[2023] KEHC 27417 (KLR)

Munaa v Munyao (Civil Appeal 60 of 2019) [2023] KEHC 27417 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 27417 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal 60 of 2019

DO Chepkwony, J

November 21, 2023

Between

Stephen Mukuu Munaa

Appellant

and

Benard Wambua Munyao

Respondent

(Being an Appeal against the Judgment and Order of Thika Senior Resident Magistrate Hon. V Kachuodho dated 28th March, 2019 in Thika Chief Magistrate Succession Cause No. 379 of 2012)

Judgment

1. By way of background, Muna Ngolanie (hereinafter referred to as ‘the deceased’ died on 21st December, 2007. He left behind assets and beneficiaries as enumerated in the Chief’s letter dated 3rd September, 2010 and a further letter dated 29th December, 2018. One Bernard Wambua (hereinafter “the Respondent”) was issued with Letters of Administration on 6th March, 2014 and he applied for Summons for Confirmation of Grant dated 8th September, 2015. Therein, he proposed the distribution of Land parcel No.Ithanga/Kakuzi Gituamba Block 1/98 as between him and one Stephen Muuku Munaa (hereinafter referred to as ‘the appellant’).

2. The Appellant seeks the following Orders that:a.The Appeal herein be allowed and the Judgment delivered on 28th March, 2019 be set aside.b.The matter be referred back to another Magistrate with Directions that:i.The court to first determine the number of wives of the deceased.ii.The court to determine the issue of whether/not the Petitioner herein purchased land from the deceased.iii.What issues or matters in respect of distribution of the estate the beneficiaries had not agreed on.c.That the costs of this Appeal be awarded to the Appellant.

3. The Respondent filed a Citation dated 24th July, 2012 for the Appellant to accept or refuse the Letters of Administration Intestate.

4. The said Appellant, Stephen Muuku Munaa entered appearance on 14th November, 2012 but did not file an objection or Replying Affidavit.

5. On 6th March, 2014, the subordinate court issued Grant of Letters ofAdministration to Respondent and Summons for Confirmation of Grant dated 8th September, 2015 was filed wherein it was sought that the Grant of Letters of Administration Intestate be made to Bernard Wambua Munyao, the Respondent. In the Supporting Affidavit, the Respondent averred that the deceased was survived by a son, Stephen Muuku Munaa (‘the Appellant) and himself as the purchaser. The Respondent proposed the mode of distribution of the assets of the deceased as listed below:i.L.R. No. Kakuzi/Ithanga/Gituamba/Block 1/98 -Benard Munyao – 2 acres.ii.L.R. No. Kakuzi/Ithanga/Gituamba/Block 1/98- Stephen Muuku Munaa- 3. 458 acres.

6. Subsequently, on 30th October, 2015, the Appellant filed Replying Affidavit sworn on 27th October, 2015 in opposition to the Summons for Confirmation of Grant in which he indicated that he was not aware of the issuance of the Grant of Letters of Administration issued to the Respondent and denied that the deceased’s estate had two dependants. He stated that the estate of the deceased was survived by other children and not just himself as alleged. He went on to enumerate that the deceased was survived by John Nguta Munaa, Joseph Muuku Munaa and Ruth Mwithi Munaa, who have not agreed among themselves as who should apply for Letters of Administration. He denied that the Respondent was one of the family members and thus his application was fraudulent and made in bad faith.

7. The trial court then issued Directions for the cause to proceed by way of viva voce evidence which was later amended that it proceeds by way of Affidavit evidence.

8. On 26th November, 2018, the Respondent filed his Affidavit, wherein he confirmed that he was issued with Grant of Letters of Administration and stated that he purchased the parcel of land from the deceased prior to his demise on 23rd October, 2007 since the deceased needed money for his medication because his family had abandoned him and refused to buy him medicine.

9. According to the Respondent, the deceased sold him two acres of land from Land Parcel No.L.R Kakuzi/Ithanga/Gituamba Block 1/98 at Kshs.80,000/= which he paid in cash in the presence of his uncle, the Chief and the deceased’s wife Ruth on 23rd October, 2007.

10. The Respondent stated that the deceased advised him to start fencing the land immediately but the deceased died in December, 2007 before the process of transfer could be effected. He said that he had already started farming on the land and had already harvested. He went on to state that when the deceased died, his son, the Appellant, started chasing them while threatening to harm them and removed the erected fence. He stated that the he filed Citation dated 24th July, 2012 and was issued with Grant for which he was seeking its confirmation so as t bring this matter to final conclusion. He further stated that although the Appellant entered appearance of the Citation on 14th November, 2012, he neither took out Letters of Administration nor objected to his move to do so. This led to the court allowing him to apply for these letters, which he obtained on 6th March, 2011.

11. The Appellant also filed his Affidavit sworn on 26th November, 2018 and denied that his father needed money for medication as his family was taking care of him. He also stated that the deceased had four wives and it was difficult for them to agree on who shall be the administrator(s) of the estate. He stated that the beneficiaries and shares of each of the persons have not been ascertained.

12. The Appellant went on to dispute the sale of the land to the Respondent since there was no witness from the family to the same. He said that from the fact that his father was sick and elderly and the alleged transaction having taken place barely two months before his demise, made it suspicious. He argued that the Respondent was malicious and had bad faith and contends that the whole transaction was marred by forgeries and irregularities.

13. The subordinate court delivered its judgment on 28th March, 2019 and determined that the Respondent as a purchaser was entitled to Petition for Grant of the estate as Creditor under Section 66 of the Law of Succession Act. The court also considered the beneficiaries as listed in the Letter from the Chief and directed the estate be divided as follows:i.L.R. No. Kakuzi/Ithanga/Gituamba/Block 1/98 -Benard Munyao – acres.ii.L.R. No. Kakuzi/Ithanga/Gituamba/Block 1/98 – to be shared among the five houses.iii.L.R. No. Kakuzi/Ithanga/Gituamba/Block 1/211 - to be shared among the five houses.iv.Land parcel- Ithanga Phase VI/274 - to be shared among the five houses.v.Land parcel- Ngelelya Market Plot No. 22’A - to be shared among the five houses.

14. Being aggrieved with the trial court’s decision, the Appellant herein filed Memorandum of Appeal dated 17th April, 2019 based on the following grounds:a.That the Learned Senior Resident Magistrate erred in Law and fact by confirming the Grant dated 8th September, 2015 issued to Benard Wambua Munyao whose claims to the estate was premised on mere allegations and misrepresentations.b.That the Learned Senior Resident Magistrate erred in law and fact in failing to appreciate that the issues in the matter required the court to call for viva voce evidence as opposed to affidavit evidence to enable the court reach a fair decision.c.That the Learned Senior Resident Magistrate erred in law and fact in failing to appreciate that there was a dispute as to whether the Deceased had 4 or 5 wives and that issue needed to be resolved before distribution of the estate.d.That the Learned Senior Resident Magistrate erred in law and fact by ignoring the fact that the distribution of the estate had not been agreed to by the beneficiaries and consultations were ongoing in respect of the same and there was need for the court to determine only what the parties had not agreed on.e.That the Learned Senior Resident Magistrate misdirected herself by failing, to direct that the issue of the Petitioner herein having purchased land having been disputed by all the beneficiaries and that issue called for a hearing within a hearing, to determine the issue before confirming the grant.f.That the Learned Senior Resident Magistrate erred in law and fact in holding that there were no Submissions by the parties yet the Objector herein had filed detailed Submissions.g.That the Learned Senior Resident Magistrate misdirected herself n confirming the Grant of letters of administration to the Petitioner herein in respect of several land parcels where the Petitioner herein had no interest and was in no position to administer.h.That the Learned Senior Resident Magistrate erred in law and fact by holding that at the time of death the Deceased had sold part of his land to the Petitioner and was in the process of transferring the said piece of land to the Petitioner herein yet there was no evidence so to hold.i.That the Learned Senior Resident Magistrate erred in law and fact by making numerous assumptions without hearing any of the parties involved.j.That the Learned Senior Resident Magistrate erred in law and fact by basing her entire decision on assumptions and disputed documents in clear contravention of the law of Evidence.k.That in the circumstances of the case, the Learned Senior Resident Magistrate failed to render justice to the Appellant.

15. The court admitted the Appeal for hearing on 16th September, 2019 and directed that it be disposed by way of written submissions. At the time of writing this Judgment, only the Appellant had filed his Submissions reiterating his position as per the proceedings in the subordinate court, all which have been considered by the court.

Determination 16. In determining the appeal, it is worth reminding ourselves that this is a first appeal and this being appellate court, its duty is to re-evaluate proceedings and Judgment of the trial court afresh so as to arrive at its own independent finding while bearing in mind that it did not have the privilege of the trial court. (See case of Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123).

17. In this particular case, having read through the proceedings and Judgment of the trial court, this court finds the issues for determination being:-a.Whether the confirmation of Grant of Letters of Administration to the Petitioner in respect of several land parcels where he had no interest.b.Whether the trial Magistrate relied on assumption and disputed documents in arriving at her decision.c.Can this court issue directions on the issue of whether or not the Petitioner purchased the land from the deceased.

18. It is important to note that in such causes, it is required that before a court confirms a grant, it ought to have ascertained all the assets, liabilities and beneficiaries of the Estate of the Deceased.

19. In regard to the first issue, it is noted that in her Judgment, the trial Magistrate pointed out that the Succession Cause was filed in the year 2012, when the Respondent filed a Citation to accept or refuse Letters of Administration Intestate. The court went on to note that the Objector (herein referred to as ‘the Appellant’), despite entering appearance on 14th November, 2022 but did not file a Replying Affidavit or objection to the Citation. The trial Magistrate then proceeded to find that due to the indolence on the part of the Appellant and or the deceased’s beneficiaries in pursuing Letters of Administration of the Deceased’s Estate, the Respondent then was entitled to apply for the same in his capacity as a Creditor as provided for under Section 66 of the Law of Succession Act, Cap 160 of the Laws of Kenya.

20. Having perused the proceedings before the trial court, it is indeed confirmed that in filing the Citation which was served upon the Appellant as confirmed by his filing of a Memorandum of Appearance, the Respondent had expressed his interest as a Creditor in the Estate of the deceased. It was at that point that the Appellant ought to have raised an objection and availed evidence to rebut the Respondent’s claim. Legally, the Respondent was entitled to move the court so as to claim his interest in the Estate of the deceased by filing the Grant of Letters of Administration Intestate. The only anomaly noted was in the Summons for Confirmation of Grant where the trial court noted some of the beneficiaries and assets of the deceased had been concealed but proceeded to ascertain the same from the letters from the Chief dated 3rd September, 2010 and 29th December, 2018 respectively, before proceedings to distribute the Estate. From the distribution, it is clear that the trial Magistrate addressed the number of wives the deceased had alongside their children. However, if there is an issue with regard to the distribution, then the aggrieved parties can move the court by Summons for Rectification to address any mistake.

21. On the issue of whether the court arrived at its decision based on assumption and disputed documents, having read through and considered the impugned Judgment, alongside the pleadings and Applicant’s submissions, it is clear the main grievance by the Appellant is that the Respondent’s claim that he bought land from the deceased in fraudulent and a forgery. The Respondent on the other hand reiterates that he bought the said piece of land and has interest in the deceased’s estate.

22. It is trite law that the legal burden of proof lies on the party asserting and the evidential burden of proof may shift to the other party. The Supreme Court in the case of Presidential Election Petition No.1 of 2017 between Raila Amolo Odinga & Another v IEBC & 2 Others [2017] eKLR had the following to say on the evidential burden of proof in paragraphs 132 and 133 thereof: -

(132)Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and “remains constant through a trial with the plaintiff, however, “depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.(133)It follows therefore that once the Court is satisfied that the petitioner has adduced sufficient evidence to warrant impugning an election, if not controverted, then the evidentiary burden shifts to the respondent, in most cases the electoral body, to adduce evidence rebutting that assertion and demonstrating that there was compliance with the law or, if the ground is one of irregularities, that they did not affect the results of the election. In other words, while the petitioner bears an evidentiary burden to adduce ‘factual’ evidence to prove his/her allegations of breach, then the burden shifts and it behooves the respondent to adduce evidence to prove compliance with the law….. 23. The burden of proof in this case was on the Respondent to show that he was a purchaser of the parcel of land which he discharged through the sale agreement produced in the case as “BMW-2”and letter from Chief. This burden then shifted to the Appellant to show that the sale did not take place but he failed to discharge the same by providing evidence in rebuttal thereof. In view of this, this court finds that the Appellant has failed to disapprove that the deceased sold land to the Respondent two months prior to his death, and neither did he produce evidence to prove the documents produced by the Respondent were fraudulent and or forged.

24. While warning itself that the issue of the disputed sale of land and or claims of the fraudulent claim by the Respondent do not fall under this court’s jurisdiction, it is worth noting that a proprietor of land is at liberty to sell, dispose of or use this land in whichever manner they deem fit as long as it is within the legal confines and there is no legal provision that the family of such proprietor be present during such transaction.

25. It is trite law that the Appellate court can only interfere with the decision of the subordinate where is has established there was an error in fact, law or principle. (See Mwanasokoni v Kenya Bus Service Ltd. [1982-88] 1 KAR 278 and Kiruga v Kiruga & Another [1988] KLR 348). In this case, the court finds that there was no error on the part of the trial court to warrant disturbance of its Judgment and order.

26. With regard to whether this court can issue directions for another court to determine the issue of whether the Petitioner purchased land from the deceased, I find this is an issue that falls under the Environment and Land Court and hence cannot be dealt with in this matter. In the circumstances, the Appellant be and is hereby directed to pursue the issue in the right forum and or court.

27. The upshot is that the Appeal herein lacks merits and the same is hereby dismissed with costs to the Respondent.

It is so ordered.

RULING DELIVERED, DATED AND SIGNED AT KIAMBU THIS 21STDAY OFNOVEMBER, 2023. D. O. CHEPKWONYJUDGEIn the presence of:Mr. Mutua counsel for AppellantCourt Assistant - Martin