[2017] KEHC 2695 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

SUCCESSION CAUSE NO. 241 OF 2012

IN THE MATTER OF THE ESTATE OF MUCABI NGUTURI (DECEASED)

PETER MWAI MUCHAHI………………….………….………PETITIONER

AND

JOHN MAINA MWAI…………………..….………..………...PROTESTOR

RULING

1. This matter relates to the Estate of Mucabi Nguturi – deceased who died on 6th September, 1993. Letters of administration intestate were issued to Peter Mwai Muchahi on 8th February, 2013. He claimed interest as the son of the deceased, Muchahi Nguturi. Thereafter on 15th August, 2013 he applied for Summons for Confirmation of Grant and listed the estate as comprised in title No. Mwerua/Kagio-ini/434 which was to be inherited by himself as the sole beneficiary.

2. Objection to the confirmation of grant was made by John Maina Mwai who filed an affidavit of protest sworn on 7th November, 2013. His contention was that he is the son of Peter Mwai Muchabi, son of Muchabi Nguturi and that his father had distributed the estate of his father Muchabi Nguturi to his three sons and they had obtained title deeds in the year 2012 as follows:

I) John Main Mwai – Mwerua/Kagio-ini/2307.

II) Hillary Ndugutu Mwai – Mwerua/Kagio-ini/2308.

III) Stephene Waweru Mwai – he sold his portion to Francis Murage – Mwerua/Kagio-ini/2311, John Mugo and Geoffrey Gichira.

The protestor John Maina Mwai depones that the administrator has commenced these proceedings and wants to get the whole of L.R. NO. MWERUA/KAGIO-INI/434 despite the fact that he had distributed it. The protestor John Maina Mwai proposes that the Land parcel No. Mwerua/Kagio-ini/434 be distributed to:

- John Maina Mwai

- Hillary Ndugutu Mwai

- Stephene Waweru Mwai

- Anthony Gathumbi

- Francis Murage

- John Mugo

- Geoffrey Gichira

3. In response the Petitioner Peter Mwai Muchahi filed a replying affidavit where he deposes that Land parcel No. Mwerua/Kagio-ini/434 belonged to his late father Muchabi Nguturi. In the year 2012 he entrusted his son Stephene Waweru to file succession. He later learnt that he never filed succession but was financed by a surveyor and after obtaining his title deed he sold his portion as well as his (petitioner). He depones that the process was null and void as no succession was filed. He further depones that he has other children who are entitled to the Estate.

4. Parties agreed to file written submissions. I have considered the submissions. The Protestor submits that the Petitioner was aware of an agreement dated 26th April, 2011 whereby his sons disposed his portion to Anthony Githumbi Gitahi by way of sale of 0. 30 Ha out of the Land Parcel forming the estate of the deceased. Though no agreement was annexed, the Petitioner admits that he attended the Land Control Board at Baricho for sub-division. The Protestor submits that the Petitioner has not come to court with clean hands.

5. The Petitioner submits that he was cheated by his son who he had instructed to file succession that he had done so. He submits that the process of sub-division was illegal, null and void.

6. From the affidavits sworn by the Protestor and the Petitioner, it is clear that Land Parcel Number Mwerua/Kagio-ini/434 belonged to the estate of the deceased Mucabi Nguturi. He died intestate and was survived by his only son the Petitioner herein. This land has been sub-divided and distributed without the grant being confirmed. The first issue which arises is the disposal of land before confirmation of grant. Section 45 of the Law of Succession Act provides:

(1)“Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.”

(2)Any person who contravenes the provisions of this section shall be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or both fine and imprisonment.”

It not only prohibits any dealings on the estate of a deceased person but also makes it an offence to intermeddle with the estate of a deceased person. The Protestor is making a proposal on how the estate should be distributed. This despite the fact that the land was sub-divided and distributed and title deeds issued which the Protestor has exhibited as annextures JMM1, 2 and 3. Though admitting that the land parcel No. Mwerua/Kagio-ini/434 belongs to the deceased whose this cause relates and should devolve to the Petitioner who is his only son, he fails to show how this property was sub-divided and title deeds issued. The Protestor is asking the Court to distribute the estate in accordance with the sub-division which has already been done and title deeds issued. In other words what he is asking the Court to do is to endorse an illegality. The above provision has outlawed any dealings in the estate of a deceased otherwise than provided under the Law of Succession Act.

7. The Protestor has referred to an agreement dated 26th April, 2011 which he states that one of the Petitioner’s sons disposed off part of the land (sic) to one party namely Anthony Gathumbi Gitabi for sale of 0. 30 Ha. The Protestor has not annexed that agreement to his affidavit. It is evidence from the bar which is not supported by material evidence. The protestor has not adduced evidence to show that the Petitioner who he admits is the only beneficiary entitled to the estate of the deceased sub-divided land without a succession cause having been filed and a grant issued. He has not discharged the burden to prove that the Petitioner ever distributed the estate of the deceased.

8. The Petitioner annexed a green card for land parcel No. Mwerua/Kagio-ini/434 showing that the land was sub-divided on 22nd February, 2012. The Petitioner depones that he entrusted one of his children by name Stephene Waweru to file succession proceedings. He learnt later that no succession cause was filed. He also learnt that his son Stephene Waweru and the Protestor wanted to disinherit him and was trying to sell land belonging to their brother Hillary Ngugutu who was serving sentence. Though the Protestor is stating that the land was sub-divided and title deeds issued, he has not shown how this was possible when no succession cause was filed and no grant of letters of administration was filed. The sub-division was unlawful, null and void for want of succession proceedings for the estate. The protestor has not shown how the title deeds exhibited by the protestor were obtained. The protestor was aware that land belonged to the estate of the deceased and the petitioner was the sole beneficiary. No dealings should have been made on the land belonging to the estate of the deceased could have been undertaken without filing succession and a grant obtained. The Law of Succession Act imposes a duty on the administrator. Section 82 thereof provides:

Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers:-

(b) to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best: Provided that –

(ii) no immovable property shall be sold before confirmation of the grant;

The dealings in Land belonging to the estate of the deceased before the grant was confirmed are for all intents and purposes null and void. The property could not vest in the Petitioner or the Protestor before the confirmation of grant. The sub-division and distribution was done way before this cause was filed. The Protestors were intermeddling in the estate of the deceased. In the case of James Muhu Kanai –V- Caroline Njeri Ngotho & 2 others (2015) eKLR the Court stated:

“By virtue of Section 79 of the Law of Succession Act, the said property had not vested in the widow as administrator and therefore she was not at the material time a personal representative of the deceased and had no capacity whatsoever to exercise any of the powers set out in Section 82 of the Act, in particular the power to sell estate property. In any event, the property in question was immovable property, which, by virtue of proviso (ii) to Section 82(b), could not be sold before the grant had been confirmed.

The provisions of Sections 45 and 82 of the Law of Succession Act are in mandatory terms. The effect of this then is that the acts of intermeddling cannot be sanitized by acts meant to regularize the unauthorized dealings. These unlawful acts cannot be cured.”

I am persuaded to follow this finding as what the protestors are asking this Court is to endorse an illegality which was committed even before this cause was filed. Neither the Petitioner nor the Protestor had the capacity to enter any dealings in the property at the time the Protestor and his brothers obtained title deeds as they were not personal representatives of the deceased. It should be noted from the green card which the Petitioner annexed when filing the Petition, sub-division had been done and property transmitted as a gift to the various individuals and title deed indicated as closed on partition and new numbers issued. No administrator had been appointed as of that date, i.e. 28th March, 2012 as this cause was filed on 8th November, 2012. The Protestor was intermeddling with the estate. Though he has deponed that the Petitioner had distributed the estate which the Petitioner denies, he did not annex any documents to prove that it is the Petitioner who distributed the land forming the estate of the deceased. The Petitioner has deponed that he learnt that the Protestor was part of a group which was planning to disinherit him. The Protest is in bad faith. The distribution which is a mystery as the Petitioner has denied it was unlawful and no grant of letters of administration was issued. In the matter of the estate of Veronica Njoki Wakagoto (deceased) (2013) eKLR:

“The effect of this is that the property of a dead person cannot be lawfully dealt with by anybody unless such person is authorized to do so by the law. Such authority emanates from a grant of representation, and any person who handles estate property without authority is guilty of intermeddling. The law takes a very serious view of intermeddling and makes it a criminal offence.

In this matter the respondent sold property belonging to a dead person without authority as letters of administration had not yet been made to him. The fact of having petitioned for the letters did not clothe him with any authority. He and Felix Kinuthia intermeddled with the estate, and they no doubt committed an offence under Section 45 (2) (a) of the Act. It is unfortunate that the prosecutorial authorities in do not focus on offences of this kind as prosecutions are hardly ever mounted over them. This explains why property of dead persons is routinely intermeddled with.”

9. It is the Protestor who has disclosed that the land has been distributed and he annexed copies of title deed. He has also deponed that land was given to one Anthony Gathumbi who is a surveyor and financed the whole process. He also depones that a portion was sold to Francis Murage, John Mugo and Geoffrey Gichira. The Protestor wants the estate be distributed to these persons he has named as buyers. The Protestor dealt with the estate of the deceased before the letters of administration were issued and confirmed. The transactions of sub-division, sale and issuance of title deeds was null and void. The estate of the deceased should revert back to the name of deceased and be distributed by the administrator as provided under the Law of Succession Act Cap. 160 Laws of Kenya and not on doctrines of equity as submitted by the Protestor.

10. The second issue I have to consider is whether the grandchildren are dependants of the deceased. Section 29 of the Law of Succession Act Cap. 160 Laws of Kenya defines a dependant to mean –

“(b) such of the deceased’s parents, step-parents, grand-parents, grandchildren, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death;”

The Protestor, from what he has deponed in his affidavit, is a grandchild of the deceased. He is a dependant. However, the Protestor has the burden to prove that he was being maintained by the deceased prior to his death. The Protestor has not stated that he was being maintained by the deceased and no proof has been adduced. In any case in his submission, he has stated that the Petitioner is the only beneficiary entitled to the estate of the deceased. This being the case he can only claim property of the deceased through his father. Section 29 supra is under Part III which makes provision for dependants. The Protestor has not come under Section 26 of the Act. He seeks to block the administrator from distributing the estate. I am of the view that a grandson is not a child of the deceased. There is therefore no basis for the Protestor to object to the distribution by the administrator who is legally entitled to do so. The Protestor has not deponed that he was maintained by the deceased prior to his death. The Petitioner who is the son of the deceased is lawfully entitled to administer the estate. The grandchildren are not dependants of the deceased.

11. For these reasons I am of the view the protest lacks merits. It is not clear how the titles which were exhibited by the Protestor were acquired and land sold to strangers to the estate without succession proceedings or a confirmed grant. I make an order that the title deeds shall be cancelled and the property to revert to the estate of the deceased. I dismiss the protest with costs.

Dated and delivered at Kerugoya this 5th day of October, 2017.

L. W. GITARI

JUDGE

Read out in open court. Petitioner present, court assistant Naomi Murage.

L. W. GITARI

JUDGE

5. 10. 2017