[2022] KEHC 16110 (KLR)

Mukera & another v Njue & another (Civil Appeal E040 of 2021) [2022] KEHC 16110 (KLR) (7 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16110 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal E040 of 2021

LM Njuguna, J

December 7, 2022

Between

Leonard Njeru Mukera

1st Appellant

Alfred Munyi Mugo

2nd Appellant

and

Jerusha Wekumba Njue

1st Respondent

Rukunyi Njeru

2nd Respondent

(An appeal against the judgment of Hon W Ngumi PM in PM’s Court at Siakago Civil Case no 125 of 2018 and delivered on September 15, 2021)

Judgment

1. Vide a memorandum of appeal dated October 12, 2021 the appellants herein filed the instant appeal having been dissatisfied with the judgment in PMCC no 125 of 2018 and sets out grounds of appeal as enumerated on the face of the memorandum of appeal.

2. The crux of the matter lies in the fact that the respondents herein instituted a Succession Cause no 125 of 2018 at Siakago Principal Magistrates Court for letters of administration in reference to the estate of the deceased herein. That the estate was survived by three beneficiaries namely: Mugo Mukere (deceased), Jerusha Wekumba and Rukunji Njeru. The estate comprised of L R Mbeti/Gachoka/311 and Land Parcel Mbeti/ Gachoka/861 and the court thus issued the respondents grant of letters of administration and upon the lapse of six months, the respondents filed summons for confirmation of grant dated November 23, 2020 and further attached their mode of distribution. That one Elga Irima Mugo obtained grant of letters of administration ad litem in respect of Mugo Mukere’s estate; further, the appellants prior to the grant being confirmed, filed a protest against the confirmation of the said grant and therefore, the matter proceeded for hearing and thereafter, a ruling was delivered on September 15, 2021 and whereby, the trial court adopted the proposed mode of distribution as per the respondent’s affidavit.

3. It is this ruling that provoked the appeal herein.

4. At the hearing of the protest, the parties took directions from the court whereupon each party was to file submissions which directions all the parties complied with.

5. The appellants submitted that in 1981, the deceased herein had already gifted Jerusha Wekumba Njue and Rukunyi Njeru one and a half acres of the estate herein; that Alfred Munyi Mugo, Gerald Nyaga Mugo, Margstone John Njeru Mugo, Patrick Kiwanuka Mugo and Milton Mugo were gifted Land Parcel Mbeti/Gachoka/861. It was their contention that Land Parcel Mbeti/Gachoka/311 was gifted to Leonard Njeru Mukera, Tabitha Muthoni Kariuki, Egra Irima Mugo, Moses Mugo Muchiri and Mukumba Mukera and that the deceased even proceeded to mark each individual’s boundary. On ground 3 and 4, it was submitted that there is no dispute that the said suit land were gifted to the respective parties and that all of the parties have since settled on their respective pieces of land.

6. Further, it was their contention that the gift inter vivos notwithstanding, the principle of adverse possession equally applies for the reason that they have lived on the suit land for a period beyond 12 years and as such, it was their view that this court should find in their favour. On grounds 5 and 6, it was submitted that the deceased gifted the suit land during his lifetime and immediately thereafter still held the land in trust for them. Reliance was placed on Civil Appeal Cause no 51 of 2015 to buttress their view that they deserve the orders herein or by extension on application of the principle of adverse possession and trust. Further, it was their contention that the Ambeere tradition abhors disrespect for the deceased’s wish and as such, the desires of the deceased herein should be upheld. The court was urged to uphold the appeal and confirm the grant as per the mode of distribution provided in the protest.

7. The respondents in opposition submitted in reference to three heads namely: whether L R Mbeti/Gachoka/311 and Mbeti/ Gachoka/861 were gifts inter vivos; whether the deceased held the two parcels of land in trust for the parties herein and whether the appeal herein has merits. In regards to whether the suit lands were gifts inter vivos, it was submitted that the 1st appellant during the hearing of the protest testified that the deceased to whom these proceedings relate is his grandfather. That the respondents herein are the appellants’ aunts by virtue of them being daughters to the deceased. It was their case that the suit lands comprise the estate of the deceased herein and the same is buttressed by the search certificates which still show that the estate is still in the name of the deceased. Reliance was placed on section 42 of the LSA to buttress the fact that gift inter vivos are settled during the lifetime of the deceased and that the same having been identified, ought to be awarded and settled for the person to whom it has been given during the lifetime of the deceased. It was their contention that for the appellants to satisfy the requirement of the law, then the said gift inter vivos ought to have been made during the lifetime of the deceased for the same to be valid. Reliance was placed on the case ofGedion Manthi Nzioka (deceased)[2015] eKLR.

8. It was further submitted that the respondents are beneficiaries of the estate by virtue of them being daughters of the deceased herein. That against that backdrop, the appellants herein can only inherit through their parents and not directly from the deceased. It was their contention that the appellants are unknown and/or strangers to the estate of the deceased save for Egla Irima Mugo who obtained a limited grant by virtue of being a spouse to the deceased’s son, one Benson Mugo Mukere. That the same therefore translates to the fact that the appellants herein aren’t entitled to any share of the estate. Further reliance was placed on the case of Re Estate of Florence Mukami Kinyua (deceased)2018 eKLR.

9. On whether the deceased held the parcels of land in trust, it was submitted that section 25 of the Land Registration Act, 2012 stipulates that the registration of a party as the proprietor of land does not defeat a claim of trust nor relieve such a proprietor of his obligation as a trustee; however, there must be evidence upon which a court can conclude that in fact the registered proprietor of the land is in fact holding the land as a trustee for the benefit of others. That existence of trust must therefore be proved. Reliance was placed on the case of Mbothu & Others v Waitimu & Others [1980] K R R 171. It was their contention that the appellants’ burden to prove the existence of the alleged trust was not shifted and in the end, it was urged that this court dismisses the appeal herein for the same is devoid of merit.

10. I have read through and considered the memorandum of appeal and the submissions of both parties. I have also considered the authorities referred to by each party in supporting their legal propositions in the matter. Further, I have read and re-evaluated the record and evidence adduced thereto by the appellants. In my view, the only issue which this court is invited to decide is whether the appeal herein has merits.

11. It’s now settled that the role of the first appellate court is to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. (See Selle & Ano v Associated Motor Boat Co Ltd [1968] EA 123). The first appellate court ought not to ordinarily interfere with findings of fact by the trial court unless they were based on no evidence at all, or on a misapprehension of it or the court is shown demonstrably to have acted on wrong principles in reaching the findings. (See Mwanasokoni v Kenya Bus Service Ltd [1982-88]1 KAR 278 and Kiruga v Kiruga& Another [1988] KLR 348). Further, there is no set format which the first appellate court ought to conform to, in its re-evaluation of the trial court’s evidence but the evaluation should be done depending on the circumstances of each case and that what matters in the analysis is the substance and not its length. (See Supreme Court of Uganda’s decision in Uganda Breweries Ltd v Uganda Railways Corporation [2002] 2 EA 634 and Odongo and Another v Bonge Supreme Court Uganda Civil Appeal 10 of 1987 (UR).

12. The determination of the manner in which this property will be distributed depends on the answer to the question whether indeed the deceased prior to his death had distributed his properties as alleged by the appellants herein. If indeed the deceased had bequeathed his assets by way of gift inter vivos, then this court will be compelled to honour the wishes of the deceased. Section 42 of the Law of Succession Act provides that:42. Where-(a)an intestate has, during his lifetime or by will paid, given or settled any property for or the benefit of a child, grandchild or house; or taken had he not predeceased the intestate. That property shall be taken into account in determining the share of the set intestate estate finally, accruing to the child grandchild or house.

13. In regards to the requirement of law and as far as the principle of gift inter vivos is concerned, I adopt the finding of Nyamweya J (as she then was) in the case of Re Estate of the Late Gedion Manthi Nzioka (Deceased) [2015] eKLR, where she stated as follows:“In law, gifts are of two types. There are the gifts made between living persons (gifts inter vivos), and gifts made in contemplation of death (gifts mortis causa). Section 31 of the Law of Succession Act provides as follows with respect to gifts made in contemplation of death:…For gifts inter vivos, the requirements of law are that the said gift may be granted by deed, an instrument in writing or by delivery, by way of a declaration of trust by the donor, or by way of resulting trusts or the presumption of gifts of land must be by way of registered transfer, or if the land is not registered it must be in writing or by a declaration of trust in writing. Gifts inter vivos must be complete for the same to be valid.”

14. In Halsburys Laws of England4th Edition Volume 20(1) at paragraph 67 it is stated as follows with respect to incomplete gifts:?“Where a gift rests merely in promise, whether written or oral, or in unfulfilled intention, it is incomplete and imperfect, and the court will not compel the intending donor, or those claiming under him, to complete and perfect it, except in circumstances where the donor’s subsequent conduct gives the donee a right to enforce the promise. A promise made by deed is however, binding even though it is made without consideration. If a gift is to be valid the donor must have done everything which according to the nature of the property comprised in the gift, was necessary to be done by him in order to transfer the property and which it was in his power to do.”

15. It may be noted that gifts inter vivos as contemplated in the LSA are such that the owner of the property or asset donate the same without expectation of death. In any event the person who makes such a gift must have the capacity and competency to gift the property and the gift must be perfected and as such, the gift must go into immediate and absolute effect. It is also well established that where the gift has been made, delivery to the beneficiary is necessary to consummate the gifts. Further, it is fundamental to understand the intention of the parties and their acts done sufficient to establish the passing of the gift to the donee.

16. In the instant case, the deceased was the registered owner of L R Mbeti/Gachoka/311 and Land Parcel Mbeti/Gachoka/861 as noted from the record as the same is not controverted. The appellants have submitted that the deceased gifted the properties during his lifetime sometimes in the year 1981 to the parties listed. The respondents on the other hand have controverted the same submitting that there was no such donation by the deceased.

17. In construing whether the deceased dealt with the property as a gift inter vivos, the evidence leading to establish such gifts must be clear and convincing. In order to assess the credibility of the evidence, this court must avoid unscrupulous beneficiaries from seizing opportunities when the deceased persons are on their death bed or languishing in mortal illness to entirely fabricate a case set up for making a gift.

18. In my humble view, there was no evidence of matters such as consent to transfer or any signed transfer or anything of evidentiary value that alleged subdivisions by the deceased intended for the persons claiming them and in addition, all the parcels of land as I have observed, are still in the name of the deceased and not the appellants or any other beneficiary for that matter. I find no evidence to support the claim that the deceased made gift inter vivos to any of the persons claiming as such. In the circumstances, Land Parcel Mbeti/Gachoka/861 and L R Mbeti/Gachoka/311 herein constitute the estate property.

19. The 1st appellant herein submitted that he is the son of Benson Mugo Mukere and the deceased herein was his grandfather; whilst the 2nd appellant is his step brother and that the respondents are his aunts. It therefore follows that the respondents and Benson Mugo (the father of the appellants herein) are the children of the deceased herein. In Nahashon Karungu Macharia v Rosemary Kahura Njoroge [2016] eKLR it was held that a daughter-in-law of a predeceased son is a beneficiary of the estate of the latter deceased parent-in-law thus: -“The deceased was survived by the said administrator and another son, Patrick Muthemba Macharia. He was also survived by a daughter-in-law called Rosemary Kahura Njoroge (a widow of another son, now deceased, James Njoroge). There had been yet another son, John Kimani, who died after the deceased. It is common ground that he died without wife or issue. So, in effect there are only three beneficiaries to the estate of the deceased – his two surviving sons and the widow of another son, since deceased.”

20. It therefore follows that a grandchild is a direct heir to the estate of the grandparent where the parent predeceased the grandparent. The grandchildren get into the shoes of their deceased parents and take the parent’s share in the estate of the grandparents. This was stated in Re Estate of Wahome Njoki Wakagoto [2013] eKLR where it was held:-“Under part V, grandchildren have not right to inherit their grandparents who die intestate after July 1, 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.”

21. In view of the above, I find and hold that the appellants herein can only inherit directly from their parents hence not the deceased herein.

22. In the same breadth, it was submitted that the deceased had prior to his death expressed how his estate ought to devolve. In the Estate of Elizabeth Wanjiku Munge (deceased) [2015] eKLR, the court held the view that the date of making an oral will is critical. Further that, the life of an oral will is only three months, unless the maker is a member of the defence forces. [Also seeIn re Estate of Kevin John Ombajo (deceased) (Succession Cause 555 of 2018) [2021].

23. In the case here, the appellants submitted that the deceased stated his desires on how the estate should devolve some thirty seven years ago; going by the guidance enumerated above, I hold the view that the allegations of existence of an oral will having been made by the deceased herein must therefore fail.

24. On whether the deceased held the estate herein in trust for the appellants and or the principle of adverse possession crystalized in the case herein, of importance to note is the fact that the mandate of the probate court. A distinction ought to be made between a claim against the estate of a deceased and a claim on inheritance in respect of the estate of the deceased.

25. To reaffirm this legal position, I again take refuge in the decision in H C Succession Cause no 864 of 1996 [2015] eKLR where the court held that;“Even if there was material establishing that there was such a trust, I doubt that the resolution of this issue would be a matter of the probate court. The mandate of the probate court under the Law of Succession Act is limited. It does not extend to determining issues of ownership of property and declaration of trusts. It is not a matter of the probate court being incompetent to deal with such issues but rather that the provisions of the Law of Succession Act and the relevant subsidiary legislation do not provide a convenient mechanism for determination of such issues. A party who wishes to have such matters resolved ought to file a substantive suit to be determined by the Environment and Land Court.

26. Consequently and for the reasons above stated, I must find and hold that this court has no jurisdiction to resolve the proprietary interest on land based on the alleged trust. In this case therefore, the only path legally open to the applicants is to institute separate proceedings to articulate their claim in the right forum and which is the Environment and Land Court. [See article 162 of the Constitution].

27. I therefore hold that this court has no jurisdiction to determine the claim of trust and/or adverse possession to give any relief in respect thereof.

28. In the same breadth, I note that Mbeti/Gachoka/861 and Mbeti/Gachoka/311 measures 5. 8 and 5. 6 ha. respectively. As such, I find that the trial magistrate’s determination was not only fair but also lawful given the circumstances herein. As a consequence of the foregoing, I uphold the determination of the trial court and dismiss the appeal herein.

29. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 7TH DAY OF DECEMBER, 2022. L NJUGUNAJUDGE…………………………………..…..….for the appellant………………………………………for the respondents