'(Being an Appeal from the ruling and order of the Hon. C. W. Kirugumi, Principal Magistrate delivered on 18th July 2022 in Kerugoya Magistrates Court Succession Cause No. 310 of 1993 – In the Matter of the Estate of Samson Matu Mbicho (Deceased)
JUDGMENT
Background
1. On 10th November 1993, Patrick T. Matu, the respondent herein, filed a Petition for Letters of Administration Intestate of the estate of Matu Samson Mbicho (deceased) in the Resident Magistrate’s Court at Kerugoya. In the affidavit in support of the petition for letters of administration intestate he named the persons who had survived the deceased as:
a. Atalia Muthoni Matu – wife
b. Patrick T. Matu – son
c. Solomon Mbicho Matu – son
d. David Njogu Matu – son
e. Monica Wambui Matu – daughter
f. Beatrice Wangeci Matu – daughter
g. Esther Kanini Matu - daughter
2. On 18th January 1994 a Grant of Letters of Administration Intestate of the estate of the deceased Samson Matu Mbicho was issued to the petitioner, Patrcik T. Matu.
3. The proceedings show that the following persons were present in court on that day:
a. Patrick T. Matu – son of the deceased.
b. David Njogu Matu – son
c. Esther Kanini Matu – daughter
d. Antalia Muthoni – wife of the deceased
4. The order of the court at the end of the proceedings indicates that, “since there’s objection letters of administration granted to the petitioner to be confirmed after 3 months.” I believe the learned trial magistrate meant to indicate since there was no objection. I say so because, there is no indication of who would have been raising the objection and secondly the court would not have directed that the cause proceed7s for confirmation after 3 months.
5. What is clear though is that Esther Kanini Matu, daughter of the deceased and one of the protestors and appellants herein is indicated as being present.
6. On 10th May 1994, the administrator took out a summons for confirmation of grant and in what is supposed to be the affidavit in support of the summons for confirmation of grant of letters of administration intestate and supposed to have been sworn before a senior resident magistrate, the administrator named the following persons as the ones who had survived the deceased:
a. Atariah Muthoni Matu – wife
b. Hezron Mbicho Matu – over 18 years
c. Esther Kanini Matu - daughter – over 18 years
d. Beatrice Wangeci Matu – daughter– over 18 years
e. David Njogu Matu – over 18 years
f. Patrick T. Matu– over 18 years
7. Here, Solomon Mbicho Matu and Monica Wambui Matu were left out even as they had appeared earlier in the affidavit in support of the petition for letters of administration. Hezron Mbicho Matu was brought in at this stage. He had not been named in the affidavit in support of the petition for letters of administration intestate.
8. Only one parcel of land No. Mwerua/Baricho/225, measuring approximately 3.50 Ha, was identified as forming the free estate of the deceased and available for distribution to the beneficiaries. It was deposed in the affidavit in support of the confirmation that the identification and shares of all persons beneficially entitled to the said estate had been ascertained and determined as follows:
a. Atariah Muthoni Matu – 1 acre
b. Hezron Mbicho Matu – 2 acres
c. Patrick T. Matu - 2.4 acres
d. David Njogu Matu - 2.4 acres
9. Here again the following persons who had been named in the petition for letters of administration as surviving the deceased were left out:
a. Solomon Mbicho Matu – son
b. Monica Wambui Matu – daughter
c. Beatrice Wangeci Matu – daughter
d. Esther Kanini Matu - daughter
10. Also, the following persons who had been named in the affidavit in support of the confirmation of grant were also left out.
a. Esther Kanini Matu - daughter – over 18 years
b. Beatrice Wangeci Matu – daughter– over 18 years
11. There was no explanation whether these persons were still alive or not, if alive, whether they had renounced their respective rights to inherit their late father’s property.
12. However, the proceedings in court at the time of confirmation of the grant show that the following persons were present:
a. Antaria Muthoni Matu – wife.
b. Patrick T. Matu – petitioner, son of the deceased.
c. Monica Wambui – daughter, not married with 2 children.
d. Esther Nyambura – daughter, not married, no child
e. Beatrice Wangeci Matu – daughter, not married, no child.
f. David Njogu Matu - son
13. The probate court noted that since there was no objection the grant was confirmed in the following terms, that land parcel number Mwerua/Baricho/225 be sub-divided and shared as follows:
a. Atariah Muthoni Matu – 1 acre
b. Hezolon Mbicho Matu – 2 acres
c. Patrick T. Matu – 2.4 acres
d. David Njogu Matu – 2.4 acres
e. Monica Wambui Matu – 1 acre
14. A certificate of confirmation of grant was issued on the same date of 11th October 1994 with the property being shared as follows:
a. Atariah Muthoni Matu – 1 acre
b. Hezolon Mbicho Matu – 2 acres
c. Patrick T. Matu – 2.4 acres
d. David Njogu Matu – 2.4 acres
e. Monica Wambui Matu – 1 acre
15. On 1st October 2021, Esther Kanini Matu, Sophia Wairimu Gichuhi and Margaret Wanjiku Kuyu took out summons for revocation and annulment of grant under section 76 of the Law of Succession Act and named Patrick T. Matu as the respondent. The summons for revocation or annulment of grant were based on grounds that:
a. The proceedings to obtain the grant were defective in substance.
b. 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.
c. The grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant.
d. It is in the interest of justice that the grant of letters of administration be revoked.
16. Esther Kanini Matu, with the authority of the other applicants swore the supporting affidavit, on 20th September 2021 and further affidavit on 29th October 2021. She deposed that she is a daughter of the deceased and therefore a beneficiary of his estate while the respondent was his brother. She swore further that contrary to what the respondent had disclosed in the affidavit in support of the petition for letters of administration, the estate of the deceased had the following beneficiaries:
a. Atariah Muthoni Matu widow
b. Sophia Wairimu Gichuhi daughter
c. Hezron Mbicho Matu son
d. David Njogu Matu son
e. Esther Kanini Matu daughter
f. Margaret Wanjiru Kuyu daughter
g. Solomon Mbichu Matu son
h. Monica Wambui Matu daughter
i. Beatrice Wangeci Matu daughter
j. Patrick T. Matu daughter (sic)
k. Cecilia Wanjiku Matu daughter
17. Here, Sophia Wairimu Gichuhi, Margaret Wanjiru Kuyu and Cecilia Wanjiku Matu were being introduced into the proceedings for the very first time as children of the deceased. They had not been mentioned in the affidavit in support of the petition for letters of administration or the one in support of the confirmation of grant.
18. At this point, I have checked the lower court file to try and locate the chief’s letter showing the survivor’s or beneficiaries of the deceased’s estate but I have not seen it. It appears none was issued. In the cases of In re Estate of Ambutu Mbogori (Deceased) [2018] KEHC 3892 (KLR), and In re Estate Shem Kitanga (Deceased) [2018] KEHC 4738 (KLR) the High Court held that one of the faults committed by the respective petitioners was that he initiated the succession proceedings without a letter of introduction from the chief yet this letter serves an important purpose in the ascertainment of deceased, dependents, beneficiaries as well as properties of the deceased.
19. The protestors deposed further that:
a. the petitioner had concealed and made a fraudulent allegation when naming the beneficiaries of the estate of the deceased at the time of filing the petition. He had therefore knowingly left out the following beneficiaries:
i. Sophia Wairimu Gichuhi daughter
ii. Hezron Mbicho Matu son
iii. Margaret Wanjiru Kuyu daughter
iv. Cecilia Wanjiku Matu daughter
b. The beneficiaries who were equal in ranking did not give consent to the issuance of the grant of the letters of administration to the respondent as required in law.
c. The proceedings were defective as the affidavit supporting the summons for confirmation of grant was not attested.
d. The beneficiaries not named in the summons for confirmation of grant were included in the grant.
e. The beneficiaries did not sign the consent to the prescribed mode of distribution of the estate.
f. The applicants were discriminated against as they were not included in the succession and neither were they given a share in the estate of their father.
g. The applicants will be rendered destitute if the application is not allowed as the respondent had threatened to evict them.
h. Esther Kanini Matu was in High School at Kabare Girls at the time that the succession proceedings were being conducted. The school leaving certificate annexed to the supporting affidavit indicates that she enrolled in the school in form one on 5th February 1990 and left in form four on 19th November 1993.
i. The respondent sent an e-mail dated 17th November 2011 to the deponent among others informing them of the succession proceedings and indicated to them that the share given to their mother Atalia Muthoni Matu was for their mother to hold in trust for the daughters.
20. I have considered the further affidavit and I note that it only removed from the supporting affidavit the name of Hezron Mbicho Matu as one of the beneficiaries who the respondent had knowingly left out in the succession proceedings.
21. The summons for revocation or annulment of grant were opposed by the respondent who filed grounds of opposition dated 25th October 2021 and a replying affidavit sworn on 18th November 2021.
22. In the supporting affidavit, he deposed that the application was incompetent, bad in law and an abuse of the court process for reasons that:
a. The grant was issued in 1994 and the delay of 27 years before filing the summons for revocation is inordinate and the same is therefore time barred.
b. Esther Kanini, the deponent of the supporting affidavit had deposes that as early as 2011, a period of 10 years before, she was aware of the distribution of the estate.
c. The applicant seemed to be interested in the one acre given to their mother Atalia Muthoni Matu L.R. No. Mwerua/Baricho/803, purporting that their mother held the land in trust for them. The court lacked jurisdiction to entertain a claim founded on trust.
d. Their said mother transferred the said portion of land to her grandson, the deponent’s son, Samson Matu Tarzan before her demise on 26th December 2020 and since she is deceased the application was incompetent.
e. The grant was fully executed and land parcel No. L.R. No. Mwerua/Baricho/225 partitioned on 17th June 1996 to give rise to L.R. Nos Mwerua/Baricho/801, 802, 803, 804 and 805 and transferred to the beneficiaries. Consequently, there is no estate os Samson Matu that is remaining that cab be subject to the proceedings herein and for that reason the court lacks jurisdiction to entertain the application.
23. Further that the beneficiaries of the estate of the deceased took up their respective shares and have developed them for about 27 years. All the survivors of the deceased were all aware and respected the wishes of the deceased and the orders of the court.
24. Further that some beneficiaries such as Hezron Mbicho Matu sub-divided his land L.R. No. Mwerua/Baricho/801 which gave rise to L.R. No. Mwerua/Baricho/903 and which gave rise to Mwerua/Baricho/2314 and 2318. He sold some and transferred others to his children.
25. The 1st applicant started mischievously and fraudulently agitating for trouble after the demise of their mother.
26. Further that the applicants are not paupers and would not be redered destitute if the application was dismissed for reasons that:
a. The 1st applicant is married and has three children. She is a bank manager with Co-operative bank having been in employment for about 30 years. She owns houses in Nairobi and land at Nanyuki.
b. The 2nd applicant is married with seven children and grandchildren and two great-grandchildren. Her family has expansive parcels of land in Mpeketoni, Lamu where she has lived for more than 30 years.
c. The 3rd applicant is married with five children and several grandchildren. Her family has expansive parcels of land in Narumoru where she has lived for over 30 years.
d. None of the applicants has depended on the estate of the deceased from when they attained 18 years of age.
27. Further that contrary to the allegation by the 1st applicant, she was noted in form P & A5 and attended court for confirmation of grant.
28. Further that due process was followed throughout the proceedings and the matter was published in the Kenya Gazette of 10th December 1993 as Notice No. 0730.
29. Various documents in support of the depositions were annexed to the replying affidavit.
30. The respondent therefore prays that the summons for revocation or annulment of grant be dismissed with costs.
31. On 8th December 2021, the administrator filed a notice dated 7th November 2021 of intention to raise a preliminary objection to the summons for revocation of grant on grounds that:
a. The court lacked jurisdiction to entertain the summons for revocation of grant.
b. The application was time barred as the delay to file the same was inordinate.
c. The estate of Samson Matu was fully distributed and the summons for revocation of grant lacked legal foundation.
32. He therefore prayed that the summons for revocation of grant be struck off with costs.
33. On 8th December 2021, the trial court issued directions that the preliminary objection and the summons for revocation of grant be heard concurrently and set the date for hearing as 2nd February 2022.
34. However, on 21st January 2022, the administrator filed an application by way of summons general under Rules 63 and 73 of the Probate and Administration Rules and Order 45 Rule 1(a) of the Civil Procedure Rues praying that the court reviews the directions issued on 8th December 2021 and direct that the preliminary objection now dated 21st January 2022 be heard first. The substantive grounds in support were that there was sufficient ground to review the directions issued on 8th December 2021 and the administrator had filed a preliminary objection raising weighty points of law that were capable of having the matter determined in its entirety at a preliminary stage.
35. The application was supported by the affidavit of Patrick Tarzan Matu sworn on 21st January 2022 in which he deposed that his advocate had advised him to which advise he agreed that they should proceed to file a preliminary objection to the hearing of the summons for revocation of grant which would be more expedient as opposed to hearing the summons for revocation because the fees chargeable for the hearing would be much more than prosecuting the preliminary objection and a hearing would take longer as it would require calling of witnesses by both sides. He deposed that among the grounds raised in the preliminary objection was the trial court’s lack of jurisdiction to proceed with the summons for revocation of grant and so this issue had to be disposed of first.
36. The second preliminary objection dated 21st January 2022 is basically the same as the one dated 7th November 2021 save that the later expounded on each of the grounds set out in the earlier one setting out the constitutional and statutory provisions upon which it is based as well as cited cases supporting the grounds. These were further covered in the submissions and I therefore need not set them out here.
37. When the matter came up on 2nd February 2022 for hearing of the summons for revocation and the preliminary objection, the court directed that the application for review of its earlier orders that the two be heard concurrently be heard and disposed of first. In a ruling dated 21st March 2022, the court reviewed its earlier orders and directed that the preliminary objection be heard and determined first.
38. The preliminary objection was subsequently heard and in a ruling dated 18th July 2022, the trial court upheld the preliminary objection and dismissed the summons for revocation of grant dated 20th September 2021.
39. The appellants were dissatisfied with the trial court’s ruling and filed this appeal through a memorandum dated 27th July 2022 challenging that decision. The record of appeal was filed on 24th November 2022.
Grounds of appeal
40. The appellants were dissatisfied with the decision of the trial court and now appeal to this court on some eight grounds as follows.
a. that the learned trial magistrate erred in law and fact in allowing the preliminary objection yet the same raised issues of fact.
b. that the learned trial magistrate erred in law and fact in finding that the appellants were guilty of laches whereas there is no time limit for filing summons for revocation of grant.
c. that the learned trial magistrate erred in law and fact in relying on the case of Tabitha Wanjiru v Jotham Kihiko Hika & 2 others [2017] KEHC 532 (KLR) whereas the same was distinguishable from the case at hand.
d. that the learned trial magistrate erred in law and fact in relying on the supporting affidavit dated 18th November 2021 and the annexures therein particularly the green card whereas the same had not been adduced in evidence.
e. that the learned trial magistrate erred in law and fact in making a finding that the estate had been wound up despite making a finding that the respondent had not rendered accounts.
f. that the learned trial magistrate erred in law and fact in the manner in which she analysed the issue of trust as the appellants’ case for revocation of grant and not a declaration of trust.
g. that the learned trial magistrate erred in law and fact by failing to critically analyse the preliminary objection, applicable law and the appellant’s submissions.
h. that the learned trial magistrate erred in law and fact in awarding costs to the respondent whereas the case involved family members.
41. The appellants therefore pray that this court allow the appeal, the ruling of the trial court delivered on 18th July 2022 be set aside, and summons for revocation of grant dated 20t September 2021 be reinstated and that the court issues further orders and directions as it may deem fir in the interest of justice.
Submissions
42. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
43. Learned counsel for the appellants submits on ground 1 that the preliminary objection was based on facts and not pure points of law and therefore did not meet the requirements for it to succeed.
44. Learned counsel submits that the facts raised could only be determined on the hearing of the main summons for directions and supports this submission with the case of In re Estate of Wangigi Kamiti (Deceased) [2022] KEHC 3078 (KLR)
45. On grounds 2 & 3 of the memorandum of appeal, learned counsel submits that there is no time limit for filing summons for revocation of grant since section 76 of the Law of Succession Act provided that a grant may be revoked at any time. Further that section 4(2) of the Limitation of Actions Act (Cap. 22) Laws of Kenya relied upon by the respondent is not applicable to succession causes as the same applies to causes of action founded on tort yet the appellant’s application was not founded on tort. He relies on the following authorities:
a) Ansazi Gambo Tinga & another v Nicholas Patrice Tabuche [2019] KECA 803 (KLR) where the Court of Appeal affirmed the High Court’s finding that under section 76 of the LSA “an application for revocation of grant may be made at any time before or after confirmation” and for that reason the application by the respondent for revocation of grant was not time barred.
b) In re Estate of Nzoka Musavi (Deceased) [2022] KEHC 2869 (KLR) where the High Court. Odunga, J. (as he then was) while considering the import of section 76 LSA where section 7 of the Limitation of Actions Act had been raised to allege that the application for revocation of grant was time barred held that:
“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 Respondents have invoked the provisions of section 7 of The Limitation of Actions Act.”
c) Patrick Mwangemi Wanjala & 3 others v Jackson Ngoda Jumwa [2016] KEHC 3023 (KLR) where the High Court held that under section 76 LSA there is no limitation as to the time for filing summons for revocation of grant.
46. Ground 6 is on whether the appellant’s application was based on trust and the appellant’s submit that the application was for revocation of grant and not declaration of trust and therefore the finding of the trial court that it had not jurisdiction to entertain the application since it raised issues of land based on trust under Article 162(2) of the constitution was erroneous. Once again the appellants rely on the case of Ansazi Gambo Tinga & another v Nicholas Patrice Tabuche [2019] KECA 803 (KLR) where the Court of Appeal considered the meaning of “cause of action” and stated thus:
“A cause of action, in law, is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit. In the present case, the respondent’s interest revolves around the grant issued to the appellants, which was confirmed on 18th February, 2010. That was the grant whose revocation the respondent sought.
The appellants have argued both before this Court and the High court; that the cause of action herein arose on 8th June, 1986 when the respondent purportedly finalized his purchase of the land. While it is not in doubt when the purchase was finalized, it is imperative to bear in mind that the trial proceedings herein were not for the recovery of the land. Rather, for revocation of grant. Consequently, the summons for revocation of grant presented by the respondent is not an “action to recover land” for purposes of Section 7 of the Limitation of Actions Act (See Musa Nyaribari Gekone supra). The application can thus not be deemed to fall under the provisions of section 7 of the Limitation of Actions Act aforesaid.”
47. On ground 6, whether the administrator had discharged his responsibilities as such and the estate wound up and therefore lacking locus standi to be sued, the appellants submit that distribution of the estate did not discharge the administrator of his capacity as such. They cited several cases where the High Court found that despite the estate having been distributed the administrator was still in capacity to be sued. The cases are: In re Estate of Des Raj Gandhi (Deceased) [2021] KEHC 8715 (KLR); In re Estate of Mathenge Gichobi (Deceased) [2022] KEHC 2260 (KLR); In re Estate of Mathenge Gichobi (Deceased) [2022] KEHC 2260 (KLR).
48. The respondent on his part, through learned counsel submits that the trial court reached a correct decision on the preliminary objection.
49. The respondents submit that in paragraph 12 of her supporting affidavit, the respondent deposed that they were pursuing the one acre of land comprised in the estate that was held in trust for them by their mother Ataria Muthoni Matu. That such an issue can only be determined by the Environment and Land Court and not a probate court. Several cases are cited to support that submission, being In re Estate of Stanley Mathenge Ruriga (Deceased) [2018] KEHC 4522 (KLR); In re Estate of Samuel Kathieri (Deceased) [2019] KEHC 11767 (KLR); In re Estate of Solomn Mwangi Waweru (Deceased) [2018] KEHC 6237 (KLR).
50. On the issue of the summons for revocation being time barred, the respondent submits that under section 4(2) of the Limitation of Actions Act (Cap. 22) Laws of Kenya provides that the period for filing an action founded on tort, of which fraud is one, is three years and therefore filing summons for revocation of grant 27 years after the grant was confirmed is inordinate delay and such an action is incompetent. To support this submission, the following cases were cited: NDUNGU GITAU v JOSEPH KINYITA GITAU [2005] KEHC 422 (KLR), Ali Omar Ali Abdulrahman v Mohamed Ali Abdulrahman [2020] KECA 365 (KLR); Tabitha Wanjiru v Jotham Kihiko Hika & 2 others [2017] KEHC 532 (KLR) and Joseph Mukono Kunguru v James Kabeere Kunguru [2011] KEHC 258 (KLR).
51. The respondent finally submits that the respondent administered the estate and the same was wound up and therefore cannot be sued through the summons for revocation of grant as was the case herein.
Duty of appellate court on a first appeal
52. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
53. I am well guided by these principles in the consideration and determination of this appeal.
54. I have considered the grounds of appeal, the submissions by the parties in this appeal and reviewed the evidence tendered before and the judgment of the trial court. The issue for determination is whether or not the learned trial magistrate was correct in sustaining the preliminary objection raised by the respondent to the appellants’ summons for revocation of grant.
55. These issues are not new to succession disputes. They have been raised time without number, and courts have made pronouncements upon them. But they keep vexing parties who continue to advance the same arguments for the courts’ determination. This court will therefore restate the law as expounded by other courts of record before it.
56. The issue to consider is whether the preliminary objection raised by the respondent before the trial court satisfied the requirements set out in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696 at page 700 paragraphs D-F where Law JA (as he then was) said that:
“...A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
57. In the same decision at page 701 paragraph B-C Sir Charles Newbold, P. added the following:
“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion...”
58. There were three issues raised by the respondent in the preliminary objection which if any was to succeed would have determined the summons for revocation of grant. These were:
a. Lack of jurisdiction by the court to entertain the summons for revocation of grant on grounds that the claim by the appellants was based on trust.
b. Inordinate delay in filing the summons for revocation of grant thereby causing it to be time barred.
c. The estate of the deceased Samson Matu having been wound up upon being fully distributed by the administrator, the respondent.
59. The learned trial magistrate found for the respondent that the preliminary objection had satisfied the requirements on each of the grounds.
60. It is true that a court of probate lacks jurisdiction to determine issues of property held in trust as held by Musyoka, J. in In The Matter of the Estate of Mbai Wainaina (Deceased) [2015] KEHC 6978 (KLR) that:
“The mandate of the probate court under the Law of Succession Act is limited. It does not extend to determine issues of ownership of property and declarations of trusts. It is not a matter of the probate court being incompetent to deal with such issues but rather that the provisions of the Law of Succession Act and the relevant subsidiary legislation do not provide a convenient mechanism for determination of such issues. A party who wishes to have such matters resolved ought to file a substantive suit to be determined by the Environment and Land Court.”
61. As was held in the same case, the determination of whether or not property was held in trust is a matter of both law and fact. It is not a pure point of law that can be determined as a preliminary point that finally determines t
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JUDGMENT
Background
1. On 10th November 1993, Patrick T. Matu, the respondent herein, filed a Petition for Letters of Administration Intestate of the estate of Matu Samson Mbicho (deceased) in the Resident Magistrate’s Court at Kerugoya. In the affidavit in support of the petition for letters of administration intestate he named the persons who had survived the deceased as:
a. Atalia Muthoni Matu – wife
b. Patrick T. Matu – son
c. Solomon Mbicho Matu – son
d. David Njogu Matu – son
e. Monica Wambui Matu – daughter
f. Beatrice Wangeci Matu – daughter
g. Esther Kanini Matu - daughter
2. On 18th January 1994 a Grant of Letters of Administration Intestate of the estate of the deceased Samson Matu Mbicho was issued to the petitioner, Patrcik T. Matu.
3. The proceedings show that the following persons were present in court on that day:
a. Patrick T. Matu – son of the deceased.
b. David Njogu Matu – son
c. Esther Kanini Matu – daughter
d. Antalia Muthoni – wife of the deceased
4. The order of the court at the end of the proceedings indicates that, “since there’s objection letters of administration granted to the petitioner to be confirmed after 3 months.” I believe the learned trial magistrate meant to indicate since there was no objection. I say so because, there is no indication of who would have been raising the objection and secondly the court would not have directed that the cause proceed7s for confirmation after 3 months.
5. What is clear though is that Esther Kanini Matu, daughter of the deceased and one of the protestors and appellants herein is indicated as being present.
6. On 10th May 1994, the administrator took out a summons for confirmation of grant and in what is supposed to be the affidavit in support of the summons for confirmation of grant of letters of administration intestate and supposed to have been sworn before a senior resident magistrate, the administrator named the following persons as the ones who had survived the deceased:
a. Atariah Muthoni Matu – wife
b. Hezron Mbicho Matu – over 18 years
c. Esther Kanini Matu - daughter – over 18 years
d. Beatrice Wangeci Matu – daughter– over 18 years
e. David Njogu Matu – over 18 years
f. Patrick T. Matu– over 18 years
7. Here, Solomon Mbicho Matu and Monica Wambui Matu were left out even as they had appeared earlier in the affidavit in support of the petition for letters of administration. Hezron Mbicho Matu was brought in at this stage. He had not been named in the affidavit in support of the petition for letters of administration intestate.
8. Only one parcel of land No. Mwerua/Baricho/225, measuring approximately 3.50 Ha, was identified as forming the free estate of the deceased and available for distribution to the beneficiaries. It was deposed in the affidavit in support of the confirmation that the identification and shares of all persons beneficially entitled to the said estate had been ascertained and determined as follows:
a. Atariah Muthoni Matu – 1 acre
b. Hezron Mbicho Matu – 2 acres
c. Patrick T. Matu - 2.4 acres
d. David Njogu Matu - 2.4 acres
9. Here again the following persons who had been named in the petition for letters of administration as surviving the deceased were left out:
a. Solomon Mbicho Matu – son
b. Monica Wambui Matu – daughter
c. Beatrice Wangeci Matu – daughter
d. Esther Kanini Matu - daughter
10. Also, the following persons who had been named in the affidavit in support of the confirmation of grant were also left out.
a. Esther Kanini Matu - daughter – over 18 years
b. Beatrice Wangeci Matu – daughter– over 18 years
11. There was no explanation whether these persons were still alive or not, if alive, whether they had renounced their respective rights to inherit their late father’s property.
12. However, the proceedings in court at the time of confirmation of the grant show that the following persons were present:
a. Antaria Muthoni Matu – wife.
b. Patrick T. Matu – petitioner, son of the deceased.
c. Monica Wambui – daughter, not married with 2 children.
d. Esther Nyambura – daughter, not married, no child
e. Beatrice Wangeci Matu – daughter, not married, no child.
f. David Njogu Matu - son
13. The probate court noted that since there was no objection the grant was confirmed in the following terms, that land parcel number Mwerua/Baricho/225 be sub-divided and shared as follows:
a. Atariah Muthoni Matu – 1 acre
b. Hezolon Mbicho Matu – 2 acres
c. Patrick T. Matu – 2.4 acres
d. David Njogu Matu – 2.4 acres
e. Monica Wambui Matu – 1 acre
14. A certificate of confirmation of grant was issued on the same date of 11th October 1994 with the property being shared as follows:
a. Atariah Muthoni Matu – 1 acre
b. Hezolon Mbicho Matu – 2 acres
c. Patrick T. Matu – 2.4 acres
d. David Njogu Matu – 2.4 acres
e. Monica Wambui Matu – 1 acre
15. On 1st October 2021, Esther Kanini Matu, Sophia Wairimu Gichuhi and Margaret Wanjiku Kuyu took out summons for revocation and annulment of grant under section 76 of the Law of Succession Act and named Patrick T. Matu as the respondent. The summons for revocation or annulment of grant were based on grounds that:
a. The proceedings to obtain the grant were defective in substance.
b. 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.
c. The grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant.
d. It is in the interest of justice that the grant of letters of administration be revoked.
16. Esther Kanini Matu, with the authority of the other applicants swore the supporting affidavit, on 20th September 2021 and further affidavit on 29th October 2021. She deposed that she is a daughter of the deceased and therefore a beneficiary of his estate while the respondent was his brother. She swore further that contrary to what the respondent had disclosed in the affidavit in support of the petition for letters of administration, the estate of the deceased had the following beneficiaries:
a. Atariah Muthoni Matu widow
b. Sophia Wairimu Gichuhi daughter
c. Hezron Mbicho Matu son
d. David Njogu Matu son
e. Esther Kanini Matu daughter
f. Margaret Wanjiru Kuyu daughter
g. Solomon Mbichu Matu son
h. Monica Wambui Matu daughter
i. Beatrice Wangeci Matu daughter
j. Patrick T. Matu daughter (sic)
k. Cecilia Wanjiku Matu daughter
17. Here, Sophia Wairimu Gichuhi, Margaret Wanjiru Kuyu and Cecilia Wanjiku Matu were being introduced into the proceedings for the very first time as children of the deceased. They had not been mentioned in the affidavit in support of the petition for letters of administration or the one in support of the confirmation of grant.
18. At this point, I have checked the lower court file to try and locate the chief’s letter showing the survivor’s or beneficiaries of the deceased’s estate but I have not seen it. It appears none was issued. In the cases of In re Estate of Ambutu Mbogori (Deceased) [2018] KEHC 3892 (KLR), and In re Estate Shem Kitanga (Deceased) [2018] KEHC 4738 (KLR) the High Court held that one of the faults committed by the respective petitioners was that he initiated the succession proceedings without a letter of introduction from the chief yet this letter serves an important purpose in the ascertainment of deceased, dependents, beneficiaries as well as properties of the deceased.
19. The protestors deposed further that:
a. the petitioner had concealed and made a fraudulent allegation when naming the beneficiaries of the estate of the deceased at the time of filing the petition. He had therefore knowingly left out the following beneficiaries:
i. Sophia Wairimu Gichuhi daughter
ii. Hezron Mbicho Matu son
iii. Margaret Wanjiru Kuyu daughter
iv. Cecilia Wanjiku Matu daughter
b. The beneficiaries who were equal in ranking did not give consent to the issuance of the grant of the letters of administration to the respondent as required in law.
c. The proceedings were defective as the affidavit supporting the summons for confirmation of grant was not attested.
d. The beneficiaries not named in the summons for confirmation of grant were included in the grant.
e. The beneficiaries did not sign the consent to the prescribed mode of distribution of the estate.
f. The applicants were discriminated against as they were not included in the succession and neither were they given a share in the estate of their father.
g. The applicants will be rendered destitute if the application is not allowed as the respondent had threatened to evict them.
h. Esther Kanini Matu was in High School at Kabare Girls at the time that the succession proceedings were being conducted. The school leaving certificate annexed to the supporting affidavit indicates that she enrolled in the school in form one on 5th February 1990 and left in form four on 19th November 1993.
i. The respondent sent an e-mail dated 17th November 2011 to the deponent among others informing them of the succession proceedings and indicated to them that the share given to their mother Atalia Muthoni Matu was for their mother to hold in trust for the daughters.
20. I have considered the further affidavit and I note that it only removed from the supporting affidavit the name of Hezron Mbicho Matu as one of the beneficiaries who the respondent had knowingly left out in the succession proceedings.
21. The summons for revocation or annulment of grant were opposed by the respondent who filed grounds of opposition dated 25th October 2021 and a replying affidavit sworn on 18th November 2021.
22. In the supporting affidavit, he deposed that the application was incompetent, bad in law and an abuse of the court process for reasons that:
a. The grant was issued in 1994 and the delay of 27 years before filing the summons for revocation is inordinate and the same is therefore time barred.
b. Esther Kanini, the deponent of the supporting affidavit had deposes that as early as 2011, a period of 10 years before, she was aware of the distribution of the estate.
c. The applicant seemed to be interested in the one acre given to their mother Atalia Muthoni Matu L.R. No. Mwerua/Baricho/803, purporting that their mother held the land in trust for them. The court lacked jurisdiction to entertain a claim founded on trust.
d. Their said mother transferred the said portion of land to her grandson, the deponent’s son, Samson Matu Tarzan before her demise on 26th December 2020 and since she is deceased the application was incompetent.
e. The grant was fully executed and land parcel No. L.R. No. Mwerua/Baricho/225 partitioned on 17th June 1996 to give rise to L.R. Nos Mwerua/Baricho/801, 802, 803, 804 and 805 and transferred to the beneficiaries. Consequently, there is no estate os Samson Matu that is remaining that cab be subject to the proceedings herein and for that reason the court lacks jurisdiction to entertain the application.
23. Further that the beneficiaries of the estate of the deceased took up their respective shares and have developed them for about 27 years. All the survivors of the deceased were all aware and respected the wishes of the deceased and the orders of the court.
24. Further that some beneficiaries such as Hezron Mbicho Matu sub-divided his land L.R. No. Mwerua/Baricho/801 which gave rise to L.R. No. Mwerua/Baricho/903 and which gave rise to Mwerua/Baricho/2314 and 2318. He sold some and transferred others to his children.
25. The 1st applicant started mischievously and fraudulently agitating for trouble after the demise of their mother.
26. Further that the applicants are not paupers and would not be redered destitute if the application was dismissed for reasons that:
a. The 1st applicant is married and has three children. She is a bank manager with Co-operative bank having been in employment for about 30 years. She owns houses in Nairobi and land at Nanyuki.
b. The 2nd applicant is married with seven children and grandchildren and two great-grandchildren. Her family has expansive parcels of land in Mpeketoni, Lamu where she has lived for more than 30 years.
c. The 3rd applicant is married with five children and several grandchildren. Her family has expansive parcels of land in Narumoru where she has lived for over 30 years.
d. None of the applicants has depended on the estate of the deceased from when they attained 18 years of age.
27. Further that contrary to the allegation by the 1st applicant, she was noted in form P & A5 and attended court for confirmation of grant.
28. Further that due process was followed throughout the proceedings and the matter was published in the Kenya Gazette of 10th December 1993 as Notice No. 0730.
29. Various documents in support of the depositions were annexed to the replying affidavit.
30. The respondent therefore prays that the summons for revocation or annulment of grant be dismissed with costs.
31. On 8th December 2021, the administrator filed a notice dated 7th November 2021 of intention to raise a preliminary objection to the summons for revocation of grant on grounds that:
a. The court lacked jurisdiction to entertain the summons for revocation of grant.
b. The application was time barred as the delay to file the same was inordinate.
c. The estate of Samson Matu was fully distributed and the summons for revocation of grant lacked legal foundation.
32. He therefore prayed that the summons for revocation of grant be struck off with costs.
33. On 8th December 2021, the trial court issued directions that the preliminary objection and the summons for revocation of grant be heard concurrently and set the date for hearing as 2nd February 2022.
34. However, on 21st January 2022, the administrator filed an application by way of summons general under Rules 63 and 73 of the Probate and Administration Rules and Order 45 Rule 1(a) of the Civil Procedure Rues praying that the court reviews the directions issued on 8th December 2021 and direct that the preliminary objection now dated 21st January 2022 be heard first. The substantive grounds in support were that there was sufficient ground to review the directions issued on 8th December 2021 and the administrator had filed a preliminary objection raising weighty points of law that were capable of having the matter determined in its entirety at a preliminary stage.
35. The application was supported by the affidavit of Patrick Tarzan Matu sworn on 21st January 2022 in which he deposed that his advocate had advised him to which advise he agreed that they should proceed to file a preliminary objection to the hearing of the summons for revocation of grant which would be more expedient as opposed to hearing the summons for revocation because the fees chargeable for the hearing would be much more than prosecuting the preliminary objection and a hearing would take longer as it would require calling of witnesses by both sides. He deposed that among the grounds raised in the preliminary objection was the trial court’s lack of jurisdiction to proceed with the summons for revocation of grant and so this issue had to be disposed of first.
36. The second preliminary objection dated 21st January 2022 is basically the same as the one dated 7th November 2021 save that the later expounded on each of the grounds set out in the earlier one setting out the constitutional and statutory provisions upon which it is based as well as cited cases supporting the grounds. These were further covered in the submissions and I therefore need not set them out here.
37. When the matter came up on 2nd February 2022 for hearing of the summons for revocation and the preliminary objection, the court directed that the application for review of its earlier orders that the two be heard concurrently be heard and disposed of first. In a ruling dated 21st March 2022, the court reviewed its earlier orders and directed that the preliminary objection be heard and determined first.
38. The preliminary objection was subsequently heard and in a ruling dated 18th July 2022, the trial court upheld the preliminary objection and dismissed the summons for revocation of grant dated 20th September 2021.
39. The appellants were dissatisfied with the trial court’s ruling and filed this appeal through a memorandum dated 27th July 2022 challenging that decision. The record of appeal was filed on 24th November 2022.
Grounds of appeal
40. The appellants were dissatisfied with the decision of the trial court and now appeal to this court on some eight grounds as follows.
a. that the learned trial magistrate erred in law and fact in allowing the preliminary objection yet the same raised issues of fact.
b. that the learned trial magistrate erred in law and fact in finding that the appellants were guilty of laches whereas there is no time limit for filing summons for revocation of grant.
c. that the learned trial magistrate erred in law and fact in relying on the case of Tabitha Wanjiru v Jotham Kihiko Hika & 2 others [2017] KEHC 532 (KLR) whereas the same was distinguishable from the case at hand.
d. that the learned trial magistrate erred in law and fact in relying on the supporting affidavit dated 18th November 2021 and the annexures therein particularly the green card whereas the same had not been adduced in evidence.
e. that the learned trial magistrate erred in law and fact in making a finding that the estate had been wound up despite making a finding that the respondent had not rendered accounts.
f. that the learned trial magistrate erred in law and fact in the manner in which she analysed the issue of trust as the appellants’ case for revocation of grant and not a declaration of trust.
g. that the learned trial magistrate erred in law and fact by failing to critically analyse the preliminary objection, applicable law and the appellant’s submissions.
h. that the learned trial magistrate erred in law and fact in awarding costs to the respondent whereas the case involved family members.
41. The appellants therefore pray that this court allow the appeal, the ruling of the trial court delivered on 18th July 2022 be set aside, and summons for revocation of grant dated 20t September 2021 be reinstated and that the court issues further orders and directions as it may deem fir in the interest of justice.
Submissions
42. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
43. Learned counsel for the appellants submits on ground 1 that the preliminary objection was based on facts and not pure points of law and therefore did not meet the requirements for it to succeed.
44. Learned counsel submits that the facts raised could only be determined on the hearing of the main summons for directions and supports this submission with the case of In re Estate of Wangigi Kamiti (Deceased) [2022] KEHC 3078 (KLR)
45. On grounds 2 & 3 of the memorandum of appeal, learned counsel submits that there is no time limit for filing summons for revocation of grant since section 76 of the Law of Succession Act provided that a grant may be revoked at any time. Further that section 4(2) of the Limitation of Actions Act (Cap. 22) Laws of Kenya relied upon by the respondent is not applicable to succession causes as the same applies to causes of action founded on tort yet the appellant’s application was not founded on tort. He relies on the following authorities:
a) Ansazi Gambo Tinga & another v Nicholas Patrice Tabuche [2019] KECA 803 (KLR) where the Court of Appeal affirmed the High Court’s finding that under section 76 of the LSA “an application for revocation of grant may be made at any time before or after confirmation” and for that reason the application by the respondent for revocation of grant was not time barred.
b) In re Estate of Nzoka Musavi (Deceased) [2022] KEHC 2869 (KLR) where the High Court. Odunga, J. (as he then was) while considering the import of section 76 LSA where section 7 of the Limitation of Actions Act had been raised to allege that the application for revocation of grant was time barred held that:
“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 Respondents have invoked the provisions of section 7 of The Limitation of Actions Act.”
c) Patrick Mwangemi Wanjala & 3 others v Jackson Ngoda Jumwa [2016] KEHC 3023 (KLR) where the High Court held that under section 76 LSA there is no limitation as to the time for filing summons for revocation of grant.
46. Ground 6 is on whether the appellant’s application was based on trust and the appellant’s submit that the application was for revocation of grant and not declaration of trust and therefore the finding of the trial court that it had not jurisdiction to entertain the application since it raised issues of land based on trust under Article 162(2) of the constitution was erroneous. Once again the appellants rely on the case of Ansazi Gambo Tinga & another v Nicholas Patrice Tabuche [2019] KECA 803 (KLR) where the Court of Appeal considered the meaning of “cause of action” and stated thus:
“A cause of action, in law, is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit. In the present case, the respondent’s interest revolves around the grant issued to the appellants, which was confirmed on 18th February, 2010. That was the grant whose revocation the respondent sought.
The appellants have argued both before this Court and the High court; that the cause of action herein arose on 8th June, 1986 when the respondent purportedly finalized his purchase of the land. While it is not in doubt when the purchase was finalized, it is imperative to bear in mind that the trial proceedings herein were not for the recovery of the land. Rather, for revocation of grant. Consequently, the summons for revocation of grant presented by the respondent is not an “action to recover land” for purposes of Section 7 of the Limitation of Actions Act (See Musa Nyaribari Gekone supra). The application can thus not be deemed to fall under the provisions of section 7 of the Limitation of Actions Act aforesaid.”
47. On ground 6, whether the administrator had discharged his responsibilities as such and the estate wound up and therefore lacking locus standi to be sued, the appellants submit that distribution of the estate did not discharge the administrator of his capacity as such. They cited several cases where the High Court found that despite the estate having been distributed the administrator was still in capacity to be sued. The cases are: In re Estate of Des Raj Gandhi (Deceased) [2021] KEHC 8715 (KLR); In re Estate of Mathenge Gichobi (Deceased) [2022] KEHC 2260 (KLR); In re Estate of Mathenge Gichobi (Deceased) [2022] KEHC 2260 (KLR).
48. The respondent on his part, through learned counsel submits that the trial court reached a correct decision on the preliminary objection.
49. The respondents submit that in paragraph 12 of her supporting affidavit, the respondent deposed that they were pursuing the one acre of land comprised in the estate that was held in trust for them by their mother Ataria Muthoni Matu. That such an issue can only be determined by the Environment and Land Court and not a probate court. Several cases are cited to support that submission, being In re Estate of Stanley Mathenge Ruriga (Deceased) [2018] KEHC 4522 (KLR); In re Estate of Samuel Kathieri (Deceased) [2019] KEHC 11767 (KLR); In re Estate of Solomn Mwangi Waweru (Deceased) [2018] KEHC 6237 (KLR).
50. On the issue of the summons for revocation being time barred, the respondent submits that under section 4(2) of the Limitation of Actions Act (Cap. 22) Laws of Kenya provides that the period for filing an action founded on tort, of which fraud is one, is three years and therefore filing summons for revocation of grant 27 years after the grant was confirmed is inordinate delay and such an action is incompetent. To support this submission, the following cases were cited: NDUNGU GITAU v JOSEPH KINYITA GITAU [2005] KEHC 422 (KLR), Ali Omar Ali Abdulrahman v Mohamed Ali Abdulrahman [2020] KECA 365 (KLR); Tabitha Wanjiru v Jotham Kihiko Hika & 2 others [2017] KEHC 532 (KLR) and Joseph Mukono Kunguru v James Kabeere Kunguru [2011] KEHC 258 (KLR).
51. The respondent finally submits that the respondent administered the estate and the same was wound up and therefore cannot be sued through the summons for revocation of grant as was the case herein.
Duty of appellate court on a first appeal
52. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
53. I am well guided by these principles in the consideration and determination of this appeal.
54. I have considered the grounds of appeal, the submissions by the parties in this appeal and reviewed the evidence tendered before and the judgment of the trial court. The issue for determination is whether or not the learned trial magistrate was correct in sustaining the preliminary objection raised by the respondent to the appellants’ summons for revocation of grant.
55. These issues are not new to succession disputes. They have been raised time without number, and courts have made pronouncements upon them. But they keep vexing parties who continue to advance the same arguments for the courts’ determination. This court will therefore restate the law as expounded by other courts of record before it.
56. The issue to consider is whether the preliminary objection raised by the respondent before the trial court satisfied the requirements set out in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696 at page 700 paragraphs D-F where Law JA (as he then was) said that:
“...A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
57. In the same decision at page 701 paragraph B-C Sir Charles Newbold, P. added the following:
“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion...”
58. There were three issues raised by the respondent in the preliminary objection which if any was to succeed would have determined the summons for revocation of grant. These were:
a. Lack of jurisdiction by the court to entertain the summons for revocation of grant on grounds that the claim by the appellants was based on trust.
b. Inordinate delay in filing the summons for revocation of grant thereby causing it to be time barred.
c. The estate of the deceased Samson Matu having been wound up upon being fully distributed by the administrator, the respondent.
59. The learned trial magistrate found for the respondent that the preliminary objection had satisfied the requirements on each of the grounds.
60. It is true that a court of probate lacks jurisdiction to determine issues of property held in trust as held by Musyoka, J. in In The Matter of the Estate of Mbai Wainaina (Deceased) [2015] KEHC 6978 (KLR) that:
“The mandate of the probate court under the Law of Succession Act is limited. It does not extend to determine issues of ownership of property and declarations of trusts. It is not a matter of the probate court being incompetent to deal with such issues but rather that the provisions of the Law of Succession Act and the relevant subsidiary legislation do not provide a convenient mechanism for determination of such issues. A party who wishes to have such matters resolved ought to file a substantive suit to be determined by the Environment and Land Court.”
61. As was held in the same case, the determination of whether or not property was held in trust is a matter of both law and fact. It is not a pure point of law that can be determined as a preliminary point that finally determines t
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