1.The Joe Oichoe Oisebe and Billiah Bosibori Oisebe herein were appointed as the administrators of the estate of Shadrack Oichoe Oisebe (deceased). For purpose of this ruling, I shall refer to Joe Oichoe Oisebe as the petitioner and Billiah Bosibori Oisebe as the objector. According to the parties the deceased was the proprietor of parcel Lr No Wanjare/Bogiakumu/1001 (‘parcel no 1001’), Kisii Municipality Block 111/36 (‘parcel No 36’) and Lr Gesima Settlement Scheme/234 (‘parcel No 234’).
2.Subsequently, the petitioner filed summons seeking to have the grant confirmed. He listed the deceased’s beneficiaries in his supporting affidavit as Joe Oichoe Oisebe, Margaret Oichoe, Tom Oichoe, Florence Oichoe, Mary Maico and Bilia Bosibori. He proposed that Kisii Municipality Block 111/36 be shared between all of the deceased beneficiaries with the exception of the objector.
3.The objector filed an affidavit of protest. She alleged that she was not notified of the application despite being a co-administrator and did not append her signature to the proposed schedule of distribution annexed in the petitioner’s summons for confirmation of grant. She averred that parcel no 36 does not belong to the deceased but her husband Sweney Manase Oisebe (now deceased). She explained that her husband acquired the land but chose to have it registered in the deceased’s name. They developed commercial premises on the land and have diligently paid rates and rent in respect of the property.
4.As regards parcel no 1001, the objector alleged that the petitioner has already caused the same to be sub-divided into Lr Nos Wanjare/ Bogiakumu/4488 and Lr Nos Wanjare/ Bogiakumu/4489. He then sold parcel 4489 to a third party and further sub-divided parcel 4488 into Lr Nos Wanjare/ Bogiakumu/4417 and Lr Nos Wanjare/ Bogiakumu/4418 which have also been sold. Therefore, the proposed schedule of distribution has been made in futility with the intention to mislead the court.
5.Shortly thereafter, the objector also filed summons for confirmation of grant. According to her application, parcel No 1001 is the only property the deceased had. She therefore seeks the cancellation of Lr Nos Wanjare/ Bogiakumu/4488, 4489, 4917 and 4918. Alternatively, she seeks that the petitioner be directed to tender accounts pertaining to the proceeds from the sale of parcel 1001. She proposed that parcel 1001 be shared equally between the deceased’s beneficiaries and while she should hold parcel Lr No Kisii Municipality/Block III/36 in trust for herself and her children.
6.The petitioner herein filed a response to the objector’s application to have the grant confirmed. He averred that at the time of the deceased’s death parcel Nos 36, 1001 and 254 were registered in the deceased’s names and that the estate of the deceased comprise of the 3 properties. He urged the court to take into account that all the rental income from parcelNo 36 has been collected by the objector at the exclusion of all other beneficiaries. The objector should also tender account on the rental income from the property.
7.The objector in her further replying affidavit maintained that parcel No 234 was acquired and registered in her husband’s name. In any event, the petitioner mounted a suit against her regarding the ownership of the parcel and his suit was dismissed.
8.The matter proceeded by way of oral evidence. Billiah Bosibori Oisebe (Pw1) testified that the deceased was the father of her husband Swney Manase Oisebe. She adopted her witness statement dated March 22, 2021 as her evidence in chief. Pw1’s statement merely reiterates her case as per her affidavits filed before the court. She testified that she used to live in parcel No 1001 which belonged to the deceased. On cross examination she testified that parcel No 36 is not the deceased’s property. She testified that her deceased husband built on the land and that she receives rent from the said house.
9.Jane Kerubo Oisebe (Pw2) testified that Pw1 is her mother and therefore she is the deceased’s grandchild. She adopted her statement dated March 22, 2021 as her evidence in chief. She testified that parcel No 36 was acquired by Sweney Manase Oisebe who was a senior civil servant and was therefore not allowed to register and/or own property in his name. On the other hand, the deceased was not engaged in any meaningful activity and could have not purchased parcel 36. On cross examination she testified that the deceased held the flats constructed on parcel no 36 in trust for Sweney Manase Oisebe. She testified that parcel No 1001 was ancestral land that was fraudulently transferred by the objector.
10.James Bosire Mokua (Pw3) testified that Sweney Manase Oisebe was his cousin. He currently resides in one of the houses that were constructed by Sweney Manase Oisebe on parcelNo 36. He also testified that parcel No 1001 constituted ancestral land and was disposed by the petitioner to disinherit the deceased’s lawful beneficiaries. He testified on cross examination that Sweney Manasseh Oisebe after building on the land asked him to take care of the property and he has been living there for the last 47 years.
11.The Joe Oichoe Oisebe (Dw1) testified that there are 2 properties under succession. He explained the objector intermeddled with parcel No 234. In regards to parcel no 1001, he testified that entered into sale agreements with buyers who processed the titles. He testified that although the objector argues that her husband purchased and developed parcel No 36, there was no evidence tendered to support her claim. He testified that after the deceased died, Sweney Manese Oisebe was not keen to claim the property and did not institute any succession proceedings to claim the property. He also told court that the argument that civil servants could not have properties in their name is a lie. On cross examination he testified that he dealt with parcel No 1001. Parcel No 234 was subject of ELC 385/2014 where he was the plaintiff and the matter was struck out. He did not prefer any appeal. He maintained parcel No 36 forms part of the deceased’s estate. He testified that the deceased was an artisan, he also grew tea, pyrethrum and did dairy farming.
12.Margaret Oichoe (Dw2) testified that she is the first born in the deceased's family. She testified that parcel No 36 was allocated to the deceased and he put up 4 residential flats as per the conditions set out in the allotment documents. The deceased gifted the petitioner parcel No 1001 during his lifetime. She testified that the ancestral land is Wanjare/ Bogiakumu/1213. The deceased owed parcel 234 which was stolen by the objector. On cross examination they testified that the objector has been collecting rent from the flats since they were built since 1974.
Submissions By Parties
13.The objector in her submissions argued that although parcel 1001 was in the deceased’s name, the same has been transferred illegally transferred to third parties. Section 82 (b) (ii) of the Law of Succession Act provides that no immovable property shall be sold before confirmation of grant. The petitioner’s action thus amounted to intermeddling. Regarding ownership of parcel no 36, they submitted that the land was acquired and developed by the deceased who paid all land rates and rents. Although it was registered in the deceased’s name, he held it in trust for his son Sweney Manase Oisebe. They relied on the holding of the Court of Appeal in Charles K. Kandie v Mary Kimoi Sang  eKLR:
14.The petitioner in his submissions argued that parcel no 1001 was sold after consultation with other beneficiaries and out of necessity so that he could raise money to mount a suit against the objector relating to the acquisition of parcel no 234. They relied on the case of Re Estate of Charles Njeru Murua Tetu (Deceased)  eKLR where the court held that:
15.It was submitted that the objector failed to tender evidence that her husband paid for the acquisition and development of parcel 36. She also failed to avail the policy which hindered civil servants from registering property in their name. Sweney Manase Oisebe acted as the deceased’s agent in the management of parcel No 36.
Anlysis And Determination
16.I have considered the pleadings and the submissions by parties and the most pertinent issue before the court is the identity of the deceased’s properties that are available for distribution.
17.It is not in dispute that parcel no 234 was the subject of litigation in Joel Oichoe Osebe v Agriculture, Fisheries and Food Authority & 9 others  eKLR where the petitioner sued the various parties including the objector on allegations that the land was transferred to the objector’s husband fraudulently. The Land and Environment Court disposed of the matter in its ruling dated May 12, 2017. The court struck out the petitioner’s suit on account that the suit was statute barred by reason of having been filed outside the limitation period. The issues raised in the plaint were not considered; therefore Sweney Manase Oisebe’s ownership of parcel 234 was not challenged. The parcel does not form part of the deceased’s property.
18.The objector has made arguments on her husband’s ownership of parcel No 36 on account of a trust. She extensively relied on the Court of Appeal in Charles K. Kandie v Mary Kimoi Sang (supra). While I recognize the principal of stare decisis, making the decision of the Court of Appeal binding on this court, there is no doubt that the law on this issue has since evolved. The decision in the Charles K. Kandie case (supra) relates to the high court decision that was made on April 27, 2010 before the promulgation of the Constitution of Kenya 2010. After the promulgation of the Constitution on August 27, 2010, there were established specialized courts such as the land and environment court tasked to deal with matters touching on ownership of land. Secondly, the mandate of the probate court under the Law of Succession Act is limited as it does not provide convenient mechanisms on issues touching on ownership of property and trust. Musyoka J in Re Estate of Mbai Wainaina (Deceased)  eKLR, observed that:
20.The determination of existence of a trust is therefore a matter that should be before the Environment and Land Court. At this juncture, I shall not make any finding on the distribution of parcel No 36 until a order from the Environment and Land Court is presented before the court on the true ownership of parcel No 36.
21.It is not in dispute that parcel No 1001 has already been sold by the petitioner. It is also not in dispute that the land was sold by the petitioner in his capacity as an administrator. The objector argues that he sold the property without the grant being confirmed and that therefore his actions amounted to intermeddling. For avoidance of doubt, section 45 of the Law of succession Act reads as follows: -
22.Although, the petitioner was the appointed administrator while disposing off the deceased’s property, he was in breach of the provisions of section 82 (b) (ii) of the Law of Succession Act which provides as follows:
24.The explanation by the petitioner is that he sold parcel no 1001 so that he could raise fund to prosecute a suit. However in my view, the petitioner did not have any powers to sell parcel No 1001 as grant of representation intestate had not been confirmed. The sale was therefore illegal. The objector contends that parcel No 1001 was the deceased’s land, however, any contestation touching on the ownership of the land should be made before the Environment and Land Court and all the parties to the dispute, including the third parties be given an opportunity to defend the suit.
25.In the end, although the parties herein have made applications to have the grant confirmed, the deceased’s assets are yet to be ascertained. The application for confirmation of grant cannot be determined until the issue of ownership of the 2 parcels of land is determined. Matter to be mentioned before the Judge for further directions on the February 8, 2023.