[2022] KEHC 11574 (KLR)

Njuguna & another v Simon & another; Mbaka (Interested Party) (Succession Cause 144 of 2004) [2022] KEHC 11574 (KLR) (11 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11574 (KLR)

Republic of Kenya

In the High Court at Embu

Succession Cause 144 of 2004

LM Njuguna, J

May 11, 2022

Between

Peter Mburu Njuguna

1st Applicant

Evans Nguu Gakindi

2nd Applicant

and

Dewitt Njiru Simon

1st Respondent

Peter Githaka Njagi

2nd Respondent

and

Kellen Wanja Mbaka

Interested Party

Judgment

1. Before me is an application dated December 16, 2020wherein the applicants have sought before this court orders that:i)The respondents who are the administrators of the estate of Njagi Gakindi be ordered to implement the amended certificate of confirmation of grant dated June 16, 2015 by causing the sub division of Land Parcel Number Kaagari /kigaa/3144, to excise two portions measuring 0. 30 hectares each and transferring them to the 1st and 2nd applicants within 45 days from the date of this order.ii)In default the Deputy Registrar of this Honourable Court be ordered and/or authorized to execute all documents necessary for sub division of Land Parcel Number Kaagari /kigaa/3144 to excise two portions measuring 0. 30 ha each and for transfer of the two portions to the applicants respectively or for any purpose connected to the implementation of the grant in this cause.iii)Costs be provided for.

2. The application is premised on the grounds on its face and further supported by supporting affidavit sworn on December 16, 2020by the 1st applicant. The applicants’ case is that they are seeking for orders to compel the administrators/respondents of the estate herein to implement the amended certificate of confirmation of grant dated June 16, 2015 by causing the subdivision of the balance of Land Parcel Number Kaagari/ Kigaa/3144 to excise two portions measuring 0. 30 ha each and transfer them to the 1st and 2nd applicants within 45 days from this order. Further, it was sought that in default, the Deputy Registrar be ordered and/or authorized to execute all necessary documents for sub–division of the Land Parcel Number Kaagari/kigaa/3144 to excise 0. 30 ha each and to transfer the two portions to the applicants.

3. The 2nd respondent via a replying affidavit sworn on February 11, 2021, deposed that Land Parcel Number Kaagari /kigaa/3144 does not exist since the title for the same was closed upon sub- division on 30. 10. 1992 giving rise to Land Parcel Number 3988 – 4004 and 4092 – 4094. That Land Parcel Number Kaagari/ Kigaa/4093 was further subdivided into Land Parcel Numbers 10676 – 10681; that since the process of sub division of the original parcel took long, and the 1st applicant having become impatient, the deceased herein in show of good faith agreed with the 1st applicant that Land Parcel Number Kaagari/weru/ 5315 be registered in the name of the 1st applicant to hold as a lien awaiting the completion of the sub division process. It was deposed that once the process was completed, the 1st applicant was to surrender Land Parcel Number Kaagari/weru/5315 to get 0. 05 ha from the original Land Parcel Number Kaagari/kigaa/3144 but the deceased passed on before the transfer could be completed. That it is surprising that the 1st applicant is now seeking 0. 30ha without giving any basis for the same and in regards to the 2nd applicant, once he pays the necessary charges, he is ready to transfer to him 0. 05 ha out of Land Parcel Number Kaagari/kigaa/10680.

4. The interested party who was enjoined in these proceedings vide the application dated the 23/11/2021 filed a replying affidavit in which she has deposed that the applicants failed to disclose material facts on the mode of occupation and use of the balance of the original Land Parcel Number Kaagari/kigaa/3144. That she is a beneficiary of the estate given that she is the wife of the son of the deceased and has been occupying balance of Land Parcel Number Kaagari/kigaa/3144 measuring approximately 0. 943 Ha since the year 1990 and that she has extensively developed the said portion out of the original Land Parcel Number Kaagari/kigaa/3144.

5. Further, it is her case that the 1st applicant deserves only 0. 5 Ha. That it is not true that the 1st applicant financed the process of obtaining the title deed for the land marked ‘M’ on the map. That the 2nd applicant is also only entitled to a share of 0. 05 ha out of the balance of the original Land Parcel Number Kaagari/kigaa/3144 which portion he occupies and which portion was agreed upon by the entire family. In the end, the interested party deposed that she was opposed to the balance of the original Land Parcel Number Kaagari/kigaa/ 3144 being sub divided into 3 equal portions since she together with her children will have been denied their rightful inheritance from the estate.

6. The 1st applicant filed a supplementary affidavit on the March 11, 2021 in which it is deposed that Land Parcel Number Kagaari/weru/5315 was sold and transferred to him by Njagi Gikandi (deceased) during his life time and it has nothing to do with this succession cause. He averred that the land was not transferred to him purportedly to hold the same as a lieu while awaiting completion of the sub-division of land Parcel Number Kagaari/kigaa/3144 neither was he to exhchage the said land with any other land as alleged by the 2nd respondent as that was his land that he bought and paid for fully.

7. That in 1988, the deceased Njagi Gikandi sold him a portion of land Parcel Number Kagaari/kigaa/3144 which he took possession of and started developing as he waited for sub-division so as to excise the said portion of land and have the same transferred to him. That as per the certificate of confirmation of the grant, he is supposed to get a share from the remainder of land parcel Number Kagaari/kigaa/3144 which measures approximately 0. 90 hectares, equally with the 2nd applicant and the interested party and that he was to get the portion which he is occupying and which he has occupied since 1988.

8. That immediately after completion of the succession cause herein, the 2nd applicant duped him into signing transfer forms for a portion measuring 0. 10 hectares out of the balance of land Parcel Number Kagaari/kigaa/3144 instead of his rightful portion of 0. 03 hectares and upon realizing what the 2nd applicant had done, he asked the 2nd applicant to give him back the blank forms so that he could cancel his signature but the 2nd applicant refused and informed him that he would fill in whatever information he wanted and hence annexture “PGN3”.

9. That when the original parcel Kagaari/kigaa/3144 was sub-divided in 1992, there remained an open space and the Riparian Reserve designated as parcel No. “M” on the mutation forms, and that is the portion the deceased sold to him in 1988. That he has extensively developed the portion and which he currently occupies and he has built his home thereon and several houses.

10. That the respondents and himself went to the Land’s Office and were adviced that since portion “M” had not been given a number, when LR. Kagaari/kigaa/3144 would be sub-divided, the same would be consolidated with portion “V” on the mutation forms dated January 30, 1992which had been designated as LR. Kagaari/kigaa/4093 and (measuring 0. 20 Hactares) and the Raparian Section to form one parcel of land. That after consolidation of parcel number LR. Kagaari/kigaa/4093 “portion V” and “portion M” the consolidated parcel measures 1. 02 hectares which is bigger than it was previously.

11. It was his case that LR. Kagaari/kigaa/4093 is what is being referred to as the balance of LR. Kagaari/kigaa/3144 and out of it, 0. 04 hectares was to be set aside as a family cemetery, Edith Muthanje Gideon was to get 0. 05 Hectares, Pius Mwaniki 0. 07 Hectares while the 2nd applicant, himself and the interested party were to get the balance equally. That he is seeking his share of the balance of LR. NO. Kagaari/kigaa/ 3144 which was designated as LR. Kagaari/kigaa/4093.

12. The parties herein proceeded to file their written submissions in support of their respective positions.

13. The 1st and 2nd applicants submitted that they are each entitled to a portion measuring 0. 30 ha. out of the balance of Land Parcel Number Kaagari/kigaa/3144 which is part of the estate of the deceased herein. That the respondents who are the administrators of the said estate have willfully refused to implement the amended certificate of confirmation of grant dated 16. 06. 2015 by refusing to transfer the said portions to them. It was submitted that the other person entitled to get the 0. 30 ha. from the said parcel is Hellen Wanja Mbaka as the three beneficiaries are included in the said amended certificate of confirmation of grant. That the administrators have failed to perform their duties as the administrators of the estate of the deceased herein. That the 1st applicant purchased a portion of Land Parcel Number Kaagari /kigaa/3144 from the deceased upon which he immediately took possession of the said portion and started developing it as he waited for sub-division and excision of the said portion of land and to have it transferred to him, which process the deceased had started but died before it was complete. It was submitted that upon the death of the deceased, the succession cause herein was filed and the applicants were to get the portion named “M” which still had no number, and which was therefore referred to, as the balance of Land Parcel Number Kaagari/kigaa/3144.

14. That the portion marked as “M” was consolidated with portion marked ‘V’ on the mutation form which had been designated as Land Parcel Number KAAGARI/KIGAA/4093 measuring 1. 02 ha. after consolidation. It was submitted that the said land was to be shared as follows: 0. 04 ha, to be set aside as family graveyard, 0. 05 ha to go to Edith Muthanje Gideon, 0. 07 ha. to go to Pius Njagi Mwaniki while the applicants herein and Hellen Wanja Mbaka were to share the balance equally each getting 0. 30 ha.

15. The respondents submitted that paragraphs 6, 7, 8, 15 and 18 of the 1st applicant’s supplementary affidavit should be expunged from the record in that they are making adverse remarks about the respondents yet they were not contained in the supporting affidavit to enable the respondents reply to those averments. That the 2nd respondent is entitled to a portion of 0. 05 ha out of the Land Parcel Number Kaagari/kigaa/3144 and that the 1st applicant has never been given any authority to make depositions on behalf of the 2nd applicant and as such, the 1st applicant cannot litigate on behalf of the 2nd applicant. It was submitted that Land Parcel Numbers Kaagari/kigaa/ 10678, 10679, 10680 and 10681 are all registered in the name of Pius Njagi Mwaniki and who has not transferred to the applicants their shares. That the same Pius Njagi Mwaniki is not a party to this application and further, he is one of the beneficiaries of the estate herein and yet, he has not been called upon to answer to the allegations herein.

16. As such, it was their case that they cannot be sued when in real case the said owner of the parcels was still alive and as such, the respondents are being asked to do what is legally impossible. The respondents submitted that this application is bad in law since Land Parcel Number Kaagari/kigaa/3144 no longer exist given that the title was closed on sub division with the resultant parcels being Land Parcel Numbers Kaagari/kigaa/3988 – 4004 and 4092, 4093 and 4094 and the same was done on 30. 01. 1992 while the amended certificate of confirmation of grant was issued on 16. 06. 2015, about 23 years later. That the parties involved never found it necessary to inform the court about that fact; that the 1st applicant in seeking a portion of 0. 30 ha out of the Land Parcel Number Kaagari/kigaa/3144, did not disclose that the land does not exist and only after the respondents raised the issue and provided proof that the said land no longer existed, that the 1st applicant belatedly conceded to that fact but further proceeded to seek to get land from Land Parcel Numbers Kaagari/ Kigaa/10678, 10679, 10680 and 10681.

17. It was submitted that the 1st applicant had purchased a portion of 0. 05 ha from what was originally Land Parcel Number Kaagari/kigaa/3144 and that he took occupation of the same but the process of sub division and transfer took long to complete and as such, although the 1st applicant was to be in occupation of the portion that would ultimately be his, he was to get Land Parcel Number Kaagari/weru/5315 measuring 0. 05 ha,equivalent to the portion he was to get from Land Parcel Number Kaagari/kigaa/3144, and upon getting title of where he was to occupy, the 1st applicant was to surrender Land Parcel Number Kaagari/weru/5315. That the 1st applicant also confirms to have signed the application forms for exchange in that, Land Parcel Number Kaagari/kigaa/10679 was being exchanged with Land Parcel Number Kaagari/weru/5315. Further, it was submitted that the 1st applicant is not an honest person since he has not explained under what circumstances he was to get a portion of 0. 30 ha and as such, this court was urged to dismiss the application herein.

18. The interested party submitted that she is a beneficiary of the estate herein and that she was to inherit from the balance of the original Land Parcel Number Kaagari/kigaa/3144 together with the applicants as per the amended certificate of confirmation of grant dated 16. 06. 2015. That the applicants intentionally failed to inform the interested party of the application herein; it was her case that the applicants are not entitled to a portion of 0. 30 ha each, out of the balance of the original Land Parcel Number Kaagari/kigaa/3144 for the reasons that: the amended grant dated 16. 06. 2015 did not specify the shares and the reason for that is the fact that the parties herein occupy different portions on the ground. It was her contention that the 1st applicant in a bid to mislead the court, has been evasive in disclosing the size of the portion of land he claims to have bought from the deceased. It was submitted that the 1st applicant in para 11 of his supplementary affidavit sworn on 04. 03. 2021 admitted that the land he bought from the deceased was the portion marked ‘M’ on the mutation forms annexed to the same affidavit.

19. She continued to state that according to the same mutation forms, the portion marked “M” measures approximately 0. 05 ha and so, the 1st applicant is therefore only entitled to a portion of 0. 05 ha out of the balance of the original Land Parcel Number Kaagari/kigaa/3144. That, it is not true that the 1st applicant financed the process of obtaining the title for the portion “M” on the map as the same was financed by the interested party’s son to the tune of Kshs.220,000. 00 which amount was paid into the administrator’s account as evidenced by the annexed receipts to the interested party’s replying affidavit. The interested party submitted that the 1st applicant’s allegations are mere fabrications as there are glaring contradictions on the amount of money that he claims to have contributed in financing the process of getting the number for the said portion in that he only provided receipts for an amount of Kshs.134,000. 00.

20. It was her case that she was placed at her current place of occupation by the deceased herein since she is the wife of the son of the deceased who has since passed on, and that she has extensively developed the said portion measuring 0. 843 ha out of the balance of the original Land Parcel Number Kaagari/ Kigaa/3144. Further, it was her case that the 2nd applicant has not made out a case for himself given that no authority was filed by the 1st applicant to plead or act on behalf of the 2nd applicant and equally that he has not explained why he should get an enhanced share of 0. 3 ha out of the balance of the original Land Parcel Number Kaagari/kigaa/3144.

21. The duties of personal representatives are fiduciary in nature [Seesection 83 of the Law of Succession Act] and it provides that the same includes the duty to (subject to section 55) to distribute or to retain on trust (as the case may require) all assets remaining after payment of expenses and debts as provided by the preceding paragraphs of this section and the income therefrom, according to the respective beneficial interests therein under the will or on intestacy, as the case may be [section 83 (f)]; within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the court a full and accurate account of the completed administration; [section 83 (g)]; and to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration [section 83 (i)].

22. This court notes that the amended certificate of confirmation of grant dated 16. 06. 2015 was issued to the respondents and that the portion in contention indicated as balance of original of Land Parcel Number Kaagari/kigaa/ 3144 was to be shared amongst the 1st, 2nd applicants and the Hellen Wanja Mbaka who is the interested party.

23. The respondents have submitted that the balance of original of Land Parcel Number Kaagari/kigaa/3144 is no longer available given that Land Parcel Number Kaagari/ Kigaa/ 3144 no longer exist since the title was closed on sub division mutating into Land Parcel Numbers Kaagari /kigaa/3988 – 4004 and 4092, 4093 and 4094 and the same was done on January 30, 1992while the amended certificate of confirmation of grant was issued on June 16, 2015, about 23 years later. That the1st applicant in seeking a portion of 0. 30 ha out of the Land Parcel Number Kaagari/kigaa/3144 did not disclose that, that land does not exist and further that, the 1st applicant was to surrender Land Parcel Number Kaagari/weru/5315 to get 0. 05 ha from the original Land Parcel Number Kaagari/ Kigaa/3144.

24. This court notes that the respondent’s case is hinged on the allegation that the Land Parcel Number Kaagari/kigaa/ 3144 does not exist but in the same breadth, submitting that the 2nd applicant who is their cousin is obliged to get 0. 05 ha from Land Parcel Number Kaagari/kigaa/10680. That the 1st applicant then should surrender Land Parcel Number Kaagari/weru/5315 for him to get 0. 05 ha from the original Land Parcel Number Kaagari/kigaa/3144. On the other hand, the interested party submits that the 1st applicant claims to have contributed in financing the process of getting the refrence number for the said portion is not true. That she was placed at her current place of occupation by the deceased herein since she is the wife of the son of the deceased who has since passed on and that she has extensively developed the said portion measuring 0. 843 ha out of the balance of the original Land Parcel Number Kaagari/kigaa/3144. Further, it was her case that the 2nd applicant has not made out a case for himself given that no authority was filed by the 1st applicant to plead or act on behalf of the 2nd applicant and further, he has not explained why he should get an enhanced share of 0. 3 ha out of the balance of the original Land Parcel Number Kaagari/ Kigaa/3144.

25. Having perused the court record, I note that according to the respondents annexed exhibit (green card) annexed as PGN 1, it is outright that the parcel of land in question was closed for subdivision on January 30, 1992and thus new numbers developed. What remains mysterious is the fact that the respondents armed with this fact could not bring it to the attention of the court when the grant was confirmed. The interested party on the other hand does not deny that the 1st applicant deserves a portion of the balance of the original Land Parcel Number Kaagari/kigaa/3144 but only contests the size. From the amended certificate of confirmation of grant dated 16. 06. 2015, clause number twelve (12) reads that Kaagari/weru/5315 to be inherited by Peter Mburu Njuguna ( 1st applicant) and clause number 29 which reads that the balance of original Land Parcel Number Kaagari/kigaa/ 3144 to be inherited by Peter Mburu Njuguna (1st applicant), Evans Nguu Gakindi (2nd applicant) and Hellen Wanja Mbaka. It therefore could not be true the allegations by the respondents that the 1st respondent held Kaagari/weru/5315 in lien as he waited for the transfer of a portion from Land Parcel Number Kaagari/kigaa/3144.

26. The applicants have submitted that the balance of the original Land Parcel Number Kaagari/kigaa/3144 has since been sub divided into six portions being Kaagari/kigaa/10676, 10677, 10678, 10680 and 10681 and further, the respondents readily submit that they are ready to transfer 0. 05 ha to the 2nd applicant upon payment of requisite transfer fees. The question that this court asks itself then would be, where exactly would the respondents get the land parcel to transfer to the 2nd applicant if they already claim that the alleged Land Parcel Number Kaagari/kigaa/3144 no longer exist and the same is currently under the ownership of someone else. I totally disagree with the submissions made by the respondents since the same has been made in bad faith and in attempt to defeat justice.

27. In my own view, the respondents are not sincere despite the fact that they are the administrators of the estate herein and due to the fact that the office of the administrator of the estate of the deceased is built on the foundation of trust and goodwill, I find that the applicants herein have made a case for themselves.

28. The allegation by the interested party that she is opposed to the fact that the said Land Parcel Number Kaagari/kigaa/3144 be divided in equal shares to the three of them in that she has been occupying the land since 1990 and that she has extensively developed the land and so she should be allotted 0. 843 ha out of the balance of the original Land Parcel Number Kaagari/ Kigaa/3144 is without any basis. Any changes made in regards to the mode of distribution in as far as the amended certificate of confirmation of grant is concerned, would be akin to this court sitting on its own appeal and the same is compounded by the reason that no such prayer was sought before this court in as much as this court has inherent powers to issue any orders in the interest of justice. [See section 47 and Rule 73 of LSA]. [ See Re estate of Prisca Ong’ayo Nande (Dececaesed) [2020] eKLR].

29. The applicants herein have sought a prayer that in the alternative, the Deputy Registrar to sign all the documents on behalf of the respondent.

30. In Rose Wanjiku Kuria v Nganga Mugwe [2003] eKLR [Also see In re Estate of Kubuta Kamara Nguuro Njengegu (Deceased) [2021] eKLR where Njuguna J held that:The office of the administrator of estate of a deceased person is an office which is built on the foundation of trust and goodwill. Where such is seen to be lacking, then the court ought to invoke its powers to ensure that justice is done to the beneficiaries more so where the administrator/s put the beneficiaries in an enviable position.

31. Similarly, the court In Re Estate of Wilfred Munene Ngumi (deceased)[2020] eKLR while allowing the application for the Deputy Registrar of the court to execute completion documents thus held as follows:“…It is evident from the applicant’s affidavit in support of the application and oral arguments by her Advocate, Mr. Kahiga, that the Respondents have refused to sign the necessary documents to facilitate execution of the court’s judgment/decree. To prevent abuse of the court process, by the above legal provisions, this court has inherent powers to prevent such abuse. I therefore find and hold that the petitioner’s summons dated 23/9/2019 and filed on 25/9/2019 to be merited…”

32. Further, this court videsection 47 and Rule 73 of theProbate and Administrationmakes provision that nothing 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 this court and as such, the respondents herein remain as the administrators of the estate but they seem intentionally unobligated to ensure that the beneficiaries herein get what is rightfully theirs.

33. I am persuaded by the above decisions and it is trite that court orders are never to be made in vain. The Law of Succession Act thus places a duty on personal representatives to complete the administration of the estate. Section 83(i) of the Law of Succession Act provides;“To complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurarte account of the completed administration.”

34. In the end, I do hereby order the Deputy Registrar to sign all the necessary documents to ensure that the beneficiaries (the 1st , 2nd applicants and the interested party ) inherit in equal shares the balance of original Kaagari/kigaa/3144.

35. This being a succession cause each party should bear its own costs.

36. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 11TH DAY OF MAY, 2022. L. NJUGUNAJUDGE………………………………………..…..for the Applicants……………………………………….…for the Respondents………………………………………for the Interested Party