1.This is one of those matters that I took over from F. Amin J. on 16th June 2022. It was due for ruling on 12th April 2022.
2.It is not too clear to me what I should be ruling on, as there is no pending application. The only application filed herein is dated 28th January 2015, but the same was disposed of on 3rd June 2015, where it was allowed. It sought rectification of grant, to correct errors in the names of the administrators and the deceased.
3.On 9th March 2015, Tadeus Kakhayenga Mukabwa, filed an affidavit of protest against confirmation of grant, sworn on 8th March 2016. To that affidavit of protest, the administrator, Dunstone Ilamoya Lihema, filed a reply, through an affidavit sworn on 18th October 2018. He also filed witness statements, on 20th September 2018, by Anjelina Khasindu Mathew and himself.
4.Directions were given on 26th September 2018 for the protest proceedings to be canvassed by way of oral evidence, based on the witness statements. There was no oral hearing on 28th March 2022, where F. Amin J. fixed the matter for ruling on 12th April 2022.
5.The protest proceedings herein are misconceived. Firstly, they are initiated by way of an affidavit. Affidavits are not pleadings, and they do not initiate proceedings. Proceedings are initiated wither by way of plaint, petition, originating summons, originating motion, motion or chamber summons. The affidavit supports the pleadings by providing the pretrial or evidential …… to the process. Secondly, the affidavit of protest is alleged to be against confirmation of grant, yet there is no pending application for confirmation of grant. None has been filed. Thirdly, protest proceedings have no life of their own. They are but a mere response to a summons of confirmation of grant. The affidavit of protest is the reply to the summons of confirmation of grant. Without a summons for confirmation of grant, there can be protest proceedings. Fourthly, the affidavit of protest does not initiate protest proceedings, its effect is to turn the otherwise uncontested confirmation proceedings contentious.
6.Protest proceedings are promised for under Rule 40(6) of Probate and Administration Rule. From the language of Rule 40(6), it should be clear that the protest affidavit cannot stand alone, for it sides on the back of the summons for confirmation of grant. It is filed by a person who does not agree with confirmation of grant and distribution of the estate as proposed with summons for confirmation of grant.
7.The said provisions, for avoidance of doubt states as follows;
8.The protest proceedings herein are, therefore, premature and misconceived, and should be ignored. The affidavit of protest was filed premature and in abuse of court process. It shall be struck out and expunged from the record, and so shall the replying affidavit of 18th October 2022 and the two witness statements. The directions given on 26th September 2018, on the disposal of the protest proceedings, are hereby set aside.
9.The way forward should be that the administrators file application for confirmation of their grant, and Tadeus Kakhayangu would be at liberty, under Rule 40(6) of the Probate and Administration to file and serve an affidavit of protest to the confirmation of grant on distribution of the estate, or both.
10.I note that Tadeus Kakhayanga Mukabwa, who I think I should refer to as the prospective protestor, alleges to have had bought certain parcels of the land, from the deceased and a son of the deceased, the alleged sales are contested by the administrators, vide the replying affidavit of 18th October, 2022 and the two witness statements of even date. It will probably serve no purpose to agitate that claim here as the administrator do not accept the prospective protestor as a legitimate creditor of the estate. The ideal thing should be for the prospective protestor to initiate separate proceedings against the estate to pore his case there against the e state, as cossetted in In re Estate of Kimani Kimuthia (Deceased)  eKLR (Ibrahim J) and in re Estate of Julius Ndubi Javan (deceased)(2018]eKLR (Gikonyo J).
11.The High Court, sitting as a probate Court, cannot determine questions on validity of sales transfer between the deceased or the estate and third parties. That jurisdiction was taken away by the constitution, vide Articles 162(2) and 165(5) state as follows;
12.Transactions or dealings relating to land are governed by the Land Registration Act, No. 3 of 2012, and the Land Act, No. 6 of 2012. Disposal of interests in alnd, by wayof sale, fall under such transactions and dealings. Section 2 and 101 of the Land Registration Act and sections 2 and 150 of the Land Act, identify the Environment and Land Court as the court for the purposes of the two statutes for addressing any actions, disputes and proceedings relating to an y of the matters or issues governed by the two said statutes.
14.Section 2 and 150 of the Land Act provide as follows“2means the Environment and Land Court established under the Environment and Land Court Act, 2011; No. 19 of 2011”“150The Environment and Land Court established in the Environment and Land Court Act is vested with exclusive jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act.”
15.Waiting for the administrators to file for confirmation of grant, in order for the prospective protestor file his claim will not aid at all. For at confirmation, he will have to contend with Rule 41(3) of the Probate and Administration Rule enables the probate court to remove a contested asset from the schedule of distribution to enable the parties initiate separate proceedings to determine the status of ownership of the said contested asset. Rule 41(3) is clear that ligibity contested claims an ownership of assets are not for determination in succession proceedings for sole purpose. Rule 41(3) of the Probate and Administration should be read together with Articles `162(2) and 165(5) of the Constitution, so that if the High Court has no jurisdiction to determine questions little to property, for that is what the prospective protestor is raising, then the High Court, sitting as a probate court, which proceed with such a claim will utilize Rule 41(3) of the Probate and Administration Rule by setting aside the contested asset to enable the protestor place the dispute before the Environment and Land Court for determination of ownership.
16.Rule 41(3) of the Probate and Administration Rule states as follows:-“41(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.”
17.These contested transaction relating to land happened, allegedly in 1996 and 1997. Recovery of land is subject to limitation, under the limitation of Actions Cap 22 Laws of Kenya. The death of the perpetrator of the subject land has no effect or impact on the limitation period stated in the Limitation of Action Act. Consequently, the prospective protestor herein vows the risk that his claim will become stale as he pursues these ill-advised proceedings before the probate court in this succession cause.
18.I shall leave it at that, and let the parties be guided accordingly.