[2015] KEHC 2849 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CIVIL APPEAL NO. 3 OF 2010

(PROBATE & ADMINISTRATION)

RUTH MUNYUTHA KIMONONGI………..APPELANT

VERSUS

GRACE WAITHERA MUTITU………...RESPONDENT

(Being an appeal from the ruling in Murang’a Principal Magistrate’s Court Succession Cause No. 182 0f 1995 (Hon. J.Gathuku) delivered on 27th September, 2010)

BETWEEN

MUTITU KAMAU………...PETITIONER/APPLICANT

VERSUS

RUTH MUNYUTHA KAMONONGI….RESPONDENT

JUDGMENT

This appeal arises out of a “ruling” delivered by the magistrates’ court on what appears to me to be a protest against the confirmation of grant in the proceedings initiated through a summons dated 6th April, 2005. The summons for confirmation of grant was filed by the respondent’s deceased husband for whom she was substituted when he passed on.

The succession cause in the magistrates’ court was in respect of the estate of one Kamonongi Kamau, who died domiciled in Kenya on 2nd September, 1988. According to the petition filed by the appellant in the magistrates’ court for grant of letters of administration intestate for his estate, the deceased was survived by his wife who is the appellant herein, his three sons, Stephen Kamau Kamonongi, James Mutitu Kamonongi, Robert Muiruri Kamonongi and his brother Mutitu Kamau. The petition shows that the only asset comprising the deceased’s estate is a parcel of land known as Loc. 8/Munyutha-Ndutumi/93 and that he had no liabilities.

When the deceased’s wife filed the petition, her brother in law, Mutitu Kamau, objected to the grant being made to her and instead sought to be granted the letters himself. It would appear from the summons for confirmation of grant that he subsequently filed, that the letters were ultimately issued to him and the deceased’s wife in their joint names.

The objector, who was now the co-administrator of the deceased’s estate, filed the summons for confirmation of grant on 15th April, 2005. In the affidavit in support of the summons, he swore that the deceased was survived by only two people, himself as his brother and the deceased’s wife, the appellant herein. He proposed the estate to be shared equally between the two of them.

The appellant protested against the proposal by the deceased’s brother to have her late husband’s estate distributed equally between them. In the affidavit of protest she swore that apart from herself, the deceased was survived by three sons and four daughters. She proposed to have the estate distributed amongst her three sons subject to her life interest in it.

As fate would have it, Mutitu Kamau died in September, 2009 while the hearing of the protest was underway; his wife who is now the respondent herein took up the baton and was substituted in place of her late husband in the succession cause in the magistrate’s court.

After hearing the protest, the learned magistrate held that based on the evidence before her, the deceased had divided the land into two equal shares before his demise. According to the learned magistrate the deceased had given his brother one share of the land while he retained the other. For this reason, she rejected the protest and confirmed the grant in terms proposed by Mutitu Kamau and ordered that land parcel number Loc. 8/Munyutha-Ndutumi/93 be shared equally between the appellant and the respondent. A certificate for confirmation of grant was subsequently issued to this effect.

Being dissatisfied with the learned magistrate’s decision the appellant appealed to this court and in the memorandum of appeal filed in court on 30th September, 2010, she raised the following grounds:-

The learned magistrate erred in law in entertaining proceedings when he did not have jurisdiction;

The magistrate erred in law when he purported to distribute the property between the widows contrary to the Law of Succession Act;

The learned magistrate erred in law when he wrongly evaluated the evidence before him and thus arrived at an erroneous decision;

The learned magistrate erred in law when he purported to determine and dissolve a trust in a succession cause; and,

The learned magistrate erred in law and fact by failing to critically analyse the evidence and thus arrived at an unjust decision.

The court directed that the appeal be disposed of by way of written submissions and following those directions only the respondent filed the submissions.

Before scrutinising the evidence at the trial, I have to mention something that I have noted in the summons for confirmation of grant which apparently escaped the learned magistrate’s mind.

It appears to me that the affidavit in support of the summons for confirmation of grant was a false affidavit; in that affidavit the deponent alleged that the deceased was survived by himself and the appellant yet it is clear from the affidavit in support of the petition out of which he was appointed a co-administrator of the deceased’s estate that the deceased was also survived by three sons. It is also apparent in his own subsequent affidavit he filed in the cause that he acknowledged that the deceased had children whom he alleged had invaded his portion of the land. For instance, in the affidavit he swore on 19th September, 2006 in support of a notice of motion dated 15th September, 2006 in which he sought what appears to have been an injunction against the appellant, Mutitu Kamau swore as follows:-

“3. That RUTH MUNYUTHA and her children, servants and agents has (sic) entered into my portion and started preparing a building site and cutting down trees, bananas that belongs (sic) to me and my other brothers.”

A summons based on an affidavit that is manifestly inconsistent with the facts is in essence factually groundless and, in my humble view, it ought not to be allowed.

The affidavit aside, there is no doubt that the deceased had absolute interest in the land in question; according to the certificate of official search filed together with the petition, the deceased, Kamonongi Kamau, was the absolute registered proprietor of land parcel number Loc. 8/Munyutha-Ndutumi/93 and therefore the ownership of this parcel ought not to have been an issue in the succession cause. However, in his objection to the making of the grant dated 30th August, 1995 and filed in court on 30th August, 1995, Mutitu Kamau made an issue out of the deceased’s registration of the land in dispute as its sole proprietor. The objector was categorical that he had an interest of beneficial nature to the deceased’s estate; in his own words, he said;

“1. The deceased was my brother and was registered in the family land parcel No. LOC.8/MUNYUTHA-NDUTUMI/93 to hold it in trust for both of us.

2…

3…

4. I am entitled to a half share of the estate of the deceased.”

And in his testimony in court in support of the summons for confirmation of grant the objector said:-

“I seek confirmation of the grant issued to us jointly. I seek that land parcel No. Loc.8/Munyutha/Ndutumi/93 belonged to my late father Kamau Wangiri but the land was registered in my late brothers name Kamonongi Kamau. I was the younger brother. Deceased held the land in trust for me.”

The objector’s wife, Grace Waithera Mutitu, who substituted her husband in the proceedings upon his demise, testified upon cross-examination that:-

“…I stay at Munyutha. I have bought my own land. I have not built on the suit land. I built on my own land in 1960. It is 0. 9 acres. I was married by then. I came to court in 1995. My husband died in 1988. I do not know when my husband was born. The suit land was subdivided in 1987 by the elders some are dead. I was not present. I just heard. My husband never claimed land in his lifetime.”

It is apparent from the objector’s pleadings and testimony in support of the confirmation of grant that his claim on the deceased’s estate was based on the concept of trust. While addressing this issue in his judgment the learned magistrate noted and held that:-

“As to whether or not the late Kamonongi held the land in trust for his brother Mutitu Kamau, the evidence is scanty.”

Despite this finding, the learned magistrate proceeded to hold that the land had been divided in equal shares between the deceased and Mutitu Kamau. He, accordingly, dismissed the appellant’s protest and confirmed the grant in terms proposed by the objector.

The learned magistrate clearly misdirected himself on the evidence and arrived at an incorrect decision; when he found that there wasn’t sufficient evidence of a trust in favour of the objector/respondent, the latter’s claim ought to have been thereby dismissed and in my view, that ought to have ended the matter. By allowing the respondent’s summons for confirmation of grant and distributing the estate as if a trust had been established, the learned magistrate proceeded against the weight of evidence before him. His decision was clearly contrary to the evidence on record and most importantly, to his own findings.

I must add that the succession cause before him was not the appropriate forum to determine the question of trust in any event; rule 41(3) of the Probate and Administration Rules is clear that whenever, in confirmation proceedings, a question of being beneficially entitled to any part of an estate arises, the grant can only be confirmed upon the determination of that question in proceedings instituted pursuant to Order XXXVI, rule 1 of the Civil Procedure Rules(now Order 37 rule of the Civil Procedure Rules, 2010). That rule provides as follows:-

41. (1) …..

(2)….

(3) Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71 (2) of the Act, proceed to confirm the grant.

Subrule 4 of provides the manner of institution of the proceedings under the now Order 37 rule 1 of the Civil Procedure Rules; it says:-

(4) In proceedings under subrule (3), unless the court otherwise directs, the personal representative of the deceased shall be the applicant seeking determination of the question, and the person claiming so to be beneficially interested together with the residuary legatee or other person to be appointed by the court to represent the residuary estate shall be the respondents; and the court in such proceedings shall give all necessary directions relative to the prosecution thereof including the safeguarding of the share or estate so appropriated and set aside and the provision of costs.

As noted, there was no doubt from the very beginning that the objector’s/respondent’s claim against the deceased’s estate was based on trust; once this issue was brought to the attention of the court, it was incumbent upon it to give directions in accordance with rule 41(3) of the Probate and Administration Rules for the parties to initiate proceedings as appropriate under Order XXXVI, rule 1 of the Civil Procedure Rules to determine this issue. According to this Order, the only appropriate forum in which this question could be determined is the High Court and to the extent that the magistrates’ court took it upon itself to address it and proceed as if a trust existed, its decision was null ab initio for want of jurisdiction.

It has been held by the Court of Appeal in Civil Appeal No. 136 of 2011,Ayub Kithara Magambo versus Jenerosa Nchenge Marangu that a person claiming under a trust ought to file proceedings under Order 37 (2) of the Civil Procedure Rules and such question cannot be determined in the succession cause in which it has been raised.

I would, in the circumstances, and for reasons given find that the appeal is merited and I hereby allow it; I would overturn the decision of the learned magistrate delivered on 27th September, 2010 and in its place allow the appellant’s protest. For completeness of record I would also order as follows:-

The deceased’s estate shall devolve upon the appellant but subject to her life interest only;

The appellant is at liberty to exercise her power of appointment and distribute the estate amongst her children who survived the deceased pursuant to section 35 (2) of the Law of Succession Act;

Any of the deceased’s children considering that the power of appointment has been unreasonably exercised or withheld is at liberty to apply to court for the appointment of his or her share pursuant to section 35(3) of the same Act.

Parties shall bear their own costs.

Orders accordingly.

Dated, signed and delivered in open court this 10th day of July 2015

Ngaah Jairus

JUDGE