[2021] KEELC 2493 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT BUNGOMA

ELC CASE NO. 42 OF 2010.

IN THE MATTER OF THE ESTATE OF

MUNYASIA NAMWITAKO ETAIYA............................................DECEASED

AND

IN THE MATTER OF THE SUCCESSION ACT CAP 160 LAWS OF KENYA AND IN THE MATTER OF CIVIL PROCEDURE RULES LAWS OF KENYA AND IN THE MATTER OF THE APPLICATION BY HEIRS AND ADMINISTRATION OF THEIR RIGHTS AND/OR INTEREST IN THE EASTATE OF THE DECEASED

BETWEEN

PIUS MAKHANU MUNYASIA...................................................APPLICANT

VERSUS

MARGARET NABANGALA SOLOMON AKA

MARGARET NABANGALA MUNYASIA...............................RESPONDENT

J U D G M E N T

By an Originating Summons dated 15th April 2010 and predicated upon the provisions of Sections 3 and 3A of the Civil Procedure Act as well as Order XXXVI Rule 1 (now Order 37) of the Civil Procedure Rules, PIUS MAKHANU MUNYASIA (the Applicant herein) sought a determination of the following issues as against MARGARET NABANGALA SOLOMON AKA MARGARET NABANGALA MUNYASIA (the Respondent herein): -

(a) Whether the deceased had transferred land parcel NO EAST BUKUSU/SOUTH KANDUYI/9471 to the Respondent.

(b) Whether the Respondent genuiosly and regularly fulfilled all the requirements for transfer of the parcel NO EAST BUKUSU/SOUTH KANDUYI/9471 into her name.

(c) Whether land parcel NO EAST BUKUSU/SOUTH KANDUYI/9471 forms part of the Estate of the deceased capable of being distributed to his heirs and beneficiaries.

(d) Whether the title NO EAST BUKUSU/SOUTH KANDUYI/9471 in the name of the Respondent should be cancelled and the title restituted in the deceased’s name.

(e) Whether the Applicant has any remedy in law against the Respondent and the 3rd parties who may have conspired to have the parcel transferred to the Respondent’s name.

(f) Who should be condemned to pay costs.

Arising from the above issues, the Applicant sought the following orders: -

1. A declaration that the deceased left land parcel NO EAST BUKUSU/SOUTH KANDUYI/9471 being part of his Estate among others.

2. A declaration that the transfer of land parcel NO EAST BUKUSU/SOUTH KANDUYI/9471 was done fraudulently purposely to disinherit the heirs of the deceased.

3. A declaration that in view of the illegality and fraud attendant to the transfer of land parcel NO EAST BUKUSU/SOUTH KANDUYI/9471 from the deceased’s name to the Respondent’s name, the parcel be restituted into the deceased’s name.

4. An order that the Respondent be condemned to pay costs of this suit.

Together with the Originating Summons, the Applicant filed a supporting affidavit dated 15th April 2010 to which have annexed the following documents: -

1. Certificate of Death for MUNYASIA NAMUTUITAKO ETAIYA.

2. Limited Grant of Letters of Administration issued to PIUS M. MUNYASIA in BUNGOMA HIGH COURT PROBATE AND ADMINISTRATION CAUSE No 142 of 2009 in respect to the Estate of MUNYASIA NAMUTUITAKO ETAIYA.

3. Certificate of Search in respect to the land parcel NO EAST BUKUSU/SOUTH KANDUYI/9471.

4. Green Card for the land parcel NO EAST BUKUSU/SOUTH KANDUYI/9471.

The Applicant also filed a list of documents dated 4th October 2011 with the following documents: -

1. Certificate of Official Search for the land parcel NO EAST BUKUSU/SOUTH KANDUYI/9471.

2. Caution placed on the land parcel NO EAST BUKUSU/SOUTH KANDUYI/9471 on 3rd may 2010.

3. Certificate of Death for MUNYASIA NAMUTUITAKO ETAIYA.

4. Limited Grant of Letter of Administration Ad Litem issued to PIUS M. MUNYASIA with respect to the Estate of MUNYASIA NAMUTUITAKO ETAIYA.

5. Letter from the Assistant Chief Township location dated 2nd March 2008.

6. Certificate of Marriage between NAMWETAKO MUNYASIA and ANTONINA NASAMBU.

7. Copy of Applicant’s Identity Card.

8. Green Card for the land parcel NO EAST BUKUSU/SOUTH KANDUYI/9471.

The Applicant also filed his statement dated 4th October 2011 and those of his witnesses namely JOHN WANYAMA dated 13th July 2012 and who appears to have testified twice both as PW 2 and PW 5. The Applicant also filed the statements of ANTONINA NAMSAMBU MUNYASIA (PW 3) and RICHARD MUNYASIA (PW 4) both dated 4th October 2011. He also filed a supplementary affidavit dated 3rd May 2010 and although he filed witness statements of several other witnesses, only the above named witnesses testified during the plenary hearing.

The gist of the Applicant’s affidavits and statement is that MUNYASIA NAMUITAKO ETAIYA(the deceased) was his father who passed away on 31st January 2008 aged 100 years. At the time of his death, the deceased was the registered proprietor of the land parcel NO EAST BUKUSU/SOUTH KANDUYI/9471 (the suit land). Following his death, the Applicant applied for a copy of the Certificate of Search in respect to the suit land and discovered that the Respondent had fraudulently and secretly transferred the suit land into her name. That by 2001 when the said transfer was done, the deceased was bedridden and very sick and could not have been in a position to execute transfer documents and to strengthen the fraud, the Respondent applied for a change of name from MARGARET NABANGALA SOLOMONtoMARGARET NABANGALA MUNYASIA. The particulars of the Respondent’s fraud are itemized in paragraph 9 of the supporting affidavit as follows: -

i. Totally disinheriting the plaintiff and heirs of the deceased.

ii. Taking advantage of the age and health of the deceased to disinherit his heirs.

iii. Secretly transferring the deceased’s parcel of land without involving the heirs.

iv. Changing her name from MARGARET NABANGALA SOLOMON to MARGARET NABANGALA MUNYASIA.

The same averments were repeated in his statement dated 4th October 2011.

In his statement dated 13th July 2012, JOHN WANYAMA (PW 2) states that he had known the deceased as his neighbour and friend since the 1970’s. That the deceased would always inform him if he did anything pertaining to his land and that the Respondent was the wife to the late ZABLON MUKENYA who was the grandson to the deceased. That between 1979 and 1981, ZABLON MUKENYA was given 2 acres of land after marrying the Respondent in 1974. That the biological father to ZABLON MUKENYA is one ALFRED MUKENYA. That when ZABLON MUKENYA died in 1983, he was buried on land given to him by the deceased in the presence of the witness. That the deceased died in 2008 aged 101 years having been diagnosed with diabetes in the 1950s.

ANTONINA NASAMBU MUNYASIA (PW 3) states in her statement dated 4th October 2011 that she was the wife to the deceased having been married in a church. That the deceased had two other wives namely ELIZABETH WERE MUNYASIA and VIRGINIA NANGEKHE MUNYASIA both deceased. That the Respondent was the wife to her grandson ZABLON MUKENYA whose mother was one FLORENCE NAKHUMICHA born out of wedlock. That ZABLON MUKENYA was given land both by the deceased and also by his father at TUUTI. That at no time did the deceased have any sexual relationship with the deceased and could not therefore have sired any children with her. That furthermore, their custom could not have allowed the deceased to have a sexual relationship with the Respondent who was his grand – daughter.

RICHARD MUNYASIA (PW 4) confirmed in his statement dated 4th October 2011 that the deceased was his father and the Respondent’s late husband ZABLON MUKENYA was his nephew. That prior to his death, the deceased had given ZABLON MUKENYA his share of land and the Respondent did not have any children with the deceased.

In response to the Originating Summons, the Respondent filed a replying affidavit dated 3rd may 2020 and a statement dated 6th February 2012 and that of her witness PIUS WEKESA WANYAMA (DW 2). She also filed her list of documentary evidence dated 6th February 2012 containing the following: -

1. Copy of title deed for land parcel NO EAST BUKUSU/SOUTH KANDUYI/9471 dated 7th March 2001 in the names MARGARET NABANGALA SOLOMON.

2. Copy of title deed for land parcel NO EAST BUKUSU/SOUTH KANDUYI/9471 dated 9th September 2008 in the names MARGARET NABANGALA MUNYASIA.

3. Proceedings in KANDUYI LAND DISPUTES TRIBUNAL.

4. Life History of deceased.

5. Mutation form for land parcel NO EAST BUKUSU/SOUTH KANDUYI/9268 creating parcels NO 9470, 9471, 9829, and 9830.

The gravamen of the Respondent’s case is that after the death of her husband ZABLON SIMIYU MUKENYA, she was inherited by the deceased in 1984. They were then blessed with three (3) children namely JOB, SOLOMON and VIOLET MUNYASIA. That among the deceased’s properties were the land parcel NO EAST BUKUSU/SOUTH KANDUYI/9268 measuring over 100 acres and commercial plots. The deceased had other wives and children and prior to his death, he sub – divided the land parcel NO EAST BUKSU/SOUTH KANDUYI/9268and gave her and her children the suit land which was registered in her names. And since she had become the deceased’s wife, she changed her names from MARGARET NABANGALA SOLOMON to MARGARET NABANGALA MUNYASIA as per BUKUSU customs. She was then issued with a new title deed for the suit land bearing her names as MARGARET NABANGALA MUNYASIA. That she did not acquire the suit land illegally or fraudulently but it was transferred to her by the deceased before he passed away. That the plaintiff filed a suit against her at the KANDUYI LAND DISPUTES TRIBUNAL but it was dismissed. That the other family of the deceased have disposed off their share and now want to take over her share and this case should be dismissed.

In his statement dated 7th November 2016, PIUS WEKESA WANYAMA states that he knew the Respondent was inherited by the deceased in 1984 and they had three (3) children. That the deceased had other wives and children and prior to his demise, he distributed his land to all of them. That he gave the plaintiff 4 acres during his life – time.

The trial commenced on 16th September 2013 before A. OMOLLO J when the Applicant testified at length in his evidence in chief led by his counsel MR BW’ONCHIRIand was later cross – examined by MR WATTANGA Counsel for the defendant. Thereafter, I took over the case and with the consent of the parties, it was agreed that the hearing proceeds from where it had reached. I therefore heard the testimony of the Applicant’s witness and the Respondent’s case. They all adopted as their evidence their respective statements which I have summarized above.

Submissions were thereafter filed both by MR BW’ONCHIRI instructed by the firm of OMUNDI BW’ONCHIRI ADVOCATES for the Applicant and by MR WATTANGA instructed by the firm of MAKOKHA, WATTANGA & LUYALI ASSOCIATES for the Respondent.

I have considered the evidence by the parties and the submissions by Counsel.

The Applicant has approached this Court citing Sections 3 and 3A of the Civil Procedure Act and Order XXXVI Rule 1 (now Order 37) of the Civil Procedure Rules and any other enabling provisions of the law. Sections 3 and 3Aof the Civil Procedure Act provide that: -

3: “In the absence of any specific provision to the contrary, nothing in this Act shall limit or otherwise affect any special jurisdiction or power conferred, or any special form or procedure prescribed by or under any other law for the time being in force.”

3A “Nothing in this Act 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 the Court.”

Order 37 Rule 1 of the Civil Procedure Rules on the other hand states that: -

“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 any 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.”

Heirs are therefore permitted by the provisions of Order 37 Rule 1 to seek, by Originating Summons, any relief not amounting to administration of the Estate of a deceased person and raise any questions affecting their rights or interests as heirs, ascertain the class of heirs to be furnished by the executors or trustees with accounts and the determination of any question arising out of the administration of the Estate or trust – MIKESH MANCHAND SHAH & ANOTHER .V. PRIYAT SHAH & ANOTHER C.A CIVIL APPEAL No 39 of 2014 [2015 eKLR]. It is settled law that the procedure for approaching the Court through Originating Summons is not intended for matters which involve serious and complex questions of law and fact. Rather, it is a procedure to enable the settlement of simple matters – JAMES NJIRO KIBUTIRI .V. ELIUS NJAU KIBUTIRI C.A CIVIL APPEAL No 3 of 1982 [1983 1 KLR 38]. In this case, the Applicant has pleaded issues of fraud. Fraud is a serious matter and disputes touching on fraudulent disposition of land are complex issues for which the procedure of Originating Summons was not meant. However, the fact that the Applicant approached the Court by way of an Originating Summons rather than a plaint is not fatal to his case. As was held in BOYES .V. GATHURE 1969 E.A 385, approaching the Court through a wrong procedure does not invalidate the proceedings since it does not go to the jurisdiction of the Court and no prejudice is caused to the Respondent. In any event, directions were taken before ONYANCHA J on 26th June 2011 converting the Originating Summons to a plaint and the replying affidavit to a defence.

Having said so, the Applicant’s claim, as I understand it, is that he and other heirs to the Estate of the deceased have been defrauded by the Respondent who has proceeded to register the suit land in her names. That the suit land should therefore be restituted in the deceased’s names. The Respondent has countered that allegation and pleaded that infact the deceased gave her the suit land during his life time as well as allocating his other wives and children their own land.

To begin with, the Estate of the deceased has never been the subject of any succession proceedings. Indeed, no Confirmation of Grant in respect of the deceased’s Estate has been taken out by either of the parties. All that was produced in evidence was the Limited Grant of Letters of Administration ad litem issued to PIUS M. MUNYASIA (the Applicant) on 8th July 2009 for purposes only of filing this suit. If any confirmed Grant was issued in respect of the Estate of the deceased, it has not been produced. Therefore, it is not known which persons are heirs or beneficiaries to his Estate. It would appear rather far-fetched, given the circumstances of this case, for the Applicant to describe the suit land as part of the Estate of the deceased.

Having pleaded that the Respondent fraudulently transferred the suit land to herself, the Applicant was under a duty to prove those allegations of fraud to the required standard. This is because, an allegation of fraud is a serious one and must be strictly proved to the standard which is more than a mere balance of probabilities – PATEL .V. MAKANJI 1957 E.A 314. It is not enough to leave fraud to be inferred from the facts – VIJAY MORJARIA .V. NANSINGH MADHUSING DARBAR & ANOTHER 2000 eKLR.

In an attempt to prove that the transfer of the suit land to the Respondent was done fraudulently, the Applicant alleged, inter alia, that it was done secretly and that the deceased was too ill and old to sub – divide the original land parcel NO EAST BUKUSU/SOUTH KANDUYI/9268to create the suit land and land parcels NO EAST BUKUSU/SOUTH KANDUYI/9470, 9829 and 9830. However, the Respondent has produced as part of her documents the mutation form signed by the deceased on 18th December 1999 that resulted in the sub – division of the land parcel NO EAST BUKUSU/SOUTH KANDUYI/9268 to create parcels NO EAST BUKUSU/SOUTH KANDUYI/9470, 9471, 9829 and 9830. The said form is also duly signed by the DISTRICT SURVEYOR and LAND REGISTRAR. It is instructive to note that although the Applicant has taken issue with the transfer of the suit land to the Respondent, he does not appear to have any issue with the manner in which the other resultant sub – divisions being land parcels NO EAST BUKUSU/SOUTH KANDUYI/9470, 9829, and 9830 were created.

The Applicant confirmed in his evidence in chief that the deceased died on 31st January 2008. The suit land was first transferred to the Respondent in her names as MARGARET NABANGALA SOLOMON on 7th March 2001 when the first title was issued to her during the life time of the deceased. She then changed her name to MARGARET NABANGALA MUNYASIA and obtained a new title on 9th September 2008. Among the allegations of fraud pleaded against the Respondent in paragraph 9 (iv) of the Originating reads: -

9(iv) “Changing her name from MARGARET NABANGLA SOLOMON to MARGARET NABANGALA MUNYASIA in an effort to conceal her fraud and ill actions over the parcel.”

That can hardly be considered to be fraudulent because the suit land had already been transferred to the Respondent in the name MARGARENT NABANGALA SOLOMON as far back as 7th March 2001 some seven (7) years before the demise of the deceased.

It would appear that the Applicant’s claim is premised primarily on his contention that the Respondent was never the wife of the deceased. During the plenary hearing, he insisted that the Respondent was never the deceased’s wife and proceeded to name the deceased’s wives as ELIZABETH WERE MUNYASIA, VIRGINIA NANGOLE MUNYASIA and ANTONINA NASAMBU MUNYASIA. He was supported in that regard by his witnesses who denied that the deceased had inherited the Respondent following the death of her husband ZABLON MUKENYA. ANTONINA NASAMBU MUNYASIA (PW 3) was more graphic in dismissing the Respondent as a co – wife. This is what she said in paragraph 9 of her statement dated 4th October 2011: -

9 “That at no time did the Respondent have any sexual relationship with the deceased and thus my husband never sired any children with the Respondent.”

The above notwithstanding, the Respondent produced as part of her documentary evidence a document titled “LIFE HISTORY” which narrates when the deceased was born and that apart from the three (3) wives, he inherited another and sired three (3) children prior to his death on 31st January 2008. Although the Applicant lays a lot of premium on the claim that the Respondent was not the deceased’s wife, the fact is that as the registered proprietor of the original land parcel NO EAST BUKUSU/SOUTH KANDUYI/9268which was sub – divided to create the suit land which was first registered in his names on 30th January 2001 before transferring it to the Respondent on 7th March 2001, it was within the deceased’s right to do as he pleased with the suit land. That includes giving it to the Respondent whether or not she was his wife. Indeed, he could even have given it to charity if he wished. The Applicant has not suggested that the deceased gave land to the Respondent and left the other part of his family destitute. If anything, he confirmed that prior to his death, the deceased had shared his land among his children and wives. This is what the Applicant said when he testified on 16th September 2013: -

“Before he died, my father owned land. I don’t know the parcel numbers. L.R E. BUKUSU/S. KANDUYI/9471 is known to me.

I am the fifth son in the family. There was a parcel of land which my father shared amongst his children. Another parcel he shared between his wives and some of the children.”

Clearly therefore, if the deceased held the original land parcel NO EAST BUKUSU/SOUTH KANDUYI/9268 in trust for his family, he cannot be accused of not performing his duties as a trustee. In my view, he performed those duties admirably well. No evidence has been placed before me to suggest that the Applicant or any other member of the deceased’s family was left out during that sharing of the deceased’s land. In any event, as already stated above, as the proprietor of the suit land, the deceased had the prerogative to deal with it as he wished. Such right can only be trammelled in situations where a party’s recognized legal right over the property is threatened or violated. In this case, no such right of the Applicant has been threatened or violated and as I have already stated, the deceased gave him his share of the land prior to his demise.

It seems to me that the Applicant does not believe that the Respondent, perhaps because she is a woman, was also entitled to a share of the deceased’s land. I say so because, whereas he has no issue with the fact that the deceased gave land to ZABLON MUKENYA (whom even his own witness claimed was infact a son of one ALFRED MUKENYA of TUUTI), he is convinced that the transfer of the suit land to the Respondent could only be fraudulent. He must be told, which I hereby do, that Article 27 of the Constitution treats all persons as equal before the law and nobody shall be discriminated upon on the basis of sex. Since ZABLON MUKENYA was given land by the deceased during his life – time, there is no reason why the ownership of the suit land by the Respondent should be a cause of irritation and litigation.

Counsel for the Applicant MR BW’ONCHIRI has submitted, citing my decision in BRENDA NELIMA KIMUNGU & OTHERS .V. STEPHEN LUMBASI KUYI & ANOTHER 2021 eKLR, that I should find that the Respondent is a trustee holding the suit land in trust for the family of the deceased. From the evidence before me, all I can say is that if there was any trust, it was determined when the deceased shared out his land measuring over 100 acres between his wives and children prior to his demise. Counsel has then cited paragraph 9 of the Respondent’s replying affidavit for the proposition that she holds the suit land in trust for the deceased’s children. The correct position is that the Respondent holds the suit land in trust for her own children. This is what she averred in paragraph 9 of the said replying affidavit.

9: “That my late husband decided to sign all the relevant documents to effect transfer of 1. 64 Hectares only in respect of land EAST BUKUSU/SOUTH KANDUYI/9471 to me to hold in trust of my children as the fourth family. Annexed herewith marked MNM – 1 copy of the Title Deeds.” Emphasis added.

Clearly therefore, the Respondent could only hold the suit land in trust for her children and not the deceased’s children or wives including the Applicant herein. That is because, the deceased, as has been conceded by the Applicant, had prior to his death distributed his land among his wives and children.

The Applicant similarly took issue with the fact that the Respondent changed her names from MARGARET NABANGALA SOLOMON to MARGARET NABANGALA MUNYASIA. He views that as having been done in furtherance of the Respondent’s fraudulent transfer of the suit land. This is how he has put it in paragraph 9 of his supporting affidavit dated 15th April 2010: -

“That to strengthen her fraud, the Respondent on the 4. 9.2008 applied for change of name from MARGARET NABANGALA SOLOMON to MARGARET NABANGALA MUNYASIA as can be seen in the annexture marked PMM III (a) and (b) herein.”

However, as is already now clear, the transfer of the suit land was done during the deceased’s life – time. There is nothing to suggest that the deceased objected to the said transfer. The Applicant’s claim that the deceased was too ill to transfer the suit land is not supported by any evidence. His life history only suggests that he was treated for diabetic in 1950 and thereafter for an eye infection where he sought treatment is MUKUMU, TORORO, MBALE WEBUYE and KAKAMEGA. The next mention of illness is on 31st January 2008 when he passed away. Infact his life history states in the paragraph under illness that generally he was a man who enjoyed good health. The only conclusion that this Court can arrive at on the evidence before me is that even if the deceased was un – well in 2001, he was still in a position to transfer the suit land to the Respondent.

Nothing much should be read in the fact that the Respondent changed her name. Her explanation, which sounds plausible, is that she wanted to identify herself as the deceased’s wife. It is not un – common for married women to change their name from their fathers’ to their husbands’ name. And since the Respondent believed rightly or wrongly, that she was the deceased’s wife and although, as I have already stated above, whether or not she was the deceased’s wife did not in any way have a bearing on the right of the deceased, during his life time, to transfer the suit land to her, that issue is in my view inconsequential. Besides, there is nothing illegal about rectification of the register to change a proprietor’s name. Section 142 of the Registered Land Act under which the suit land was registered empowered the Registrar to do so. Therefore, given the circumstances of this case, there is nothing to suggest that the change of name by the Respondent was designed to conceal any fraudulent transaction with respect to the suit land. In any case, by the time the Respondent effected the change of name in the title in 2008, she had been the registered proprietor of the suit land for seven (7) years. Nothing really turns on that.

Ultimately therefore and having considered the evidence by the parties herein, I am not persuaded that the Applicant has established his case against the Respondent. His case is therefore for dismissal.

On the issue of costs, the order that commands itself given the circumstance of this case is that each party meets their own costs.

Accordingly, I make the following final disposal orders: -

1. The Applicant’s suit is dismissed.

2. Each party to meet their own costs.

BOAZ N. OLAO.

J U D G E

19th July 2021.

Judgment dated, signed and delivered at BUNGOMAthis 19th day of July 2021 by way of electronic mail in keeping with the COVID – 19 pandemic guidelines.

BOAZ N. OLAO.

J U D G E

19th July 2021.