[2022] KEHC 11890 (KLR)

Ntutu v Ntutu (Civil Suit 11 of 2017) [2022] KEHC 11890 (KLR) (13 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11890 (KLR)

Republic of Kenya

In the High Court at Narok

Civil Suit 11 of 2017

F Gikonyo, J

June 13, 2022

IN THE MATTER OF DISTRIBUTION OF THE ESTATE OF KIKANE OLE NTUTU AND AGNES NOLARAMI NTUTU (BOTH DECEASED) IN THE MATTER OF ARTICLES 27(4) (5) OF THE CONSTITUTION IN THE MATTER OF LAW OF SUCCESSION ACT

Between

Faith Naisimoi Ntutu

Applicant

and

Felix Sikona Ntutu

Respondent

Ruling

Preliminary objection [1]The Notice of Preliminary Objection dated March 24, 2021by the defendant/applicant raises the following objections;i.That this court lacks jurisdiction to hear and determine the application herein.ii.That the applicant has no locus standi to sue the respondent.iii.That there is no known estate of Kikanae Ole Ntutu and Agnes Nolarami as per the definition of estate under Succession Act.

[2]The objections were canvased through oral submissions.

Parties’ oral submissions [3]Mr. Biketi submitted that this court has no jurisdiction to hear this matter. He argued that, on the face of this suit it is in respect of distribution of estate of Tikanae Ole Ntuntu. It shows that it is a succession issue and if stretched it is a land issue. He also urged that the cause is brought vide an originating summons. To him, therefore, this court is not the right forum to address the issues in controversy.

[4]Ms. Adallah for the plaintiff/respondent submitted that this court has jurisdiction over succession matters. She stated that the matter was initially filed at Nakuru High Court in 2017 and registered as originating summons civil suit 110 of 2017. Matheka J transferred the matter to Narok. Yet, the issue of jurisdiction was never raised. Jurisdiction ought to have been raised in the first instance. She argued further that Matheka J issued orders on 12/1/2015 which are still in place.

[5]In a rejoinder, Mr. Biketi stated that Ms. Adallah has admitted that the matter is a succession matter and has proceeded as is. He however argued that the issue of jurisdiction can be raised at any time.

Analysis And Determination [6]A preliminary objection is a point of law which will determine the suit. It must, however, not be entangled in factual evaluation. See the case of Mukisa Biscuits Manufacturing Co Ltd v West End Distributors [1969] EA 696 that:“... a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration."

[7]Jurisdiction is everything; without it, the court cannot adjudicate over the matter (Owners of Motor Vessel "Lilian s" v Caltex Oil (K) Ltd[1989] KLR 1), and is derived from the Constitution or law or both (Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR)

[8]Accordingly, are the objections potent to dispose of the suit?

[9]The three objections raised are;i.That this court lacks jurisdiction to hear and determine the application herein.iv.That the applicant has no locus standi to sue the respondent.v.That there is no known estate of Kikanae Ole Ntutu and Agnes Nolarami as per the definition of estate under Succession Act.

[10]These objections are intertwined. By examining the nature of these proceedings all the three objections shall be determined.

Claim of trust [11]This suit was commenced by way of Originating Summons under Order 37 rule 1 of the Civil Procedure Ruleswhich provides as follows: -1. The executors or administrators of a deceased person, or any of them, and the trustees under any deed or instrument, or any of them, and any person claiming to be interested in the relief sought as creditor, devisee, legatee, heir, or legal representative of a deceased person, or as cestui que trust under the terms of any deed or instrument, or as claiming by assignment, or otherwise, under any such creditor or other person as aforesaid, may take out as of course, an originating summons, returnable before a judge sitting in chambers for such relief of the nature or kind following, as may by the summons be specified, and as circumstances of the case may require, that is to say, the determination, without the administration of the estate or trust, of any of the following questions-(a)any question affecting the rights or interest of the person claiming to be creditor, devisee, legatee, heir or cestui que trust;(b)the ascertainment of any class of creditors, devisees, legatees, heirs, or others;(c)the furnishing of any particular accounts by the executors, administrators or trustees, and the vouching, when necessary, of such accounts;(d)the payment into court of any money in the hands of the executors, administrators or trustees;(e)directing the executors, administrators or trustees to do, or abstain from doing, any particular act in their character as executors, administrators or trustees;(f)the approval of a sale, purchase, compromise or other transaction;(g)the determination of any question arising directly out of the administration of the estate or trust.

[12]The plaintiff has based her claim on trust of which the defendant is alleged to be the trustee and she is one of the beneficial owners of the trust property. In specific terms, she claims that the defendant received the share of their late father- who was the son of the deceased in Nairobi HC Succession Cause No. 1263 of 2000, in the Estate of the Late Lerionka Ole Ntutu for his benefit and that of the other children of the deceased beneficiary. She claims the defendant was registered in their late father’s share for he was the only male child in their family. Thus, held the land in trust for the children of their late father.

[13]These claims are founded on the principle of representation and equality enshrined in the law of succession Act wherein the share of the deceased beneficiary goes to the child solely, if one, or to all the children in equal shares (Partv-intestacy of the Law of Succession Act). Therefore, such a beneficiary may apply under Order 37 for the determination of any question arising directly out of the administration of the estate or trust.

[14]I also note an element of patriarchy showing its ugly head in these proceedings.

[15]By the very nature of the controversy, these proceedings are appropriate and the court has jurisdiction to try the case. I will explain this further.

[16]The issue at hand is one of trust. It is not feasible to determine the controversy within the proceeding relating to the estate of their grandfather for; (i) those proceedings are concluded; and (ii) the controversy is not for a share in the estate of the grandfather, but is based on a purported trust on the share of their late father- the deceased beneficiary.

[17]In addition, contrary to the submissions by the respondent, a proceeding under Order 37 of the CPR is not dependent upon existence of proceedings relating to the estate of their deceased father.

[18]In sum, the High Court has jurisdiction to hear and determine questions arising from a trust.

[19]In saying the foregoing, I am acutely aware of the decision of the Court of Appeal in the case of Zipporah Wanjiru Mwangi v Zipporah Wanjiru Njoroge[2017] eKLR that: -“In succession proceedings where, as here, existence of trust is alleged in respect of land claimed to be family land, it is appropriate for the court to give directions on the procedure to be followed for adduction of evidence. Such procedure cannot be discredited merely on account of the fact that succession proceedings are designed to determine heirs and distribution of estate and not issues of trust. The fact that the court was called upon to determine whether the suit land was beneficially held and therefore not subject to distribution or whether it was family land and therefore liable to distribution among the heirs in the succession in itself justified the determination of the issue of trust. Where, as here, the issue (of trust) arises in succession proceedings whether the land is family land and therefore is subject to trust or whether it is owned absolutely by the deceased, and therefore is not subject to distribution, the court hearing the succession proceedings has jurisdiction to determine the issue and to give appropriate directions on the hearing. This is in line with the jurisdiction vested in the High Court by article 165 (3) (a) of the Constitution and Section 47 of the Law of Succession Act, Cap. 160. Moreover, the Constitution of this country enjoins and expects the courts to determine the dispute fairly and with expedition, and without undue regard to technicalities of procedures - see articles 159 (2) (d), 48; 50 (1); 10(1) (A); 10 (2) (b); 20 (2); 21(1), 165 (3) (a) and 164 (3).”

[20]Although the Court of Appeal did not prescribe the shape, process and content of the directions on the procedure to be followed for adduction of evidence in case of a claim of trust, I should think that, inter alia, rule 41 of the Probate and Administration Rules, and Order 37 of the Civil Procedure Rulesshould provide the shape, process and content of directions on the procedure to be followed for adduction of evidence in instances where trust or other legitimate claims are made in a succession case.

[21]Accordingly, even where a succession cause exists, a separate proceeding may be necessary to resolve matters of trust especially where such claims may not be conveniently disposed of in the confirmation of grant hearing. I should think that, one such case may be where the children of a deceased beneficiary who take a share under the principle of representation, are entangled in bitter and long-drawn controversy which may not be conveniently handled or resolved in the succession cause without causing extreme delay, and injustice to the other beneficiaries. In this case, controversy arises among the children of a deceased beneficiary. It is prudent that such proceedings should be conducted under Order 37 of the CPR.

Conclusions and orders 22. In the upshot, I answer the three objections thus;(i)The court has jurisdiction to determine a question on trust under Order 37 of the Civil Procedure Rules;(ii)The plaintiff has legal standing to institute such proceedings against the defendant-the supposed trustee; and(iii)This proceeding is for the determination of a question arising directly out of alleged trust, which does not make it, of the character of, or necessary to have a succession cause in respect of their late father. Even if the proceeding was for the determination of any question arising directly out of the administration of the estate or trust, it would still be appropriate and competent as filed (Order 37 rule 1(g) of the Civil Procedure Rules.).(iv)The objections lack merit and they are dismissed with no orders as to costs.(v)The case to be set down for hearing.

DATED, SIGNED AND DELIVERED AT NAROK THROUGH TEAMS APPLICATION, THIS 13TH DAY OF JUNE, 2022F. GIKONYO M.JUDGEIn the Presence of :1. Biketi for Respondent2. Mr. Kasaso- CA**3. Ms. Adallah for plaintiff