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In re Estate of Nzioka Nzimba (Deceased) (Succession Cause 286 of 2007) [2023] KEHC 22422 (KLR) (21 September 2023) (Ruling)
Neutral citation:
[2023] KEHC 22422 (KLR)
Republic of Kenya
Succession Cause 286 of 2007
FROO Olel, J
September 21, 2023
Between
James Nzioka
1st Applicant
Musembi Nzioka
2nd Applicant
Joseph Katiwa Nzioka
3rd Applicant
Maurice Kioko Nzioka
4th Applicant
and
Hillary Ngumbau Nzioka
Respondent
and
Magdalene Wanza Kioko
Interested Party
Ruling
1.Before court is the summons for revocation or annulment of grant of letters of administration issued to the Respondent Hilary Ngumbau Nzioka. The summons which is dated 25th October 2018 is brought pursuant to Section 76(a), (b) and (c) of the law of succession Act, Rule 44(1) of the probate and administration rules, Cap 160 law of Kenya. The prayers sought are that;a.The grant of letters of administration made to Hillary Ngumbau Nzioka be cancelled or revoked.b.That the said Hillary Ngumbau Nzioka be restrained either by himself, his agents or servants from transferring salary, sub-diving or in any manner from dealing with all that parcel of land known as Matungulu/Kyaume/1520 measuring approximately four (4) acres pending hearing and determination of this application.c.That costs of the application be provided for.
2.The said summons for revocation of grant was supported by grounds on the face of the said application and further affidavit of James Nzioka dated 23rd May, 2022. The Respondent did oppose this application by filling his Replying Affidavit dated 17th December 2018 and 30th June 2022 while the interested party too opposed this application by her filing her Replying Affidavit dated 19th May 2022 and supplementary affidavit dated 29th July 2022.
3.The 1st applicant did contend that the respondent, Hilary Ngumabu Nzioka did obtain grant by fraudulent means and did not include the other applicants as children of the deceased. He thereafter proceeded to allocate himself the parcel of land known as Matungulu/Kyaume/1520 measuring approximately four (4) acres to the exclusion of the applicants who also have a beneficial right thereto.
4.The 1st applicant did contend that the Respondent’s actions of transferring the entire parcel to himself was fraudulent and it forced them to place a caution on the said parcel of land to prevent it from being sold. In 2017 the land registrar notified them of his intention to remove the caution and they objected to the same and further proceeded to file this objection in court. The Respondent used underhand methods to transfer this property to the interested party, thus she cannot claim to be an innocent purchaser for value as she bought the said parcel of land in breach of the doctrine of lis pendens.
5.The 1st applicant further alleged that the land in question was family land and it was not right for the Respondent to sell it and dispossess the applicants notwithstanding the visible interests which they had in the said parcel of land. They thus prayed that this application be allowed and the grant issued to the administrator Hillary Ngumbau Nzioka be revoked.
6.The Respondent in response to this application did state that he never fraudulently acquired grant nor did he make any false statement before the honourable court. The grant was confirmed on 28th August 2018 before Hon. Justice Prof. Ngugi, upon persuing the summons for confirmation of grant, written consent filed and upon hearing both counsel on record and beneficiaries. It should be noted that all beneficiaries including the applicant signed the consent form 38 to consent issuance of the confirmed grant and were also present in court during confirmation of grant. It was also noted that, since the filing of this application, the 4th applicant Maurice Kioko Nzioka had distanced himself from the allegations made therein.
7.The Respondent further averred that the reason why the sole property Matungulu/Kyaume/1520 was registered in his name by consent was because the other beneficiaries had prior to death of their father been given their share of the deceased property. The deceased did share out his property as follows;a.Nzaui/Mumbuni/143 – utilized by Mrs. Beatrice Nzioka, James Nzioka, Katwiwa Nzioka, Mbeke Nzioka and Martin Nzioka.b.Parcel of land number 430 at Nzaui location Mumbuni section 2- utilized by Musembi Nzioka.c.Parcel of land Nzaui/Mumbuni 147 – utilized by Musembi Nzioka, Michael Nzioka and Kioko Nzioka.d.Plot at Nzeluni market measuring 40 by 100 feet – utilized by all the children of the deceased i.e Musembi utilizes two doors (rooms) and all the others one door (room) each.
8.It was thus clear that all the applicants and other beneficiaries were fully aware of and participated actively in the proceedings and it was therefore misleading for the applicant to try and depict him as having disinherited them. The summons to revoke the grant too had been filed nine (9) years after it had been confirmed and that showed bad faith on the part of the applicants.
9.The Respondent further averred that parcel no. Matungulu/Kyaume/1520 was registered in his name on 29th November 2012 and title deed issued to him on 18th March 2013. The applicants filed this application on 25th October 2018 which application was dismissed on 16th November 2019. He thereafter wrote to the lands registrar on 16th January 2020 requesting him to remove the caution based on the basis that the objection had been dismissed. On 10th October 2020 he placed a land search and confirmed that the caution had been removed. He thereafter proceeded to disposed off his property to the interested party on 29th January 2021 when there was no matter pending before court. The certificate of search annexed by the applicant had an erroneous issuance date of title deed which does not tally with the title he was issued with and was then not a valid document which the court could rely on. The respondent prayed that this application be dismissed with costs.
10.The interested party on her part stated that she was currently the registered owner of the property known as Matungulu/Kyaume/1520 and the same currently was not available for distribution. After acquiring the said property, she started to utilize the said parcel of land before the 1st applicant took the law in his own hands, moved in and started to destroy her development on the said parcel of land forcing her to file a suit being Kangundo Law court ELC case number 32 of 2021 for intervention and injunctive orders.
11.Despite being served with the injunctive orders the 1st applicant still insisted on disobeying the said orders and she had to file/institute contempt of court proceedings to enforce her right as a bonafide purchaser for value. She further stated that she did not work at the ministry of lands and it is only an official from the said ministry who could explain the discrepancy between the dates indicated on the land search documents and the date which is on the actual title deed. As a bone fide purchase, she was entitled to peaceful use and quiet enjoyment of her property. She prayed that this application be dismissed with costs.
Applicants Submissions
12.The applicants filed their submission on 18th August 2022 and stated that the only issue for determination was whether they had made out a case to enable this court annul the grant that was issued to the Respondent.
13.Section 76 of the Law of succession Act, Cap 160 provided that grant could be annulled if;a.The proceedings to obtain the grant were defective in substance.b.The grant was obtained fraudulently by making a false statement or by the concealment from the court of something material to the case.c.Grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant being nullified.d.If the person to whom grant was made has failed, after due notice and without reasonable cause to apply for confirmation of grant within one year from the date thereof, has failed to diligently administer the estate.e.The grant has become useless and inoperative through subsequent circumstances.
14.The applicants admitted that the process of obtaining grant was not attended by any problems and was confirmed in the Respondents name. The contention is that whereas the grant was obtained procedurally, the administrator thereafter has fallen into problems by failing to diligently administer the estate and has failed to render accounts as and when required. The Respondent was faulted for not seeking consent of the applicants to register the estate property in his sole name and they further denied being in court during confirmation of grant. Reliance was placed on in Estate of Severio Ruri Njuiri (eceased) (2021)eKLR.
15.In the alternative the applicants submitted that whereas all the beneficiaries were listed in the consent form, the only property of the estate was not equally divided and the interest of the applicants was not catered for and thus the grant was not properly confirmed.
16.The applicants further faulted the interested party for buying a property that was under dispute , which she had notice of the same as there was a caution placed on the subject parcel of land and that pointed to a collusion with the Respondent to dispose off the suit parcel of land and dispossess them of rights therein. Reliance was placed in the case of Weston Gitonga and 10 others versus Peter Rugu Gikanga and another (2017) eKLR, Katende versus Haridar and Company Ltd (2008) 2 EA 173.
17.The applicants further submitted that at the time the interested party purportedly bought the property, the suit was still pending before court and the interested party ought to have known of the same and known that the property was not free for sale. The purported sale thus fell foul of the doctrine of lis pendens. Reliance was placed on Naftall Ruthi Kinyua versus Patrick Thuita Gachura and another (2015) eKLR, Mawji versus US international university and another (1976) KLR and Bernadette Wangare Muriu versus National Social Security Fund Board of Trustees and 2 others (2012)eKLR.
18.The applicants urged the court to hold that the property was bought during pendancy of the suit and the interested party could not come to court claiming that she was a purchaser for value without notice and/or knowledge of the encumbrance that was in place. The appellant urged this court to allow this application with costs to the applicants.
Respondents Submissions
19.The Respondent filed his submissions on 6th March 2023. He stated that he never obtained grant fraudulently by making a false statement and /or concealing any material fact from the Honourable court. It was clear and evident from the court proceedings that before the grant was confirmed there was a written consent filed and signed by all beneficiaries, who attended court before grant was confirmed and confirmed to court that they did not have any objection to the grant being confirmed.
20.The applicants willingly consented to the confirmed grant being issued in the sole names of the Respondent and the same was not to be held in trust for them. It was therefore misleading for the applicants to allude otherwise. The 4th applicant Maurice Kioko Nzioka had withdrawn his claim as against the appellant vide his letter dated 10th November 2018 and it was also important to note that the Respondent was not issued with the confirmed grant to hold in trust for the other beneficiaries as explained in his Replying Affidavit, this was by mutual consent simply because other beneficiaries had already gotten their share and were utilizing other properties of the deceased. It was also important to note that the applicants never rebutted the fact and it remained uncontroverted.
21.The Respondents ownership of parcel Matungulu/kyaume/1520 was thus lawful and its subsequent transfer to the interested party too was lawful. The summons for revocation of grant under consideration was dismissed by court on 6th November 2019 and two months later the Respondent did write to the lands registrar on 16th January 2020 seeking removal of the caution placed by the applicants. The said caution was removed as confirmed by the land search dated 10th October 2020 and subsequently the said property was transferred to the interested party on 29th January 2021. The said transfer was thus valid as there was no application, impediment or encumbrance whatsoever. The applicants applied for their application to be reinstated on 8th September 2021. The doctrine of lis pendence could therefore not apply in this instant.
22.It was also pointed out that the land search relied on by the applicants annexed in the further affidavit, clearly had an erroneous date of issuance and did not tally with the title document itself and the land search annexed by the Respondent. The application was brought in bad faith as it sought to revoke grant made in the presence of all beneficiaries 6 years later and the same ought to be dismissed with costs.
The Interested Party Submissions
23.The applicants claim against the interested party was that she is not an innocent purchaser for value without notice and the applicants relied on the doctrine of lis pendens to enforce their position. The issues for determination were;a.Whether the interested party was a purchaser for valueb.Whether there was any pending suit as at the time the interested party purchased the suit parcel of land.c.Who bears cost of this application?
24.The interested party submitted that an innocent purchaser/ bonafida purchaser could be described as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. The key ingredients were that;i.He holds a certificate of titleii.He purchased the property in good faithiii.He has no knowledge of fraudiv.He purchased it for valuable considerationv.The vendors had apparent valid titlevi.He purchased without notice of any fraudvii.He was not party to any fraudReliance as placed on Katende versus Haridar and Company Ltd (2008) and E.A 173 and Weton Gitonga and 10 others versus Peter Rugu Gikanga and another (2017)eKLR.
25.On the doctrine of lis pendens the basic ingredients of the doctrine was stated in the case of in Re estate of Solomon Muchiri Macharia (2016)eKLR to be;i.A litigation should be pending in a court of competent jurisdictionii.The suit must be relating to a specific immovable propertyiii.The suit should not be collusiveiv.The suit should relate to a right in this specific propertyv.Property should not be transferred or otherwise dealt with by any party to the suit, so as to affect the rights of any party thereto until the final disposal of the case.
26.The interested party identified the suit parcel of land Matungulu/Kyaume/1520 In December 2020 and on 10th December 2020 placed a land search, which indicated that the Respondent was the owner of the said parcel of land. It was registered in his name on 29th November 2012 and title deed issued on 18th March 2013. On the strength of this information they entered into an agreement on sale on 29TH January 2021 and she got the parcel of land registered in her name on 18th March 2021 and title deed issued to her.
27.There was therefore no basis upon which the applicants could claim that she colluded with the Respondent to dispossess them of the suit property and that claim was unsubstantiated and malicious. Secondly the interested party conducted due diligence before buying the disputed property at the time she bought the said property there was no suit pending, there was no caution or encumbrance on the said parcel of land, nobody was residing on the said parcel of land. It was bought for consideration which was paid and the property lawfully transferred to her. There was no proof of any fraud committed by the respondent or interested party and such allegation had no basis. This according to the interested party fully established that she was a bona fide purchaser for value without notice.
28.As to whether the doctrine of lis pendens is applicable, the interested party submitted that the succession cause had been finalized 13 months prior to her purchasing the suit property and the application for revocation of grant dismissed and therefore no suit existed to stop the transfer from being eeffected. Secondly there was no evidence placed before the court to show any collusion between her and the respondent to circumvent the said suit. The application as filed was devoid of merit and therefore should be dismissed with costs.
Analysis & Determination
29.I have considered the issues raised herein and set forth the following issues as those that warrant a determination by the court.a.Was the grant herein obtained by fraudulent means and or by concealment of facts, to warrant having the same annulled.b.Is the interested party a purchaser for value without notice of any defect on the land?c.Does the Doctrine of lis pendens apply to the circumstances of this case.
30.The Summons before me seeks revocation or annulment of a grant of representation. Section 76(a), (b) and (c) of the Law of Succession Act provides as hereunder:
31.That section provides that a grant of representation may at any time be revoked or annulled as long as the court is satisfied that the facts contemplated under the said section are proved. It is therefore clear that there is no limitation in so far as matters revocation or annulment of grant are concerned. The applicant must prove fraud on the part of the respondent/petitioner or that the said petitioner had grant confirmed by making a false statement and/or concealment of material facts.
32.The applicant on the face of his application and further affidavit filed on 24th May 2022, did admit that a family meeting was held before grant was confirmed, where it was agreed that the respondent will be administrator of the estate. Further the applicant admitted to have signed the consent form 38, consenting to confirmation of the grant by beneficiaries who have equal or lesser priority.
33.From the proceedings herein, I have ascertained that the grant herein was confirmed on 28th February 2018, by Hon Justice Ngugi J. During the said confirmation proceedings, the applicant and other family members were present in court and consented to the applicant being the sole administrator. The said grant was thus properly and procedurally confirmed and the applicant cannot be heard to fault the same in any manner.
34.The applicant and other family members consented that the sole estate property Matungulu/Kyaume/1520 be given to the respondent/petitioner , wholly as his and he was not to hold it in trust for the other beneficiaries. Having fully and actively participated in this process to confirm grant, the applicant cannot be heard to fault the process and allege that he was misled.
35.It is also worth noting that the respondent, did state that the reason as to why he was bequeathed the sole estate property was that, the other beneficiaries had during the lifetime of the deceased been bequeathed other properties, which they had occupied and had possession of. The properties as distributed were;a.Nzaui/Mumbuni/143 ; Was bequeathed and being utilized by by Mrs Beatrice Nzioka , James Nzioka , Katiwa Nzioka , Mbeke Nzioka and Martin Nzioka.b.Parcel 430 at Nzaui location Mumbuni section 2 was bequeathed and being utilized by Musembi Nzioka.c.Parcel of land No Nzaui/Mumbuni/147 was bequeathed to and being utilized by Musembi Nzioka , Micheal Nzioka and Kioko Nzioka.d.Plot at Nzueni Market measuring 40 by 100 feet was being utilized by all children of the deceased. Musembi Nzioka was utilizing two doors, while the rest of the children had one door each.
36.The applicants did not in any manner rebut, this allegation and it remained uncontroverted evidence that was is deemed proved, and explained the basis as to why the petitioner/respondent was bequeathed the entire suit parcel Matungulu/Kyaume/1520.
37.I do find that the applicant has not in any manner proved that the petitioner/respondent acquired the confirmed grant by way of fraud, misrepresentation of fact and/or concealment of fact. There is no basis whatsoever to interfere with the same.Is the interested party a purchaser for value without notice of any defect on the land?
38.The applicant averred that they placed a caution on the suit property in 2017, and that gave sufficient notice to any purchaser that the property was encumbered and was not free for sale. They then filed this application for revocation of grant, which was still pending in court, when the respondent purported to transfer the suit property to the interested party. The applicant further alleged that the land search dated 27th September 2018 had information which was at variance with the title deed. The land search showed that the title deed to the suit parcel was issued to the respondent on 29th November 2012, and the titled deed issued on14th March 2018, while the title deed of the interested party showed that title deed was issued to the respondent on 18th March 2013. Under the circumstances it would be difficult to view the interested party as a purchaser for value without notice.
39.The interested party on her part stated that she signed an agreement to buy the suit property on 29th January 2021 after conducting due diligence and confirming that the same had no encumbrance placed on the title. She further visited the suit property and found no one residing on the said property. she thereafter agreed to buy it and had it transferred to her name on 18th March 2021. On taking possession, the 1st applicant moved in and started to destroy her property, and she had to file Kangundo Elc case No 31 of 2021 to get restraining orders as against him.
40.Black’s Dictionary 8th Edition defines “bona fide “purchaser as
41.In the Ugandan case of Katende Vs Haridar & company limited (2008) 2 E.A 173 it was held that;
42.On re-examination of the record and filed documents, it is clear that the interested party has a title to the suit property, she purchased it for value, from a vendor who had a valid title deed, there has been no fraud proved as against the respondent and interested party.
43.The applicant alleged that the land search details differed from the title deed, with respect to the dates of issuance of the title deed. That maybe so, but the respondent and interested party also placed before court a land search and title deed showing that the respondent was issued with his title deed on 18th March 2013. To clear the discrepancy, it was incumbent upon the applicant to bring the land registrar to clarify the discrepancy but he did not do so. The court cannot rely on a photocopy of a land search which authenticity was not verified.
44.Further ssection 107(1) of the Evidence Act provides that;
45.Section 108 of the Evidence Act further provides that;
46.I also refer to The halsbury’s laws of England, 4th Edition, Volume 17 at para 13 and 14 where it states that;
47.It is obvious that the applicant has failed to discharge both the legal and evidentiary burden placed on him by provisions of section 107 and 108 of the Evidence Act, Cap 160 laws of Kenya and has miserably failed to prove his allegation, that there was any fraud which took place, and/or was perpetrated by the interested party while buying the suit parcel of land. I do find and hold that she was a bona fide purchaser for value and holds a valid title to the suit parcel.Does the Doctrine of lis pendens apply to the circumstances of this case.
48.The Blacks law dictionary defines lis pendens as the “jurisdiction, power or control acquired by a court over property while legal action is pending.”
49.In the Treaties by Mulla & Gour on the Indian transfer of Property Act, ( 6th Edition )it was stated that;At page 241, the Authors further state that“The effect of the maxim is not to annul the conveyancing but only to render it subservient to the rights of the parties subject to litigation.”
50.The supreme court of India in the case of K.N Aswathnarayana settee (D) Tr. LRs & Others Vs State of Karnataka & others stated that ;
51.In Majiwa Vs U.S. International University & Another (1976) KLR, Justice Madan, while addressing the purpose of the principal of lis pendens adopted the finding in Bellamy Vs Sabinex, where Turner l.J held that ;
52.The basic ingredients of the doctrine of lis pendens are thus;a.A litigation should be pending in a court of competent jurisdiction;b.The suit must be related to a specific immovable property;c.The suit should not be collusive;d.The suit should relate to a right in this specific property;e.Property should not be transferred or otherwise dealt with;f.By a party to the suit;g.So as to affect the rights of any party thereto;h.Till final disposition of the case;Any transfer of the suit property or any dealing with such property during pendency of the suit is prohibited except under the authority of the court. If anybody wants to alienate he can do so only with the permission of the court.
53.The interested party started the process of purchasing this parcel of land on 29th January 2021, by the said time, there was no suit pending before court as this application dated 25th October 2018, had been dismissed by court on 6th November 2019 for failure by counsel to comply with the directions earlier issued by the court. The transaction to sell the suit parcel started a clear thirteen (13) months after the said application had been dismissed, and the same was completed three (3) months later In March 2021.
54.This court finds that there was no suit pending, relating to the suit property as at the time it was bought by the interested party nor was there any collusion as between the interested party and the respondent to defeat any court process as related to the suit property. The doctrine of Lis pendens therefore cannot apply to the circumstances of this case.
Disposition
55.I do find that the summons for revocation of grant dated 25th October 2018, is wholly unmerited and was without doubt filed as an afterthought, and in bad faith to vex the respondent and interested party. This is apparent given the fact the applicant fully participated in the confirmation of grant proceedings and expressly consented to the respondent being bequeathed the suit property.
56.It therefore follows that the only order commended in the circumstances of this case is that the said application be dismissed with costs to the respondent and the interested party.
57.The orders of stay of proceedings in Kangundo Elc E31 of 2021 issued by this court vide its orders dated 24th January 2022 is hereby set aside, and the interested party is at liberty to proceed with the said suit to protect her interest in the suit property.
58.It is so ordered.
JUDGEMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 21ST DAY OF SEPTEMBER 2023.FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Teams this 21st day of September, 2023.In the presence of;………………………………….for Applicant………………………………….for Respondent……………………………….Court Assistant
