[2017] KEHC 7288 (KLR)

REPUBLIC OF KENYA

HIGH COURT AT NAIROBI

MILIMANI LAW COURTS- FAMILY DIVISION

IN THE MATTER OF THE ESTATE OF TIPANGO KUYOI (DECEASED)

SUCCESSION CAUSE NO. 66 OF 2003

BETWEEN

MPATINGA OLE KAMUYE.................................................PETITIONER

VERSUS

MELIYO TIPANGO.................................1ST OBJECTOR/APPLICANT

CAROLYN CHERONO KIPROTICH.....2ND OBJECTOR/APPLICANT

AND

EQUITY BANK LIMITED..................INTENDED INTERESTED PARTY

RULING

PRELIMINARY OBJECTION

The Applicant filed a Notice of Preliminary Objection on 14th July 2016 on the following grounds;

1) That This Court lacks jurisdiction hear and determine the Objector's application dated 20th June 2014 in terms of prayer (b) of the Certificate of urgency filed on 26th June 2014.

2) That this Court lacks the jurisdiction to stop the interested party now joined to these proceedings from exercising its statutory power of sale in respect of CIS-MARA/OLDONYORASHA/532, CIS- MARA OLOLUNGA/7852, 7857 & 7853.

APPLICANT'S CASE;

The Applicant through Counsel informed the Court that they are challenging the jurisdiction of the Court to issue stay of execution orders that stopped the interested party from exercising its statutory power of sale under Section 96 of the Land Registration Act 2012.

The property is in the name of the Petitioner and the Court was not informed it was used to secure a loan from the interested party and the Petitioner defaulted.

The Court stayed proceedings and execution with regard to the suit property. There is no provision under Law of Succession Cap 160 to issue an injunction order. The jurisdiction of this Court is limited to Section 47 of Law of Succession Act Cap 160.

The Applicant Interested party cited the following authorities to support its position;

a) JOEL OICHOE OISEBE VS BILIA BOSIBORI OISEBE (2014) eKLR

b) KENNEDY KIMANI NDARWA VS METHI & SWANI FARMERS COOPERATIVE SOCIETY & ANOTHER (2016) eKLR

c) JOHN KIMANI NJENGA VS MARGARET WANJIRU KANYIRI & 2 OTHERS eKLR

The first case refers to the fact that the Probate and Administration (Family) Court lacks jurisdiction to grant injunctions and may only invoke Rule 73 of Probate and Administration Rules only where specific provisions lack. The second and third cases are on the jurisdiction of Land & Environment Court under Article 162 (2) (b) of Constitution 2010 & Section 13 (2) of Environment and Land Act 2011.

RESPONDENT'S CASE

The Respondent through Counsel opposed the Preliminary Objection that the Court lacked jurisdiction to hear and determine the application of 20th June 2014 because , an earlier preliminary Objection was raised on the same issue that this Court lacked jurisdiction to determine the purchaser's right over the suit property. The said objection was dismissed opposed vide Ruling of the Court delivered on 28th august 2015. The same was not appealed against.

Section 79 (1) (2) & (3) of the Land Registration Act 2012 provides for the Registrar to rectify the record more so when there is an allegation of fraud as is alleged in this case.

The Application of 16th January 2016 was to allow the Court on its own motion to preserve the estate of the deceased. The Court has jurisdiction to do so under Section 47 of the Succession Act cap 160. The Applicant was not a party to the proceedings until vide their Application filed on 9th June 2016 sought to be joined as interested party and the application was granted.

There is an allegation that the grant in the instant estate was obtained fraudulently and the said suit property was subdivided and new titles issued in an effort to deprive the Objectors of their beneficial interest. It is on that basis that the Court preserved the estate.

DETERMINATION

A Preliminary Objection is defined in the MUKISA BISCUIT MANUFACTURING CO. LTD VS WESTEND DISTRIBUTORS LTD [1969] E.A. 696where the Court observed that:

“…a ‘preliminary objection’ consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

Sir Charles Newbold P. added as follows at page 701:

“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

I am duly guided by the foregoing and I do not see any reason to depart from the same. It follows therefore, that I shall base my findings on pure questions of law as regards jurisdiction of this Court as raised in the Preliminary Objection.

This Court's jurisdiction is laid out by Section 47 of Law of Succession Act Cap 160

The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as maybe expedient.

The Law of Succession Act's Preamble stipulates that the Act is to;

amend, define, and consolidate the law relating to intestate and testamentary succession and the administration of estates of the deceased's persons; and for purposes connected therewith and incidental thereto.

Article 162 2(b) of Constitution 2010 prescribes;

Parliament shall establish Courts with Status of the High Court to hear and determine disputes relating to;the environment and the use and occupation of; and title to; land

In the instant Succession Cause; the matter filed and presented to Court is with regard to the estate is of Tipango Kuyoni (the deceased) who died on 20th August 1993. It is not in dispute that the asset that comprised of the deceased's estate namely Shares in Narok CIS - Mara 378 and Shares in Narok CIS- Mara 379 were owned by the deceased and he was the registered owner of his share and the whole land was registered in 4 names; SIDAN OLE TIPAGO,PARMALE OLE KAMUNYE, KANYUNI OLE TAPANGO AND MUTUNGA OLE KAMUYE (as proprietors in common in equal shares) amongst them the deceased. Therefore at no point was the issue of ownership of the suit property canvassed in this Court which lacks jurisdiction to adjudicate ownership, use of and title to land.

The matter before this Court was to confer and facilitate beneficial interest to the beneficiary (ies) of the estate of Kuyoni Tipango the deceased.

The grant of letters of administration was issued to the deceased's nephew Mpatinga Ole Kamoye as sole administrator and beneficiary of the deceased's estate. The grant was confirmed on 11th November 2003 and rectified on 23rd February 2004.

The suit property and asset of the deceased was available for distribution and was distributed was NAROK CIS-MARA OLOLUNGA/378 & 379 EACH COMPRISED OF 88. 8 HECTARES. All the land and property reverted to the sole beneficiary Mpatinga Ole Kamoye.

By the Application dated on 20th June 2014 and filed on 26th June 2014; summons for revocation of grant; the 1st Applicant/Objector Meliyo Tipango claimed they are wife and son of the deceased and the grant issued to the Petitioner Mpatinga Ole Kamoye was alleged to have been obtained fraudulently by concealment of material facts.

The 2nd Applicant/Objector Ms. Caroline Cherono Kiprotich contends that she is a purchaser over the portion of the suit property that comprises of the estate of the deceased.

At that point the Preliminary objection was raised that this Court lacks jurisdiction to hear and determine Purchaser's rights. This Court's Ruling of 28th August 2015 is that the matter raised as Preliminary Objection could not be determined at that stage as the facts are not agreed on by the parties.

The same issue raised again by a different party by the Preliminary Objection of 14th July 2016; the interested party Equity Bank who joined the proceedings stated first that the Family Court lacks jurisdiction to adjudicate on the statutory power of sale over the said suit property. Secondly that the Court orders of 22nd January 2016 staying auction of the property charged to the bank by the Petitioner have no basis in law as this Court lacks jurisdiction to injunct the bank from exercising the statutory power of sale.

The first response to the Preliminary Objection is that it is the 2nd Preliminary Objection raised in the same matter and Ruling of 28th August 2015 subsists. There has been no review or appeal preferred. Therefore the 2nd Preliminary Objection amounts to raising the same issue for determination twice. In this Court's view the issue of jurisdiction is res judicata under Section 7 of Civil Procedure Act.

Secondly; even if it was the case that this Court lacks jurisdiction to hear and determine the Purchaser's claim, the application is summons for revocation of grant and combines the 1st Objector and 2nd Objector's claim. This Court has jurisdiction over issuance of grants in Succession matters. Therefore the matter in this Court is competent to the extent of each party establishing their, beneficial proprietory and or possessory rights over the asset that comprised of the deceased's estate.

Thirdly, there is still the 1st Applicant's beneficial interest claim to the deceased's estate as wife and son of the deceased.

This Court's view before distribution of the estate of the deceased under Section 71 of the Law of Succession act Cap 160;the Court must satisfy itself that the beneficiaries of the estate are the legitimate beneficiaries of the estate; that there are assets that comprise of the deceased's estate and are available for distribution after settling all liabilities and having the net estate for distribution.

The Court has to hear evidence where each claimant establishes their claim so as to enable the Court grant an informed decision. He who alleges must prove their claim so as to inform the Court whether there an asset belonging to the deceased's estate available for distribution. If so who holds proprietary interest, possessory interest and or beneficial interest to the said asset and how much of the asset is the relevant party entitled to.

So whether, it is a beneficial interest, proprietary interest, or debt recovery from the estate, it is only after hearing all the parties laying claim in the asset that belonged to the deceased and is now subject to distribution that the Court can conclusively determine what interest takes priority.

Fourthly; even if there is a bank to exercise statutory power of sale and or a purchaser who purchased the property that is subject to Succession process; it is important and critical to determine what share of NAROK CIS-MARA/OLOLUNGA/378 88. 8 HA & NAROK CIS -MARA/OLOLUNGA/379 80. 8 HA was charged to the bank or sold and what is available for distribution under the succession cause.

Fifthly; the above mentioned reasons mandated the Court to preserve the estate of the deceased under Section 45 of Law of Succession Act Cap 160. The Court orders of 22nd January 2016 import was to preserve the deceased's estate; the suit property subject matter of the various claims by each party until the claims were substantiated. Each party must prove its right over the property. Before the hearing to determine those various rights; the suit property ought to be preserved including the intended auction until there is furnished in Court evidence that there is a legitimate and legal claim of recovery of debt over part or whole of the asset that comprises of the estate of the deceased and or purchaser's right over such land or a portion of it.

Sixthly; the hearing and determination of these proceedings will not prejudice parties rights if the matter is heard and determined in the Family Court because each party apart from the 1st Objector is not precluded from filing suit in the relevant forum either Environment and Land Division or Commercial Division to pursue their claim. It would be grossly unfair to stay proceedings with regard to the instant deceased's estate in terms of summons for revocation of grant application filed on 26th June 2014.

DISPOSITION

1. This court reiterates the Ruling of 28th August 2015

2. Preliminary Objection of 14th July 2016 is dismissed with Costs.

3. The Summons for revocation of grant shall be set down for hearing on a date to be obtained by the parties from the Registry for inter parteshearing.

DELIVERED SIGNED & DATED IN OPEN COURT ON 2ND FEBRUARY 2017.

M.W.MUIGAI

JUDGE

IN THE PRESENCE OF;

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