1.By Summons under certificate of urgency dated 31/10/2019 brought under section 76(a, b, c, d) of the Law of Succession Act, Rules 44 (1) and 73 of the Probate and Administration Rules, and any other enabling provision of the law, the applicants seek that:
2.The application is premised on the grounds on the face of it and supporting affidavit of Mbabu Sabari, the 1st applicant herein, sworn on even date. The applicants are sons of the deceased herein, who was the registered owner of land parcel L.R NO. IGOJI/KINORO/64. The petitioner, who is their brother, filed this cause in secrecy, without their knowledge or consent and concealed material facts from this court. They have been brought up in L.R NO. IGOJI/KINOROR/64, where they have established their homes. The petitioner proceeded and distributed the land to strangers who are now trying to evict them. The green card for the parcel of land obtained from the lands office shows that the same has been subdivided into 8 portions. When they conducted official searches of the resultant subdivisions, they learnt that the same had been transferred to strangers. They have never had any dealings with the alleged 3rd parties of their father’s estate and the resultant title deeds should be cancelled so that the land reverts back to the name of the deceased.
3.The petitioner herein, Elias Mbaya swore replying affidavit on 19/11/2019 in response to the application. He avers that although this cause was filed in his name, the same was done without his knowledge or consent. The current assistant chief requested him to hand over the deceased identity card in order to procure a death certificate. Upon acquiring the death certificate, they proceeded to file this cause, made him execute documents which he later realized were court papers. The assistant chief while working in cohorts with 3rd parties deprived them of their land and he assigned his wife a part of the land.
4.The applicants together with the Petitioner Elia Mbaya are children of the deceased herein. PW1 Lucy Wanja and PW3 Mbaabu Chabari are children of deceased 2nd wife Cecilia Nkuene. PW2 is son of deceased’s 3rd wife Gladys Mukonjoka. The Interested Parties are the beneficiaries of alleged sale transactions on portions of land in the Estate.
5.The 1st interested party herein, Salesio Riungu Kiugu, opposed the application vide his replying affidavit sworn on 17/1/2020. He avers that the application is riddled with lies skewed to mislead the court with the sole goal of depriving him his land. Prior to his death, the deceased had actually subdivided the original No. IGOJI/KINORO/64 into P/NOs. 2259 - 2267 in order to accommodate his and the 2nd - 6th interested parties’ purchasers interests in the estate. He bought his share of the estate being IGOJI/KINORO/2260 & 2266 from the respective beneficiaries while the deceased was still alive and took possession and occupation thereof. It was not until the other day when someone started inciting the vendors to turn against the agreement, a move this court should not allow. The applicants, their agents and relatives made attempts to forcefully enter into their land and damaged some of their developments, which matter was reported to Kinoro police station and they were issued with OB numbers.
6.The 2nd interested party herein, Patrick Nkoroi Thuranira swore a replying affidavit on 17/1/2020 in opposition to the application. He avers that he bought a portion of the estate property being IGOJI/KINORO/2259 from a beneficiary of the estate namely David Muthomi, and took possession and occupation thereof.
7.The 3rd interested party herein, John Ikunda M’Anyiri, opposed the application vide his replying affidavit sworn on 17/1/2020. He avers that is bought a portion of the estate property from beneficiaries of the estate namely Julius Kinyua and Kinyua Chabari, and took immediate possession and occupation thereof.
8.The 4th interested party, Joy Nkirote Marete opposed the application vide her replying affidavit and a further affidavit sworn on 17/1/2020 and 24/6/2022 respectively. She avers that she bought her share of the suit property being IGOJI/KINORO/2264 from the respective beneficiaries while the deceased was still alive, and took possession and occupation thereof. Prior to his death, the deceased had subdivided IGOJI/KINORO/64 into P/NO. 2259, 2260, 2261, 2262, 2263, 2264, 2265, 2266 & 2267 in order to accommodate the interested parties/purchasers’ interests. Her averments were supported by the affidavit sworn by her husband, Dickson Muthomi, on 8/7/2022.
9.The 6th interested party herein, Erastus M. Riungu swore a replying affidavit on 17/1/2020 in opposition to the application. He avers that he bought a portion of the estate property being IGOJI/KINORO/2263 from Elias Mbaya while the deceased was still alive, and took possession and occupation thereof.
10.The applicants evidence case was heard on 8/7/2021; the Petitioner’s evidence on 30/9/2021 and the Interested Parties’ case on 27/6/2022 and 26/9/2022. The full text of the relevant court proceedings showing the testimony of the parties before the court is set out below.
11.The applicants filed submissions relying on section 76 of the Law of Succession Act and citing In re Prisca Ongáyo Nande (Deceased) (2020) eKLR emphasized the defective process of petition in secrecy as being fraudulent where some members of survivors are not disclosed and set out the facts of the case, as follows:
12.The Interested Parties submitted that they have been in occupation of their respective portions of the estate property since 2000 to date, (resonating. though not urging, a claim in adverse possession. In countering allegation of fraud, they urged that their said occupation has been open to the applicants and other family members of the deceased. They urged that there was no fraud involved in the filing of this cause, because the beneficiaries were fully aware of it. They prayed for the dismissal of the application with costs and cited Re Estate of M’Etirikia Nthaka (Deceased) (2021) eKLR.
13.The Petitioner/administrator did not make any submissions but he was in obvious support of the application for revocation of grant.
Issues for determination
14.Upon consideration of the application and the evidence adduced by the parties together with submissions filed the court considers the following issues to arise for determination:
15.The Court has considered the alleged circumstances as to the subdivision of the estate asset and sale of the portions created therefrom to the Interested Parties. The court may even be sympathetic to the Interested Parties who bona fide purchased respective portions from the deceased’s sons. The validity of the transfers is dependent on the formal compliance of the transactions with the applicable law for the disposition of interests in land. The position in the decision of this court In re Estate of M’Etirikia Nthaka (Deceased)  eKLR relied on by the Interested Parties was different in that there the court found a transaction was accepted as a sale and given effect after confirmation of grant in accordance with the law, and it was held -
16.The best case in support of the alleged sale of land to the Interested Parties herein is set up by testimony of the Assistant Chief (RW7) Dickson Muthomi, as follows:
17.Simply put, the case of the Interested Parties is that, for reasons of need to maintain peace following aggressive demand for land from his sons, the deceased on advice of the area chief agreed to subdivide his land and gift the sons their respective portions, which they in turn, sold to the Interested Parties who took possession immediately and subsequently obtained title deeds, save for the petitioner Elias Mbaya whose cautioned the land against any dealings.
18.The applicants’ objection in the application for revocation of grant is, however, that the Petitioner and the Interested Parties secretly petitioned for grant of letters of administration without consent of the deceased’s beneficiaries, the sons who claimed only to have leased their respective portions to the Interested Parties and their sister, PW1, for whom no provision had been made in the distribution.
19.On a balance of probabilities, the court is, on the evidence adduced, willing to accept as more likely than not that the deceased must have subdivided his land and pointed respective portions to his sons, who agreed that they had only leased and not sold their said portions to the Interested Parties. This is supported by the fact, as conceded by the deceased’s daughter in her testimony before the court, that the deceased had only gifted his sons because as she testified female children were at the time not considered for inheritance. The court would also accept that the respective sons of the deceased had dealings with respect to their portions with the Interested Parties. It is the question of whether the dealing were a sale and the validity of the sale of such land that is in dispute! So what does the law provide on such facts?
20.Careful consideration of the circumstances of the alleged transactions, even assuming they were for the transfer of the parcels of land rather than leases as contended by the applicants, the subdivision of the parcel of land no. 64 and subsequent transfer to the Interested Parties through the succession proceedings reveal the same as tainted by illegality on three fronts, namely, want of consent of registered proprietor; breach of valid caution in force at the time of purported subdivision and transfer of the resultant portions of land; and non-provision of the female child of the deceased PW1.
Transfer by the sons in the lifetime of the deceased
21.As the registered owner of the land, the deceased, if it is maintained he was alive at the time of the sale transactions could and should have endorsed the alleged sale of the respective portions of the estate sold by his children. Any dealing with the land, whether for sale or lease, should have the consent of the registered proprietor by his signing the relevant transfer documents. The Interested Parties who have the burden under section 109 of the Evidence Act, as the burden of proof as to the particular fact of sale lies on the person who wishes the court to believe in its existence and under section 112 as proof of fact within their special knowledge, as the persons who allege sale, could not prove by the formal documentation of application for Consent to subdivided and transfer, signed and valid Mutation (the want of the actual Transfer being explained by the prior death of the deceased as alleged in the testimony of the Assistant Chief RW7).
22.The children of the deceased had during his lifetime no legal authority to sell, or indeed lease as they alleged, any property allegedly pointed out to them by eh deceased without formal valid transfer to them. The alleged sale agreement, even if unsuccessfully challenged through any criminal investigation of the Directorate of Criminal Investigations (DCI), could, as a matter of law, only be validly concluded with the consent of the registered proprietor of the land.
23.On a balance of probability, the lack of cogent evidence, in the form of the application for Consent to subdivided and transfer, and a valid Mutation, both signed by the deceased who dies before he could transact the formal transfer, to establish this serious allegation of unusual disposal of land by persons who have no legal authority leads the Court to the unavoidable finding that it not proved, as more likely than not, that the brothers had sold their shares in the estate.
Effect of registration of caution
24.The land registrar upon application by the wife of Elias Mbaya registered, as shown on the Green Card, entry no. 3 of 2004 a caution in accordance with the land law then in force. Section 132 of the applicable Registered Land Act cap. 300 provides as follows:
25.The authenticity of the Mutation for the subdivision of the land parcel no. 64 into the parcels subsequently transferred to the Interested Parties is in doubt because it is shown to have been done on 14/3/2004 and registered on 14/12/2005 all during the subsistence of the lawful caution, which by entry NO. 4 is shown to have been withdrawn by the cautioner on 21/4/2009 and, consequently, the resultant dispositions would be illegal, null and void. Its having allegedly been made by the deceased who died before the formal subdivision and transfer could fruition is suspicious because, as pointed out by Counsel for the applicant, the Mutation having caused the subdivision of the main parcel LR Igoji/Kinoro/64, the subsequent confirmation of Grant of 27th May 2008 could not have been issued in respect of that parcel but of the resultant subdivisions.
26.This Mutation which was denied by the PW7 as not being the one he had seen, was the only one produced before the court. The Interested Parties were duty bound under section 109 and 112 of the Evidence Act to produce the valid Mutation, and their failure to do so leaves the court unsatisfied that the alleged transfers of the portions of land by the deceased’s sons to the Interested Parties were valid.
Provision for the female child of deceased
27.Most importantly, this matter is before the succession court because the deceased died on 30/8/2006 after the commencement of the Law of Succession, and, therefore, the Law of Succession Act cap.160 apply to the proceedings, and section 38 thereof as applicable to this case where there are only children heirs to require that in intestate succession all children shall be provide for regardless of sex and marital status, as follows:
28.Lucy Wanja, a female child of the deceased – and it is immaterial that her mother was separated with the deceased and remarried elsewhere - was not included in the succession petition and no provision was made for from the estate. This default entitled the court to interfere with the confirmed grant pursuant to section 76 of the Law of Succcessin Act for being fraudulent in disinheriting the lawful heir of the deceased.
29.Moreover, the whole picture of the succession proceedings initiated and driven by Interested Parties led by the area Assistant Chief who, alleged to have bought a portion of the Deceased’s Estate for his wife RW3, without knowledge of the children of the deceased who allegedly sold their inheritance to the said Interested Parties is indicative of an attempt to steal a march and gain advantage on the beneficiaries who only come to find out when the dealings have already been done that their shares of the estate of their deceased father have been taken by others under purported sale agreements, whose validity they contest. Section 76 (b) gives one of the reasons for the court to interfere and revoke a Grant, whether or not confirmed, “that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case.”
30.In this petition it was concealed from the Court that the beneficiaries of the estate namely the sons and the daughter of the deceased who are heirs of the deceased were not included in the list of survivors and that the persons therein named were alleged purchasers of the estate. If the sale of portions of the estate were authentic, there would have been no need for secrecy as the sons of the deceased who have themselves come forward to confirm the sale agreements. The Petition was an attempt to steal a march on the true beneficiaries of the deceased, and it must be considered a fraud within the meaning of the section 76 (b) of the Law of Succession Act, and the confirmed Grant dated 27th May 2008 must, consequently, be revoked.
31.Accordingly, for the reasons set out above, the Court makes the following Orders:
32.The Costs of the application shall be in the cause.