Mwaniki & 7 others v Mukita & 2 others (Succession Cause 386 of 2000) [2022] KEHC 11766 (KLR) (12 May 2022) (Ruling)
Neutral citation:
[2022] KEHC 11766 (KLR)
Republic of Kenya
Succession Cause 386 of 2000
MW Muigai, J
May 12, 2022
Between
Malila Mwaniki
1st Objector
Kanyele Mwaniki
2nd Objector
Kioko Mwaniki
3rd Objector
and
Julius Ngesa Kimonyi
1st Applicant
Willy Malila Mwaniki
2nd Applicant
Joephat Mbete Kanyele
3rd Applicant
Isaac Mung’Ala Kioko
4th Applicant
Muendo Kioko
5th Applicant
and
Mbulu Mukita
1st Respondent
Mukonyo Mukita
2nd Respondent
Mutini Mbithi
3rd Respondent
Ruling
1.By a Summons, filed on 5/7/2021, the Applicants sought the following orders:-1.The Hon. Court be pleased to substitute the 1st, 2nd and 3rd Objectors who are deceased as follows:-a.Malila Mwaniki be substituted with Willy Malila Mwaniki.b.Kanyele Mwaniki be substituted with Josephat Mbete Kanyele and Julius Ngesa Kimonyi.c.Kioko Mwaniki be substituted with Isaac Mung’ala Kioko and Muendo Kioko.2.The costs of this application be in the cause.
2.The Summons is based on grounds that the 1st, 2nd and 3rd Objectors died on 7th December, 2011, 21st December, 2015 and 16th July, 2011 respectively.
3.The Applicants, Willy Malila Mwaniki, Josphat Mbete Kanyele, Isaac Mungala Kioko & Muendo Kioko stated that they have obtained Limited Grant of Letters of administration Ad Litem for purposes of continuing this suit on behalf of the deceased Objectors.
4.According to the Applicants, it is in the interest of justice that the 1st deceased Objector be substituted with the 2nd Applicant, the 2nd deceased Objector be substituted with the 3rd and 1st Applicants, the 3rd deceased Objector be substituted with the 4th and 5th Applicants. According to the Applicants, the 1st Applicant who supports their case is a beneficiary of the estate of the deceased.
5.According to the Applicants, the orders sought will aid in the expeditious disposal of the pending Objection proceedings noting that this cause has been in court for more than 20 years. The Applicants assert that no prejudice will be suffered by the Respondents if the Court grants the orders sought.
6.The Summons is supported by the affidavit of the 2nd to 5th Applicants herein all sworn on 2nd July, 2021 and attached to their affidavits as annexures are the death certificates and Limited Grant of Letters of Administration Ad Litem in respect of the Estates of the 1st,2nd and 3rd Objectors(Deceased).
Replying Affidavit
7.In opposition to the Summons, one Gedion Kisinga Mukita (As a substitute for the Deceased Mbulu Mukita & Mukonyo Mukita) swore a Replying Affidavit on 28th July, 2021. He averred that he has been substituted as an administrator in place of the original administrators, Mbuku Mukita and Mukonyo Mukita.
8.On the advice of their advocate, he averred that the Summons is incompetent, misconceived, defective and bad in law without legal merits, and an unwarranted afterthought fatally defeated by operation of the doctrine of laches and delays. According to the Respondent, there has been gross inordinate delay by the Applicants to file this application since the demise of the 1st, 2nd and 3rd Objectors on 7/12/2011, 21/12/2015 and 16/12/2011 respectively. The Respondent assert that the deceased objectors are mere step brothers of the deceased, Mukita Muvingo and not being heirs or dependants entitled to inheritance on intestacy, they do not have any rights to challenge the grant or be joined in the administration of the estate or be notified of a Petition for the Grant but can only sue the administrators in the Environment and Land Court upon their purported proprietary customary law claims as brothers against the estate. According to the Respondent, the Objection is invalid and incompetent as well as any purported substitution.
9.According to the Respondent, the deceased objectors and/or their children cannot challenge the grant but could have sued the estate administrators for ownership/title and not filing of an objection hence the ad litem issued to them are not valid for substitution for purposes of challenging the grant herein. The Respondent assert that there is no valid legal basis or other basis for the substitution of the deceased Objectors with the Applicants as it serves no purpose in the circumstances.
10.On the advice of his advocate, the Respondent assert that Kimonyi Muvingo alias Kimonyi Mwaniki who died on 5/1/1986 as per annexture ‘JNK 2’ has no stake in this proceedings since he was not one of the Objectors or a party to the Objection having pre-deceased both the succession cause and the Objection hence his son Julius Ngesa Kimonyi, the 1st Applicant herein has no locus standi, legal basis and/or capacity to seek to be substituted in place of Kimonyi Mwaniki.
11.On the advice of his advocate, the Respondent assert that the 1st Applicant is not a son of, heir, beneficiary or a dependant of Kanyele Mwaniki (Deceased), the 2nd Objector or named as one of the beneficiaries or an administrator in the estate of Kanyele Mwaniki hence his purported consent with Kanyele Mwaniki heirs marked as annexture ‘JNK3’ to represent them in the Objection is null, void and irrelevant for want of any Ad Litem grant for the purpose, neither can he be substituted jointly with Josephat Mbete Kanyele.
12.The Respondent assert that this Court should consider whether as a Succession Court is properly vested with jurisdiction to deal with a claim that is essentially a claim against the estate for ownership and title by brothers as opposed to the Environment and Land Court. According to the Respondent, this Court is not vested with jurisdiction to establish and determine the Objector’s ownership claims under the subject Objection.
Applicants Submissions
13.On behalf of the Applicants, it is submitted that the sole purpose of the substitution is for the Applicants to prosecute the Objection proceedings that had been initiated by the deceased Objectors as their sons. According to the Applicants, the deceased Objectors claim is that the deceased herein wrongfully and fraudulently got the property known as Wamunyu/Kwa Kala/67(‘the property’) registered in his name as an absolute proprietor when the property was trust property. It is submitted that initially the property was owned by their deceased’s father and during adjudication it was agreed that the property be held in trust by deceased herein for Mwaniki Kilyungi family. According to the Applicants, Mwaniki Kilyungi had 4 wives/houses and the deceased objectors are representatives of the other 3 houses of their deceased’s father. According to the Applicants, the relevant beneficiaries consented to their appointment to represent the interest of their respective families in place of their deceased fathers.
14.According to the Applicants, the only issue for determination is whether the Applicants can lawfully substitute the deceased Objectors to prosecute the Summons for Revocation of Grant? According to the Applicants, the answer is in the affirmative because:
15.The Applicants place reliance on Rule 14 of the 5th Schedule of the Probate and Administration Rules which provides:
16.Further reliance is placed In re Estate of Musa Kipcholio Chepson(Deceased) [2017]eKLR where the court held that:-
17.In re Estate of Mohammed Bilali (Deceased) [2020] eKLR the court held that an applicant armed with a limited grant of representation for the estate of the deceased objector may represent the deceased in the suit herein.
18.According to the Applicants, the deceased Objectors claim is that the Petitioners obtained a Confirmed Grant fraudulently without notice to them and concealed from court that the property known as Wamunyu/Kwa Kala/67 was held in trust for the larger family of Mwaniki Kilyungi hence a property that was to be distributed amongst the beneficiaries and not exclusively to the 4 houses of the deceased. It is submitted that if the deceased Objectors are not substituted their claim will not be determined. According to the Applicants they have aptly discharged the legal and evidential burden of proof that the Summons is merited.
Respondents Submissions
19.The Respondents opposed the Summons herein dated 2/7/2021 and the Summons for Revocation of Grant dated 22/6/2010 for being incompetent for absence of jurisdiction and locus standi, and inordinate delay in the lodging their claims. According to the Respondents, the Revocation application is grounded on a civil claim of land ownership based on the alleged trust which is an issue that is reserved for the Environment and Land Court. It is submitted that all the claims grounded on the alleged Trust are civil in nature and are subjected to a very high heavy burden of proof by substantive evidence of proof of the alleged Trust and how it arose for a court to make a declaration that such a trust does exist. According to the Respondent, a challenge to the first registration title in 1973 falls within the jurisdiction of the Environment and Land Court.
20.It is submitted that the particulars of trust must be specifically pleaded and proved by evidence as the court never implies Trust. Reliance is placed on the case of Peter Ndungu Njenga vs. Sophia Waitiri Ndungu[2000]eKLR where the court held that the court will not imply a trust save to give effect to the intention of parties. The intention of parties to create a trust must be clearly be determined before a trust is implied. As regards the high standard of proof for proving a Trust, reliance is placed In re Estate of Jonathan Kinyua Waititu (Deceased) [2017] eKLR where the court cited D.T Dobie Co. (K) Ltd vs. Wanyonyi Wafula Chebukati [2014] eKLR.
21.The Respondent urged this court to look into the MV Lilian ‘S’ case(1989) KLR on the court’s jurisdiction and in Monica Wangui Njiri & 4 Others vs. Eunice Wanjiru Igamba & Another[2016]eKLR where Ibrahim J.(as he then was) held that Succession proceedings are not appropriate for the resolution of serious contested claims against an estate by third parties. According to the Respondents, it serves no purpose to substitute the deceased Objectors with the Applicants if this Court does not have jurisdiction to entertain the main cause.
22.According to the Respondent, the deceased Objectors died long time ago hence undue delay to lodging the claim by the Applicants. It is submitted that the courts do not permit parties to be indolent or delay the pursuit of their rights to land. According to the Respondent, the Limitation of Actions Act does exist and if a claim like a Trust or ownership is statute barred, it is extinguished. According to the Respondent, the claim is statute barred as a civil claim over land title registered in 1973. Reliance was placed on the cases of Felista Muthoni Nyaga vs. Peter Kayo Mugo [2016]eKLR and Patrick Mathenge Gachui vs. Karumi Wambugu & Another[2010]eKLR. According to the Respondent, an issue of limitation of time, a challenge to the first registration title and the resultant rectification of the register by partition are issues which require interrogation of evidence by the Environment and Land Court and not this Court.
23.Reliance was further placed on the ruling of D.K Kemei J. in Re Estate of Mukita Muvingo(Deceased) [2019]eKLR where the Learned Judge held that a delay in seeking substitution 4 and 7 years after the death of the Objectors without a valid explanation was inordinate, inexcusable and prejudicial. It is submitted that the Applicants are insolent, indolent, and negligent and act only on afterthoughts. Reliance was placed on Ivita vs. Kyumbu [1975]eKLR and Joseph Paul Nderitu vs. Gabriel Gikandi Kiama alias Nduati Kiama[2016]eKLR on the court’s discretion to dismiss an action where the delay is prolonged and inexcusable and is such as to do grave injustice to the other party.
24.It is submitted that the Applicants do not have locus standi to be substituted with the deceased’s Objectors who are mere step brothers of the deceased with no inheritance rights over the deceased’s estate and not as heirs, beneficiaries or dependants. According to the Respondent, the deceased herein is survived by two wives and many children who by dint of Section 40 and 66 of the Law of Succession Act and rule 26 of the Probate and Administration Rules have exclusive priority to apply for the Grant over the deceased Objectors who are remote relatives to the deceased herein. It is submitted that the Objectors can only be joined if the deceased was not survived by wives and/or children as per Section 39 of the Law of Succession Act. Reliance was placed In re Estate of Mbai Wainaina (Deceased) [2015] eKLR.
25.It is submitted that only a party with a valid legal interest in the estate like a credit or, or heir or beneficiary and dependant can seek orders to revoke or annul a grant under Section 76 of the Law of Succession Act. Reliance was placed on the case of Monica Wangui Njiri & 4 Others vs. Eunice Wanjiru Igamba & Another (supra) and In re Estate of Jonathan Kinyua Waititu (Deceased) (supra).
26.It is submitted that Julius Ngesa Kimonyi, the 1st Applicant herein is not competent to seek substitution and to be joined in the proceedings. According to the Respondent, he can only participate as a mere, ordinary witness and not as a party representing any of the deceased Objectors since his father Kimonyi Muvingo alias Kimonyi Mwaniki is not among the three deceased Objectors and was never a party to the Objection as he died on 5th January, 1986 predeceasing the Objection proceedings. It is further submitted that the 1st Applicant cannot jointly seek substitution with the 3rd Applicant as he was never a son, heir, beneficiary or dependant of Kanyele Mwaniki, the 2nd Deceased Objector. According to the Respondent, he is not even listed or named in the Ad litem Grant in E011 of 2021 as a joint administrator in the estate of Kanyele Mwaniki.
Determination
27.The Court considered the Summons, affidavit in support and in opposition as well as the submissions and cases relied upon.
28.According to the Respondents, the Summons is incompetent, misconceived, defective, bad in law, an afterthought, defeated by the operation of the doctrine of laches and delays. The Respondents urged this court to dismiss it with costs.
29.The Court finds the issue that stands out for determination is whether this Court has the prerequisite jurisdiction to entertain the Applicants Summons for substitution. The issue of inordinate delay by the Applicants to seek substitution and whether the Applicants have the locus standi to lodge their Summons submitted by the Respondents are issues that were dealt with in this cause in an earlier ruling delivered on 17th November, 2020 by Justice Kemei; In re Estate of Mukita Muvingo alias Mukita Mwaniki (deceased)[2020]eKLR.
30.Regarding the Applicants locus standi, I agree with Justice Kemei while interpreting Paragraph 14 of the Fifth Schedule of the Probate and Administration Rules, the Learned Judge held that:-
31.On behalf of the Applicants, it is submitted that they have lawfully obtained the limited grants and the beneficiaries consented to their appointments in place of the deceased objectors. Attached to the Applicants supporting affidavits are copies of the deceased Objectors death certificates and Limited Grant of Letters of Administration.
32.Paragraph 14 of the Fifth Schedule(supra) provides:
33.Objection proceedings do not terminate with the death of the Objector. The Court is yet to determine whether the Objector had/has a valid claim for the benefit of her Estate. See Ongeri J. In re Estate of Samuel Kiprono Mutai (Deceased) [2021] eKLR. The Applicants have obtained the limited grants of representation in the estate of the deceased Objectors. It is not disputed that the 2nd to 5th Applicants are sons of the deceased Objectors.
Jurisdiction
34.Indeed, jurisdiction is everything. Without it, a court has no power to make one more step as pronounced by Justice Nyarangi JA. in the famous case of Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd. (1989)KLR 1. stated;
35.On behalf of the Respondents, it is submitted that this Court lacks prerequisite jurisdiction to entertain and determine the dispute over the title and land ownership on the basis of the alleged Trust as set out in the Summons for Revocation of Grant dated 22nd June, 2010 which had been filed by the deceased Objectors and is pending determination. According to the Respondent, it serves no purpose to substitute the 1st to 3rd Objectors if this court is bereft of jurisdiction on the contested issue of ownership of land/title of Parcel No. Wamunyu/Kwa Kala/67 by the deceased Objectors. According to the Respondents, it is the Environment and Land Court which has the jurisdiction to entertain and determine the deceased Objectors claim.
36.The jurisdiction of the Environment and Land Court is provided for under Section 13 of the Environment and Land Court Act provides that:-
37.The Environment and Land Court has the jurisdiction to hear and determine disputes involving land ownership/title. Joel Ngugi J. in Joseph Koori Ngugi & another vs. Stephen Ndichu J. Mukima [2017] eKLR stated that:-
38.In the same vein Musyoka J., in Re Estate of G K K (Deceased) [2017] eKLR held that:
39.Musyoka, J. in Re Estate of Mbai Wainaina (Deceased)[2015]eKLR held that:
40.According to Ndungu J. In re Estate of Solomon Mwangi Waweru (Deceased) [2018] eKLR:-
41.The Law of Succession Act has saving provisions as to the court’s inherent jurisdiction. The Applicants Summons is premised on Section 47 of the Law of Succession Act and Rule 59 and 73 of the Probate and Administration Rules.
42.Section 47 provides:-
43.Rule 73 provides:-
44.In Moraa Gisemba vs. David Nyakoi Ongori [2015] eKLR the court held that:-
45.What is inherent power of the Court? The Court of Appeal in Kenya Power & Lighting Company Limited vs. Benzene Holdings Limited t/a Wyco Paints [2016] eKLR while looking at the extent of inherent powers of the court made reference to the authors of the Halsbury’s Laws of England, 4th Edn. Vol. 37 Para. 14 where it is stated as follows;“This inherent jurisdiction is a residual intrinsic authority which the court may resort to in order to put right that which would otherwise be an injustice…..”
46.This Court’s view is that Section 47 and Rule 73 are a safeguard to a party right to fair hearing enshrined under Article 50 of the Constitution. The Court is granted the inherent power to make orders as may be necessary in the interest of justice or to prevent abuse of the process of the court.
47.The Court notes at paragraph 46 in page 9 of the Applicants submissions, it is submitted by the Applicants that the deceased Objectors claim was that the Petitioners obtained the confirmed Grant fraudulently without notice to the deceased Objectors and by concealing from the Court that the property No. Wamunyu/Kwa-Kala/67 was held in trust and was to be distributed amongst the beneficiaries of Mwaniki Kilyungi.
48.The Court finds that, that the issue as to whether the property had been held in trust for the family is a triable issue that should be determined at a full hearing. What the Applicants are not substantiating to this Court is whether this Court has the prerequisite jurisdiction to entertain and determine the issue? In fact at paragraph 35 of their submissions, the Applicants has accused the deceased Mukita Muvingo alias Mukita Mwaniki for wrongful and fraudulent registering the property in his name as the absolute proprietor while it was trust property.
49.This Court may have the inherent power but does that call for its invocation at all times? This court view is that each case must be looked into based on its own circumstances and peculiarity. If an injustice would occasion, then the court will invoke its inherent powers.
50.W. Ouko J. in Re The Matter of The Estate of George M'Mboroki (Deceased) [2008] eKLR where the Learned Judge held that:-
Court Record
51.A perusal of the Court file confirms that petition for grant of letters of administration for the estate of Mukita Muvingo alias Mukita Mwaniki was filed on 19/12/2000. The beneficiaries of the deceased’s estate were;a)Mbulu Mukita - widowb)Mukonyo Mukita- widowc)Gedion Mukita- sond)Sungu Mukita- sone)Mutuku Mukita-sonf)Mutini Mbithi- daughter in lawg)Nzioka Mbithi-grandsonh)Muia Mbithi- grandsoni)Muvingo Mbithi-grandson
52.The asset for distribution to the beneficiaries of the estate of the deceased was Plot Wamunyu/Kwakala-67annexed to the Petition was/is death certificate of the deceased herein Mukita Muvingo who died on 15/1/1992 and the Land Certificate of Wamunyu/KwaKala/67 in the name of Mukita Mwaniki of 2nd November 1973. The Copy of the Land Register filed in Court on 28/11/2005 confirmed the deceased was registered1st Registration as absolute Proprietor.
53.After the deceased’s demise, the said suit-property Wamunyu/KwaKala/67 registered in the deceased’s name was an asset that comprised his estate available for distribution to the beneficiaries.
54.The grant of letters of administration was issued to the Administrators namely, Mbulu Mukita, Mukonyo Mukita & Mutini Mbithi on 13/2/2001 and was confirmed on 9/10/2001 and the suit property was distributed amongst the 3 administrators.
55.10 years later, 2010, Summons for Revocation was filed that the grant was obtained fraudulently and the claim that the suit property was held in trust for the family of Mwaniki Kilyungi was made for the 1st time.
56.In opposition, the Administrators deposed that Plot Wamunyu/Kyangulumi/315 was allocated to the family of Mwaniki Kilyungi.
57.From these pleadings and proceedings this Court has carried out its mandate under the Law of Succession Act , distribute the estate of the deceased to the beneficiaries of the deceased’s estate, no Creditor or other legal beneficial interest claim was made to vitiate the distribution of the estate in 2001. The claim that the suit property Wamunyu/KwaKala/67 was held in trust and not absolute ownership is a claim of land title and /or ownership which squarely belongs before the ELC Court. The substitution of the Applicants/Objectors is not merited herein as they are not creditors to the deceased’s estate or members of the deceased’s family.
58.The Applicants are not left with no remedy in the event this Court declines to substitute them with the deceased Objectors as they can pursue their claim before the Environment and Land Court despite them testifying and closing their case before this Court. The mandate of this Court is limited as it cannot determine issue of ownership and/or title of the property and declaration of trust.
59.The Court’s view is that Section 13 of the Environment and Land Court Act provides the appropriate forum for the Applicants to ventilate their claim as stated in the Affidavit in Support for Summons for Revocation of grant of 22nd June 2010, should be dealt with by ELC Court.
Dispositiona.In the premises, the Summons dated 2nd July, 2021 lacks merit and fails in its entirety. It is hereby dismissed.b.Each party to bear their own costs.It is so ordered
DELIVERED SIGNED & DATED IN OPEN COURT ON 12TH MAY 2022 IN MACHAKOS. (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGE