1.The Petitioners and the Objector are children of the late Koki Mutunga, the deceased herein who died on 10th November, 2000. According to the record, the deceased left behind Land Parcel No. Mitaboni/Kaiani/1881 which is the property whose distribution is in contention in these proceedings. The grant of letters of administration herein were issued to the 1st Petitioner herein but the same was eventually revoked and on 12th July, 2021, the same was jointly issued to the 1st and the 2nd Petitioners. From the evidence on record, the 1st Objector, Muli Mulwa was the eldest followed by Jonathan Ndunda Mutunga, the 2nd Objector and then the Petitioner, Antoneus Muasya Mutunga.
2.According to the 1st Petitioner, their late father, Mutunga Ngovia died in 1962 after he had subdivided his land into three portions amongst his three sons, Muli Mulwa, Jonathan Ndunda and Koki Mutunga who was to hold in trust for the 1st Petitioner who was then aged 10 years. However, after the death of their father the other sons, in 1964, sold their portions and moved to Ithanga and Muranga respectively where they bought land leaving the 1st Petitioner in the custody of their mother, the deceased herein.
3.It was averred that during the adjudication in the year 1983, the land was registered in the deceased’s name, Koki Mutunga, and she was issued with LR No. Mitaboti/Kaiani/74 which is currently Mitaboni/Kaiani/1881. When their mother, the deceased herein, died in 2000, the 1st Petitioner averred, he was left alone on the land. He then, accompanied by the area Chief, visited his brothers on 8th May, 2009, in order to obtain their consent to enable him institute these proceedings and the said brothers gave him the consent. Pursuant to the same the Cause was gazetted and he was issued with the Grant on 5th July, 2010 and the land as registered in his name and on 16th July, 2010, he was issued with a title deed in his name.
4.In his oral evidence, the 1st Petitioner while reiterating the foregoing, explained that when their deceased mother, Koki Mutunga died, she left behind 4 sons, Kimuyu Mutunga, Jonathan Ndunda Mutunga, Muli Mutunga and the 1st Petitioner. However, Kimuyu Mutunga died. He reiterated that when he visited the 2nd Petitioner and the Objector, he was with the area chief who recorded their names and ID Card Numbers and that the2nd Petitioner and the Objector agreed that the 1st Petitioner should take the land in question. As a result, the matter was gazetted and no one objected. It was his evidence that he also got land from his mother in exchange for a goat and that the two parcels are together. However, the shares given to the 2nd Petitioner and the Objector by their father were sold by them after which they left leaving the 1st Petitioner, who was then aged 10 years with their mother. According to the 1st Petitioner, the 2nd Petitioner resides in Muranga while the Objector resides in Ithanga.
5.The 2nd Petitioner swore an affidavit on his behalf and on behalf of the Objector. According to him, their late father died before subdividing the land amongst them. He also denied that they sold their portions of land and stated that they bought land where they were residing using their own money hence they are still entitled to their share of the estate of their late father, Mutonga Ngovia.
6.According to them Land Parcel No. Mitaboni/Kaiani/74 currently Mitaboni/Kaiani/1881 was registered in the name of their mother, Koki Mutunga during the adjudication process in 1983. Following the death of their mother, they consented the issuance of the Grant herein being issued to the 1st Petitioner herein. However, on 16th January, 2015 the Petitioner fraudulently and without their knowledge and consent obtained title deed for the said land parcel No. Mitaboni/Kaiani/74.
7.In his evidence before this Court, the 2nd Petitioner stated that he was from Kathiani but was staying in Ithanga in Masinga Dam on his own plot. He reiterated that the 1st Petitioner fraudulently registered himself as the proprietor of the said land without their knowledge. He however confirmed that the Objector was also residing in Ithanga. It was his prayer that the said land be divided between them.
8.In cross-examination, he denied that the 1st Petitioner visited them in the company of the Chief and he denied signing the documents. He also stated that he was staying in Kathiani in a rented plot.
9.On his part, the Objector stated that he was also from Kathiani. While associating himself with the evidence given by the 2nd Petitioner, he asserted that their problem with the 1st Petitioner was that he, without their knowledge. He denied that he was aware when the 1st Petitioner instituted these proceedings and denied that they agreed that he should represent them. According to him, the signatures on the documents were inserted by the 1st Petitioner in their absence. While admitting that he knew how to write he denied that he signed the document and denied that the signature on the document was his.
10.It was his position that the land should be divided equally amongst them. He denied that they moved to Ithanga and Muranga and insisted that he was staying in Kathiani with the 2nd Petitioner since their birth. He denied that they left in 1963 and only returned to bury their mother.
11.I have considered the issues raised in this matter. The issue for determination how Mitaboni/Kaiani/1881 should be divided, if at all. It must be emphasised that the Estate the subject of these proceedings is that of Koki Muli, the mother of the parties herein and not that of Mutunga Ngovya, their father. It is also not in dispute that at the time of the death of Koki Muli, the subject parcel of land was registered in the name of Koki Muli. The 1st Petitioner explained that the said parcel of land was a portion of the larger land that belonged to Mutunga Ngovya and which Mutunga Ngovya subdivided to his sons. However, due to the young age of the 1st Petitioner, who was the last born of Mutunga Ngovya, the portion that was given to the 1st Petitioner was registered in the name of Koki Muli to hold in trust for the 1st Petitioner, while the portions given to the 2nd Petitioner and the Objector, they sold and left the home.
12.On their part, the 2nd Petitioner and the Objector have not attempted to explain the circumstances under which the land was registered in the name of their mother. They have not, for example, contended that the registration of the land in the name of Koki Muli was also in trust for them in order for this Court to invoke the opinion of the Supreme Court in Petition No. 10 of 2015 - Isack M’inanga Kiebia vs. Isaaya Theuri M’lintari & Another here the Court held that:
13.While consigning the decisions of Esiroyo vs. Esiroyo 1973 EA 388 and Obiero vs. Opiyo 1972 EA 277 to the dustbin of history where they rightly belonged, the Supreme Court held that:
14.In conclusion he Court held that:
16.Whereas, it is clear that customary trust does exist notwithstanding lack of occupation or possession or registration, it is another thing to prove the factual existence of the trust which in my view depends of the evidence.
17.Even if they were to invoke the principles enunciated above, this Court would be bereft of jurisdiction to deal with that contention being a matter calling for a determination of an interest in land. I am guided by the position adopted In re estate of P N N (Deceased)  eKLR, where it was held that:
18.Apart from the foregoing, whereas the 1st Petitioner maintained his position that the 2nd Petitioner and the Objector sold their portions and moved out to Ithanga and Muranga, the evidence of the 2nd Petitioner and the Objector was not consistent. On one hand they stated that they had never left Kathiani while on the other hand, the admitted that they were residing in Ithanga where they had bought land. At one point the 2nd Petitioner contradicted himself by stating that he was in fact staying in rented premises. They never explained the circumstances under which they left their ancestral and in the absence of such explanation, the only reasonable conclusion is that the 2nd Petitioner and the Objector failed to prove their case. They also contradicted themselves as regards the circumstances under which their signatures appeared on the documents which were relied upon by the Court in making the grant.
19.Having considered the evidence on record I find the evidence of the 1st Petitioner consistent and believable. Accordingly, I find, based on the limited evidence placed before me and being well aware that this Court has no power to deal with a dispute in respect of interest to land, that Objectors have failed to prove their objection.
20.Accordingly, the said Objection fails and the registration of the suit parcel of land to remain in the name of the 1st Petitioner. There will be no order as to costs.
21.It is so ordered.