[2023] KECA 1315 (KLR)

Ngala & others v Mumbo & another; Maghanjo & another (Interested Parties) (Civil Appeal E047 of 2021) [2023] KECA 1315 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KECA 1315 (KLR)

Republic of Kenya

In the Court of Appeal at Mombasa

Civil Appeal E047 of 2021

P Nyamweya, JW Lessit & GV Odunga, JJA

November 10, 2023

Between

Peter Ngala & others

Appellant

and

James Kalugu Mumbo

1st Respondent

Carlos Mumbo Charo

2nd Respondent

and

Haron Mwangómbe Maghanjo

Interested Party

Patrick Wambugu Nyoike

Interested Party

(Being an appeal from the ruling and order of the High Court of Kenya at Mombasa delivered by the Hon Justice M. Thande on 24th January, 2020 in Succession Cause No. 551 of 2007 Succession Cause 551 of 2007 )

Judgment

1. Mambo Ngala also known as Mumbo Ngala Chitu (the deceased) died on 22nd September, 1992 and on 4th October, 2007, James Kalungu Mumba and Carlos Mumbo Charo (the respondents) in their capacity as sons of the deceased filed a petition in the High Court for letters of administration for his estate. According to the respondents, the deceased was survived by his widows, themselves and 2 other sons and the estate of the deceased was comprised of a property known as Kilifi/Mtwapa/788 (the suit property). A grant of letters of administration (the Grant) was issued to the respondents on 9th February, 2009 and confirmed on 18th December, 2009.

2. Peter M. Ngala, the only appellant whose particulars appear on the record of the proceedings though the proceedings seemed to indicate that there are other appellants, on 10th April, 2013 filed a summons for revocation of grant dated 8th April, 2013 and sought a determination whether the said property belonged to the estate of the deceased to the exclusion of the appellant; a determination as to the persons legally entitled to the estate of the deceased; and for an order that the District Lands Registrar, Kilifi to apportion the suit property and issue titles to those found to be entitled.

3. According to the appellant, the deceased was their elder step brother; that the suit property, measuring 12 acres, was initially owned by their late father Ngala Chitu who died in the 1970s; that due to his old age, their father had the suit property registered in the deceased’s nameas his eldest son, in trust for the entire family; that the appellant and his siblings have always lived on the suit property and have permanent structures erected thereon; that on their request, the deceased subdivided the land and the appellant and his siblings being the children of the 2nd wife were given 4 acres to live in and cultivate; that the deceased was however, up to the time of his demise, reluctant to have title deeds issued for the subdivisions; that the appellant discovered that the Grant had been issued and confirmed without their knowledge when the interested parties demanded that they vacate their land as the same had been sold to them by the respondents; that the appellant reported the matter to the chief and a meeting of all family members was held on 12th March, 2011; that it was recommended at the meeting that the appellant and his siblings were entitled to the suit property as the deceased held the same in trust for the entire family; that in spite of this, the respondents have been reluctant to recognise the appellant’s share in the suit property.

4. It was the appellant’s case that the Grant was obtained through falsehood; that the respondents stated that the 2nd respondent is a son of the deceased, a fact they knew to be false as he is a grandson of the deceased; that they stated that the 2nd respondent was a beneficiary of the estate of the deceased when in fact he was not; that the respondents included the entire property as belonging to the deceased yet they knew that he held the same in trust for the entire family; that the respondents are likely to alienate the suit property thereby disinheriting the appellants and his siblings.

5. At the hearing, the appellant reiterated the foregoing and confirmed that the letter from the Settlement Fund Trustees was in the name of the deceased who paid the Kshs. 5,650/= for the same; that his family has all along lived on the suit property since the demise of their father, which was set aside for them by the deceased; that when the deceased died, the respondents sold their portions; and that the portion he occupied was fenced off by the 1st Interested Party. His prayer was that the Court finds that the title to the suit property in the name of the respondents was obtained fraudulently and the same should be revoked. According to him, he was a beneficiary notwithstanding the registration of the landwas in the deceased’s name.

6. Charles Ngala Chitu a half-brother to the deceased testified that their father, who died in 1980, gave land to the deceased and had it registered in the deceased’s name in 1973; that the letter of allotment to the suit property was given to the deceased but they remained on the suit property; that the deceased called elders and gave the appellants 4 acres of the suit property and he remained on 8 acres but died shortly thereafter; that they were born and have all along lived on the suit property; and that it was his desire is that the Court gives them the 4 acres given to them by the deceased.

7. Dzombo Mwazombo, a neighbour and a village elder, confirmed that the deceased called them and told them that he wished to subdivide the suit property and gave the appellants 4 cares; that the deceased did so because the land was not his but belonged to their father; that all the parties, including their father lived on the land; and that many old men did not have identity cards and had their lands were registered in their son’s names.

8. In response to the application, the respondents, in the replying affidavit sworn on 13th June, 2013 by the 1st respondent contended that the entire property belongs to the estate of the deceased; that the deceased purchased the suit property initially known as Plot No. 492, through a government grant under the Mtwapa Settlement Scheme and a letter of allotment was issued to him; that the suit property was charged to the Settlement Fund Trustees for Kshs. 5,650/=, being the purchase price; that upon fulfilment of the conditions in the letter of offer, title deed was issued to the deceased; that the allegations of trust are untrue since a trust instrument would have been created if any trust was intended; that “out of affection and humanity”, the deceased allowed their father Ngala Chitu to reside on the suit property with his family; and that their father, aware that the land was not his, directed that he should not be buried on the suit property and he was not buried on the suit property.

9. While urging this Court to dismiss the appeal, the respondents denied the allegation that the Grant was obtained fraudulently. They averred that the 2nd respondent was appointed administrator to safeguard the interests of the estate of his father, Charo Kuze, a son of the deceased; that the appellants were left out of the proceedings as they are not beneficiaries of the estate of the deceased; that the respondents were rightfully registered as proprietors of the suit property with the right to deal with it as they deemed fit; that the appellants do not therefore have any right to question the acts of the respondents; that the appellants lack no locus standi to seek the orders herein; that the chief of Junju location lacked jurisdiction to determine the ownership of the suit property; that the appellants who were mere licensees ought to find their own place; and that the appellants cannot suffer loss as no one can lose what does not belong to them.

10. In his evidence, the 1st respondent, James Kaingu Mumbo a son of the deceased, reiterated that the suit property was in his father’s name; that the deceased brought his own father, step mother and their children to the suit property and accommodated them thereon; that the half-siblings of the deceased and their families live on the suit property to date; that the suit property belonged to the deceased and not to the deceased’s father; that after the respondents got the Grant, everyone who was entitled to the deceased’s estate got their share of the suit property; and that the suit property had been subdivided and he sold a portion to the Interested Parties; that when he sold portions of the suit property, the appellants were informed and one of the appellant’s brothers, Nyawa, moved out of the suit property after being compensated for the trees he had planted and that Charles, another brother moved out a long time ago after purchasing a plot elsewhere.

11. Rachel Mbeyu testified on behalf of her deceased husband, the 1st Interested Party who purchased plot 3717 from the respondents. She stated that title to the plot was issued in the name of the 1st Interested Party in 2012. When she was shown the plot, they found the respondents’ relatives were in occupation of the same and that there are 3 houses on the plot. As a result, Rachel was unable to fence the portion of the plot with the houses since a court order was issued restraining all development. She urged that the matter be concluded so that she gets the plot to develop the same.

12. Patrick Wambugu Nyoike stated that after due diligence, he purchased plot 3715 from the respondents and title was issued in his name. At the time he purchased the plot, there was no one in occupation and was not aware of any dispute. Subsequently, subdivision of the suit property was done and he participated in placing of beacons with the surveyor.

13. In her judgement, the learned trial Judge identified the issues for determination as follows: whether the deceased held the suit property in trust for the appellants; whether the appellants are entitled to the suit property and in what proportions; whether the Grant should be revoked; whether the Kilifi Lands Registrar should be ordered to cancel the title to the suit property and properly apportion the suit property and issue respective title deeds.

14. The learned Judge, after considering the evidence and the submissions found that by dint of Article 165(5) of theConstitution, the High Court lacks the jurisdiction in matters to do with the use and occupation of, and title to, land, a jurisdiction exclusively reserved for the Environment and Land Court; that therefore, the High Court is incompetent to entertain and make declarations over the existence or non-existence of a trust in the suit property; that as a succession Court, the High Court acts on the basis of property ownership documents presented to it and proceeds to distribute such property to the rightful dependants as required by statute; that documents adduced, such as copy of a letter of offer in respect of the suit property by the Settlement Fund Trustees addressed to the deceased dated 8th August, 1978, and a Charge over the suit property dated 27th October, 1978 in favour of the Settlement Fund Trustees to secure payment by the deceased of the said amount of Kshs. 5,650/=; that in the absence of contrary evidence, suit property belonged to the deceased; that since the deceased was polygamous the distribution of his estate is guided by section 40 of the Law of Succession Act, the estate was distributed to his widows and children in equal shares; and that since the appellants were neither the deceased’s widows nor his children, they were not entitled to his estate.

15. The learned Judge however, found that that since the appellants were the deceased’s step siblings who resided on the suit property where they had settled all their lives, they were dependants of the deceased under Section 29 of the Law of Succession Act as held in the case of Beatrice Ciamutua Rugamba v Fredrick Nkari Mutegi & 5 others [2016] eKLR; that the term “as were being maintained by the deceased immediately prior to his death” in the said section is not in her view just limited to matters such as acquisition of parental responsibility, payment of school fees and upkeep; that though the Act allows a dependant for whom no provision has been made from the estate of a deceased person to apply to the Court for reasonable provision under section 26 of the Act, the window of opportunity afforded by the foregoing provision is however limited under section 30 which is explicit that no application for reasonable provision shall be brought after a grant of representation in respect of the estate to which the application relates, has been confirmed; that the appellants moved to this Court almost 4 years after the Grant was confirmed; that the appellants were therefore time barred and may not apply for reasonable provision notwithstanding that they were dependants of the deceased.

16. Regarding the question whether the Grant should have been revoked, the learned Judge found that the statement by the respondents that the suit property wholly belonged to the estate of the deceased was not, in light of the Court’s finding, false; that while it was not disputed that the reference to the 2nd respondent as the deceased’s son instead of a grandson, the error was inadvertent and was not done with a fraudulent intention; that since the appellants were half-brothers of the deceased while the respondents were child and grandchild of the deceased, by dint of section 39 of the Act, the appellants’ entitlement to the Grant was in a degree lower than that of the 1st respondent, a son of the deceased and the 2nd respondent, a grandson of the deceased; that accordingly, the respondents were under no legal obligation to give notice to or obtain the consent of the applicants in their application for the Grant; and that since the Court’s position was that it had no jurisdiction to make declarations over the existence or non-existence of a trust in the suit property in favour of the appellants, the alleged existence of a trust cannot be a ground for revocation of the Grant.

17. Based on the finding that the Court lacked of jurisdiction over the issue of ownership of the suit property and the appellants’ entitlement thereto, the learned Judge held that the orders sought to be directed at the Kilifi Lands Registrar to interfere with the title to the suit property could not be granted.

18. In the result, the learned Judge concluded that the statutory grounds for revocation of the Grant had not been established and dismissed the Summons for Revocation of Grant dated 8th April, 2013 for lack of merit.

19. It was that decision that aggrieved the appellants and provoked this appeal. We heard this appeal on the Court’s virtual platform on 4th July, 2023 during which learned counsel, Ms Jadi, appeared for the appellants while Ms Mwanzia appeared for the Interested Parties.

20. It was submitted on behalf of the appellants that since the appellants were half-brothers of the deceased and that the deceased and the appellants’ father agreed that the estate be subdivided so that they could process their titles, the appellants were qualified for entitlement to a share of the estate and ought to have been involved in the succession process pursuant to rule 26(2) of the Probate and Administration Rules (hereafter the Rules). The appellants contended that since the 2nd respondent was a grandson to the deceased but was indicated as a son, the proceedings leading to the issuance of the Grant were defective in substance. It was submitted that since the application for revocation of grant was brought pursuant to section 76 of the Act, the learned Judge erred in finding that the appellants were limited under section 30 of the Act in bringing their application. It was the appellants’ case that in light of the fact that it was the respondents’ refusal to provide for the appellants that gave rise to the dispute, the appellants were entitled to the costs. We were thus urged to allow the appeal and invoke the inherent powers of this Court and revoke and annul the grant and order a proper distribution of the estate by ensuring that the appellants who are dependants are given their share of the estate.

21. On behalf of the respondents, it was submitted that the High Court correctly found that the suit property belonged to the deceased and formed part of his estate and that any question regarding the deceased’s ownership of the suit property could not be settled by the High Court. It was further submitted that the High Court correctly found that the appellants’ consideration as dependants was time barred under section 60 of the Act.Citing various authorities including Peters v Sunday Post Limited (1958) EA 424, it was submitted that the Court ought not to interfere with the findings of the trial court on questions of facts. As the appellants failed to adduce evidence that they were entitled to share of the estate, it was urged that the appellants were not entitled to the provision. It was noted that the widows and the children of the deceased who were entitled to the grant to a higher degree than that of the appellants gave their consent. In this case it was submitted that under section 26 of the Act, as read with section 39 thereof, the appellants being half-brothers of the deceased were in s degree lower than the respondents who were child and grandchild of the deceased and therefore, there was no legal obligation to give notice or obtain consent of the appellants before applying for grants. It was submitted that though from their affidavit in support of the application, the appellants found out that the grant had been issued to the respondents in 2011, no explanation was given by the appellants why they did not initiate the revocation proceedings immediately but waited until 2013.

Analysis And Determination 22. We have considered the evidence on record, the written and oral submissions by and on behalf of the parties to this appeal and the authorities cited.

23. This being the first appeal, the law regarding this Court’s duty, as restated in the oft-cited decision of Selle & Another vs Associated Motor Boat Co. Ltd & Others [1968] EA 123, is to reconsider the evidence, evaluate it and draw its own conclusion of facts and law. In so doing, the Court will only depart from the findings by the trial Court if they were not based on evidence on record; where the said Court is shown to have acted on wrong principles of law as was held in Jabane v Olenja [1968] KLR 661, or where its discretion was exercised injudiciously as held in Mbogo & Another v Shah [1968] EA 93.

24. The deceased in this matter, Mambo Ngala also known as Mumbo Ngala Chitu (the deceased) died on 22nd September, 1992 and on 4th October, 2007, James Kalungu Mumba and Carlos Mumbo Charo (the respondents) in their capacity as sons of the deceased filed a petition in the High Court for letters of administration for his estate. The grant of letters of administration (the Grant) was issued to the respondents on 9th February, 2009 and confirmed on 18th December, 2009. Subsequently, on 10th April, 2013, the appellants sought to have that grant revoked or nullified vide their summons for revocation of grant dated 8th April, 2013. In that summons, they sought determination of 3 issues: Whether the said property belonged to the estate of the deceased to the exclusion of the appellant; Who were the persons legally entitled to the estate of the deceased; and an order that the District Lands Registrar, Kilifi to apportion the suit property and issue titles to those found to be entitled.

25. Section 76(a), (b) and (c) of the Law of Succession Actprovides as hereunder:A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—1. that the proceedings to obtain the grant were defective in substance;2. that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;3. that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

26. The grounds, in summary were, firstly, that the Grant was issued by concealment of the fact that the appellants were beneficiaries to the estate of the deceased and that they were neither aware of the proceedings leading to the issuance of the Grant nor was their consent sought. Rule 26 of the Probate and Administration Rules provides that;1. Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.2. An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.3. Unless the court otherwise directs for reasons to be recorded, administration shall be granted to a living person in his own right in preference to the personal representative of a deceased person who would, if living, have been entitled in the same degree, and to a person not under disability in preference to an infant entitled in the same degree.

27. It follows that if the respondents were entitled in degree equal to or lower than the appellants, then the appellants ought to have been notified of the proceedings. In that case, in default of renunciation or written consent of the appellants, the petition for Grant ought to have been made in conjunction with the appellants. However, Section 66 of the Law of Succession Act, Cap 160, Laws of Kenya provides as follows:When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference-a.surviving spouse or spouses, with or without association of other beneficiaries;b.other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;c.the Public Trustee; andd.creditors:Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.

28. Section 39(1) of the Act which falls under Part V deals with situations where the intestate has left no surviving spouse or children and provides that:Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority-a.father; or if deadb.mother; or if deadc.brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if noned.half-brothers and half-sisters and any child or children of deceased half- brothers and half-sisters, in equal shares;or if nonee.the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.

29. In this case, it is not in doubt that the respondents petitioned for the Grant in their capacity as sons of the deceased. It is conceded that the 2nd respondent was not a son to the deceased but a grandson. However, the 1st respondent was a son to the deceased and those entitled in the same degree as or in priority to the 1st respondent had given their consent. Had the 2nd respondent petitioned for the Grant alone without the 1st respondent, it would have become an issue as to whether the grant was issued to a person those entitled in the same degree as or in priority to the appellants. However, as the 1st respondent clearly ranked in priority to the appellant, it was not necessary that the consent of the appellants’ be sought. In those circumstances, it is our view that it matters not that the 2nd respondent was named as the deceased’s son since that would only affect the issuance of the grant in the name of the 2nd respondent but would not affect the otherwise proper Grant issued in the name of the 1st respondent.

30. We therefore agree with the learned Judge that it was not necessary that that appellants should have been notified of the proceedings and the failure to notify them does not amount to failure to disclose material facts or render the proceedings leading to the issuance of the Grant defective in substance.

31. In this case was contended by the appellants that the suit property belonged to the appellants’ their late father, Ngala Chitu, who caused the same to be registered in the name of the appellants’ deceased elder brother, whose estate is in contention herein. However, at the hearing evidence was adduced to the effect that the suit property was purchased by the deceased herein from the Settlement Fund Trustees and documents to that effect were adduced. In fact, the appellant at the hearing confirmed that the letter of allotment was issued in the name of the deceased and not in the name of his late father. In light of that evidence, the learned Judge cannot be faulted for finding that the suit property was the property of the deceased. While nothing barred the appellants from claiming the land based on trust, the High Court sitting as a family court was not the right forum to ventilate that issue, an issue dealing with the use and occupation of, and title to, land, which issue is, pursuant to Article 165(5) of the Constitution, reserved for the Environment and Land Court.

32. That brings us to the issue of who were the persons legally entitled to the estate of the deceased. A reading of sections 35 to 38 of the Act clearly leads to the conclusion that the deceased’s estate could only devolve to his widows and children. The appellants, being half- brothers had no legally recognised interest in the estate of the deceased unless they were dependants of the deceased

33. The learned Judge found, rightly in our view, that based on the evidence on record, the appellants were dependants of the deceased based on the fact that The learned Judge however, found that that the appellants were not only the deceased’s step siblings, but they resided on the suit property where they had settled all their lives and knew of no other home than that. We agree with the learned Judge in her interpretation of section 29(b) of the Act that:“The term ‘as were being maintained by the deceased immediately prior to his death’ is not…just limited to matters such as acquisition of parental responsibility, payment of school fees and upkeep. Provision by the deceased to the Applicants and their father [of] a portion of the Property to build, use and settle upon also amounts to maintenance.”

34. However, the learned Judge found that the window of opportunity to apply for reasonable provision by a dependant under section 26 of the Act is however under section 30 to the effect that no application for reasonable provision shall be brought after a grant of representation in respect of the estate to which the application relates, has been confirmed. In this case, the appellants could not benefit from the said provision, having moved to court almost 4 years after the Grant was confirmed. Section 30 of the Act provides that:No application under this Part shall be brought after a grant of representation in respect of the estate to which the application refers has been confirmed as provided by section 71.

35. The Part referred to in that section is Part III of the Act which deals with “Provisions for Dependants.”. Since that time bar is expressed in mandatory terms, there is no discretion given to the Court to find otherwise. The appellants contended that the said section did not apply to their application which was based on section 76 of the Act. However, we have found, that the provisions section 76 of the Act which deals with revocation and annulment of grant were of no assistance to the appellants. Accordingly, the only recourse would have been under section 26 of the Act. However, even that door of opportunity was locked before the appellants gained entry into the proceedings. We wish to say no more but to cite the Supreme Court in Daniel Kimani Njihia v Francis Mwangi & Another [2015] eKLR where the said Court opined that:“Even as the Court seeks to do justice, it cannot be lost to it that despite having a conscience, it is a court of law and not mercy. It is also bound by the law and more so the Constitution which binds all.”

36. We appreciate that we are sworn to do justice but justice must be administered in accordance with the law. See Mehrunnissa v Mohamed Parvez [1976-1985] EA 289; [1981] KLR 547.

37. In light of our finding above nothing turns on the issue of whether costs ought to have been awarded. We accordingly find no merit in this appeal which we hereby dismiss. In the circumstances of this case where the litigants are related, in order to promote reconciliation, we make no order as to the costs of this appeal.

38. Judgement accordingly.

DATED AND DELIVERED AT MOMBASA THIS 10TH DAY OF NOVEMBER,2023. P. NYAMWEYA.............................JUDGE OF APPEALJ. LESIIT.............................JUDGE OF APPEALG. V. ODUNGA.............................JUDGE OF APPEALI certify that this is the true copy of the originalDEPUTY REGISTRAR