[2023] KEELC 15947 (KLR)

Nandwa & another (Suing as the Legal Representatives of the Estate of the Late Elishama Andayi Nandwa alias Elishama Andayi) v Nandwa & 4 others (Environment and Land Appeal E006 of 2022) [2023] KEELC 15947 (KLR) (7 March 2023) (Judgment)

Neutral citation: [2023] KEELC 15947 (KLR)

Republic of Kenya

In the Environment and Land Court at Kakamega

Environment and Land Appeal E006 of 2022

DO Ohungo, J

March 7, 2023

Between

Moffat Nandwa

1st Appellant

Glaid Igunzi Nandwa

2nd Appellant

Suing as the Legal Representatives of the Estate of the Late Elishama Andayi Nandwa alias Elishama Andayi

and

Patrick Elishama Nandwa

1st Respondent

Judith Nandwa

2nd Respondent

Moses Nandwa

3rd Respondent

Tabitha Nandwa

4th Respondent

Brown Nandwa

5th Respondent

(Being an appeal from the judgment and decree of the Senior Principal Magistrate’s Court at Butere (Hon. B Ojoo, Senior Principal Magistrate) delivered on 29th March 2022 in Butere MCELC No. 10 of 2022)

Judgment

1. The appellants commenced proceedings in the Subordinate Court through plaint dated January 19, 2022 which they later replaced with amended plaint dated February 3, 2022. They averred that Elishama Andayi Nandwa (deceased) who was the grandfather of all the parties, was the registered owner of land parcel number Kisa/Mwikalikha/3 (suit property) and that he bequeathed the suit property to Elkana Nandwa Andayi, the appellants’ late father. That the respondents’ father, one Jimmy Elishama Nandwa, who is also the son of Elishama Andayi Nandwa was bequeathed other parcels where he relocated to and established his home. That after Elishama Andayi Nandwa’s demise, Elkana Nandwa Andayi filed Butere Succession Cause No 209 of 2016 and was appointed the administrator of Elishama Andayi Nandwa’s estate and that the appellants were the only beneficiaries. The appellants further averred that Phyllis Akolah, the respondents’ mother, passed away on January 9, 2022 and the respondents intended to bury her remains on the suit property. They therefore prayed for an injunction restraining the respondents and their agents from burying the remains of Phyllis Akolah on the suit property, eviction of the respondents and their agents from the suit property and a declaration that the appellants are the rightful beneficiaries of Elishama Andayi Nandwa’s estate.

2. The respondents filed amended defence dated February 8, 2022 wherein they averred that they and the late Phyllis Akola are beneficial owners of the suit property and that the issue of succession in respect of Elishama Andayi Nandwa’s estate should be determined first. They added that their mother’s remains were in the mortuary and that they were incurring expenses. They therefore urged the Subordinate Court to dismiss the suit with costs.

3. Upon hearing the matter, the subordinate court (Hon. B. Ojoo, Senior Principal Magistrate) delivered judgment on March 29, 2022 dismissing the appellants’ suit and ordering that Phyllis Akola be buried within her homestead situated within the suit property. She further ordered that the appellants pay the mortuary fees in full and that each party bear own costs of the suit.

4. Aggrieved by the judgment, the appellants filed this appeal on April 1, 2022. The following grounds of appeal are listed on the face of the Memorandum of Appeal:1. That the Honourable Magistrate erred in law and in fact in failing to issue a permanent injunction order against the respondents over the suit property known as Kisa/Mwikalikha/3. 2.That the Honourable Magistrate erred in law and in fact in disregarding the cardinal principles of law, the law and jurisprudence developed in granting permanent injunction.3. That the Honourable Magistrate erred in law and in fact in failing to give reasons as to why she refused to grant the order of permanent injunction and eviction.4. That the Honourable Magistrate erred in law and in fact in failing to issue an eviction order against the respondents.5. That the Honourable Magistrate erred in law and in fact in failing to find, hold and declare that the appellants are the rightful beneficiaries of the suit property.6. That the Honourable Magistrate erred in law and fact in failing to consider and find that the appellants have a right to property as provided for under Article 40 of the Constitutionof Kenya, 2010. 7.That the Honourable Magistrate erred in law and in fact in disregarding the Grant of Letters of Administration obtained by the Appellants’ father in respect to the suit property in Kakamega High Court Succession Cause No 209 of 2016. 8.That the Honourable Magistrate erred in law and in fact in finding that the deceased, Phyllis Akola Jimmy to be buried in the suit property known as Kisa/Mwikalikha/3. 9.That the Honourable Magistrate erred in law and in fact in failing to hold and find that the respondents and the deceased Phyllis Akola Jimmy are not entitled to any portion of land in the suit property.10. That the Honourable Magistrate erred in law and in fact in failing to give reasons why the deceased should be buried on the suit property known as Kisa/Mwikalikha/3. 11. That the Honourable Magistrate erred in law and in fact in failing to consider the evidence adduced and testimony given by the appellants of how the Estate of the late Elishama Andayi Nandwa alias Elishama Andayi was equally distributed and thus the suit property belonged to the Appellants’ father.12. That the Honourable Magistrate erred in law and in fact in ignoring the evidence that was adduced by the appellants which evidence was uncontroverted that the deceased Phyllis Akola Jimmy’s land was Kisa/Mwikalikha/4 which land the said deceased sold to one David Amunga in 2002. 13. That the Honourable Magistrate erred in law and in fact in failing to hold and find that the deceased Phyllis Akola Jimmy and the respondents trespassed and illegally occupied the suit property.14. That the Honourable Magistrate erred in law and in fact in failing to consider that the deceased Phyllis Akola Jimmy was a trespasser on the suit property known as Kisa/Mwikalikha/3 as she did not have permission to settle on the suit property nor was she a beneficiary of the estate of the late Elishama Andayi Nandwa alias Elishama Andayi.15. That the Honourable Magistrate erred in law and in fact in holding that the deceased Phyllis Akola Jimmy was entitled to a portion of the suit land yet, there was no evidence to support this as the suit property is still registered in the name of late Elishama Andayi Nandwa alias Elishama Andayi.16. That the Honourable Magistrate erred in law and in fact in ordering that the appellants pay for the mortuary fees in full yet they are the aggrieved party whose constitutional rights have been violated.17. That the Honourable Magistrate erred in law and in fact in arriving at a decision that was wholly against the weight of the evidence that had been adduced.18. That the Honourable Magistrate erred in law by taking into consideration extraneous and irrelevant issues while determining and making decisions in favour of the respondents.19. That the Honourable Magistrate erred in misinterpreting both facts and the law and thus failing to determine the real issues in controversy as pleaded by the parties.

5. The grounds of appeal could have been better drafted, as is in fact required by Order 42 Rule 1 (2) of the Civil Procedure Rules, 2010 which provides that “The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative …”. The Court of Appeal recently restated, in the case of Belgo Holdings Ltd v Lakeview Development Ltd & another(Civil Appeal E044 of 2022) [2022] KECA 1291 (KLR) (18 November 2022) (Judgment), the need for a Memorandum of Appeal to be concise and without argument and narrative.

6. The appeal was canvassed through written submissions. The appellants argued that they demonstrated that they had a legal right to the suit property as the beneficiaries of the estate of the late Elkana Andayi Nandwa who was bequeathed the suit property and who obtained letters of administration in respect of Elishama Andayi Nandwa’s estate in Kakamega High Court Succession Cause No 209 of 2016. That they therefore ought to have been granted a permanent injunction and eviction orders. The appellants further argued that by the trial court ordering that the deceased Phyllis Akola Jimmy who was not a beneficiary of the estate of the late Elishama Andayi Nandwa to be buried within the suit property, the trial magistrate deprived them their right to property contrary to Article 40 of the Constitution of Kenya. They also took issue with being ordered to pay mortuary charges yet, according to them, they were the aggrieved party. Overall, they contended that the decision of the learned magistrate went against the weight of the evidence. Relying on several decided cases which I have noted, the appellants urged this court to allow this appeal and grant the prayers sought in their plaint.

7. In response, the respondents argued that the letters of administration in respect of Elishama Andayi Nandwa’s estate which were issued to Elkana Andayi Nandwa in Kakamega High Court Succession Cause No 209 of 2016 were not confirmed and that consequently, the suit property still belongs to the parties’ grandfather. That the prayers that the appellants sought cannot be granted without first dealing with succession in respect of Elishama Andayi Nandwa’s estate and that the respondents are rightful beneficiaries through their late father who is also a son of Elishama Andayi Nandwa. That the appellants failed to meet the threshold for the grant of an injunction as they were not the registered owners of the suit property and further that the trial court could not issue a permanent injunction over a parcel of land whose interest was yet to be fully determined in a probate and administration court. The respondents cited several decided cases which I have duly noted. In sum, the respondents urged the court to dismiss the appeal with costs.

8. I have carefully considered the grounds of appeal and the parties’ respective submissions. This is a first appeal and this court’s mandate is therefore to re-evaluate, re-assess and re-analyse the record and then determine whether the conclusions reached by the learned trial magistrate are to stand or not and to give reasons either way. I also bear in mind that I have neither seen nor heard the witnesses and I will therefore give due allowance in that respect. I further remind myself that it is the responsibility of this court to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in their pleadings and evidence. See Abok James Odera & Associates v John Patrick Machira t/a Machira & Co Advocates[2013] eKLR.

9. Despite all the dust raised, the case that was before the learned magistrate was as straight forward as it can get. I will narrow it down to simply one issue for determination: whether the reliefs sought were merited.

10. It is not disputed that the registered owner of land parcel number Kisa/Mwikalikha/3 (the suit property) remains Elishama Andayi Nandwa, the parties’ late grandfather who died intestate on April 24, 1978. The parties on opposite side of the litigation are cousins: the appellants are the children of Elkana Andayi Nandwa while the respondents are the children of Jimmy Nandwa. Both Elkana Andayi Nandwa and Jimmy Nandwa are deceased and were sons of Elishama Andayi Nandwa. Phyllis Akola whose place of burial resulted in the suit, was Jimmy Nandwa’s widow and the respondents’ mother.

11. There is also no dispute that prior to his death, Elkana Andayi Nandwa obtained grant of letters of administration in respect of Elishama Andayi Nandwa’s estate on March 5, 2017 and that the grant was not confirmed. Thus, Elishama Andayi Nandwa’s estate including the suit property remains undistributed. The thrust of the appellants’ case is that the respondents and Phyllis Akola (deceased) are not entitled to the suit property hence Phyllis Akola’s remains should not be buried on it. Obviously, the appellants are entitled to their views, but the truth of the matter is that distribution of Elishama Andayi Nandwa’s estate can only done by the probate and administration court.

12. The reliefs of injunction and eviction which the appellants sought are all grounded on the hypothesis that the appellants have a better title to the suit property than the respondents. As we have seen, the hypothesis is yet to be tested in a succession court. The appellants also sought a declaration that they are the rightful beneficiaries of Elishama Andayi Nandwa’s estate. The learned magistrate rightly found that such determination is the remit of the probate and administration court. Until Elishama Andayi Nandwa’s estate and the suit property are lawfully distributed in their favour under the Law of Succession Act, the appellants have not basis upon which to stop burial of Phyllis Akola’s remains on her father-in-law’s property.

13. I find no fault with the learned magistrate’s analysis, handling of the matter and the conclusions she reached. As pleaded, the appellant’s case before the Subordinate Court was headed nowhere from inception. The parties should conclusively deal with the elephant in the room: administration of Elishama Andayi Nandwa’s estate and its distribution through the probate and administration court.

14. I find no merit in this appeal and I therefore dismiss it. In view of the relationship between the parties, I make no order on costs.

DATED, SIGNED, AND DELIVERED AT KAKAMEGA THIS 7THDAY OF MARCH 2023. D. O. OHUNGOJUDGEDelivered in open court in the presence of:Ms Anyango Opiyo for the appellantsNo appearance for the respondentsCourt Assistant: E. Juma