[2009] KEHC 3410 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

SUCCESSION CAUSE 146 OF 2007

ROSE JIAMATI..........................………………….. APPLICANT

VERSUS

MBIRITHI MURONGA …………....PETITIONER/RESPONDENT

KALLEN KAINDA KANYAMBA ...............INTERESTED PARTY

JUDGMENT

For consideration by this court, in this judgment is the summons dated 10th May 2007. The summons is brought by Rose Jiamati (Rose) under section 76 of the Succession Act. She seeks that the grant of letters of administration issued to the Mbiriti Muronga (Muronga) on 2nd November 2005 before Chuka Principal Magistrate’s court Succession Case No. 3 of 2005, be revoked or annulled, and that the same be made to Rose. Further she prayed that the registration of parcel Nos. MWIMBI/N. MUGUMANGO/538 and 525 be nullified. In the affidavit in support of that application, Rose deponed that Muronga concealed material before the Chuka Principal Magistrate which material if it had been brought to the attention of the said court a grant would not had been issued to Muronga. Rose proceeded to state that the deceased of this estate, Mugambi Rukungo alias M’Mugambi (deceased) was her father. That she also has three other sisters namely Lenah Igoki, Mukwamuga Mwamba and Catherine Mukwangiga. She and these other three sisters did not consent to Muronga being granted the grant of letters of administration. That Muronga had secretly petitioned for that grant and in so doing failed to disclose to the deceased’s dependants, who included Rose, that he was petitioning for the grant. After a confirmation of that grant, that Muronga proceeded to transfer L.R. MWIMBI/N. MUGAMAMGO/525 to Timothy Murithi Mugambi (Timothy) and L.R. MWIMBI/N. MUGUMANGO/538 to Kallen Kainda Kanyamba (Kallen). That Rose only discovered these transfers after carrying out a search of the deceased’s property. The background of the application for revocation are that a letter was written by the chief of Ganga Location dated 31st May 1999 which indicated that the beneficiaries of the deceased’s estate were Muronga and Timothy. The same chief wrote another letter dated 26th June 1999 whereby he listed the beneficiaries as Muronga, Rose, Timothy and the other three sisters of Rose stated before. Armed with those two letters, Muronga petitioned before the Chuka Magistrate’s Court for grant of letters of administration in respect of estate of the deceased herein. In the said petition he listed the following as surviving the deceased.

- Mbirithi Muronga – son

- Mukwamugo Mwamba – Daughter (married)

- Rose Jiamati – Daughter (married)

- Catherine Mukwangegi – Daughter (married)

- Lenah Igoki – Daughter (married)

- Timothy Murithi Mugambi – Grandson

Muronga listed assets of the estate as parcels MWIMBI/N. MUGUMANGO/525 and MWIMBI/N. MUGUMANGO/538. Those two parcels were indicated in value to be Kshs. 100,000/=. There was no consent obtained from the above beneficiaries consenting to Muronga petitioning for the grant. Despite lack of the consent by the beneficiaries, the magistrate’s court gazetted the petition on 24th March 2005. On 25th April 2005 a grant was issued to Muronga. It is in evidence that on 6th January 2005, before Muronga petitioned for the grant, an agreement for sale of parcel No. MWIMBI/N. MUGUMANGO/538 was entered into between Muronga and Kallen. It is pertinent at this stage to note that the said agreement entered into was on a date prior to the petition by Muronga. By summons for confirmation dated 26th October 2005 Muronga sought to distribute the deceased estate as follows:-

- Timothy Murithi Mugambi – Grandson – MWIMBI/MUGUMANGO/525 – whole

- Kallen Kainda Kanyamba – purchaser – MWIMBI/N. MUGUMANGO/538 – whole

In respect of the summons for revocation Kallen was made an interested party. In response to the summons, he filed an affidavit. In part he stated:-

“That believing that Mr. Mbirithi Muronga was the legal representative of the deceased herein, I entered into an agreement with him and bought L.R. No. MWIMBI/N.MUGUMANGO/538, which was part of the deceased estate.

That the said Mbirithi Muronga had been appointed by the court to administer the estate of the deceased and therefore legally sold and transferred the land to me.”

He annexed to his affidavit the agreement for sale of land and the title deed in his name of MWIMBI/N. MUGUMANGO/538. Muronga also swore an affidavit in opposition to the summons for revocation. He deponed that the deceased herein was his cousin, contrary to what he had earlier stated in the petition for grant. Further, he stated that the deceased had in his lifetime given him parcel No. MWIMBI/N. MUGUMANGO/538 which parcel he was cultivating. That parcel No. MWIMBI/N. MUGUMANGO/525 was being cultivated by Bathromew Gitonga, Rose, Lena Igoki and Martin Miriti. That the deceased left an oral will bequeathing parcel No. 538 to him and No. 525 to deceased’s grandson Timothy. That the deceased did not wish any of his daughters to inherit any of the estate property. He said he inquired from the deceased’s daughters, who include Rose, whether they desired to petition for grant of letters of their deceased’s father estate but they declined on the basis that they wanted to honour their deceased father’s wishes. He further deponed that a surveyor assisted him to file the petition for grant of letters of administration but since he was illiterate, he did not know that some beneficiaries were excluded from the petition. That Rose and her siblings were aware of the succession cause and aware of the sale of land to Kallen. That they too shared in the sale proceeds of that land sold to Kallen. He concluded by stating that he was the rightful person to take/obtain letters of administration. As stated before, Muronga on petitioning for grant listed Rose and her siblings as beneficiaries. Having done so, he ought to have obtained their consent for him to petition. Muronga in that petition described himself as the son of the deceased. It is clear he was not a son of the deceased. Muronga, now on being faced with the summons for revocation, claimed that the deceased left an oral will. If that was so, he ought not to have petitioned for grant of letters of administration. Rather he should have either applied for letters with will or he should have petitioned for grant of probate of will. See Section 53 of the Law of Succession Act. He blamed the failure in following the correct procedure to what he said was his reliance on another person who filed the succession for him because he is illiterate. I am of the view however that is a lame excuse and an attempt to wiggle himself out of the situation he now finds himself. That is, he is now, by the application of Rose, shown clearly to have lied that he was a son of the deceased. Even if someone else filed the succession for him, such person could only in so doing use the information supplied by him. I am of the view that Muronga cannot hide behind the surveyor he says assisted him to file the petition. In any case the petition indicates that it was filed by Muronga himself. Muronga, in my view was dishonest and no less than a liar. He misrepresented the facts in his petition with the mere intention of hoodwinking the court to issuing the grant. He was a fraudster. Not only was he a fraudster, he actually stole property that rightly belonged to Rose and her siblings. On the basis of that finding, the grant issued to Muronga will be revoked. The position on that ground is that Muronga transferred parcel No. MWIMBI/N. MUGUMANGO/538 to Kallen. Kallen argued that his title is protected by Section 93 of the Law of Succession. That section provides:-

“A transfer of any interest in immovable or moveable property made to a purchaser either before or after the commencement of this Act by a person to whom representation has been granted shall be valid, notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this act.”

Kallen argued the court cannot nullify the transfer of parcel No. 538 in view of that section. The agreement for sale of that parcel between Muronga and Kallen was dated 6th January 2005. By that date, Muronga had not obtained the grant of Letters of Administration in this estate. Indeed the petition of Muronga is also dated 6th January 2005. The grant was issued to Muronga on 24th April 2005. It is imperative to quote portion of the said agreement for sale for better understanding as follows:-

“………….THE PROPERTY OR (sic) SALE LAND shall be all that piece or parcel of land known as MWIMBI/N.MUGUMANGO/538 measuring approximately 6. 50 acres (2. 63 Hectares) or thereabouts which is registered in the name of one MUGAMBI RUKONGO alias SILAS M’MUGAMBI who is deceased but whose succession cause the vendor (Muronga) has filed vide Chuka P.M.’s Succession Cause No. 58 of 2005 and has already incorporated the purchaser as a direct beneficiary of the estate. …………..That all monies to be incurred in the courts and lands office for the purpose of succession, transmission and registration of transfer shall be made good by the vendor alone.”

It is clear that the succession quoted in that agreement did not correspond with the succession filed by Muronga in respect of the deceased at Chuka magistrate’s court. Kallen did not attempt to show to the court that Succession Cause No. 58 of 2005, quoted in that agreement, referred to the Estate of Mugambi Rukungo alias Silas M’Mugambi (deceased). What however becomes very clear is that Kallen undoubtedly knew that the registered owner of parcel No. 538 was deceased. What measure of inquiry did Kallen put in place to confirm who were the beneficiaries of the deceased herein? Had he put into motion any investigation Kallen would have found that the applicant and her siblings were listed as beneficiaries who survived the deceased? In the case of Civil Appeal No. 343 of 2002 Jane Gachoki Gathecha – Vs. Priscilla Nyawira Gitungo and Another, the Court of Appeal was faced by the following facts; Kabitau Kanja obtained a certificate of succession of the estate of Kabiru’s deceased whereby he described himself as the only son of Kabiru. Kabitau was charged with swearing a false affidavit where he had stated he was the son of deceased. He indeed was not the son of the deceased. He had by then using the certificate of succession transferred the deceased property in his name. The deceased was survived by one daughter. Kabitau sub-divided the deceased land which sub-divisions he alienated by the time the appeal came up for hearing. The certificate of succession was cancelled after the criminal court found that he had perjured himself before the succession court. Deceased daughter sued those who purchased the deceased sub-divided land. One of those purchasers raised a defence that he was a bona fide purchaser without notice of impropriety by Kabitau. Further in defence it was argued that the purchaser’s rights were protected under section 27, 28, 143 and 144 of the Registered Land Act. The Court of Appeal found that Kabitau had no right or interest over deceased property which he could transfer to any other person. Further, the Court of Appeal made the following finding which is pertinent to our present case:-

“We think, with respect, that there is a fallacy in invoking and applying the provisions of section 93(1) of the Law of Succession Act and the superior court fell into error in reliance of it. The section would only be applicable where, firstly, there is a “transfer of any interest in immovable or moveable property”. Kabitau had no interest on plot 321 or any part thereof and therefore he could not transfer any. A thief acquires no right or interest which is transferable in stolen property. The transaction would be void ab initio and the property is traceable.”

As stated before, Kallen had an obligation, which he cannot move away from, to inquire who were the beneficiaries of deceased. At the time of negotiation for the purchase of land from Muronga the succession cause Chuka Court No. 3 of 2005 had not been filed. He needed to do due diligence inquiry of who were the beneficiaries of deceased. Further, Muronga was not a beneficiary of the deceased estate. He deceitfully described himself as the son of deceased in his petition. He lied, perjured himself in my view. He accordingly through that lie, deceit, stole the deceased property which rightfully belonged to Rose. Being a thief, in accordance with the finding of the Court of Appeal in the above cited case, he had no interest which he could transfer to Kallen. The finding in the case of Jane Gachoki Gathecha (supra) is applicable where that court found:-

“He was instrumental in the sub-division and sale to himself of a portion of plot 321; but cared less about the authenticity of the entire transaction. He contributed to the fraud by his neglect or default and he cannot therefore, in our judgment, claim the protection offered under section 143 of RLA.”

The parcel No. 538 can therefore be traced and restored to the rightful beneficiaries. The counsel for Rose submitted that parcel No. 525 was registered in the name of Muronga. That submission was not controverted. That being so, registration into his name of parcel No. 525 will be cancelled. Learned counsel, Ms Ntarangwi, argued that the applicant’s application for revocation should fail for her failure to file an appearance as required under Rule 60 of Probate and Administration. That rule provides:-

“60. Every interested person (whether or not he has been served with notice thereof) who wishes to be heard upon or to oppose any application, and has not already appeared in the proceedings, shall enter an appearance in Form 26 in the registry in which the application is made giving his address for service, and may file such affidavits as he considers proper, to each of which the applicant may with leave of the court file an affidavit in reply.”

Learned counsel argued that the Rule was mandatory and failure to file such appearance rendered the application for revocation incompetent. Learned counsel, Mr. Ogoti responded by saying that the failure to file such an appearance was a technicality which did not defeat the application. In response, I find and hold that failure to file the appearance as per Rule 60 is an irregularity which does not go to the root of the application. Such failure, in my view, should have been raised as a preliminary point. It certainly cannot be raised when a party has been heard. The respondent having failed to raise it as preliminary point forfeited that right. On the other hand, the mischief which this Rule 60 addresses is for parties to know the address of service of the other party. The respondent and the interested party did not argue that they did not know the applicant’s address of service. Moreover, in this file, I found Misc. No. 150 of 2006. That miscellaneous file involved the very same parties in this matter. In that file the applicant had filed an appearance. I therefore reject the respondent’s argument. I cannot, however, conclude this matter without raising my concern that the petition filed by Muronga at Chuka Magistrate’s Court did not attach the death certificate. Death certificate is one of the most vital documents in a succession cause. How else can the court be sure that a person whose property is the subject of a succession is dead. The magistrate’s court failed in that regard and ought not to have entertained that petition in the absence of a death certificate. In the end, the judgment of the court is as follows:-

(i)The grant issued to MBIRITHI MURONGA be and is hereby revoked. I order that a fresh grant be issued to ROSE JIAMATI, which grant shall be confirmed in the normal manner.

(ii)I order that the registration of parcels No. MWIMBI/N. MUGUMANGO/525 and MWIMBI/N. MUGUMANGO/538 be cancelled and new titles be issued in respect of those two parcels of land in the name of MUGAMBI RUKUNGA, deceased. In carrying out that cancellation, the Land Registrar is hereby authorized by this court not to require the surrender of the original title deeds.

(iii)The costs of the summons dated 10th May 2007 are awarded to ROSE JIAMATI to be paid by MBIRITI MURONGA.

(iv)I order that the Deputy Registrar of this court do supply this judgment to the relevant police station with the recommendation that Mbiriti Muronga be charged with perjury in respect of the affidavit in support of the petition P & A5.

MARY KASANGO

JUDGE

Dated and delivered at Meru this 12th ..day of June.. 2009.

M.J.A. EMUKULE

JUDGE