[2023] KEHC 26483 (KLR)

Zakaria & 2 others v Riungu & another (Civil Appeal 63 of 2022) [2023] KEHC 26483 (KLR) (13 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26483 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal 63 of 2022

LM Njuguna, J

December 13, 2023

IN THE MATTER OF THE ESTATE OF BERNARD RIUNGU (DECEASED)

Between

Silvester Mutegi Zakaria

1st Appellant

Dinah Kaari Douglas

2nd Appellant

Lenity Gakii Mutegi

3rd Appellant

and

Sarah Kanari Riungu

1st Respondent

Charles Poly Nderi

2nd Respondent

(Appeal from the Ruling of Hon. J.W. Gichimu SRM delivered in Senior Principal Magistrate’s Court Runyenjes Succession Cause No. 6 of 1999 on 15th November 2022)

Judgment

1. By an amended memorandum of appeal dated 14th December 2022, the appellant seeks orders that:a.The appeal be allowed;b.The ruling rendered on 15th November 2022 be vacated and/or set aside and in its place, this Honourable Court do issue an order and direct that parcels LR Magumoni/Mwonge/1876,1879,2789 and 2790 should not be subject to order of reversal to their mother title LR Magumoni/Mwonge/807;c.A declaration be made that the learned trial magistrate did not have territorial jurisdiction to revoke the grant and also to order that the suit land revert back to the name of the deceased courtesy of Section 49 of the Law of Succession Act and as such the revoked grant and/or the subsequent applications, rulings or orders issued were null and void; andd.Costs of this appeal and the lower court proceedings be borne by the respondent

2. The appeal is premised on the grounds that the learned magistrate erred in law and fact by:a.Failing to find that the order was made by a magistrate with no territorial jurisdiction contrary to section 49 of the Law of Succession Act and as such the grant was null and void and all consequential applications, rulings and orders were null and void for all intents and purposes;b.Entertaining the application for revocation of the grant by the respondent dated 12th November 2020 despite the fact that the said grant was null and void and all consequential applications, rulings and orders were null and void for lack of territorial jurisdiction as provided under section 49 of the Law of Succession Act;c.Satisfying himself that he had territorial jurisdiction to entertain the matter on account of the fact that the learned trial magistrate who had issued the grant “satisfied himself that he had territorial jurisdiction when it was not there” and without satisfying himself that jurisdiction is not a question of judicial discretion but one that is donated by statute and the constitution;d.Allowing the application dated 13th January 2022 and failing to consider the appellant’s submissions regarding territorial jurisdiction thus perpetrating an illegality;e.Entertaining the appellant’s application dated 02nd June 2022 which act equaled the court sitting on appeal in its own ruling yet the appellant had brought an application for review under rule 63 of the Probate and Administration Rules;f.Holding that he could not vacate the orders issued by the magistrate who issued the grant on account of concurrent jurisdiction, regardless of the fact that he was able to do so under section 76 of the Law of Succession Act;g.Failing to consider the provisions of Section 93 of the Law of Succession Act on protection of the rights of innocent purchasers after confirmation of the grant;h.Failing to consider the interests of the interested parties during the hearing of the application for revocation, therefore condemning them unheard;i.Failing to be guided by precedence on section 93 of the Law of Succession Act;j.Failing to consider that the appellant did not contribute in any way for reasons and grounds upon which the trial court purported to revoke the grant that was null and void and as such the aforesaid parcels of land should not have been ordered to be reversed to the original mother title.k.Allowing the respondent’s application dated 13th January 2022 in total disregard of the provisions of section 93 of the Law of Succession Act and precedence; andl.Failing to find that the respondent inordinately delayed in lodging the claim over their father’s interest without any explanation for the delay.

3. A grant of letters of administration was issued to Charles Poly Nderi on 20th January 2000 by the Senior Resident Magistrate’s Court at Runyenjes. The grant was confirmed and a certificate of confirmation of grant was issued on 04th August 2000 stating that Charles Poly Nderi and Elias Nyaga Ruingu were the only beneficiaries of deceased’s estate comprised in land parcel number Magumoni/Mwonge/807. Charles Poly Nderi proceeded to subdivide his portion of the inherited land and sold part of it to the appellants herein, who were interested parties at the trial.

4. The 1st respondent herein filed summons dated 12th November 2020 seeking revocation of the grant on grounds that the same was obtained fraudulently and there was concealment of the material fact that the deceased had a widow and nine children instead of the two named. To this summons, the court took viva voce evidence and was satisfied that indeed the grant was obtained by fraud and concealment of material fact. Consequently, the grant and the certificate of confirmation of grant were revoked and/or annulled vide ruling dated 09th November 2021.

5. The respondent herein filed summons dated 13th January 2022 seeking orders that following the court’s ruling revoking the grant, the subdivided titles from the estate of the deceased be cancelled and the property reverted to the name of the deceased. The appellants herein filed summons dated 02nd June 2022 seeking orders that the ruling dated 09th November 2021 revoking the grant should only apply to the portion of the estate that had not been alienated to 3rd parties and for this argument they cited section 93 of the Law of Succession Act. They also cited section 49 of theLaw of Succession Act and stated that the trial court did not have territorial jurisdiction to either issue the grant or revoke the same. It was their argument that the deceased died while domiciled in Tharaka Nithi County and that is also where the impugned property is situated.

6. The court determined the two applications within the same ruling dated 15th November 2022. As regards the summons dated 02nd June 2022, it was held that the court that issued the grant exercised its jurisdiction at the time in a manner that was satisfactory to itself. The trial magistrate noted that he sits with equal jurisdiction as the court that issued the grant and can therefore not determine on the issue of jurisdiction because to do so would amount to him sitting as an appellate court. Regarding the application dated 13th January 2022, it was held that the application sought to enforce the ruling of the court, against which, no appeal has been preferred. The court ordered that the subdivided titles be cancelled and registration be reverted to the name of the deceased.

7. In this appeal, the court directed the parties to file their written submissions and both parties complied.

8. The appellants submitted that based on the last place of domicile of the deceased and the location of the property, the trial court lacked jurisdiction to issue and confirm the grant in light of section 49 of the Law of Succession Act. They relied on the cases of Owners of Motor Vessel Lilian “S” v Caltex Oil (K) Limited (1989) eKLR and Samuel Kamau Macharia & Another v Kenya Commercial bank & 2 Others (2012) eKLR. It was their argument that the appellants were within their rights to bring the application for review before the trial court pursuant to rule 63 of the Probate and Administration Rules on application of the Civil Procedure Rules in Succession proceedings.

9. They relied on the cases of William Nkobo Matundura & Another v Julius Moracha Matundura & Another (2014) eKLR, Evangeline Kagumo Ndubi v Cyprian Kithara Ndubi (2012) eKLR, Wevarsity Sacco Society Limited v Moses Musa Lumiti Abura & Another (2017) eKLR and Katende v Haridar & Company Limited (2008) 2 EA 173 to support the argument that their rights as purchasers are protected under section 93 of the Law of Succession Act. They argued that there was inordinate delay in filing of the summons for revocation of the grant and the respondent did not provide justiciable reasons for the said delay.

10. The respondent submitted that under section 76 of the Law of Succession Act, there was no time limitation for filing of an application for revocation of grant. That the trial court was correct in its finding that only the High Court could decide on whether or not the trial court had jurisdiction. It was her case that the appellants are contradicting themselves in challenging jurisdiction and at the same time seeking that their titles be protected under section 93 of the Law of Succession Act.

11. Reliance was placed on the case of Re Estate of Leah Wangui Ndinguri (deceased) (2020) eKLR, section 47 of the Law of Succession Act and rule 73 of the Probate and Administration Rules to support the argument that the trial court had jurisdiction to issue the grant. That vide the impugned ruling, the court ordered cancellation of the subdivided titles and the same to be registered in the name of the deceased, an order that the previous ruling did not grant. That section 93 of the Law of Succession Act only applied where titles were properly issued and the case is different where a grant is revoked and she cited the case of Re Estate of Christopher Jude Adela (2009) eKLR.

12. Having perused the grounds of appeal together with the submissions herein, I find the issues for determination to be as follows:a.Whether the grant issued by the Magistrate’s Court at Runyenjes is null and void on account of territorial jurisdiction; andb.Whether the appellants’ rights over the impugned property are protected under section 93 of the Law of Succession Act.

13. The role of an appellate court is to re-examine the evidence at trial and come up with its own conclusions while keeping in mind the findings of the trial court. In the case of Selle & Another v Associated Motor Boat Co. Ltd & Others[1968] EA 123, this principle was enunciated thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this 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..."

14. The ruling dated 15th November 2022 determined both applications dated 13th January 2022 and 02nd June 2022. The court granted orders sought through the former application and denied those sought in the latter. In this appeal, the appellants contend with the findings of the trial magistrate who stated that he will not sit as an appellate court to determine the issues of whether or not he has jurisdiction as this would be the role of the High Court.

15. To the summons dated 02nd June 2022, the respondent’s counsel filed a replying affidavit demonstrating why the Magistrate Court at Runyenjes had jurisdiction to issue the grant. The respondent stated that until 2004, the named court had been determining succession causes where the estate of the deceased was located around the same areas as the deceased’s estate and that the Magistrate’s court at Chuka was not yet gazetted to hear succession causes. She listed ten cases that had been determined at that court and where grants of representation had been issued.

16. Through their application, the appellants failed to sufficiently demonstrate to the trial court that it lacked jurisdiction to issue, confirm and revoke the grant. I have also perused the application together with its supporting affidavit and I do not find satisfactory proof of the allegations made. According to sections 107 and 109 of the Evidence Act, it is upon the party who alleges to prove his allegations. The provisions state thus:“107. Burden of proof.(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 109. Proof of particular fact.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

17. Jurisdiction of Magistrates Courts is a question of law according to sections 48 and 49 of the Law of Succession Act and section 7 of the Magistrate’s Courts Act. These two sets of provisions should be read together to answer the question before me. Territorial jurisdiction under section 49 of the Law of Succession Act is provided for as follows:“The Magistrate's Court within whose area a deceased person had his last known place of residence shall, if the gross value of the estate of the deceased does not exceed the pecuniary limits set out in section 7(1) of the Magistrates' Courts Act, 2015, have in respect of that estate the jurisdiction conferred by Section 48. ”

18. The respondent has already demonstrated that the Magistrates Court at Chuka was not yet gazetted to issue the grant at the time when the administrator first petitioned. I am persuaded that the trial magistrate correctly exercised his jurisdiction in issuing, confirming and later revoking the grant.

19. On the issue as to whether the rights of the appellants are protected under Section 93 of the Law of Succession Act, this provision states:“93. Validity of transfer not affected by revocation of representation(1)All transfers of any interest in immovable or movable 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.(2)A transfer of immovable property by a personal representative to a purchaser shall not be invalidated by reason only that the purchaser may have notice that all the debts, liabilities, funeral and testamentary or administration expenses, duties, and legacies of the deceased have not been discharged nor provided for.”

20. The role of the court in probate and administration is to exercise its powers to ensure the interests of the bona fide beneficiaries are safeguarded. Circumstances such as the ones here today are not uncommon and my view is that section 93 of the Law of Succession Act does not take away the rights of the bona fide beneficiaries in the process of protecting purchasers where a grant is revoked. In any event, the court with this kind of jurisdiction should limit itself on issues of distribution of the estate and the legality thereof. In the case of HCCC No. 13 of 2004 Nyamira - In the Matter of the Estate of Teresiah Auma Deceasedthe court stated:“……the fact that the petitioners title over the original suit land was revoked will automatically affect the interested parties ownership over the suit property because it will be a corruption of the law to validate how the original suit property belonging to the deceased was transferred to the petitioner. The fact remains that the petitioner stole a march over the other beneficiaries who were also to benefit on equal status on the property of the deceased and it would be unfair to validate the illegal actions of the petitioner by invoking section 93 of the Law of Succession Act. The reality of the situation is that provisions of section 93 do not validate unlawful acts and what was intended by section 93 was where a grant is properly and lawful issued then, section 93 can come to the rescue of such a purchaser. In my humble view the underlying objective of the Lawof Succession Act is to ensure that beneficiaries of deceased persons inherit the property.”

21. The purchasers acquired the property following issuance of a grant which has now been revoked on the basis of fraud. I dare not delve into the issues of acquisition and proprietorship of the property as that would be in the purview of the ELC. For now, I note that the grant was revoked citing an illegality and therefore, it was only prudent of the trial court to issue orders that the property reverts to the name of the deceased for purposes of distribution of the estate to the bona fide beneficiaries.

22. Having considered the arguments by counsel and the relevant laws, I find that the appeal lacks merit and is hereby dismissed with no order as to costs.

23. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 13TH DAY OF DECEMBER, 2023. L. NJUGUNAJUDGE……………………………………………………………………………………for the Appellants…………………………………………………………………………………for the Respondents