[2023] KEHC 24060 (KLR)

Njamburi v Munene & another (Civil Appeal E035 of 2021) [2023] KEHC 24060 (KLR) (24 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24060 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal E035 of 2021

FN Muchemi, J

October 24, 2023

Between

Judith Muthoni Njamburi

Appellant

and

Margaret Wamwirua Munene

1st Respondent

Lawrence Murimi Njamburi

2nd Respondent

(Being an Appeal from the Judgment of Hon. M. Kivuti (SRM) delivered on 2nd September 2021 in Baricho SPM Succession Cause No. 362 of 2016 In the Matter of the Estate of Jason Njamburi Mukungi)

Judgment

Brief facts 1. This appeal arises from the judgment of Baricho Senior Resident Magistrate in SPM Succession Cause No. 362 of 2016 where the court declined to revoke the grant issued on 2nd March 2018 and confirmed on 27th December 2018.

2. Dissatisfied with the court’s decision, the appellant lodged this appeal citing 12 grounds of appeal summarized as follows:-a.The learned magistrate erred in law and fact by dismissing the appellant’s application for revocation of the grant confirmed on 27/12/2018 against the weight of evidence adduced that the grant was obtained fraudulently by making a false statement and concealment of material facts;b.The learned trial magistrate erred in law and in fact by failing to find that the sale agreement in respect of land parcel number Kiine/Gacharu/1663 was tainted with illegality, fraud and amounted to intermeddling with the estate of the deceased.

3. Parties put in written submissions to dispose of the appeal.

Appellant’s Submissions 4. The appellant submits that she, her co-wife Charity Wambui Njamburi an dthe 1st respondent entered into a sale agreement dated 11/2/2011 for the sale of land parcel number Kiine/Gacharu/1663 for a consideration of Kshs. 350,000/. The 1st respondent paid Kshs. 250,000/- leaving a balance of Kshs. 100,000/-.

5. The appellant further submits that she revoked the said sale agreement and communicated the same to the 1st respondent vide her letters dated 18/7/2017 and 22/9/2017 and that she refunded the sum of Kshs. 250,000/-. As such, the appellant argues that the 1st respondent had no lawful claim to the estate.

6. The appellant states that the inclusion of the 1st respondent in the application for confirmation of grant and the subsequent certificate of confirmed grant was pursuant to fraudulent acts by the respondents who concealed material facts to her and the court to the effect that the 1st respondent was a beneficiary to the estate of the deceased yet she was not.

7. The appellant argues that the trial court erred in law and in fact by dismissing her application for revocation of grant as from the evidence adduced, it is clear that initially the beneficiaries had intermeddled with the deceased’s estate by offering it for sale as stipulated in Section 45 of the Law of Succession Act. The appellant argues that the 1st respondent acquired the said property after the demise of the deceased and even after she returned all the monies through the office of M/s Ihaku Nganga & Co. Advocates to the 1st respondent, the 1st respondent colluded with the 2nd respondent and included the 1st respondent as a beneficiary. The appellant further stipulates that the 1st respondent was not present in court during the confirmation of the grant and thus she did not see her contrary to Section 2(1) of the Law of Succession Act which requires all beneficiaries present in court during confirmation.

8. The appellant contends that the 1st respondent is not a beneficiary of the estate of the deceased nor is she a decree holder for her to get a portion of the estate as envisaged under Section 83(d) of the Law of Succession Act. The appellant further argues that the 1st respondent is a purchaser pursuant to the agreement dated 11. 2.2011 and thus should move the court through a civil process and not a succession cause as she cannot recover land based on a contract in a succession court. To support this contention the appellant relies on the cases of Anthony Murimi Ciuma vs Julius Maina MwangiSuccession Cause No. 354 of 2013 and In the Estate of Stone Kathuli Muinde (Deceased) (2016) eKLR.

9. The appellant seeks to have the certificate of confirmed grant in respect of land parcel number Kiine/Gacharu/1663 set aside and the property registered in the names of the two administrators, herself and the 2nd respondent.

The 1st Respondent’s Submissions 10. The 1st respondent submits that from the evidence on record, the consent form clearly indicated that she would take the whole of parcel number Kiine/Gacharu/1663. The 1st respondent states that her name tops the list in the consent form and she thus argues that if the appellant and the other beneficiaries were not agreeable, they would not have executed the consent. The 1st respondent submits that the appellant stated that the contents of the Certificate of Confirmation of grant were read to her by her child. Thus the 1st respondent concludes that her children equally read the contents of the consent and they had an opportunity of informing her that a stranger had been included as a beneficiary which would have afforded the appellant an opportunity to file an objection. The 1st respondent further argues that even if the court assumed that the 2nd respondent perpetuated the alleged fraud by filing the summons behind the appellant’s back, the appellant was present during the confirmation of grant and she did not raise any objection. As such, the appellant failed to prove that the grant was obtained fraudulently and it is apparent that she is dishonest and selfish to the court.

11. The 1st respondent submits that she demonstrated to the court that she bought the land parcel number Kiine/Gacharu/1663 on 11th February 2011 from the administrators of the estate, the appellant and Charity Wambui Njamburi (deceased). Further, the 1st respondent contends that the said sale was witnessed by some of the beneficiaries of the estate. She further states that the monies paid were to assist the administrators in administering the estate and cater for succession expenses. The 1st respondent states that the grant to the estate was confirmed on 27th December 2018 in the presence of all the parties and/or beneficiaries including the appellant who was consulted and was fully aware that she was to be registered as the owner of land parcel number Kiine/Gacharu/1663.

12. The 1st respondent relies on Sections 26 & 80 of the Land Registration Act No. 3 of 2012 and the case of Katende vs Haridar & Company Ltd cited with approval in Lawrence Mukiri vs Attorney General & 4others [2013] eKLR and submits that she was a bonafide purchaser for value without notice and she took possession of the suit land from 11th February 2011 from the administrators of the estate and continued to extensively develop the same which is key for one to seek protection under Section 80 of the Act.

13. The 1st respondent cites the decision of Re Estate of Njau Kanyora (Deceased) [2016] eKLR and submits that the appellant failed to make out a strong case to meet the grounds for revocation of a grant.

The 2nd Respondent’s Submissions 14. The 2nd respondent submits that the deceased herein was married to two wives, the appellant and Charity Wambui Njamburi. Upon the demise of the deceased, the two filed a succession cause and as they did not have money to finance the succession, they approached the 1st respondent to purchase land parcel number Kiine/Gacharu/1663. The 1st respondent paid Kshs. 250,000/- on execution and was to pay the balance upon completion. The 2nd respondent states that his mother, Charity Wambui Njamburi died before the confirmation of the estate and he replaced her in the proceedings. He further states that he filed summons for confirmation of grant and on 27th December 2018, all the beneficiaries attended court and consented to the mode of distribution as per the summons for confirmation of grant.

15. The 2nd respondent argues that he did not conceal any material facts or make any fraudulent allegations and that the trial magistrate considered the applicable law and arrived at the correct decision. The 2nd respondent further argues that the legality of the sale agreement between the appellant and the 1st respondent is not in issue as the appellant attended court and consented to the 1st respondent being given the suit land.

16. Pursuant to Section 76 of the Law of Succession Act, the 2nd respondent argues that the appellant did not establish any grounds for revocation of grant as she confirmed that she filed summons for confirmation of grant dated 10th July 2016 where she gave the 1st respondent the entire suit land. She further confirmed that on 27th December 2018 when the matter came up for hearing of the summons for confirmation of grant, she was present in court and the trial magistrate explained to all the beneficiaries the contents of the summons and she consented to the same.

17. The 2nd respondent relies on the cases of Re Estate of Mary Wambui Muthama (Deceased)[2021] eKLR, Re Estate of Njoroge Kinuthia (Deceased) [2019] eKLR and Re Estate of Susan Nveta alias Susana Nveta Ireri (Deceased) [2021] eKLR and submits that the appellant attended court during the confirmation of grant, consented to the mode of distribution and thus she could not seek for revocation of grant.

18. On the allegation by the appellant that she did not sign the consent to the confirmation of grant, the 2nd respondent submits that in her application for confirmation of grant, she did not dispute the consent but alleged that he misdirected her and shared the land to the 1st respondent who is a stranger. The 2nd respondent states that the consent filed has a thumb print by the appellant and she did not dispute the thumb print belongs to her neither did she adduce any evidence of forgery. He who alleges must prove and the 2nd respondent argues that the appellant failed to prove her claim. To support this contention, the 2nd respondent relies on the case of Re Estate of Gatumu Mutugi (Decaesed) [2019] eKLR.

Issue for determination 19. The main issue for determination is whether the appeal has merit.

The Law 20. Being a first Appeal, the court relies on a number of principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & Others[1968] 1EA 123:“…..this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular,, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.”

21. It was also held in Mwangi vs Wambugu [1984] KLR 453 that an appellate court will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence; or where the court has clearly failed on some material point to take into account of particular circumstances or probabilities material to an estimate of the evidence.

22. Dealing with the same point, the Court of Appeal in Kiruga vs Kiruga & Another [1988] KLR 348, observed that:-“An appeal court cannot properly substitute its own actual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand.”

23. Therefore this Court is under a duty to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same, evaluate it and arrive at its own independent conclusions, but always remembering and giving allowance for it, that the trial court had the advantage of hearing the parties.

Whether the appeal has merit. 24. Section 76 of the Law of Succession Act gives the court the powers to revoke a grant provided the conditions stipulated therein have been met. It states that:-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:-a.That the proceedings to obtain the grant were defective in substance;b.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;c.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;d.That the person to whom the grant was made has failed, after due notice and without reasonable cause either:-i.To apply for confirmation of the grant within one year from the date thereof, or such longer period as the court has ordered or allowed; orii.To proceed diligently with the administration of the estate; oriii.To produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; oriv.The grant has become useless and inoperative through subsequent circumstances.

25. The appellant has faulted the trial court in failing to find that the certificate of confirmation of grant made on 27th December 2018 was obtained fraudulently by making a false statement and by concealment of material facts from herself and the court. The appellant also argues that the sale agreement entered into by her and the 1st respondent was tainted by illegalities and amounted to intermeddling and therefore she has no legal right over the suit property.

26. It is not disputed that the appellant, Charity Wambui Njamburi (deceased) and the 1st respondent entered into a sale agreement on 11th February 2011 for the purchase of land parcel number Kiine/Gacharu/1663 at a consideration of Kshs. 350,000/-. It is further not disputed that the 1st respondent paid Kshs. 250,000/- and was to pay the balance of Kshs. 100,000/- upon completion.

27. The bone of contention is that the grant was obtained fraudulently by making false statements and by concealing material facts from the court. According to the appellant, the sale agreement dated 11th February 2011 is tainted with illegality and amounts to intermeddling thereby no interest could be transferred to the 1st respondent. The appellant further argues that the 1st respondent colluded with the 2nd respondent to have her name listed as one of the beneficiaries of the estate of the deceased despite her revoking the sale agreement and returning the 1st respondent’s money through the firm of M/s Ikahu Nganga Advocates.

28. It is noted that the letters of administration were issued to the appellant and Charity Wambui Njamburi on 2nd March 2018. Charity Wambui Njamburi died on 17th July 2017, before the estate was confirmed and thus her son, the 2nd respondent was substituted in her place. On 24th December 2018, the 2nd respondent filed summons for confirmation of grant and swore an affidavit in support to the summons accompanied by a consent outlining the mode of distribution. The summons for confirmation of hearing came up for hearing on 27th December 2018 and all the beneficiaries were present in court including the appellant. The 2nd respondent told that court on the material day that some of the members of the family were not in agreement with the proposed distribution as they had not signed the consent. The court took note of that fact and called out all the beneficiaries who all confirmed that they are in agreement of the proposal and those who had not signed the consent requested to sign the same in open court, which request the court granted. The court then confirmed the grant there being no objection to the same. On perusal of the said consent filed on 24th December 2018, the 1st respondent has been listed as the first to be allocated land parcel number Kiine/Gachagu/1663 absolutely. Further, the consent has been executed by the appellant through a thumb print. Notably, the appellant did not dispute that that was her thumb print. That notwithstanding, the appellant had earlier filed summons for confirmation of grant dated 10th July 2014 and indicated in her affidavit that the 1st respondent was to be allocated land parcel number Kiine/Gacharu/1663 absolutely. On 18th May 2016, the appellant filed another summons for confirmation of grant dated 2nd March 2016 and indicated in her affidavit that Francis Wanjohi Mwai was to be allocated land parcel number Kiine/Gacharu/1663 absolutely. During the oral testimony, the said Francis Wanjohi Mwai stated that he paid Kshs. 250,000/- to the appellant and her initial co-administrator in order to offset the amount owing of Kshs. 250,000/- to the 1st respondent who he states they referred to as a creditor. He further testified that he did not have any interest in the estate. That notwithstanding, the appellant testified in the trial court that land parcel Kiine/Gacharu/1663 should be allocated to Francis Mwai but in her affidavit in support for summons for revocation of grant and in this appeal herein she requests that the said land parcel be registered jointly in her name and that of the 2nd respondent. Undoubtedly, the appellant is not an honest person. It is evident that the 1st respondent is not a stranger to her and furthermore she was present during the confirmation of the grant where the trial court called out all the beneficiaries and explained to them what the summons entailed. Thus the appellant cannot claim that the grant was made through fraudulent means by concealing material facts as all along she knew that the she entered into a sale agreement with the 1st respondent and that the 1st respondent paid the consideration of the suit property.

29. The appellant further argues that the sale agreement dated 11/2/2011 is tainted with illegalities and amounts to intermeddling. This court cannot make a determination on the sale agreement at this point because it is a succession court and not a court to determine the legality of a contract on sale of land between parties. In any event, it is my considered view that the appellant has raised that point too late in the day as she voluntarily entered into the agreement knowing very well that the grant in the cause herein was not confirmed and sold the property of the estate. The respondents’ evidence was that the appellant and her initial co-administrator did not have money to pay for the succession cause and proceedings and that is why they sold the land parcel. A fact confirmed by the PW2. Thus the appellant is estopped from hiding behind the notion that the estate was intermeddled with. It is unfortunate that the appellant is the cause of her own misfortune.

Conclusion 30. In view of the foregoing, I find that the appeal lacks merit and is hereby dismissed with costs to the respondents.

DATED AND SIGNED AT KERUGOYA THIS 24TH DAY OF OCTOBER, 2023. F. MUCHEMIJUDGEJudgement delivered through video link this 24th day of October , 2023