personal knowledge the Deceased owned three distinct parcels of land namely:-

i) Marachi/Bujumba/1,

ii)Marach/Bujumba/2 and

iii) Samia/Wakhungu-Odiado/541. That in 1991 the Deceased gave Marachi/Bujumba/1 to Opondo (Now Deceased). This is the Applicant in Succession Cause No. 38 of 1979. A year later, the Deceased gave L.R. No. Samia/Wakhungu-Odiado/541 to PW2. Having made the donations, the remainder of his property, being Marachi/Bujumba/2 was to be shared between the younger sons. In respect to the donations, they were during the Land Adjudication process, registered in the name of the Donees as first registered proprietors. That it was therefore wrong for Opondo to claim any share in Marachi/Bujumba/2 and leave out the younger brothers who were entitled. He further contended that Opondo moved onto the contested property after the death of the Deceased having all along lived on Marachi/Bujumba/1. He denied that Opondo purchased Marachi/Bujumba/1.

This evidence was supported in substance by Milton Oundo Mbiya, (the Petitioner herein). In addition the Petitioner showed to this Court proceedings in Land Dispute Tribunal Case involving the Deceased’s Estate in which the Elders observed as follows:-

Mbiya had given Jackton Opondo his share of land parcel No. Marachi/Bujumba/1 as the elder son

Jackton Opondo has no right to share in the remaining piece of land parcel No. Marachi/Bujumba/2 (as he had already received his share).

Jackton Opondo trespassed to land parcel No. Marach/Bujumba/2 and built a home in it by force.

Having made those observations the Elders purported to revoke the 1979 succession and ordered that fresh succession be done. In addition Opondo was given 3 months to vacate the disputed land.

By the time of hearing these proceedings, Opondo had died. From the Court Record of 10th February 2014 Opondo’s wife informed court that Opondo died in year 2010. The son of Opondo, Ochieng Opondo Nyongesa (the Objector) stepped into proceedings in place of his father having obtained a Limited Grant Ad litem in respect to his father’s Estate. In his evidence to court the Objector stated that his father bought LR No. Marachi/Bujumba/1 from a Mr. Omwolo in 1944 at a consideration of 2 goats and Kshs. 150/-. That he saw this in a written agreement. His further evidence was that members of the family of his late father reside on Marachi/Bujumba/2 and that his father build a home there. He could however not tell when this happened. It was the evidence that one of the widows of Opondo by the name Felister was buried on Marachi/ Bujumba/2. It was therefore his evidence that part of Opondo’s family occupies Marachi/Bujumba/1 and others reside on a portion of Marachi/Bujumba/2. The witness maintained that the family of Opondo was entitled to a portion of Marachi/Bujumba/2.

So much for the evidence. Prayer (A) on Consolidation was not opposed. And in respect of prayer (B) there is concession by the Objector that in addition to Opondo, members of the family of the Petitioner are entitled to Marachi/Bujumba/1. In so far as Opondo did not disclose this to the Court in Succession No. 38 of 1979 he obtained the Certificate of Transfer by Fraud. There was an element of fraud when Opondo told court that Christopher Omondi was entitled to the said property. Christopher himself on oath before this court denounced any entitlement. There is therefore merit in the argument that the said Certificate ought to be revoked. I allow prayer B.

In respect to prayer C, I see the following as issues for determination

Did Opondo purchase Marachi/Bujumba/1 or was it a donation to him from the Deceased?

Is the Petitioner’s claim to exclude the family of Opondo from claiming part of Marachi/Bujumba/2 defeated by laches?

The evidence by the Objector that Opondo bought this land from one Mr. Omwolo in 1944. Before the Elders, Opondo himself maintained that position. Although there was an allegation that Omwolo was paid Kshs. 100/- and 2 goats, the Objector was unable to produce before court the agreement which, he says, captured the transaction. Again that agreement was not produced before the Elders. In fact the evidence before the Elders was that the transaction was not reduced into writing. There is therefore a doubt created as to whether the agreement was reduced into writing and indeed whether there was a sale at all. There is then the issue as to when Opondo occupied the disputed property. It was the evidence of the Objector that his father moved onto the land and built a house. But in cross-examination he did not know when exactly this happened. As for the Petitioner and his witnesses they were emphatic that Opondo forced himself on the land after the death of his father. That evidence corroborates what a neighbour and Village Elder Nathan Dickson Manyala told the Elders Tribunal. This court, considering the two versions leans in favour of the Petitioners position that Marachi/Bujumba/1 was a donation by the Deceased to Opondo and so he and his family would not, ordinarily, be entitled to Marachi/ Bujumba/2.

I now consider the second issue. This court was asked to be slow in finding against the Objector because the Petitioner came too late to court. The Certificate of transfer in land Succession Cause No. 38 of 1979 was made on 20th August 1979. It is unclear when the Petitioner moved the Panel. But the proceedings show that the Panel of Elders visited the disputed parcel on 16. 7.2009. But from the Green Card, the transfer that implemented succession cause NO. 38 of 1979 was entered on 7th November 2005. This petition was presented on 3rd of August 2005 and it seems to me that the Petitioner moved quickly to present this Succession after the wrongful transfer. What would be of concern to this court is why the Petitioner failed to act from 1978 or thereabout when Opondo allegedly invaded a portion of Marachi/Bujumba/2 upto August 2005 when he presented his petition. This is a period of a long delay of about 27 years.

This Court is aware that there is no Limitation of time for filing Summons for Revocation. That said, where there is a long delay and circumstances on the ground have drastically changed the Applicant ought to give a reasonable explanation for such delay. I fully identify with the remarks made by Rawal J (as she then was) in Re Estate of James Thuos (Deceased) 2008 eKLR

I shall observe, first of all that Section 76 permits filing of Summons for Revocation whether grant of representation is confirmed or not. It is also unfortunate that section 76 of the Act has not imposed any time limit to file the summons for revocation. That is the reason the registry of the family Division gets clogged mostly by summons being filed very late and also the inability of the Registry to close the files before it, which the other registries are able to do, under the law. Be that as it may, and despite my consistent efforts to get the said provisions duly amended, I am of a strong and considered opinion that in an appropriate case, the court can strike out or dismiss the summons for revocation if found to be scandalous, frivolous or an abuse of the court process.

What explanation, if any, has the Applicant made for the delay? This is what the Applicant says in his affidavit of 9th July 2013;

5) That the rest of us were therefore left to share L.R. NO. MARACHI/BUJUMBA/2 but we were still very young and living under our now deceased father.

8) That it has however come to my attention that JACKSON OPONDO MBIYA, had as long ago as 1979 filed LAND SUCCESSION NO. 38 OF 1979 seeking to transfer L.R. NO. MARACHI/BUJUMBA/2 to himself. FREDRICK SAMWEL MBIYA and CHRISTOPHER OMONDI MBIYA (see annexed proceedings marked MOM3)

The impression given is that, at 9th July 2013, when he swore the affidavit, the Applicant had just learnt of the Grant made to Opondo in Land Succession Cause No. 38 of 1979. This however, may not be entirely true! Milton was one of the claimants in the Land matter before the panel of Elders and participated actively. That matter was ongoing as at 16th July 2009. As at that date, the proceedings show, the parties were aware about the 1979 succession. See the following from the proceedings

“Visitation

Milton Oundo Mbiya, Jackton, Fredrick and Christopher did succession in 1979 from Mbiya. This was wrong”.

The Applicant knew about the 1979 succession by at least 2009 and was less than candid when he deponed, on 9th July 2013, that

…. it has however come to my attention that JACKSON OPONDO MBIYA, had as long ago as 1979 filed LAND SUCCESSION NO. 38 OF 1979 seeking to transfer L.R. NO. MARACHI/BUJUMBA/2 to himself. FREDRICK SAMWEL MBIYA and CHRISTOPHER OMONDI MBIYA (see annexed proceedings marked MOM3)

Secondly, although the Applicant says that he was still very young at the time his father died in 1977, he would have become of majority age by at least 1995. What he failed to explain is why it took him another 18 years, from 1995 to 2013 to move Court for Revocation.

I find that the Petitioner has failed to adequately explain his delayed action. Members of Opondo’s family have lived on a portion of Marachi/Bujumba/2 for 27 years now pursuant to Opondo’s invasion of the land in 1978 and The Certificate of Transfer he obtained on 20th August 1979 in Cause No. 34 of 1979. It would be unjust to now ask them to vacate that land.

Ultimately, I make the following order:

I allow prayer (a) and (b) of The Chamber Summons of 9th July 2013.

In respect to (c) ,

Christopher Omondi Mbiya is not entitled to a share in L.R. MARACHI/BUJUMBA/2.

The family of JACKSON OPONDO MBIYA is entitled to the portion it occupys on MARACHI/BUJUMBA/2.

The family of the Applicant is entitled to the remainder of MARACHI/BUJUMBA/2.

Costs to the Applicant.

As explained to the Parties, this Decision could only be delivered on Notice to them as I was proceeding for my Annual Leave and thereafter for August vacation. That explains the apparent delay.

Dated, Signed and Delivered at Busia this 1st day of October,2015

F. TUIYOTT

J U D G E

In the Presence of :-

Oile…………………………….Court Clerk

N/A………………………………….for the Petitioner

Onsongo h/b for Jumba……………….for the Objector