[2022] KEHC 9881 (KLR)

Mwai & another v Mwai; Ndungu (Interested Party) (Succession Cause 641 of 2008) [2022] KEHC 9881 (KLR) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9881 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause 641 of 2008

TM Matheka, J

July 8, 2022

Between

John Mbugua Mwai

1st Applicant

Maina Gathimba Mbugua

2nd Applicant

and

George Kamau Mwai

Respondent

and

David Mwangi Ndungu

Interested Party

Ruling

1. What is before me is the Summons dated 27th September 2021 brought by David Mwangi Ndung’u describing himself as the Interested Party. He has come under Rule 73 of theProbate and Administration Rules, Section 93 of the Law of Succession Act and all enabling provisions of the law. He seeks orders;1. Thatthe Honourable Court be pleased to certify the application herein urgent and hear it ex-parte in the first instance.2. Thatthe Honourable Court be pleased to admit David Mwangi Ndung’uas an interested party in these proceedings.3. Thatthe Honourable Court be pleased to Order that pending the hearing and determination of this suit, the status quo in the user of the Land parcel Kiganjo/gachika/501 be maintained.4. TheHonourable Court be pleased to review its judgment and order dated 21st June 2021 nullifying the Title of the applicant over Land Parcel Kiganjo/gachika/501 with an order reinstating the same.5. Thatthe costs of this application be provided for.

2. The Summons is supported by the grounds on its face and the Affidavit sworn by the Applicant on 27th September 2021.

3. The application was provoked by this court’s Ruling of 21st June 2021 where the grant issued to one George Kamau Mwai on 30th August 2007 was revoked, and the following orders were madea.. Any actions that flowed from the said certificate of confirmation of grant be and are hereby revoked.b.Any action flowing from the said grant be and is hereby revoked.c.The parcel of land title to the parcel of land to wit Kiganjo/gachika/501/ to revert to the estate of the deceased, and the Land Registrar Gatundu to act accordingly.d.The respondent to bear the cost of this summons.e.Either party is at liberty to petition the court for letters of administration of the deceased’s estate.

4. It is the applicants position that having been the registered proprietor of LR Kiganjo/Gachika/501 he was never served with pleadings that led to the orders that were issued by this court.

5. That he had all the requisite documents to support his claim. He listed the documents, at paragraph 10 of his affidavit, stating as follows;“10. That further we have gone through the ruling delivered on 21st June 2021 and it is apparent the Court gave a lot of criticism on lack of documents that if I had been enjoined could have been presented several which I attach hereto as follows;-i) Title Deed dated 13/6/2008 DMN2ii)Search Certificate dated 28/7/08 – DNM3iii)Agreement for sale and payment voucher –DMN4iv)Title Deed dated 31/7/08 – DNM5v)Letter dated 22/10/2013 – DNM6vi)Search dated 24/08/09 – DNM7”.

6. That the court, in revoking his title deed, violated his rights to property rights protected under Section 93 of the Law of Succession Act. That the court contradicted itself, it observed that he had a title deed, then doubted that the land had been sold, yet, there was a Land Control Board consent.

7. The application is opposed by John Mbugua Mwai the objector vide Replying Affidavit sworn on 12th November 2021. His position is that the applicant purchased the property from an administrator to the estate of the deceased, whose grant was revoked on 6th July 2021 rendering the transaction null and void, because the process of obtaining the said title was an illegality.

8. In his Further Affidavit sworn on 1st December 2021, the applicant deponed that the said parcel had been vacant/abandoned land adjacent to his parcel Kiganjo/Gachika/752. That when it was offered for sale, no relative of the deceased showed up and he purchased the land on the strength of the letter from the chief and the Grant of Letters of Administration to the effect that the petitioner and his siblings were the rightful owners of the land. That upon purchase of the land he combined it with his land and came up with Kiganjo/Gachika/3352.

9. Parties filed Written Submissions.

10. The applicant relied on Section 93 and 83 of the Law of Succession Act and Gaciku Kangari & 2 Others Vs Hon. Attorney General & 3 Others [2019] eKLR arguing that his title to the property was valid, should not have been invalidated, without him being heard.

11. The respondent argues that the applicant cannot be heard to say that he was not aware of the proceedings yet the person who sold him the property was a party to the proceedings and was aware of what they entailed, and chose not to inform him/informed him and he chose to ignore the same. Secondly that going by Musa Nyaribari Gekone & 2 Others Vs Peter Mayieka & Another, [2015] Eklr And Re Estate of Christopher Jude Adela[2009] eKLR, transactions that are contrary to the grant are not protected by Section 93 of the Law of Succession Act.

12. Having considered the application, rival affidavits and submissions, the only issue for determination is whether the application for review of the Ruling of 21st June 2021 to re-open the matter, join the applicant as an interested party and hear this case is tenable.

13. Rule 73 of the Probation and Administration Rules provides;Saving of inherent powers of courtNothing 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.”

14. Section 93 of the Law of Succession Act provides;Validity of transfer not affected by revocation of representation(1)All transfers of any interest in immovable or movable property made to a purchaser either before or after the commencement of this Act, by a person to whom representation has been granted shall be valid, notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this Act.(2)A transfer of immovable property by a personal representative to a purchaser shall not be invalidated by reason only that the purchaser may have notice that all the debts, liabilities, funeral and testamentary or administration expenses, duties, and legacies of the deceased have not been discharged nor provided for.

15. The applicant seeks to be joined in this matter to demonstrate how he acquired title to Kiganjo/Gachika/501 and how, that title is protected by Section 93 of the Law of Succession Act.

16. At paragraph 44 of the Ruling I stated;“The Authorities cited are distinguishable. In this case the administrator purported to confer something he did not have. He did not obtain the grant properly, he was not the legitimate administrator of the estate and had not acquired title to pass onto the alleged buyer. The grant clearly indicates that he was holding the property in trust for other beneficiaries. Any innocent purchaser for value would query who these other beneficiaries were and whether they had consented to the sale. The Respondent lied to the court, concealed material facts from the court and still expects the court to lay its hand so to speak on the outcome of his misdeeds? I think that would be stretching it a bit far.”

17. My position is supported by the Court of Appeal in Musa Nyaribari Gekonewhere the Court of Appeal upheld decisions of this court in the following terms; (and for the avoidance of doubt I quote extensively from the said decision)Section 93 of the Law of Succession Act has been the subject of judicial interpretation in a number of cases. In a recent persuasive decision of Adrian Nyamu Kiuguv vs Elizabeth Karimi Kiugu and anor [2014] eKLR the High Court at Meru stated:“Whereas the above section states that a transfer by person to whom representation has been granted shall be valid notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this Act, I am of the considered view that such transaction can only be relied upon where the legal representative is entitled to grant of representation but not where one is not and where one has obtained the grant fraudulently. The purchaser in this cause came from the neighborhood of the objector and it is not possible that he did not know of the objector herein. I therefore find and hold the sale to be invalid.”In Jecinta Wanja Kamau Vs. Rosemary Wanjiru Wanyoike And Another[2013] eKLR where the appellant therein unsuccessfully sought protection under section 93, this Court sitting in Nyeri stated:“Before the appellant could seek protection as a purchaser under Section 93 of the Act she had first to prove that she is a purchaser. In this case, there was no prima facie evidence that she was a purchaser. In any case, and as provided by Section 82 (b) (II) of the Act, it would have been illegal for Beatrice Njeri Magondu to sell the land before the confirmation of the grant.”In Jane Gachoki Gathecha Vs. Priscilla Nyawira Gitungu And Another [2008] Eklrwhere a purchaser claimed that he was not aware of, and was not a party to, the fraudulent dealings with the title in issue and was therefore not only protected under Section 93 (1) of the Law of Succession Act (Cap 60) but also section 143 of the Registered Land Act, this Court sitting in Nyeri stated this:”We think, with respect, that there is a fallacy in invoking and applying the provisions of section 93(1) of the Law of Succession Act and the superior court fell into error in reliance of it. The section would only be applicable where, firstly, there is a “transfer of any interest in immoveable or moveable property”. Kabitau had no interest in plot 321 or any part thereof and therefore he could not transfer any. A thief acquires no right or interest which is transferable in stolen property. The transaction would be void ab initio and the property is traceable.”In Re Estate Of Christopher Jude Adela (deceased) [2009] eKLR, K.H. Rawal, J (as she then was) had this to say in reference to Section 93 of the Law of Succession Act;“The correct reading of the said provisions will indicate that the transfer to a purchaser, if shown to be either fraudulent and/or upon other serious defects and/or irregularities can be invalidated. Reading these provisions in the manner will be commensurate with provisions of section 23 of the RTA (Cap 281) or any other provisions of law regarding proprietorship of an immovable property. It shall be a very weak or unfair system of law if it gives a Carte blanche of absolute immunity against challenges to transfer of immovable properties of estate by a personal representative, it shall be simply against all notions of fairness and justice. No court can encourage such interpretation while a personal representative will be protected even while undertaking unethical or illegal action prejudicing the interests and rights or right beneficiaries of the estate. In short, I do not agree that section 93 of the Act prohibits the discretion of the court to invalidate a fraudulent action by a personal representative.”Those decisions support the position taken by the learned judge of the High Court in this matter when he stated that while under Section 93 of the Law of Succession Act a revocation or variation of the grant does not invalidate a transfer by the personal representative, other considerations, such as the disposal of the property in contravention of the confirmed grant may invalidate the transfer. Having found as he did that the transfer of the property by the personal representative to himself, the 2nd respondent and one Margaret Kerubo Orina was contrary to the provisions of the grant and having found evidence of fraud with regard to the representation in the application for grant and subsequent confirmation as to the persons beneficially entitled to the deceased’s estate, the learned Judge was correct to take the view that section 93 of the Law of Succession Act did not afford the 3rd appellant protection. There is therefore no merit in the complaint that the learned Judge erred in revoking, nullifying and cancelling the transfer and registration of the suit property in favour of the 3rd appellant in contravention of section 93 of the Law of Succession Act.

18. Clearly I need not say more.

19. The application has no merit and the same is dismissed with costs to the respondent.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 8TH DAY OF JULY, 2022. MUMBUA T. MATHEKA,JUDGE.N/ACA EdnaL. Maina Irungu & Co Advocatesirungu.maina@yahoo.comMomanyi Gichuki & Co. Advocates for applicantsRubua Ngure & Co. Advocates for respondent