1.The Applicant herein, Tom Mbaluto, moved this Court by way of Summons for Revocation of Grant dated August 26, 2019in which he sought to have the Certificate of Confirmation of Grant issued to Joel Mulei Kisalu on July 27, 2018revoked.
2.In his affidavit in support of the Summons, the Applicant averred that he entered into an agreement for sale of a portion of land known as Machakos/Kiandani/2294 and paid the full purchase price. However, the Administrator intentionally failed to disclose to this Court that the fact of the existence of the said agreement and as a result the certificate of Confirmation of Grant was issued on July 27, 2018by this Court.
3.It was the Applicant’s case that the said Grant was obtained fraudulently by means of an untrue allegation of fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently. According to the deponent, the failure to disclose to the Court that the deceased had sold a portion of the said land amounts to material non-declaration hence it is in the interest of justice that the orders sought be granted.
4.In response to the Summons, the Respondent/Administrator swore an affidavit opposing the orders sought. According to him, on November 23, 2016he was issued with grant of letters of administration intestate of the estate of his father, the late Benedict Kisalu Kanyi who died on February 20, 2004which grant was on July 27, 2018confirmed and certificate of confirmation of grant issued. As result, land parcel No. Machakos/Kiandani/2294 was ordered to be registered in his name to hold in trust for himself and other beneficiaries.
5.He denied that his father (deceased) and the Applicant entered into any agreement for the sale of the portion of land known as Machakos/Kiandani/2294. He noted that the Applicant had not called any person who was present as witnesses in the purported sale to enable him prove before this court that the agreement was signed by the deceased. It was further noted that though the said agreement was indicated to have been signed before assistant chief Kiandani sub-location Iveti location, the Applicant did not call the said Assistant chief as a witness in this court to prove the aforesaid. He wondered why none of the children of his father was present during the purported sale and stated that the original agreement had not been availed before the court.
6.The deponent noted that since the parcel of land subject to these proceedings Machakos/Kiandani/2294 was registered in the name of the deceased on September 1, 1989and title deed was issued on October 12, 1989, as at February 18, 1986the deceased had no land and therefore there was no way he would have sold a land which was not his till three years after the purported sale agreement. It was averred that since the deceased had no powers to dispose of the property when he clearly was not the owner and had no interest in the suit land, it follows that the applicant herein who purports to have derived his interest from the said person (deceased) cannot have any interest therein since a person cannot confer on a third party a better title than one he himself has.
7.It was averred that the deceased died on February 20, 2004and the Applicant has not demonstrated why he did not request him to transfer the land to him when he was alive.
8.It was averred that upon perusal of the record by the advocate instructed by the Respondent, it was discovered that the Applicant filed a purported consent dated December 15, 2020whose execution the Respondent denied and the Court was urged not to consider the same.
9.According to the Respondent, the Applicant does not reside on the said land and he does not use the same and there is no reason why he did not take possession when my father was alive if he purchased the same as he purports. It was noted that whereas the subject land is parcel No. Machakos/Kiandani/2294, the subject matter in the said agreement is plot No. 2294 within Kiandani sub-location hence not subject land in these proceedings.
10.The Respondent asserted that there is no way he would have disclosed to this court of any agreement since as a family they were not aware of any sale of parcel No. Machakos/Kiandani/2294 by the deceased or at all. He therefore denied that the grant was obtained fraudulently by the making of a false statement and/or by the concealment from court something material as the Applicant did not purchase any land from the deceased or at all.
11.It was averred that though this matter was gazetted in Kenya Gazette as required, there was no objection by the Applicant.
12.It was the Respondent’s averment that since the claim by the Applicant is for ownership of parcel No. Machakos/Kiandani/2294, he ought to have filed the suit before the Environment and Land Court for the issue of ownership to be determined since this court has no jurisdiction to handle this matter of ownership. The Respondent maintained that the purported agreement is not applicable to parcel Machakos/Kiandani/2294 as the deceased had no interest to sale the said land since the same was registered in his name on September 1, 1989and the deceased did not transfer any land to the Applicant nor obtain requisite consent from the land control board and therefore the agreement is void and null. It was further averred that the Applicant’s claim if any is time barred and under section 4(1) (a) of the Limitations of Actions Act (Cap 22) Laws of Kenya as the sale agreement was executed on 18th February, 1986 more than 33 years before date of filing the application that is September 24, 2019.
13.It was therefore the Respondent’s submissions that since there is no ground disclosed for revocation of the grant this Court ought to dismiss the application with costs.
14.On behalf of the Respondent, reliance was placed on re Estate of Edward Lenjo Musamuli (Deceased)  eKLR and it was submitted, based on the affidavits on record, that the deceased had no powers to dispose of the property when he clearly was not the owner and had no interest in the suit land. He had no authority to purport to dispose of the property particularly land and if the deceased had no interest in the said land, as at 18/2/1986 it follows that the Applicant herein who purports to have derived his interest from the said person (deceased) cannot have any interest therein since a person cannot confer on a third party a better title than one he himself has.
15.According to the Respondent, the issues raised in the replying affidavit ought to have responded by a further affidavit. While reiterating the contents of the replying affidavit, it was submitted that the omission of failure to include Applicant as a creditor cannot amount to concealment or non-disclosure and cannot warrant revocation of the grant since the sale. Reliance was placed on the case of In re Estate of Edward Lenjo Musamuli (Deceased)  eKLR and it was submitted that although a purchaser from the deceased during the live time of a deceased person may claim a purchaser’s interest, this claim should be proved beyond any reasonable doubt and in this matter there is doubt as to whether the deceased sold any land to the Applicant.
16.According to the Respondent, since the claim by the Applicant is for ownership of parcel No. Machakos/Kiandani/2294, he ought to have filed the suit before the Environment and Land Court for the issue of ownership to be determined as this court has no jurisdiction to handle this matter of ownership to determine whether there was sale or not.
17.In the absence of an order from the Environment and Land Court, it was submitted that there is no ground to interfere with the grant and reliance was placed on the case of In re Estate of Charo Kazungu Masha (Deceased)  eKLR.
18.The Respondent also relied on the case of In re Estate of Nzioki Mwatu (Deceased)  eKLR and submitted that the Applicant could only have a valid claim over Parcel No. Machakos/Kiandani/2294 if he purchased from the Administrator after the confirmation of the grant which is not the case.
19.It was revealed that after the Administrator gave instructions to his Advocate and after he perused the court file he found that the Applicant filed a purported consent dated December 15, 2020which was not signed by the Administrator and the same was not adopted as a court order hence cannot be a basis of the Applicants claim on Parcel No. Machakos/Kiandani/2294.
20.It was further submitted that the applicant did not demonstrate why he did not apply for the said purchase to be included in the petition and/or all for the same to be provided for in the distribution of the estate if at all it was a valid claim. According to the Respondent, this matter was gazetted in Kenya Gazette as required and there was no any objection by the Applicant.
21.It was further submitted that the Applicant claim if any is time barred under section 4(1) (a) of the Limitations of Actions Act (Cap 22) Laws of Kenya as the sale agreement was executed on 18th February, 1986 more than 33 years before the date of filing the application on September 24, 2019. This, according to the Respondent, was the reason the Applicant avoided filing the claim before the Environment and Land Court for determination as to whether he purchased any land from the deceased since it is doubtful as to whether he purchased any land. The Court was urged to find that the cause of action to claim land is over 12 years hence his claim is time barred under Section 9 (2) of the Limitations of Actions Act. In this regard the Respondent cited the case of In re Estate of Charo Kazungu Masha (Deceased)  eKLR where the court held that:
22.It was therefore submitted that there is no ground disclosed for revocation of the grant as the Applicant has not demonstrated that he purchased any land from the deceased as at 1989 when the deceased became the registered owner of parcel No. Machakos/Kiandani/2294 in 1986 the deceased had no interest in the parcel which he could pass by sale
23.The Court was therefore urged not to revoke the grant as prayed by the Applicant but instead allow the Administrators and the beneficiaries to finalized administration of this estate pursuant to the certificate of the confirmation of grant dated July 19, 2018.
24.Accordingly, it was urged that the Application herein dated August 26, 2019be dismissed by the court with costs.
25.I have considered the Summons, affidavit in support of and in opposition thereto as well as the written submissions.
27.Before dealing with the merits of the case, the Respondent herein has taken up the issue of jurisdiction on the ground that since the claim by the Applicant is for ownership of parcel No. Machakos/Kiandani/2294, he ought to have filed the suit before the Environment and Land Court for the issue of ownership to be determined as this court has no jurisdiction to determine whether there was sale or not.
31.It therefore behoves this Court to consider and determine whether or not it has jurisdiction to entertain the instant proceedings.
32.There are two common scenarios that give rise to a claim by a purported purchaser to an estate of a deceased person. The first scenario is where the deceased had entered into a sale agreement with the purchaser but while the transaction was ongoing but before completion, the deceased passed away. In that case, the purchaser becomes a creditor for the estate and is entitled to lay a claim to the portion of the estate that his interest attaches to. While he does not become a beneficiary of the estate by virtue of his interest in the estate and therefore ought not to seek that his name be included in the list of beneficiaries, he may successfully protest to the manner in which the estate is proposed to be distributed if his interest therein is not catered for. That was the position adopted in Titus Muraguri Warothe & 2 Others vs. Naomi Wanjiru Wachira Nyeri HCSC No. 122 of 2002, where Makhandia, J (as he then was), while revoking the grant in question expressed himself as hereunder:
33.In the first scenario the Purchaser may successfully stake his claim to the deceased’s estate in his capacity as a creditor of the estate. My position is supported by the holding In re Estate of Mukhobi Namonya (Deceased)  eKLR that:
34.The second scenario arises where subsequent to the death of the deceased but before the estate is distributed, some beneficiaries enter into an agreement with third parties for the disposal of the estate or part thereof. Section 45 of the Law of Succession Act however, provide as follows:(1)Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.(2)Any person who contravenes the provisions of this section shall—(a)be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and(b)be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.
35.Section 79 of the same Act, on the other hand provides that:
41.It follows that in the second scenario, the Purchaser cannot successfully claim to be a creditor of the estate but he only becomes a creditor of the beneficiary who purported to have sold to him part of the estate. Accordingly, he has to wait until the estate is distributed and then lay his claim against the part of the estate that is confirmed to the said beneficiary.
42.The case before me is however not on all fours with either of the above two scenarios. In the instant case, the Applicant claims to have purchased the property in question before the deceased died. However, from the evidence adduced, whereas the alleged agreement was entered into on February 18, 1986, the parcel of land subject to these proceedings Machakos/Kiandani/2294 was registered in the name of the deceased on September 1, 1989and title deed was issued on October 12, 1989. There is no evidence that at the time of the alleged agreement the said property belonged to the deceased. Apart from that, the validity of the said agreement is in doubt as there is no evidence that the relevant consent to dispose of the land was sought and obtained within the prescribed time.
43.I therefore agree with the Respondent that in the circumstances of this case, the Applicant’s claim may only succeed if it is found that by the time the deceased registered the land in his name, he did so as a constructive trustee for the Applicant. That however, is not a matter that can be dealt with by this Court but can only be determined by the Environment and Land Court. I am guided by the position adopted in In re estate of P N N (Deceased)  eKLR, where it was held that:
44.Similarly, there could be a claim that before the registration of the subject land into the names of the deceased, if the land was acquired through the process of customary inheritance, it could well be subject of a customary trust. This Court is however aware of the holding by the Supreme Court in Petition No. 10 of 2015 - Isack M’inanga Kiebia vs. Isaaya Theuri M’lintari & Another with respect to the validity of customary trusts even in registered lands. In that Petition the Supreme Court held that:
45.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:
46.In conclusion the Court held that:
48.Either way, the status of the land in question is a matter that can only be determined by the Environment and Land Court when properly moved.
50.I also agree with the decision of Mwita, J in the case of Albert Imbuga Kisigwa vs. Recho Kavai Kisigwa  eKLR Succession Cause No.158 of 2000, Mwita J. on the guiding principles for the revocation of a grant when he expressed himself as hereunder;
51.In the premises, I find that the Applicant herein has not satisfied me that he has sound grounds upon which the grant issued herein should be revoked.
52.Accordingly, the summons dated August 26, 2019 fails but is dismissed but with no order as to costs since I have not dealt with the validity or otherwise of the alleged agreement for sale.
53.It is so ordered.