1.By Summons for revocation or annulment of Grant dated June 24, 2019, expressed to be brought under Sections 45, 47 and 76 of the Law of Succession Act and Rules 44, 49 and 73 of the Probate and Administration Rules and all enabling provisions of the law, the applicant herein sought an order that the Rectified Grant of Letters of Administration Intestate issued on March 8, 2016 to Benjamin Musyoki Musau and Timothy Muthiani Musau be revoked and/or annulled.
2.The Summons were based on the fact that the applicant was a personal representative of Elizaphan Nahashon Seme who purchased two and half acres of land from the deceased hence was entitled to a share in the estate of the deceased herein as creditor claiming a purchaser’s interest and that the 1st Administrator had received a further Kshs 45,000/- from the Applicant’s husband to facilitate the process of succession on the understanding that the 1st Administrator would add him 0.4 acre piece of land to make the applicant’s claimed land to be 2.9 acres, which portion was clearly demarcated and the applicant had developed and reside thereon to date.
3.The subject of this ruling, however is a preliminary objection taken by the 1st administrator file on February 17, 2020 in which the 1st Administrator contends that this court lacks the jurisdiction to hear and determined the said application.
4.In his submissions filed in support of the preliminary objection, the 1st Administrator averred that pursuant to the grant issue herein, the estate of the deceased was distributed as per the schedule of distribution and new titles issued to the beneficiaries therein one of whom was the 1st Respondent who was duly issued with a valid title being LR Donyosabuk/Komarock Block 1/46471 which was hive of from LR Donyosabu/Komarock Block 1/25434. According to the 1st Administrator, it is that hived off parcel that is the subject of the present application. According to the 1st Respondent by the fact that one of the prayers sought in the application is leave to file a suit in Kangundo Law Courts to determine the question of ownership of the said land and its subsequent subdivisions, the Applicant acknowledges that this Court has no jurisdiction in the matter.
5.In response, the 2nd Administrator filed grounds of opposition to the preliminary objection. It was averred that pursuant to the orders of this Court the matter of ownership was referred to Kangundo ELC and that the same was heard and determined in favour of the applicant in ELC No. 76 of 2020. It was therefore contended that the preliminary objection has since been overtaken by events and ought to be dismissed with costs.
6.In its submissions, the Applicant contended that disputes between the estate and third parties need not be solve within a succession cause but should be resolved in a civil court and brought to the probate court for implementation. In the meantime, property involved in the dispute should be removed from the distribution table and referred to the Environment and Land Court. It was submitted that in the instant case the applicant merely sought interim orders and sought leave to file a suit to determine the question of ownership in respect of the land in question. It was therefore submitted that this Court has power to grant the orders sought.
7.According to the Applicant, this case raises genuine issues of triable facts which ought not to be dismissed summarily as sought. It was submitted that this Court having granted leave to the applicant to institute the civil suit, the same was instituted, heard and judgement pronounced hence any objections have been overtaken by events.
8.I have considered the submissions made by the parties herein. The crux of the preliminary objection is that, the application seeks to determine ownership of land that was subdivide and titles issued. The applicant’s case is however based on the ground that her late husband purchased the land from the deceased and hence she, being the personal representative of her husband, is entitled to the said portion as a creditor of the estate. It is not in doubt that where a person purchases land from another and that other dies before the transfer is effected, the purchaser may lay his claim to the portion sold as against the estate of the deceased vendor.
9.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:
10.In that case, the Purchaser may successfully stake his claim to the deceased’s estate in his capacity as a creditor of the estate. My view is supported by the holding In re Estate of Mukhobi Namonya (Deceased)  eKLR that:
11.However, where the said land has passed to third parties, this Court sitting as a succession court may not be the proper forum to litigate over that issue. It may therefore be prudent for the parties to commence civil proceedings for determination of that issue and depending on the outcome of the civil suit, return to the succession court for determination based thereon. This is exactly what this Court did when it temporarily stayed these proceedings to give the parties an opportunity to litigate that matter. That matter has now been determined and in its judgement delivered on June 2, 2021, the Senior Principal Magistrate’s Court, Kangundo in ELC Case No. 76 of 2020 - Rebecca Nyabiya Seme vs. Benjamin Musyoki Musau and Timothy Muthiani Musau entered judgement in favour of the Plaintiff therein, who is the applicant herein, directing that 2.9 acres of land in respect of land parcel No. Donyo Sabuk/Komarock 1/25434 and its subsequent subdivisions be registered in the name of the Plaintiff, the Applicant herein.
12.That being the position, it is clear that the preliminary objection raise herein has now been overtaken by events. What this Court is now require to do is to determine the Summons herein taking into account the determination in the said ELC matter.
13.Accordingly, I find no merit in the preliminary objection raised herein which I hereby dismiss with costs.
14.It is so ordered.