1.The application that I am tasked with determining is the summons dated 10th July 2020. It principally seeks joinder of the applicants, that is to say Charles Omutimba Washiali, Jamin Ungaya Anyula and Jackson Luta Machio, as interested parties to the succession cause.
2.Before I get into the substance of the application, let me straighten out the record, with the regard to the use of the words “join” and “enjoin,” for the applicants herein seek to be “enjoined” to the cause as parties. I have come across many applications where parties use the two words interchangeably. I have also come across cases where parties talk about “joinder” and “enjoinder” interchangeably. “Join” and “enjoin” exist in the English lexicon, but they do not mean the same thing. To “join” a party to a suit means to add that person to the suit. To “enjoin,” in law, means to injunct, or to bar a party from doing something. “Enjoinder” means a prohibition ordered by injunction.
3.Black’s Law Dictionary, Tenth Edition, Thomson Reuters, St. Paul, 2004, does not define the word “join.” What it does is to define the noun derived from it, that is to say “joinder,” as “the uniting of parties or claims in a single lawsuit.” It does not define “enjoinder,” but identifies it as the noun drawn from the verb “enjoin,” which it defines as “to legally prohibit or restrain by injunction” or “to prescribe, mandate, or strongly encourage.” The Concise Oxford English Dictionary, Twelfth Edition, Oxford University Press, New York, 2011, defines “join” as “to link or become linked or connected to,” and “joinder” as, in law, “the action of bringing parties together.” The same text defines “enjoin,” as used in everyday conversation, as to “instruct or urge to do something,” and, in law, as to “prohibit someone from performing (an action) by issuing an injunction.”
4.I raise this because the applicants herein have asked to be “enjoined” to the cause as parties. That literally means that they be injuncted or barred or prohibited from the cause. The prayers as framed are completely nonsensical, when looked at against the averments made in the affidavit, sworn in support of the application. In the said affidavit, the applicants still talk about being “enjoined” in the proceedings as parties, so that the court can fully and effectually determine the issues in the succession cause. They are not asking for injunctions, and, therefore, the use of the word “enjoined,” in the application and the affidavit, is unfortunate, for the applicants appear to have intended to use the word or words “join” or “joined” instead. Clearly, the prayers as framed would make no sense at all if granted as prayed.
5.I am minded to dismiss the application, for the reason of what I have stated in the foregoing paragraph of this ruling. However, I note that the parties hereto are acting in person, and, as lay persons, they may not be familiar with legalese, and, therefore, the meanings attached, in law, to the words “join,” “enjoin,” “joinder” and “enjoinder.” Consequently, I am inclined to stretch the application of article 159 of the Constitution and rule 73 of the Probate and Administration Rules, to presume that the applicants intended to apply for “joinder” as opposed to “enjoinder,” and to proceed to determine the application on its merits based on that presumption.
6.The applicants are persons who had allegedly bought portions of an asset of the estate, known as East/Wanga/Mung’ang’a/713, from a son of the deceased, known as David Wafula Kanenje. Copies of the relevant memoranda in writing, to support those sales, are not attached to the affidavit sworn in support of the application. What is attached is an undated document, which was generated long after the sale, and after the death of the seller, David Wafula Kanenje. The applicants aver that they had been assured by David Wafula Kanenje that he would factor the said sales in the administration of the estate of the deceased herein, and title deeds of the portions that they had bought would be processed in their names. They then sold their purported interests in the land to another person, namely Francis Lucas Namwiba. They had hoped that the administrators would honour the sale, only for them to turn around and seek to evict Francis Lucas Namwiba from the land. That prompted the said Francis Lucas Namwiba to sue the applicants to recover the purchase price. The matter was subjected to mediation, where it was agreed that the refund would be dependent on the outcome of these succession proceedings. The applicants believe that they would be prejudiced if they are not made parties to the succession cause. They also argue that their interests in the land were not being protected.
7.There is a response to the application, through an affidavit, sworn on 15th July 2020, by Felister Waburaka Kanenje. She is one of the administrators of the estate of the deceased. She argues that the appellants are not liabilities of the estate of the deceased, since they claim to have bought the land from a son of the deceased, who held no grant of letters of administration to the estate at the time he purported to sell the land. She avers that the said son of the deceased could not validly sell the land of the deceased before his grant had been confirmed. She also argues that the court had become functus officio, once it had confirmed the grant on 15th June 2011. She avers that the joinder would serve no purpose, since the matter of distribution has since been determined, and there was nothing remaining to litigate about. She further avers that the property has since changed hands, after confirmation of the grant, and the court, therefore, has no jurisdiction to entertain the claim.
8.On 15th July 2020, I gave directions that the said application, dated 10th July 2020, be canvassed by way of written submissions. There are written submissions on record by the applicants and the respondents.
9.The applicants largely reiterate, in their written submissions, the facts deposed in their affidavit in support of the application. The first and third respondents, on their part, raise several grounds. They submit that the application does not cite the provisions of the law upon which it is premised, that joinder would serve no purpose since the matter has been heard and determined, that the sale transaction was illegal and is not available for enforcement by the court, and that the court lacks jurisdiction to entertain the matter. The second respondent, in her written submissions, supports the application, on grounds that David Wafula Kanenje had reneged on his word, that he would cater for the applicants during administration of the estate of the deceased.
10.The starting point should be with respect to the fact that the applicants did not purchase the portions of the asset of the estate, that they lay claim to, from the deceased, but rather from a son of the deceased, David Wafula Kanenje. That, they have averred very clearly in their affidavit, and they have reiterated the same in their written submissions. Quite clearly, therefore, they are not creditors of the estate. They would only have a claim against the estate if they had transacted over the land with the deceased owner himself. The transaction in question appears to have been entered into after the deceased died. I say “appears to” because the applicants have not indicated the date they entered into the transaction, nor attached documents evidencing the sale. The document placed before me was not the sale agreement signed by the applicants and David Wafula Kanenje, since it was generated after David Wafula Kanenje had died. Quite simply, the applicants did not deal with the deceased. The transaction that they had with David Wafula Kanenje did not bind the deceased, since he was already dead, and, therefore, it was not binding on his estate. The applicants have no claim against the estate, they are not creditors of the estate, and they cannot possibly be considered as liabilities of the estate.
11.It should be made clear that the property of a dead person vests in his estate upon his death. In turn, when personal representatives are appointed to administer the estate, whether in testacy or intestacy, the property then vests in the personal representatives, by dint of section 79 of the Law of Succession Act, Cap 160, Laws of Kenya. Section 79 of the Law of Succession Act should be read together with section 80 of the Act, which states when grants of representation become effective. A grant of probate relates back to the date of death, and, therefore, it applies retrospectively, to authenticate any acts of the executor done between the date of death and the date of the making of the grant. A grant of letters of administration is effective from the date of the making of the grant, and it does not relate back or apply retroactively. See Ingall vs Moran , Kothari vs Qureshi and Another, Lalitaben Kantilal Shah vs Southern Credit Banking Corporation Ltd , Otieno vs Ougo and another (number 4) , Troustik Union International and another vs Mrs Jane Mbeyu and another, Martin Odera Okumu vs Edwin Otieno Ombajo , Coast Bus Services Limited vs Samuel Mbuvi Lai , Ganinjee Glass Mart Ltd & 2 others vs First American Bank Ltd , among others.
12.The deceased herein died intestate, on 7th March 1993. Representation to his intestate estate was made on 14th October 2003, and a grant of letters of administration intestate was issued, on 21st October 2003. That was more than ten years after the demise of the deceased. Whatever any of the persons, who were subsequently appointed as administrators, might have done, with the property of the estate, between 7th March 1993 and 14th October 2003, was unlawful, for the estate of the deceased did not vest in them, until 14th October 2003.
13.It must be emphasized that the mere fact that a person is a surviving spouse or child of the deceased does not make him or her a personal representative of the deceased. One only becomes a personal representative, usually known as administrator, in the event of intestacy, upon being appointed by the court as such. The property of the intestate would not vest in any person until such person is appointed administrator by the court. Any transaction, entered into with a person who is yet to be appointed administrator, over estate assets, would be null and void, since such assets would not have vested in such a person, and such person would have no standing in law to transact over such property. Section 45 of the Law of Succession Act outlaws such dealings, and designates them as amounting to intermeddling with the estate of the deceased, which is a criminal offence, according to that provision.
14.Section 79 of the Law of Succession Act should also be read together with sections 82 and 83 of the Act, which set out the powers and duties of administrators. Once the assets of the deceased are vested in the administrators, the said administrators would then be entitled to exercise the powers conferred upon administrators by section 82, and they are subject to the duties that are imposed by section 83. The powers include that to enter into contracts with respect to assets of the estate, to sue and be sued with regard to estate assets, among others. Entering into contracts over estate assets would include converting estate assets by way of sale. However, section 82(b)(ii) of the Act outlaws sale of immovable assets of an estate before the grant has been confirmed. That would mean that any such sale would be unlawful and unenforceable, unless it happened with leave of the court.
15.I have referred to sections 45, 79, 80, 82 and 83 of the Law of Succession Act. It is important that I set out the contents of the said provisions, verbatim, for avoidance of any doubt, but I shall leave out section 83, as it is not quite relevant to this discussion. The said provisions say as follows:
16.Applying the facts, set out in the application, to the provisions of the law, that I have cited above, the foregoing will be result. The alleged sale of land happened, not during the deceased’s lifetime, and did not involve the deceased, but after his death, involving one of his surviving sons, David Wafula Kanenje, before he had obtained representation to enable him administer the estate. That would mean, by dint of section 79 of the Law of Succession Act, that the assets of the estate had not yet vested in David Wafula Kanenje. He, therefore, had no power, by dint of section 82 of the Law of Succession Act, to sell the property. He could not enter into any binding contract, with anybody, over any of the assets that made up the estate of the deceased. That being the case, it meant that, by dint of section 45 of the Law of Succession Act, any transaction between him and any other person, amounted to intermeddling with the estate of the deceased, and those involved, therefore, would be deemed to have engaged in criminal activity, and should have been prosecuted. The said sales contravened section 45 and 82 of the Law of Succession Act, and there is no possibility that the applicants could have acquired any valid title from the said sales, for the person who purported to sell the property to them had no title to it. He had nothing to sell, and the applicants bought nothing from him.
17.Let me now apply section 80 of the Law of Succession Act to the facts. The deceased died intestate, as aforesaid, on 7th March 1993. Administrators were appointed on 14th October 2003, and a grant of letters of administration intestate was issued to them on 21st October 2003. The applicants have not disclosed the date when they allegedly bought the property from David Wafula Kanenje, and they have not attached any documents to evidence the sale. The document they rely on was generated after David Wafula Kanenje had died, but it does not indicate when the sales happened, nor when David Wafula Kanenje died. The document itself is undated, but in the body of it is alleged that it was executed sometime in 2008. I have scoured through the file of papers before me, and I have come across copies of what I suspect to be the sale agreements between David Wafula Kanenje and the applicants. They are exhibited in the affidavit of Lucas Francis Namwiba, sworn on 16th June 2016. One agreement was made on 26th May 2003, between David Wafula Kanenje and Michael Sunduli Nandwa. The second agreement was made on 19th February 2004, between the same David Wafula Kanenje and Jamin Ungaya Anyula. The rest of the sale agreements are between the applicants and the persons to whom they purported to dispose of their alleged interests.
18.From the record before me, David Wafula Kanenje, the person with whom the applicants transacted, was one of the persons appointed as administrators, on 14th October 2003. When he entered into the sale agreement of 26th May 2003, he had not yet been appointed administrator of the estate of the deceased. The property in question, therefore, had not yet vested in him as administrator, by virtue of section 79 of the Law of Succession Act, and, therefore, he could not exercise the powers of sale over that property given by section 82 of the Act. He had no title to the property, and he had no power to sell it. He had no property to sell, and he conferred no good title to the prompted buyer. The transaction was unlawful, and amounted to a criminal offence, according to section 45 of the Act. That he was subsequently appointed administrator of the estate did not help him, nor salvage the transaction, since the deceased herein had died intestate, and by dint of section 80 of the Law of Succession Act, a grant of letters of administration intestate does not relate back to the date of death, so as to authenticate any of the acts of the administrator, done between the date of death and the date of appointment. The transaction of 26th May 2003 was as dead as a dodo.
19.The second agreement, of 19th February 2004, was entered into after David Wafula Kanenje had been appointed one of the administrators of the estate, on 14th October 2003. So, as at the date of the transaction, the asset the subject of the sale vested in him, by virtue of section 79 of the Law of Succession Act. He could, by virtue of section 82, exercise power of sale over it, but subject to section 82(b)(ii). The said asset was immovable, being a parcel of land. It could not be sold before confirmation of grant, unless the administrator had obtained prior leave or permission of court to sell it. The record indicates that the grant herein was confirmed on 15th June 2011, on an application dated 6th April 2011. That would mean that the sale transaction of 19th February 2004 happened before the grant was confirmed, and the said sale, therefore, fell afoul of section 82(b)(ii) of the Law of Succession Act. I have scrupulously perused through the record, and I have not come across any order from this court allowing David Wafula Kanenje to sell the property before the grant was confirmed. The said sale happened in contravention of the law, section 82(b)(ii) of the Law of Succession Act, and, therefore, it was unlawful and unenforceable. The purported buyer acquired no rights whatsoever under that contract of sale.
20.The first transaction happened before the grant was made, and, therefore, it is of absolutely of no relevance to the instant succession cause. The second one happened after the purported seller had been appointed administrator, but before he had gotten his grant confirmed. The question is, can it be salvaged? I have carefully and scrupulously gone through the provisions of the Law of Succession Act, and I have found none that could give a cover of legitimacy to the second sale agreement. That would mean that the same was equally as dead as a dodo, and it conferred no rights whatsoever to the alleged buyer over the said property. The only remedy available to the buyers, with regard to the two transactions, is to pursue the person who purported to sell the property to them.
21.The applicants are not survivors of the deceased, for they claim, not as surviving spouses or children or grandchildren of the deceased, but as liabilities or creditors of the estate. However, from the facts presented, and the discussion above, it is clear that they do not fall within the category of creditors or liabilities, for the reasons given above. They have no role nor place in the succession cause, to warrant their being joined to the cause as interested parties, or in any other capacity for that matter. Their remedy lies in suing David Wafula Kanenje, or his estate, to either recover the land that he sold to them, or for refund of the purchase money that he received from them. I reiterate that they are not creditors of the estate herein, that is to say that of Barasa Kanenje Manya, for they have not displayed any decree that they might have obtained against it. If they feel strongly that they have a case against the estate of Barasa Kanenje Manya, then this succession cause is not the proper place for them to agitate their cause. The dispute turns on title to land, that they had allegedly bought the land, which entitled them to be registered as owners thereof. The instant cause is for distribution of the estate of Barasa Kanenje Manya. Disputes on ownership of or title to land are not suitable for determination within a succession cause.
22.In any event, the High Court has no jurisdiction to make determinations relating to title to land, and use and occupation of land, which are some of the issues that arise from the application before me. That jurisdiction lies with the Environment and Land Court, by virtue of articles 162(2) and 165(5) of the Constitution, the Environment and Land Court Act (No 19 of 2011), sections 2 and 101 of the Land Registration Act (No 3 of 2012) and sections 2 and 150 of the Land Act (No 6 of 2012). Let the applicants agitate their claims through the channels established under those statutes. I have read the submission that the applicants, or their alleged successors, are entitled to the land through adverse possession. Adverse possession is about occupation and use of title to land, which, clearly, takes the matter way out of the jurisdiction of the High Court.
23.Overall, I have not found any merit in the application, dated 10th July 2020, and I hereby dismiss the same, with no order as to costs. Should the applicants be aggrieved by my order, dismissing their application, there is leave to them to move the Court of Appeal, appropriately, for a second opinion, within twenty-eight (28) days.