[2022] KEHC 3042 (KLR)

Mutunga v Mbithi (Succession Cause 95 of 2011) [2022] KEHC 3042 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3042 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 95 of 2011

MW Muigai, J

May 12, 2022

Between

Churchil Mutune Mutunga

Applicant

and

Kennedy Musyoka Mbithi

Respondent

Ruling

1. By a Notice of Motion dated 22nd February, 2021, the Applicants herein seek the following orders:-1. THAT this Hon. Court be pleased to restrain the Petitioner/Respondent from selling, alienating and/or leasing the whole of part of the plot no: Kiteta/Kiambwa/363 until letters of administration are confirmed.2. THAT this Hon. Court be pleased to restrain the Petitioner/Respondent from preventing the 1st Applicant from using the portion of land which she has been using since her birth until grant herein is confirmed.3. THAT this Hon. Court be pleased to remove the Respondent as the holder of grant and instead appoint the Applicants as holders of grant and finally the administrators of the estate of Cromwell.4. THAT alternatively the grant be issued in the joint names of the Applicants and the Respondent.5. THAT the OCS Mbumbuni to supervise the compliance of any orders issued by this court.6. THAT the costs of the application be provided for.

2. The Motion is supported by the affidavit of Churchill Mutune Mutunga, the 2nd Applicant herein. According to the deponent, he is the son of the late Margaret Kamene Cromwell, the daughter of Ann Cromwell, the subject of this Succession hence entitled to benefit from the estate of the deceased.

3. He averred that sometime in April, 2020 the Respondent sold a portion of land to a third party who has dumped building materials on the land. According to the deponent, on or about 16th December, 2020, the Respondent subdivided the land parcel No: Kiteta/Kiambwa/363 into several plots and put up beacons on the land as per the attached photographs marked as ‘CM-1’. He averred that the estate has not been distributed and confirmed. The 2nd Applicant sincerely believes that the Respondent intends to sell the same to other parties.

Replying Affidavit 4. In opposition to the Motion, the Respondent swore an affidavit on 1May 2, 2021. According to the Respondent, the Applicants are not truthful as they are working for a third party, one Mr. Nicholas Kilonzo Musyoki alias Charles who purports to have bought the entire estate of Anna Ngala Mbila from Lilian and now wants to transfer the estate to him. The Respondent placed reliance on his protest letter marked as KM-1 to the Applicant’s advocate seeking suspension of the succession process due to interference by the Applicants and the purported buyer.

5. According to the Respondent, in November, 2017, the Applicant purported to evict him and his family from the house built on the land. That on numerous occasions between 1st September, 2018 and 2nd April, 2019 the purported buyer and the Applicants accompanied by a group of other people forcefully entered the land and began fencing, clearing bushes, cutting down trees and ploughing claiming to be the owner of the entire property. The Applicants and the purported buyer have continuously vowed to use all possible means to transfer the entire estate to the buyer and have previously attempted to use the OCS Mbumbuni Police station, the area Chief and his assistant to evict the Respondent and subsequently occupied the land prompting the Respondent and other beneficiaries to write a demand letter marked as ‘KM-2’ warning the perpetrators of a legal action.

6. He averred that he has not sold any property belonging to the estate of the late Anna Ngala Mbila since any of such disposal was done by the deceased and each of her two daughters Margaret Kamene and Rose Ndungwa who are deceased. According to the Respondent, the building materials referred to in ‘CM-1’ belong to him for personal use. According to the deponent, Churchill Mutune Mutunga is not qualified to be or to suggest the administrator of the estate of the late Anna Ngala Mbila because the family of Margaret Kamene Mutunga (First born daughter of Anna) disqualified themselves from inheriting any property of the deceased thus leaving it to her two younger sisters Dorothy Mueni and Rose Ndungwa. He averred that he is the only one who has settled on the property since birth as the others moved away to settle in other areas.

7. He averred that he stands to suffer psychologically and financially if the Applicants become the administrators of the estate since he will definitely be evicted by the third party who the Applicants are working for hence losing the place he has called as home and lived in since birth. According to the deponent, the other four beneficiaries namely Annestine Ndinda, Peter Musembi, Florence Mutheu and Martin Kyalo who will also suffer psychologically and financially as they will lose the right to the estate to a third party whose interests the Applicants are representing.

Applicant’s Submissions 8. On behalf of the Applicants, it is submitted that under Section 45 of the Law of Succession Act, the court has the power to preserve the estate. According to the Applicants, the Respondent has been selling and subdividing the land. It is submitted that the Respondent as the holder of the grant is unfaithful in exercise of his duties hence he should be removed and the Applicants be appointed and in the alternative, the grant be held jointly with another person.

9. The Respondents despite several mentions failed to appear or be represented or file written submissions.

Determination 10. The Court considered the Motion, affidavits in support and in opposition as well as the submissions. The issue for determination is whether the Respondent is an intermeddler.

11. The Application is premised on Section 45 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules. Section 45 provides:-“(1)Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.(2)Any person who contravenes the provisions of this section shall—(a)be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and(b)be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.” 12. According to Musyoka, J. in Veronica Njoki Wakagoto (Deceased) [2013] eKLR while interpreting the provision stated that:“The effect of [section 45]…is that the property of a dead person cannot be lawfully dealt with by anybody unless such a person is authorised to do so by the Law. Such authority emanates from a grant of representation and any person who handles estate property without authority is guilty of intermeddling. The law takes a very serious view of intermeddling and makes it a criminal offence.”

13. Section 82 (b) (ii) of the Law of Succession Act which provides that:“(ii)no immovable property shall be sold before confirmation of the grant;..”

14. It is not disputed that the grant has not been confirmed. It is also not disputed that plot number Kiteta/Kiambaa/363 is a property in the estate of Ann Cromwell. It is not dispute that the Respondent has lived with his family on the said plot since birth. The Respondent averred that the material on the plot belong to him.

15. According to the Applicants, the letters of administration in the estate of Ann Cromwell (Deceased) have not been confirmed yet the Respondent is selling portions of the Plot. The basis of the alleged intermeddling against the Respondent are the photographs which show a parcel of land erected with beacons and barbed wire fence. According to the Applicants, without attaching a survey map to show the subdivision of the said Plot, assert that the subdivision was undertaken by the Respondent on 16th December, 2020 without the confirmed letters of administration.

16. The Respondent has denied that he has sold any property in the estate of the deceased herein. According to the Respondent, if any such property was sold, it would be the deceased herein and her two daughters Dorothy Mueni and Rose Ndungwa. According to the Respondent, without attaching a sale agreement or any documentary proof of sale of the Plot, assert that it was Lilian Nanjala, the 1st Applicant herein who sold the plot to the purported buyer Nicholas Kilonzo Musyoki. The Respondent has also not attached any proof of sale by the deceased and her two daughters. The Respondent has also not provided any documentary evidence of renunciation from the deceased’s first daughter, Margaret Kamene from inheriting the property of the deceased.

17. The law provides that he who alleges must prove. Section 107 and 109 of the Evidence Act provides;107. Burden of proof;(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.109. Proof of particular factThe burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

18. The Court’s view is that both that Applicants and Respondent have not substantiated their assertions. The court does not find any substantiated reason by the Applicants to warrant the removal of the Respondent in the administration of the estate of Ann Cromwell or why the Applicants should not be joined as administrators.

19. In Re Estate of Dr. John Muia Kalii (Deceased) Machakos HCC Succession Cause No. 81/1995 where Mwera, J. held that;“Since intermeddling is a criminal offence evidence to support an allegation of it must be very strong.”

20. However, the court notes that the Respondent assert that on several occasions the Applicant, the purported buyer, the OCS Mbumbuni police station and the area Chief and his assistant have attempted to evict the Applicant and his family from the plot. According to the Respondent, he will suffer psychologically and financially if the Applicants are joined as administrators since he will be evicted from the plot with his family for the purported buyer to take possession. It is not disputed that the Respondent has lived on the Plot since birth.

21. Rule 73 provides that:-“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

22. In light of the above Rule, in Moraa Gisemba v David Nyakoi Ongori [2015] eKLR the court held that:-“I find that Rule 73 of the Probate and Administration Rules grants this court the wide discretion to make appropriate orders as may be necessary in the interest of justice or to prevent abuse of the process of the court. For the foregoing reasons ……., an order for the maintenance of status quo obtaining as at today is here issued in order to safeguard and preserve the deceased’s Estate as it awaits confirmation of the grant already issued”.

23. The Court therefore has the inherent power to prevent abuse of the court and for the ends of justice. Essentially the Applicants are seeking restraint orders in the form of an injunction against the Respondent from selling, alienating and/or leasing the Plot.

24. According to Muriithi J. In re Estate of John Mathiu Irware (Deceased) [2022] eKLR:-“14. The Law of Succession Act is a complete legal regime with substantive and procedure rules for the governance of succession matters including their civil and criminal sanctions for dealings with the estate of deceased persons. Intermeddling with the estate will attract both civil and criminal sanction under section 45 of the Law of Succession Act. In its civil jurisdiction, a succession court may therefore grant civil remedies including the eviction of a trespassing intermeddler or injunction and other relief against a person who otherwise intermeddles, a term of art which means any dealing with estate property inconsistent with the Grant of Representation, in the estate of a deceased. The statutory injunction under section 45 that “no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person” is capable of protection and enforcement by an order for eviction of such a person. In addition, apart from the criminal penalty under section 45 (2), Section 46 of the Act obliges the police officers, administrative officers and chiefs to take steps to protect the estate of a deceased person..”

25. This Court takes the view that the Applicants and Respondents are grandchildren of the deceased as their mothers are/were daughters of the deceased; Kennedy Musyoka is the son of Rose Ndungwa Mbithi (deceased) daughter of the deceased herein, Anna Ngala Mbila alias Anna Cromwell; Lilian Nanjala Cromwell is daughter of Dorothy Mueni (deceased) daughter of Anna Cromwell (deceased) and Churchil Mutune Mutunga is son of Margaret Kamene Mutunga daughter of Anna Cromwell.

26. There are allegations and counter allegations on disposal and sale of the assets that comprise of the deceased’s estate. To resolve the impasse between grandchildren of the deceased by virtue of Section 66 LSA they are appointed as Administrators of the estate of the deceased and to carry out their statutory duty and exercise powers under Sections 82 & 83 of LSA chief among them, they cannot illegally, sell, transfer or sub-divide the suit properties until the grant is confirmed as they have no legal title to pass on to the Purchasers until the grant is confirmed.

27. Since the grant has not been confirmed, the estate of the deceased shall be preserved until legal rights of warring parties shall be determined at the hearing and determination of the Summons for Confirmation proceedings.

28. In the case of Prisillah Wanja Kibui v James Kiongo Kibui & Charles Wambugu Gitonga ELC 170 of 2011 it was held as follows;Status quo is defined in Black’s Law Dictionary as ‘’the situation as it exists’’In my view an order to status quo to be maintained is different from an order of injunction both in terms of the principles for grant and practical effect of each. While the latter is an substantive equitable remedy granted upon establishment of a right, or at interlocutory stage, a prima facie case, among other principles to be considered, the former is simply an ancillary order for preservation of the situation as it exists in relation to pending proceedings before hearing and determination thereof.

DispositionThe orders to be granted in the circumstances are:-a.The grant of letters of administration in the estate of Ann Cromwell alias Ann Ngala Mbila shall be issued in the joint names of the Applicants and the Respondent – Kennedy Musyoka, Lilian Nanjala Cromwell and Churchill Mutune Mutunga.b.The Joint Administrators shall file Summons for confirmation to be heard within 6 months; any aggrieved party may file Protests to be heard and determined before the grant is confirmed.c.Status quo on the ground in relation to the assets that comprise of the deceased’s estate shall be preserved pending hearing and determination of the Summons for confirmation proceedings.d.The OCS Mbumbuni Police station to supervise the compliance of the court orders.e.Each party meet their own costs.It is so ordered.

DELIVERED SIGNED & DATED ON 12TH MAY 2022 IN OPEN COURT AT MACHAKOS (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGE