[2023] KEHC 23270 (KLR)

Nzuki v Munyithya & 2 others (Civil Appeal E018 of 2021) [2023] KEHC 23270 (KLR) (3 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23270 (KLR)

Republic of Kenya

In the High Court at Kitui

Civil Appeal E018 of 2021

RK Limo, J

October 3, 2023

Between

Joseph Mote Nzuki

Appellant

and

Kasimu Munyithya

1st Respondent

Catherine Wamutwa Veleti

2nd Respondent

Franciscah Mwende Muthui

3rd Respondent

(Being Appeal against the Judgement of Hon. J. Munguti-PM made in Kitui Chief Magistrate’s Court Succession Cause No. 100 of 2008)

Judgment

1. This is an appeal against the Judgement of hon. J. Munguti-PM made in Kitui Chief Magistrate’s Court Succession Cause No. 100 of 2008. The cause before that court was in relation to an estate of the late Miti Mwania (deceased). Joseph Mote Nzuki, the appellant herein and a grandson to the deceased petitioned and was granted letters of administration of the estate on January 12, 2009. The only asset listed as comprising the estate is that property known as Mutonguni/Kauwi/8XX.

2. The proposal made on the distribution of the estate met resistance from the respondents herein who filed protests claiming purchaser’s interests on parts of the estate.

3. The trial court heard the protest via oral evidence from the respondents and the appellant herein. The trial court determined that the 1st respondent be given 1 acre while the 3rd respondent be given 0. 48 hectare out of the estate (Mutonguni/Kauwi/816. The appellant’s proposal on the other shares was adopted. The estate of the deceased was in the end distributed by the trial court as follows: -i.Kasimu Munyithya (1st Respondent)-1 acre.ii.Catherine Wamutuwa Veleti (2nd Respondent)-1. 1 acres.iii.Francisca Mwende Muthui alias Francisca Mwende Peninah Alias Mwende Kimali (3rd Respondent)-0. 48 haiv.Joseph Mote Nzuki- 0. 95 hav.Access roads- 0. 08 havi.Pius Kavangili Nzuki-0. 37 ha

4. Dissatisfied, the appellant filed this appeal seeking to set aside the trial court’s decision vide a this appeal. The appellant has raised the following grounds;i.The learned trial magistrate erred in law and in fact by delivering a mixed up judgment whose basis and reasoning are contrary to the evidence tabled before him.ii.The learned trial magistrate erred in law and fact by awarding the protestors more land than they had claimed and more than they deservediii.The learned trial magistrate erred in law and fact by awarding the respondents lands which they had purchased from strangers who had no capacity at the time to sell those portionsiv.The learned trial magistrate erred in law and fact by failing to appreciate that the REspondents had slept on their rights if any and had no equitable right to pursue the appellant when they had failed to complete the purchase price.v.The learned trial magistrate erred in law and fact by failing to consider the evidence and submissions by both sides on record.vi.The learned trial magistrate erred in law and on fact by relying on assumptions instead of the evidence placed before him.vii.The learned magistrate erred in law and on fact by failing to justify the basis for his judgment as required.viii.The learned magistrate erred in law and in fact by awarding land belonging to a deceased person to strangers who had not obtained capacity to sue on behalf of their parents the alleged purchasers.

5. The appellant’s case in the trial court and in this appeal is an admission that he did enter into a sale agreement with the 2nd respondent for the sale of part of the estate aforementioned suit property. However, he contends that he entered into the agreement before confirmation of grant with regards to the estate and for that reason he argues that he did not have capacity to enter into the sale agreement. His position is that he was just an administrator of the estate and that he is willing to refund Kshs 100,000/- paid by the 2nd respondent towards the sale. Additionally, he takes issue with the trial court’s finding that the 2nd Respondent paid Kshs 100,000/- towards the purchase price leaving a balance of Kshs 60,000/- remained unpaid. He feels that the trial court failed to make a determination on his capacity to enter into the transaction.

6. The appellant also faults the trial court for allocating 0. 48ha to the 2nd respondent stating that he did not have capacity to sell land forming the estate of the deceased as an administrator as the grant had not been confirmed. The appellant has placed reliance on the case of Re estate of the Late Epharus Nyambura Nduati (deceased) (2021) eKLR where the court allowed an application for revocation of the grant one ground being that the administrator of the estate sold a parcel forming part of the estate before confirmation of grant took place. The court in that decision made reference to the finding of the court in re Estate of Jamin Inyanda Kadambi (Deceased) [2021] eKLR where it was stated that;‘‘A valid sale of estate property can only be by those to whom the assets vest by virtue of section 79, and who have the power to sell the property by virtue of section 82. Even then, immovable assets, like land, such as Kakamega/Kegoye/30, cannot be disposed of by administrators before their grant has been confirmed, and if land has to be sold before confirmation, then leave or permission of the court must be obtained. That is the purport of section 82(b)(ii) of the Law of Succession Act. Clearly, the sale transaction that was carried out by the administrators was contrary to sections 45 and 82(b) (ii) of the Law of Succession Act, and was invalid for all purposes. It cannot be asserted at all, and am surprised that persons to whom administration of the estate herein can purport to support a sale transaction that was carried out contrary to the very clear provisions of the law.’’

7. The appellant also faults the trial for the award given to the 3rd respondent which was a refund of Kshs 2,000/- being the alleged deposit paid by the 3rd respondents mother to the appellant’s father in relation to a sale of a portion of land forming part of the estate of the deceased. The appellant submits that his father did not have capacity to transact in relation to the estate as he was not the legal administrator of the estate of the deceased and that the same applies to the 3rd respondent herein as she has not taken out letters of administration of the estate of her late mother to enable her make a claim on her behalf.

8. The 2nd respondent has opposed this appeal vide written submissions dated March 4, 2023.

9. The 2nd respondent faults the appellant for filing the appeal 36 days out of time and deems the same as incompetent. He has also been submitted that the appeal is incomplete and offends order 42 rule 13 (4) of the Civil Procedure Rules for missing pleadings from proceedings in the trial court, the petition for grant of letters of administration, grant of letters of administration, summons for confirmation of grant, several applications from the lower court proceedings and the order giving leave to appeal out of time.

10. The 2nd respondent support’s the trial court’s finding allocating her 0. 48 ha from land parcel No. Mutonguni/Kauwi/816 stating that the sale transaction between her and the Appellant was valid as he was the administrator of the estate.

11. This being a first appeal, the duty of the first appellant court was well stated in Selle v Associated Motor Boat Co [1968] EA 123 where the court of Appeal stated: -“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the 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, the 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 account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

12. This court has re-evaluated the evidence tendered orally and documents filed at the trial court. I have also considered this appeal and the response made.

13. This court has had difficulties trying to understand the decision made by the trial court particularly in the following respects;a.The record shows that the 1st respondent withdrew his protest on March 21, 2018 when the counsel stated that he had instructions from the 1st respondent to cease pursuing the protest.The appellant’s counsel as per the record indicates that the issue had been sorted but did not state how it was being sorted. The trial court in its judgement however went ahead and allocated the 1st respondent, 1 acre from the estate and it’s not clear if there was a consent from the beneficiaries to that effect or not.b.Secondly and more importantly, the decision being challenged in this appeal is based on a decision of the trial court made on the basis of Summons for Confirmation of Grant dated May 24, 2013. I have looked at the record and the application is only referred to in the proceedings but the application is not on record of appeal or the original record from lower court. I have noted from the proceedings that the appellant who was the petitioner/administrator had earlier filed two other summons for confirmation of grant but which were withdrawn in favour of the one dated 24/5/2013. The absence of the summons for confirmation of Grant dated 24/5/2013 makes it difficult for this Court to know what informed the trial court’s decision on distribution of the estate and besides that even if I was to set aside vary or review, the distribution of the estate, making an order for distribution that meets the ends of justice would be a tall order because there is nothing on record that can guide me in knowing what was agreed by the beneficiaries and what was contested.c.The trial court in its decision found that the 3rd respondent was entitled to ‘‘first’’ portion purchased from the son of the deceased but declined her claim of ‘‘2nd portion’’. It then went ahead to award her 0. 48 ha and that she should be refunded Kshs. 2,000 plus interests or 10% of the estate be given to her. This of course poses some difficulties because, the trial court indicates that the appellant had no issue on the ‘‘first’’ portion and only had issues with the ‘‘2nd portion’’. So in absence of summons for confirmation of grant dated May 24, 2013, it is hard to know which was the ‘‘1st portion’’ and what comprised the ‘‘2nd portion’’.In the end, this court finds that to do reasonable justice to parties in this case, and pursuant to the provisions of section 48 of Law of Succession Act, it is fair to allow this appeal by setting aside the judgement of the court delivered on June 26, 2019 and any consequential orders and refer back the matter for trial on the protests cited and summons for confirmation of grant. I will further make orders that due to the age of the cause, the matter be fast tracked.I will also order that status quo as per what currently obtains be maintained pending the determination of the cause. I shall make no order as to costs. The petitioner either can file fresh summons for confirmation of grant, provide a copy to the trial court of the earlier filed summons for confirmation of grant dated May 24, 2023. The cause be mentioned on October 17, 2023 for further orders.

DATED, SIGNED AND DELIVERED AT KITUI THIS 3RD DAY OF OCTOBER, 2023. HON. JUSTICE R. LIMO-JUDGE