Succession Cause 386 of 2000

Case Metadata
Case Number:	Succession Cause 386 of 2000
Parties:	Mwaniki & 7 others v Mukita & 2 others
Date Delivered:	12 May 2022
Case Class:
Court:	High Court at Machakos
Case Action:	Ruling
Judge(s):	Margaret Waringa Muigai
Citation:	Mwaniki & 7 others v Mukita & 2 others (Succession Cause 386 of 2000) [2022] KEHC 11766 (KLR) (12 May 2022) (Ruling)
Court Division:	Family
County:	Machakos
Disclaimer:	The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

Mwaniki & 7 others v Mukita & 2 others (Succession Cause 386 of 2000) [2022] KEHC 11766 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11766 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 386 of 2000

MW Muigai, J

May 12, 2022

Between

Malila Mwaniki

1^st Objector

Kanyele Mwaniki

2^nd Objector

Kioko Mwaniki

3^rd Objector

and

Julius Ngesa Kimonyi

1^st Applicant

Willy Malila Mwaniki

2^nd Applicant

Joephat Mbete Kanyele

3^rd Applicant

Isaac Mung’Ala Kioko

4^th Applicant

Muendo Kioko

5^th Applicant

and

Mbulu Mukita

1^st Respondent

Mukonyo Mukita

2^nd Respondent

Mutini Mbithi

3^rd Respondent

Ruling

1.By a Summons, filed on 5/7/2021, the Applicants sought the following orders:-1.The Hon. Court be pleased to substitute the 1^st, 2^nd and 3^rd Objectors who are deceased as follows:-a.Malila Mwaniki be substituted with Willy Malila Mwaniki.b.Kanyele Mwaniki be substituted with Josephat Mbete Kanyele and Julius Ngesa Kimonyi.c.Kioko Mwaniki be substituted with Isaac Mung’ala Kioko and Muendo Kioko.2.The costs of this application be in the cause.

2.The Summons is based on grounds that the 1^st, 2^nd and 3^rd Objectors died on 7^th December, 2011, 21^st December, 2015 and 16^th July, 2011 respectively.

3.The Applicants, Willy Malila Mwaniki, Josphat Mbete Kanyele, Isaac Mungala Kioko & Muendo Kioko stated that they have obtained Limited Grant of Letters of administration Ad Litem for purposes of continuing this suit on behalf of the deceased Objectors.

4.According to the Applicants, it is in the interest of justice that the 1^st deceased Objector be substituted with the 2^nd Applicant, the 2^nd deceased Objector be substituted with the 3^rd and 1^st Applicants, the 3^rd deceased Objector be substituted with the 4^th and 5^th Applicants. According to the Applicants, the 1^st Applicant who supports their case is a beneficiary of the estate of the deceased.

5.According to the Applicants, the orders sought will aid in the expeditious disposal of the pending Objection proceedings noting that this cause has been in court for more than 20 years. The Applicants assert that no prejudice will be suffered by the Respondents if the Court grants the orders sought.

6.The Summons is supported by the affidavit of the 2^nd to 5^th Applicants herein all sworn on 2^nd July, 2021 and attached to their affidavits as annexures are the death certificates and Limited Grant of Letters of Administration Ad Litem in respect of the Estates of the 1^st,2^nd and 3^rd Objectors(Deceased).

Replying Affidavit

7.In opposition to the Summons, one Gedion Kisinga Mukita (As a substitute for the Deceased Mbulu Mukita & Mukonyo Mukita) swore a Replying Affidavit on 28^th July, 2021. He averred that he has been substituted as an administrator in place of the original administrators, Mbuku Mukita and Mukonyo Mukita.

8.On the advice of their advocate, he averred that the Summons is incompetent, misconceived, defective and bad in law without legal merits, and an unwarranted afterthought fatally defeated by operation of the doctrine of laches and delays. According to the Respondent, there has been gross inordinate delay by the Applicants to file this application since the demise of the 1^st, 2^nd and 3^rd Objectors on 7/12/2011, 21/12/2015 and 16/12/2011 respectively. The Respondent assert that the deceased objectors are mere step brothers of the deceased, Mukita Muvingo and not being heirs or dependants entitled to inheritance on intestacy, they do not have any rights to challenge the grant or be joined in the administration of the estate or be notified of a Petition for the Grant but can only sue the administrators in the Environment and Land Court upon their purported proprietary customary law claims as brothers against the estate. According to the Respondent, the Objection is invalid and incompetent as well as any purported substitution.

9.According to the Respondent, the deceased objectors and/or their children cannot challenge the grant but could have sued the estate administrators for ownership/title and not filing of an objection hence the ad litem issued to them are not valid for substitution for purposes of challenging the grant herein. The Respondent assert that there is no valid legal basis or other basis for the substitution of the deceased Objectors with the Applicants as it serves no purpose in the circumstances.

10.On the advice of his advocate, the Respondent assert that Kimonyi Muvingo alias Kimonyi Mwaniki who died on 5/1/1986 as per annexture ‘JNK 2’ has no stake in this proceedings since he was not one of the Objectors or a party to the Objection having pre-deceased both the succession cause and the Objection hence his son Julius Ngesa Kimonyi, the 1^st Applicant herein has no locus standi, legal basis and/or capacity to seek to be substituted in place of Kimonyi Mwaniki.

11.On the advice of his advocate, the Respondent assert that the 1^st Applicant is not a son of, heir, beneficiary or a dependant of Kanyele Mwaniki (Deceased), the 2^nd Objector or named as one of the beneficiaries or an administrator in the estate of Kanyele Mwaniki hence his purported consent with Kanyele Mwaniki heirs marked as annexture ‘JNK3’ to represent them in the Objection is null, void and irrelevant for want of any Ad Litem grant for the purpose, neither can he be substituted jointly with Josephat Mbete Kanyele.

12.The Respondent assert that this Court should consider whether as a Succession Court is properly vested with jurisdiction to deal with a claim that is essentially a claim against the estate for ownership and title by brothers as opposed to the Environment and Land Court. According to the Respondent, this Court is not vested with jurisdiction to establish and determine the Objector’s ownership claims under the subject Objection.

Applicants Submissions

13.On behalf of the Applicants, it is submitted that the sole purpose of the substitution is for the Applicants to prosecute the Objection proceedings that had been initiated by the deceased Objectors as their sons. According to the Applicants, the deceased Objectors claim is that the deceased herein wrongfully and fraudulently got the property known as Wamunyu/Kwa Kala/67(‘the property’) registered in his name as an absolute proprietor when the property was trust property. It is submitted that initially the property was owned by their deceased’s father and during adjudication it was agreed that the property be held in trust by deceased herein for Mwaniki Kilyungi family. According to the Applicants, Mwaniki Kilyungi had 4 wives/houses and the deceased objectors are representatives of the other 3 houses of their deceased’s father. According to the Applicants, the relevant beneficiaries consented to their appointment to represent the interest of their respective families in place of their deceased fathers.

14.According to the Applicants, the only issue for determination is whether the Applicants can lawfully substitute the deceased Objectors to prosecute the Summons for Revocation of Grant? According to the Applicants, the answer is in the affirmative because:a.There is pending in this court the Objection Proceedings initiated by the 3 deceased Objectors seeking revocation of Confirmed Grantb.The 3 deceased Objectors died before the conclusion of the Objectors Proceedings.c.The Applicants Objectors are directly related to the deceased’s Objectorsd.The Applicants Objectors seek to substitute the 3 deceased Objectors to continue to prosecute the pending Objection Proceedings.e.The Applicants Objectors have obtained the mandatory limited grants to enable them to substitute the 2 deceased Objectors.f.The Objection proceedings are part heard.g.If the 3 deceased Objectors are not substituted, the Objection proceedings will collapse and the beneficiaries of the deceased objectors will be disinherited.h.The Applicants Objectors have registered witness statements in this cause in pursuance of leave granted by the Courti.The 1^st Applicant had testified before being stood downj.It is in the interest of justice that the 3 deceased Objectors be substituted as proposed by the Applicants for the Court to make a just determination on the distribution of the deceased’s estate amongst the legitimate heirs.

15.The Applicants place reliance on Rule 14 of the 5^th Schedule of the Probate and Administration Rules which provides:“When it is necessary that the representative of a deceased person be made a party to a pending suit, and the executor or person entitled to administration is unable or unwilling to act, letter of administration may be granted to the nominee of a party in such suit, limited for purpose if representing the deceased in the said suit, or in any other cause or suit which may be commenced in the same or in any other court between the parties or any other parties touching the matters at issue in the cause of the suit, an until a final decree shall be made therein and carried into complete execution.”

16.Further reliance is placed In re Estate of Musa Kipcholio Chepson(Deceased) [2017]eKLR where the court held that:-“12.Besides, Rule 14 aforementioned does not require the court to enquire into the validity of a suit before nominating a representative of the deceased’s Estate. It only requires the court to satisfy itself that there is a pending suit to which the deceased was a party and that the person entitled to take out letters of administration to his Estate is either reluctant or unwilling to do so…”

17.In re Estate of Mohammed Bilali (Deceased) [2020] eKLR the court held that an applicant armed with a limited grant of representation for the estate of the deceased objector may represent the deceased in the suit herein.

18.According to the Applicants, the deceased Objectors claim is that the Petitioners obtained a Confirmed Grant fraudulently without notice to them and concealed from court that the property known as Wamunyu/Kwa Kala/67 was held in trust for the larger family of Mwaniki Kilyungi hence a property that was to be distributed amongst the beneficiaries and not exclusively to the 4 houses of the deceased. It is submitted that if the deceased Objectors are not substituted their claim will not be determined. According to the Applicants they have aptly discharged the legal and evidential burden of proof that the Summons is merited.

Respondents Submissions

19.The Respondents opposed the Summons herein dated 2/7/2021 and the Summons for Revocation of Grant dated 22/6/2010 for being incompetent for absence of jurisdiction and locus standi, and inordinate delay in the lodging their claims. According to the Respondents, the Revocation application is grounded on a civil claim of land ownership based on the alleged trust which is an issue that is reserved for the Environment and Land Court. It is submitted that all the claims grounded on the alleged Trust are civil in nature and are subjected to a very high heavy burden of proof by substantive evidence of proof of the alleged Trust and how it arose for a court to make a declaration that such a trust does exist. According to the Respondent, a challenge to the first registration title in 1973 falls within the jurisdiction of the Environment and Land Court.

20.It is submitted that the particulars of trust must be specifically pleaded and proved by evidence as the court never implies Trust. Reliance is placed on the case of Peter Ndungu Njenga vs. Sophia Waitiri Ndungu[2000]eKLR where the court held that the court will not imply a trust save to give effect to the intention of parties. The intention of parties to create a trust must be clearly be determined before a trust is implied. As regards the high standard of proof for proving a Trust, reliance is placed In re Estate of Jonathan Kinyua Waititu (Deceased) [2017] eKLR where the court cited D.T Dobie Co. (K) Ltd vs. Wanyonyi Wafula Chebukati [2014] eKLR.

21.The Respondent urged this court to look into the MV Lilian ‘S’ case(1989) KLR on the court’s jurisdiction and in Monica Wangui Njiri & 4 Others vs. Eunice Wanjiru Igamba & Another[2016]eKLR where Ibrahim J.(as he then was) held that Succession proceedings are not appropriate for the resolution of serious contested claims against an estate by third parties. According to the Respondents, it serves no purpose to substitute the deceased Objectors with the Applicants if this Court does not have jurisdiction to entertain the main cause.

22.According to the Respondent, the deceased Objectors died long time ago hence undue delay to lodging the claim by the Applicants. It is submitted that the courts do not permit parties to be indolent or delay the pursuit of their rights to land. According to the Respondent, the Limitation of Actions Act does exist and if a claim like a Trust or ownership is statute barred, it is extinguished. According to the Respondent, the claim is statute barred as a civil claim over land title registered in 1973. Reliance was placed on the cases of Felista Muthoni Nyaga vs. Peter Kayo Mugo [2016]eKLR and Patrick Mathenge Gachui vs. Karumi Wambugu & Another[2010]eKLR. According to the Respondent, an issue of limitation of time, a challenge to the first registration title and the resultant rectification of the register by partition are issues which require interrogation of evidence by the Environment and Land Court and not this Court.

23.Reliance was further placed on the ruling of D.K Kemei J. in Re Estate of Mukita Muvingo(Deceased) [2019]eKLR where the Learned Judge held that a delay in seeking substitution 4 and 7 years after the death of the Objectors without a valid explanation was inordinate, inexcusable and prejudicial. It is submitted that the Applicants are insolent, indolent, and negligent and act only on afterthoughts. Reliance was placed on Ivita vs. Kyumbu [1975]eKLR and Joseph Paul Nderitu vs. Gabriel Gikandi Kiama alias Nduati Kiama[2016]eKLR on the court’s discretion to dismiss an action where the delay is prolonged and inexcusable and is such as to do grave injustice to the other party.

24.It is submitted that the Applicants do not have locus standi to be substituted with the deceased’s Objectors who are mere step brothers of the deceased with no inheritance rights over the deceased’s estate and not as heirs, beneficiaries or dependants. According to the Respondent, the deceased herein is survived by two wives and many children who by dint of Section 40 and 66 of the Law of Succession Act and Rule 26 of the Probate and Administration Rules have exclusive priority to apply for the Grant over the deceased Objectors who are remote relatives to the deceased herein. It is submitted that the Objectors can only be joined if the deceased was not survived by wives and/or children as per Section 39 of the Law of Succession Act. Reliance was placed In re Estate of Mbai Wainaina (Deceased) [2015] eKLR.

25.It is submitted that only a party with a valid legal interest in the estate like a credit or, or heir or beneficiary and dependant can seek orders to revoke or annul a grant under Section 76 of the Law of Succession Act. Reliance was placed on the case of Monica Wangui Njiri & 4 Others vs. Eunice Wanjiru Igamba & Another (supra) and In re Estate of Jonathan Kinyua Waititu (Deceased) (supra).

26.It is submitted that Julius Ngesa Kimonyi, the 1^st Applicant herein is not competent to seek substitution and to be joined in the proceedings. According to the Respondent, he can only participate as a mere, ordinary witness and not as a party representing any of the deceased Objectors since his father Kimonyi Muvingo alias Kimonyi Mwaniki is not among the three deceased Objectors and was never a party to the Objection as he died on 5^th January, 1986 predeceasing the Objection proceedings. It is further submitted that the 1^st Applicant cannot jointly seek substitution with the 3^rd Applicant as he was never a son, heir, beneficiary or dependant of Kanyele Mwaniki, the 2^nd Deceased Objector. According to the Respondent, he is not even listed or named in the Ad litem Grant in E011 of 2021 as a joint administrator in the estate of Kanyele Mwaniki.

Determination

27.The Court considered the Summons, affidavit in support and in opposition as well as the submissions and cases relied upon.

28.According to the Respondents, the Summons is incompetent, misconceived, defective, bad in law, an afterthought, defeated by the operation of the doctrine of laches and delays. The Respondents urged this court to dismiss it with costs.

29.The Court finds the issue that stands out for determination is whether this Court has the prerequisite jurisdiction to entertain the Applicants Summons for substitution. The issue of inordinate delay by the Applicants to seek substitution and whether the Applicants have the locus standi to lodge their Summons submitted by the Respondents are issues that were dealt with in this cause in an earlier ruling delivered on 17^th November, 2020 by Justice Kemei; In re Estate of Mukita Muvingo alias Mukita Mwaniki (deceased)[2020]eKLR.

30.Regarding the Applicants locus standi, I agree with Justice Kemei while interpreting Paragraph 14 of the Fifth Schedule of the Probate and Administration Rules, the Learned Judge held that:-“

14.The import of the above provision is that a deceased in a succession suit may be substituted by an applicant who has a limited grant of representation for the estate of the deceased and as such may represent the deceased in the suit herein. In addition, Rule 40(6) of the Probate and Administration Rules allows any person wishing to object to the proposed confirmation of a grant to file an affidavit of protest against such confirmation stating the grounds of his objection. The options available to the parties are either to obtain a limited grant from this court or in their own right and on behalf of other beneficiaries they may file an affidavit of protest without necessarily substituting the deceased Protestor.” See Re Estate of Mohammed Bilali (Deceased) [2020] eKLR and Re Estate of Musa Kipcholio Chepson (Deceased) [2017] eKLR.

31.On behalf of the Applicants, it is submitted that they have lawfully obtained the limited grants and the beneficiaries consented to their appointments in place of the deceased objectors. Attached to the Applicants supporting affidavits are copies of the deceased Objectors death certificates and Limited Grant of Letters of Administration.

32.Paragraph 14 of the Fifth Schedule(supra) provides:“When it is necessary that the representative of a deceased person be made a party to a pending suit, and the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the nominee of a party in such suit, limited for the purpose of representing the deceased in the said suit, or in any other cause or suit which may be commenced in the same or in any other court between the parties, or any other parties, touching the matters at issue in the cause or suit, and until a final decree shall be made therein, and carried into complete execution.”

33.Objection proceedings do not terminate with the death of the Objector. The Court is yet to determine whether the Objector had/has a valid claim for the benefit of her Estate. See Ongeri J. In re Estate of Samuel Kiprono Mutai (Deceased) [2021] eKLR. The Applicants have obtained the limited grants of representation in the estate of the deceased Objectors. It is not disputed that the 2^nd to 5^th Applicants are sons of the deceased Objectors.

Jurisdiction

34.Indeed, jurisdiction is everything. Without it, a court has no power to make one more step as pronounced by Justice Nyarangi JA. in the famous case of Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd. (1989)KLR 1. stated;“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics......”

35.On behalf of the Respondents, it is submitted that this Court lacks prerequisite jurisdiction to entertain and determine the dispute over the title and land ownership on the basis of the alleged Trust as set out in the Summons for Revocation of Grant dated 22^nd June, 2010 which had been filed by the deceased Objectors and is pending determination. According to the Respondent, it serves no purpose to substitute the 1^st to 3^rd Objectors if this court is bereft of jurisdiction on the contested issue of ownership of land/title of Parcel No. Wamunyu/Kwa Kala/67 by the deceased Objectors. According to the Respondents, it is the Environment and Land Court which has the jurisdiction to entertain and determine the deceased Objectors claim.

36.The jurisdiction of the Environment and Land Court is provided for under Section 13 of the Environment and Land Court Act provides that:-“13.Jurisdiction of the Court(1)The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.(2)In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, the Court shall have power to hear and determine disputes—(a)relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;(b)relating to compulsory acquisition of land;(c)relating to land administration and management;(d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and(e)any other dispute relating to environment and land.”

37.The Environment and Land Court has the jurisdiction to hear and determine disputes involving land ownership/title. Joel Ngugi J. in Joseph Koori Ngugi & another vs. Stephen Ndichu J. Mukima [2017] eKLR stated that:-“24.I am persuaded that this is the correct appreciation of the law and circumstances of this situation. I say so both for doctrinal and prudential reasons. Doctrinally, as alluded to above, a claim for an equitable interest in land is a claim against the legal owner of land and hence a dispute over ownership of the land. I am persuaded that the drafters of the Kenyan Constitution intended such questions to be determined in the ELC. The text of the Constitution and section 13 of the ELC Act seems perfectly clear to me on that question.25.In addition, in my view, prudential reasons militate in favour of these kinds of disputes being heard at the ELC or at least in a separate suit. While I agree that the Law of Succession Act envisages a class of people beyond “traditional” beneficiaries to bring proceedings for revocation or annulment of a grant of representation in a probate cause, cases which present a straightforward challenge to the ownership of property by the Deceased present a separate question and not a probate matter. To attempt to resolve such issues of contested ownership in the context of a probate case could obfuscate the real issues and lead a Court to reach wrong or compromised conclusions. This is in part because probate proceedings are not designed for parties to be able to effectively litigate complex issues of ownership. In a separate suit, parties are better able to plead their case, go through discovery process and a fully-fledged hearing where evidence can be properly presented, contested, examined and veracity tested…” See Re estate of P N N (Deceased) [2017] eKLR"

38.In the same vein Musyoka J., in Re Estate of G K K (Deceased) [2017] eKLR held that:“The primary function of a probate court is distribution of the estate of a dead person…”

39.Musyoka, J. in Re Estate of Mbai Wainaina (Deceased)[2015]eKLR held that:“...The mandate of the probate court under the Law of Succession Act is limited. It does not extend to determining issues of ownership of property and declaration of trusts. It is not a matter of the probate court being competent to deal with such issues but rather the provisions of the Law of Succession Act and the relevant subsidiary legislation do not provide a convenient mechanism for determination of such issues. A party who wishes to have such matters resolved ought to file a substantive suit to be determined by the Environment and Land Court...”

40.According to Ndungu J. In re Estate of Solomon Mwangi Waweru (Deceased) [2018] eKLR:-“

12.The duty of the Probate Court is to oversee the transmission of the estate of the deceased to his beneficiaries. Its jurisdiction is over the net estate of the deceased being that which he was free to deal with during his lifetime and its purpose is to ascertain the assets, liabilities, if any, the beneficiaries and the mode of distribution of the estate. (See Muriuki Musa Hassan vs. Rose Kanyua Musa & 4 Others [2014] eKLR)…”

41.The Law of Succession Act has saving provisions as to the court’s inherent jurisdiction. The Applicants Summons is premised on Section 47 of the Law of Succession Act and Rule 59 and 73 of the Probate and Administration Rules.

42.Section 47 provides:-“47.The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient."

43.Rule 73 provides:-“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”

44.In Moraa Gisemba vs. David Nyakoi Ongori [2015] eKLR the court held that:-“I find that Rule 73 of the Probate and Administration Rules grants this court the wide discretion to make appropriate orders as may be necessary in the interest of justice or to prevent abuse of the process of the court…”

45.What is inherent power of the Court? The Court of Appeal in Kenya Power & Lighting Company Limited vs. Benzene Holdings Limited t/a Wyco Paints [2016] eKLR while looking at the extent of inherent powers of the court made reference to the authors of the Halsbury’s Laws of England, 4th Edn. Vol. 37 Para. 14 where it is stated as follows;“The jurisdiction of the court which is comprised within the term “inherent” is that which enables it to fulfil itself, properly and effectively, as a court of law. The overriding feature of the inherent jurisdiction of the court is that it is part of procedural law, both civil and criminal, and not part of substantive law; it is exercisable by summary process, without plenary trial; it may be invoked not only in relation to the parties in pending proceedings, but in relation to anyone, whether a party or not, and in relation to matters not raised in litigation between the parties; it must be distinguished from the exercise of judicial discretion; it may be exercised even in circumstances governed by rules of court. The inherent jurisdiction of the court enables it to exercise control over process by regulating its proceedings, by preventing the abuse of the process and by compelling the observance of the process … In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.” See also Meshallum Waweru Wanguku vs. Kamau Kania (1982 -88) 1 KAR 780.”“This inherent jurisdiction is a residual intrinsic authority which the court may resort to in order to put right that which would otherwise be an injustice…..”

46.This Court’s view is that Section 47 and Rule 73 are a safeguard to a party right to fair hearing enshrined under Article 50 of the Constitution. The Court is granted the inherent power to make orders as may be necessary in the interest of justice or to prevent abuse of the process of the court.

47.The Court notes at paragraph 46 in page 9 of the Applicants submissions, it is submitted by the Applicants that the deceased Objectors claim was that the Petitioners obtained the confirmed Grant fraudulently without notice to the deceased Objectors and by concealing from the Court that the property No. Wamunyu/Kwa-Kala/67 was held in trust and was to be distributed amongst the beneficiaries of Mwaniki Kilyungi.

48.The Court finds that, that the issue as to whether the property had been held in trust for the family is a triable issue that should be determined at a full hearing. What the Applicants are not substantiating to this Court is whether this Court has the prerequisite jurisdiction to entertain and determine the issue? In fact at paragraph 35 of their submissions, the Applicants has accused the deceased Mukita Muvingo alias Mukita Mwaniki for wrongful and fraudulent registering the property in his name as the absolute proprietor while it was trust property.

49.This Court may have the inherent power but does that call for its invocation at all times? This court view is that each case must be looked into based on its own circumstances and peculiarity. If an injustice would occasion, then the court will invoke its inherent powers.

50.W. Ouko J. in Re The Matter of The Estate of George M'Mboroki (Deceased) [2008] eKLR where the Learned Judge held that:-“Inherent jurisdiction cannot, however be invoked in matters regulated by express provision of the law. The court thus has no inherent powers to do that which is prohibited by the law or to entertain matters over which its jurisdiction is excluded, or even where the party invoking the inherent jurisdiction has his remedy elsewhere. Finally, I must make it clear that the mere absence of a remedy per se does not entitle a party to seek the application of the court’s inherent jurisdiction. The Law of Succession Act and the Probate and Administration Rules make provision for the exercise of the court’s inherent jurisdiction, which must be approached within the above parameters.Therefore, depending on the circumstances of each cause and its peculiarity a Probate and Administration court, in my view, and for the reasons I have stated, can issue restraining orders..”

Court Record

51.A perusal of the Court file confirms that petition for grant of letters of administration for the estate of Mukita Muvingo alias Mukita Mwaniki was filed on 19/12/2000. The beneficiaries of the deceased’s estate were;a)Mbulu Mukita - widowb)Mukonyo Mukita- widowc)Gedion Mukita- sond)Sungu Mukita- sone)Mutuku Mukita-sonf)Mutini Mbithi- daughter in lawg)Nzioka Mbithi-grandsonh)Muia Mbithi- grandsoni)Muvingo Mbithi-grandson

52.The asset for distribution to the beneficiaries of the estate of the deceased was Plot Wamunyu/Kwakala-67annexed to the Petition was/is death certificate of the deceased herein Mukita Muvingo who died on 15/1/1992 and the Land Certificate of Wamunyu/KwaKala/67 in the name of Mukita Mwaniki of 2^nd November 1973. The Copy of the Land Register filed in Court on 28/11/2005 confirmed the deceased was registered1st Registration as absolute Proprietor.

53.After the deceased’s demise, the said suit-property Wamunyu/KwaKala/67 registered in the deceased’s name was an asset that comprised his estate available for distribution to the beneficiaries.

54.The grant of letters of administration was issued to the Administrators namely, Mbulu Mukita, Mukonyo Mukita & Mutini Mbithi on 13/2/2001 and was confirmed on 9/10/2001 and the suit property was distributed amongst the 3 administrators.

55.10 years later, 2010, Summons for Revocation was filed that the grant was obtained fraudulently and the claim that the suit property was held in trust for the family of Mwaniki Kilyungi was made for the 1^st time.

56.In opposition, the Administrators deposed that Plot Wamunyu/Kyangulumi/315 was allocated to the family of Mwaniki Kilyungi.

57.From these pleadings and proceedings this Court has carried out its mandate under the Law of Succession Act , distribute the estate of the deceased to the beneficiaries of the deceased’s estate, no Creditor or other legal beneficial interest claim was made to vitiate the distribution of the estate in 2001. The claim that the suit property Wamunyu/KwaKala/67 was held in trust and not absolute ownership is a claim of land title and /or ownership which squarely belongs before the ELC Court. The substitution of the Applicants/Objectors is not merited herein as they are not creditors to the deceased’s estate or members of the deceased’s family.

58.The Applicants are not left with no remedy in the event this Court declines to substitute them with the deceased Objectors as they can pursue their claim before the Environment and Land Court despite them testifying and closing their case before this Court. The mandate of this Court is limited as it cannot determine issue of ownership and/or title of the property and declaration of trust.

59.The Court’s view is that Section 13 of the Environment and Land Court Act provides the appropriate forum for the Applicants to ventilate their claim as stated in the Affidavit in Support for Summons for Revocation of grant of 22^nd June 2010, should be dealt with by ELC Court.

Dispositiona.In the premises, the Summons dated 2^nd July, 2021 lacks merit and fails in its entirety. It is hereby dismissed.b.Each party to bear their own costs.It is so ordered

DELIVERED SIGNED & DATED IN OPEN COURT ON 12TH MAY 2022 IN MACHAKOS. (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGE

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