1.The duty of the first appellate court is to reconsider and re-evaluate all the evidence tendered in the trial court and come up without its own findings and conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses as they testified (Selle & Another –v- Associated Motor Boat Co. Ltd & Others EA 123).
2.This appeal is in respect of the estate of the deceased Wainaina Gitaiga who died intestate on 21st November 2004. He was survived by two widows, Ruth Guthua Wainaina and Hannah Wambui Wainaina. The former had six children and the latter had 9 children. His estate comprised the following property:-a.Kiganjo/Gatei/1445;b.Chania/Kamwangi/T.57;c.Chania/Kamwangi/T.54;d.Chania/Kanyoni/1225;e.Shares with Punda Milia Farmers Co. Ltd No. 2437-104 shares and No. 2437 – 14 shares; andf.Plot No. 1825 Mang’u Mwana Wikio Certificate No. 1664 and 1665.
3.Joseph Gitaiga Wainaina (the respondent) is a son from the first house. On 26th September 2005 he petitioned Thika Chief Magistrate’s Court for the grant of letters of administration intestate. This was done with the consent of the entire family. The grant was issued to him on 7th April 2009. When he applied for the confirmation of the grant, his step brother John Gitau Wainaina (the appellant) protested. The respondent had proposed that Kiganjo/Gatei/1445 goes to Alice Mumbi Gatuku and Chania/Kamwangi/T.57 goes to Antony Macharia Kariuki Gathata; Chania/Kanyoni/1225 to be shared so that Antony Kinyanjui Wainaina and himself (both from the first house) take half share and the 2nd widow gets the other half to hold in trust for the children in her house; Punda Milia Farmers Co. Ltd shares be shared equally between the two houses; Punda Milia Farmers Co. Ltd Plot No. 1824 be given to the 2nd widow; Mang’u Mwana Wikio Plot No. 1664 to be owned jointly by Antony Kinyanjui Wainaina and herself; Mang’u Mwana Wikio Plot No. 1665 goes to the 2nd widow to hold in trust for her children; and Chania/Kamwangi/T.54 goes to the 2nd widow.
4.The appellant filed an affidavit of protest saying that Alice Mumbi Gatuku and Anthony Macharia Kariuki Gathata had been given shares in the estate when they were not beneficiaries of the estate. In his proposal, he wanted Kiganjo/Gatei/1445 to go to himself and Peter Kamau Wainaina (both of the 2nd house); Chania/Kamwangi/T.54 to go to himself; Chania/Kamwangi/T57 to go to himself; Chania/Kanyoni/1225 to be shared equally among Antony Kinyanjui Wainaina, respondent, himself and Peter Kamau Wainaina; Punda Milia Farmers Co. Ltd shares to be shared equally between himself and Antony Kinyanjui Wainaina; Punda Milia Farmers Co. Ltd Plot No. 1824 goes to him in trust for his house; Mang’u Mwana Wikio Plot No. 1664 goes to himself and the respondent each to hold in trust for his house; and Mang’u Mwana Wikio Plot No. 1665 goes to him to hold in trust for his house.
5.The trial court received oral evidence from the respondent and the appellant. The respondent called the 2nd widow as a witness. The appellant did not call a witness. According to the respondent, after he became the administrator, the family authorised him to sell Kiganjo/Gatei/1445 to Alice Mumbi Gatuku to get money to offset debts. Secondly, that he was authorised by the family to sell Chania/Kamwangi/T.57 to Antony Macharia Kariuki Gathata to offset debts. He stated that the deceased had wished that these parcels be sold to offset debts. Antony Macharia Kariuki Gathata had an outstanding balance of Kshs.110,000/= towards the purchase price. It was these two sales that the appellant was opposed to. He stated that he had bought Chania/Kamwangi/T.57 from the deceased, and that he had also bought, and settled on, Chania/Kamwangi/T.54. On Chania/Kamwangi/T.54 he had not paid the balance of Kshs.105,000/= which he was willing to pay. Contrary to what he had stated in his affidavit of protest, he wanted Kiganjo/Gatei/1445 to be shared between Anthony Kinyanjui Wainaina and the respondent.
6.The trial court considered the evidence and delivered a judgment on 16th February 2011. The court found that Kiganjo/Gatei/1445 had been sold to Alice Mumbi Gatuku. It found that the appellant had in writing consented to the sale. The court further found that both sides were at one that the appellant was buying Chania/Kamwangi/T.54 from the deceased, had paid partly leaving a balance of Kshs.100,000/=. He wanted to pay the balance but that the family had refused to receive the money. The court ordered him to pay the balance in 10 days, failing which the land would go to the 2nd widow. Lastly, the court found that the appellant had not produced any documentary evidence to show that he had bought Chania/Kamwangi/T.57. It accepted that the parcel had been bought by Antony Macharia Kariuki Gathata. It is notable that Antony Macharia Kariuki Gathata is the interested party herein.
7.It is this judgment, which was the subject of the certificate of confirmation, that aggrieved the appellant. He filed a Memorandum of Appeal whose grounds were as follows:-
6.That the Learned Magistrate misdirected herself in law in failing to appreciate the fact that the respondent being the administrator had intermeddled with the property of the deceased even before the confirmation of grant;
7.That the Learned Magistrate misdirected herself in law and in fact in confirming the grant in terms proposed by the respondent as against the Appellant against the weight of evidence; and
8.That the Learned Magistrate erred in law in failing to award Land Parcel No. Chania/Kamwangi/T.57 to the appellant taking into account the appellant was in actual occupation of the same even during the lifetime of the deceased.”
8.Counsel for the parties filed written submissions on the appeal. I have considered what each had to say.
9.The judgment was delivered on 16th February 2011. The record shows that the hearing of the case by the trial court was finalised on 8th December 2010. The matter was ordered to be mentioned on 26th January 2011 for the filing of written submissions. On 26th January 2011 the counsel appeared. Counsel for the respondent asked for adjournment to 2nd February 2011 to tender submissions. On 2nd February 2011 the case was mentioned. Counsel had filed written submissions. Judgment was set for 16th February 2011 at 2.30 pm. When the appellant complains that the judgment was delivered in private and in the absence of the parties “though the parties were present in court”, which the respondent has denied, that is not borne by the record.
10.The trial court found that the family had agreed for the respondent to sell Chania/Kamwangi/T.57 to the interested party and Kiganjo/Gatei/1445 to Alice Mumbi Gatuku. The sale went against section 82(b)(ii) of the Law of Succession Act (Cap. 160) which prohibits an administrator from selling immovable property before the grant is confirmed. The fact that the appellant had consented to the sale of Chania/Kamwangi/1445, I find, did not legalise the sale. The two sales offended the clear provisions of the Act, and the trial court fell into error when it sought to sanction them. I find that the two parcels remained part of the estate of the deceased, and order that each shall be equally shared between the two houses. They will be registered in the joint names of the appellant and the respondent in equal shares to hold in trust for the beneficiaries of the respective houses. The buyers can sue the administrator of the estate to recover the purchase price. If there were any transfers to the buyers, the same were illegal ab initio and the titles are ordered to be cancelled and to revert to the deceased’s name.
11.Both sides agreed during evidence that the appellant was buying Chania/Kamwangi/T.54 from the deceased, and that he had partly paid for the same. The trial court asked that he pays the balance, which was Kshs.110,000/=. He was to pay in 10 days failing which the parcel would go to the 2nd widow Hannah Wambui Wainaina. The appellant’s complaint was that the trial court’s pecuniary jurisdiction under section 48 (now repealed) of the Act was limited to Kshs.100,000/=. The then law was on the side of the appellant on this point. However, he owed the estate Kshs.110,000/=. I note that even as he complained, he did not pay the Kshs.100,000/= that the law limited the court to. He had an incomplete conveyance between him and the deceased. Both parties agreed he had been settled on this portion. It is directed that he will have Chania/Kamwangi/T.54 if he pays the 100,000/= to the estate through the respondent in 10 days from today. If he does not pay, the parcel shall go to Hannah Wambui Wainaina. The money shall be shared equally to the rest of the beneficiaries of the deceased, both male and female.
12.To that extent, the appeal is allowed.
13.Costs usually follow the event, but given the facts of the case each party shall bear own costs.