[2016] KEHC 1711 (KLR)

REPUBLIC OF KENYA

HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 630 OF 2009

In the matter of the estate of:

M'Ruuti M'Mwirichia Mutuera alias Mwirichia Mutuera alias Mutuera Mukuri

NELSON MUGAMBI MWIRICHIA…......................................... 1ST APPLICANT

Versus

SESINTA MUKAMI ..........................................1ST PETITIONER/RESPONDENT

GILBERT KIOGORA MWIRICHIA…..............2ND PETITIONER/RESPONDENT

JUDSON MWENDA GITUNGA…………………………….3RD RESPONDENT

R U L I N G

Inhibition and injunction

[1] I am considering a chamber summons application dated 18th November 2015 and which is expressed to be brought under rules 49 and 73 of the Probate and Administration Rules, section 47 of the Law of Succession Act, section 68 and 69 of the Land Registration Act and all other enabling provisions of the law. The significant orders sought in this application are:-

(a) Temporary inhibition inhibiting the registration of any dispositions, transactions, transfers or any entries whatsoever in L.R NO ABOGETA/U-KITHANGARI/123

(b) A temporary injunction against the 2nd and 3rd Respondents from entering upon, fencing off, invading, cultivation, trespassing, constructing, taking possession or in any manner whatsoever or howsoever interfering with the Applicant’s portion of land measuring 4 acres previously demarcated within L.R NO ABOGETA/U-KITHANGARI/123.

(c) A permanent injunction against the 3rd Respondent restraining him from intermeddling with the estate property specifically L.R NO ABOGETA/U-KITHANGARI/123; and

(d) The court to be pleased to call for the entire court file for NKUBUPMCC NO 95 OF 2015 for purposes of setting aside and quashing of orders made therein for being irregular as they disturbed the distribution of this estate and having been made without jurisdiction.

[2] The application is supported by the affidavit by the Applicant, the grounds set out in the application and the submissions filed herein. In a nutshell, the Applicant argued that he is the son of the deceased and according to the Certificate of Confirmation of Grant he is entitled to 4 acres of land from the estate property. That pursuant to the schedule of distribution issued by the court herein, the estate property was thereafter demarcated and boundaries marked for each portion due to each beneficiary. They agreed as a family to pay up the survey fees so that titles could be obtained in line with the grant. But while the said process was going on, the 3rd Respondent filed the case at Nkubu against the 2nd Respondent claiming 3 acres of the estate property he had purchased from the 2nd Respondent. He argued that the said agreement dated 3rd September 2010 was null and void ab initio as at the time of the purported sale, the 2nd Respondent did not have legal capacity to transact on the estate property. Accordingly, the NKUBU COURT did not have jurisdiction over the estate property and thus, the order therein in so far as it related to excision of 3 acres out of the estate property herein is null and void as the estate property is subject of these proceedings and is yet to be distributed to the respective beneficiaries.He also contended that the Nkubu court’s proceedings were irregular, un-procedural and a nullity which this court should set aside through its inherent powers in section 47 of the Law of Succession Act. He asserted that the 3rd Respondent is not a beneficiary of the estate herein. In any case, he argued that if there be any legitimate dispute then it ought to be between the 3rd and 2nd Respondents without involving the estate. Accordingly, the order by the Nkubu court should be quashed. The Applicant did not end before stating that the 1st and 2nd Respondent disowned the affidavits allegedly sworn by them on 4th November 2015. They cited the following cases in support of their case: MUSA NYABARI GEKONE vs. PETER MIYIENDA [2015] eKLR, MONICA ACHIENG AKUMU vs. DISHON OMINDI [2013] eKLR, RAMADHAN MUSUMBA CHEMIETI vs. JAMIN WASIKE CHEMIETI [2015] eKLRand DAVID SIRONGA OLE TUKAI vs. FRANCIS ARAP MUGE [2014] eKLR.

[3] The 1st and 2nd Respondents who are the joint administrators of this estate filed their submissions. They denied the replying affidavits allegedly sworn by them and categorically stated that they supported this application. They denied any knowledge of the sale agreement herein and said that any such sale of the estate property before confirmation would be a nullity. They advised the 3rd Respondent to seek fro remedy elsewhere.

3rd Respondent opposed the application

[4] The 3rd Respondent opposed the application through Replying affidavit sworn on 19th April 2016 and his submission filed herein on 10th June 2015. He accused the 2nd Respondent of being economical with the truth because he had sworn affidavit on 4th January 2015 and again swore another one on 23rd February 2015 contradicting the earlier one. He took issue with prayer 2 of the application for it will impede the implementation of the grant herein and it should not be granted. He further argued that the Applicant has averred at paragraph 15 of the Supporting affidavit that the distribution was done in 2008. He also took issue with paragraph 13 of the Applicant’s supplementary affidavit in which it was deposed that the Applicant is not concerned with the share of the 2nd Respondent so long as there is a title in his name.

[5] The 3rd Respondent submitted more especially on prayer 4 which he opined should not be granted because the Applicant invoked the wrong procedure in an attempt to quash the a consent order in Nkubu case. He proffered that the said order can only be challenged through judicial review to quash it or an application before the lower court to set it aside; a third party cannot so apply in other proceedings such as these. He insisted that the said case was commenced after confirmation of the grant. Again, the said order does not divert the implementation of the grant herein. According to the 3rd Respondent, no fraud has been investigated and confirmed as such on the execution of the consent filed in the Nkubu case. In fact the court record at Nkubu shows that the 2nd Respondent freely signed the consent. Therefore, the allegations herein in respect of the alleged fraud should be treated as mere allegations. See the case of WASIKE vs. WAMBOKO [1988] KLRand MARY WAMBUI MUGADDE vs. ECO BANK LTD [2009] eKLRon the threshold of setting aside a consent judgment.

[7] On prayer 5 the 3rd Respondent urged the court not to grant it as it would permanently hurt his right to pursue the 3rd Respondent.

DETERMINATION

Issues

[8] A variety of issues have arisen in this matter but I can cast them in broad terms as follows:

(a) Whether immovable property of the deceased could be sold before confirmation of the grant;

(b) Whether this court can set aside the consent judgment entered in NKUBUPMCC NO 95 OF 2015; and

(c) What are the appropriate orders that the court should make in these proceedings?

Sale of immovable before confirmation prohibited

[9] This issue is fairly straight-forward. Courts have stated time and again that, as a general rule of law, sale or disposition of immovable property of the deceased before confirmation of the Grant is prohibited by the Law of Succession Act.I wish to state quite categorically that, not even the beneficiaries or the administrator of the estate or any person has the power to sell or dispose of the estate property before confirmation of grant. The basis for this approach of the law is that, it is at confirmation that the identities of the beneficiaries and their respective shares is ascertained and thereafter registered to their names.I need not state that beneficial interest can only be charged or transferred if it is defined and registrable or registered. For further elucidation see sections 55 and 82 of the Law of succession Act. Accordingly, any sale of the immovable property of the deceased’s estate before confirmation is null and void and cannot derive from or confer any right or proprietary interest in the estate property in issue. The grant herein was made to the Administrators on 3rd September 2010 and confirmed on 28th April, 2015. Therefore, in so far as these proceedings are concerned, the alleged agreement made between the 2nd and 3rd Respondents on 3rd September 2010is of no legal effect and should never affect the administration of this cause. I so hold.

Quashing Nkubu proceedings

[10] But, in light of the view expressed by the court on the sale herein, can this court call for the NKUBU Court file and quash it? This court has supervisory jurisdiction to call up for any proceedings before the lower court and quash it especially if the propriety, legality and correctness of those proceedings has been questioned. See article 165(7) of the Constitution on this. But, I am alive to the fact that such course should be prompted through a proper application for judicial review in order that the person applying shall discern all the issues involved and also give the other parties an opportunity to ventilate their positions on those issues. The manner in which such certiorari relief has been sought by the Applicant is not be the best way of laying information before court on such matter of significant public interest; I note that judicial review is public remedy except it is sought by a person at the instance of the Republic. Therefore, I agree with the 3rd Respondent that a proper judicial application is needed with all parties on board. I am also acutely aware that where complete irregularity, impropriety or lack of jurisdiction on the part of the subordinate court is raised, the aggrieved party should apply to the court which made the order and have it set aside ex debito justitiaeby that court as a matter of judicial duty to uphold the integrity of the judicial process itself. This latter procedure obviates delay as it ensures that no time is wasted on appealing or seeking review of the impugned order from the appellate court. And, adherence to this procedural rectitude is important and highly recommended as it enables access to justice and expeditious disposal of cases. This principle was well enunciated by Green MR in the case of CRAIG vs. KANSEE [1943] 1 All ER 108 at 113and there are ample judicial authorities on this matter which I do not wish to multiply except I am content to cite the case of ISAACS vs. ROBERTSON [1984] 3 All ER 140that;

If an order is regular it can only be set aside by an appellate court; if it is irregular it can be set aside by the court that made it on application being made to that court either under the rules of court dealing expressly with setting aside orders for irregularity or ex debito justitiae if the circumstances warrant (e.g. where there has been a breach of the rules of natural justice)

[11] It is not also lost to the court that the 2nd and 3rd Respondents are equally violators of the law in respect of the impugned sale of the estate property and I would rather leave them to fight their battles by following the laid down procedures. Again, other than the arguments herein, the jurisprudence coming through on the jurisdiction of magistrates’ court over land matters will have a bearing on the lower court decision. Therefore, I will refer the matter to the magistrate who made the order for appropriate judicial action. But, for now I will fashion appropriate order in this case.

Appropriate orders

[12] I have held that the order made in NKUBU PMCC NO 95 OF 2015 is of no legal effect in so far as it sought to confer proprietary or beneficial rights in this estate upon the 3rd Respondent.Accordingly, the said order cannot be executed against the estate herein whatsoever. It does not affect the implementation of the confirmed grant herein. As such, I direct the administrators to complete distribution of the estate as per the confirmed grant within 6o days from today. And, the 3rd Respondent should not interfere with the administration of the estate as I have ordered. I will not issue any inhibition orders as that would impede the implementation of the confirmed herein. I also direct the Land Registrar to register the confirmed and all the resultant subdivision parcels in accordance with the confirmed grant. The 2nd and 3rd Respondents shall pay costs of the application dated 18th November 2015 to the Applicant. It is so ordered.

Dated, signed and delivered in open court at Meru this 15th day of

November 2016

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F. GIKONYO

JUDGE

In the presence of:

Mr. Kimaita advocate for applicant

Applicant – present

Mr. Kimaita advocate holding brief for Mr. Momanyi advocate for 1st and 2nd

respondents.

2nd respondent – present

Mr. Kabaru advocate for 3rd respondents – absent

3rd respondent present.

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F. GIKONYO

JUDGE