IN THE ESTATE OF KAKAI SHURA TATEK

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

SUCCESSION CAUSE NO. E070 OF 2021

IN THE MATTER OF THE ESTATE OF THE LATE KAKAI SHURA TATEK – DECEASED

JUDGMENT

Summons for confirmation

1. This judgment relates to the Estate of Kakai Shura Tatek, deceased. The Grant was issued on 27^th April 2015 to Kashambi Kakai Shura, Sisita ene Kakai, David Toyianka Kakai and Denilson Malit Kakai in Nairobi High Court Succession Cause No. 2486 of 2014. The file was transferred to the High Court in Kajiado and allocated No. E070 of 2021.
2. The Administrators filed Summons for confirmation of the grant dated 24^th March 2022 in which the following beneficiaries have been listed:
   1. Janet Kakai – Deceased
      • Denilson Malit Kakai
      • Noah Rotiken Kakai
      • Sipilon Kakai
   2. Somoina Kakai – Deceased
      • David Toyianka Kakai
      • Rosemary Kakai
      • Namunyak Kakai
   3. Sisita Ene Kakai
      • Caleb Toronikei Kakai
      • Solitei Kakai
   4. Kashambi Kakai Shura
      • Jackson Mirishoi Kakai
      • Dennis Kakiyia
      • Stanley Oropi Kakai
      • Lorumoi Kakai
      • Kababa Kakai
3. The administrators proposed mode of distribution contained in the Supporting Affidavit  is as follows:

Protest

1. Stephen Kinyanjui Nganga has opposed the Summons for Confirmation through an Affidavit in Objection dated 7^th April, 2022 sworn by Stephen Kinyanjui Nganga. He is claiming purchaser’s interest. He has deposed that he entered into an agreement for sale with the deceased on 30^th April, 1986 to buy 40 acres of land in Kajiado/Kaputei – North 704; that this land was later subdivided into two portions: Kajiado/Kaputei – North 1598 and 1599 and that this therefore meant that his 40 acres would be obtained for Kajiado/Kaputei – North 1598.
2. He stated that due to several frustrations the transfer of the aforementioned property was not done; that the beneficiaries are well aware that he is the purchaser and that several family meetings have been held in respect of this issue with the last meeting b being held on 10^th September, 2019band that the administrators despite being aware of his interest in the property have willingly excluded him from his share of the said property.
3. The administrators swore a Reply to the Affidavit of Objection dated 25^th February, 2023 in which they have stated that the allegations that the Objector is a purchaser of 40 acres of Kajiado/Kaputei – North/ 704 is false; that the sale was marred with irregularities and inconsistencies; that the alleged agreement for sale is doubtful as the same was made on 30^th April, 1986 yet the deceased signed it on 18^th January, 1991; that the caution lodged by the Objector was done on 8^th February, 1990 before the deceased signed the agreement; that no Land Board consent was applied for as required by section 8(1) of the Land Control Act and that the agreement refers to 20 acres being purchased and not the alleged 40 acres.
4. They further stated that the Objector has not tendered any evidence of payment of the purchase price.

Objector’s case

1. Through the evidence tendered in court, it is the case for the Objector that that he purchased land from the deceased and that his claim is for 20 acres from land Kajiado/Kaputei – North/1598. He relied on his Affidavit of Objection and the attached documents, that is, the Sale Agreement dated 30^th April 1986; copy of the application for caution, a document showing payment of Kshs 117,800, caution in respect of Kajiado/Kaputiei-North/704, among other documents in support of his claim.
2. On cross examination he stated that he was aware of a Ruling dated 30^th November 2011 in the Nairobi matter where the court found that he was not a beneficiary. He stated that he did not file an appeal against this ruling, nor did he file a case in the ELC regarding the said property.
3. He stated that he has the original sale agreement but did not produce it in court and that the copy he produced in court has not been signed by the deceased. It was his case that there were 2 sale agreements, one dated 1991 and another 1986; that minutes he has attached to his Affidavit dated 4^th October 1999 are not signed by the deceased’s widow. And that he cautioned the property on 8^th February, 1990.
4. Benson Karekure, the Chairman of the AJS Kaputei Segment testified that the family of the deceased brought a dispute to elders for discussion in which the family claimed that the Objector was claiming to have bought land and that the deceased had died before transferring the land to him; that the elders agreed that the Objector should bet 16 acres but after further discussion, it was agreed that he get 12 acres. He testified that he prepared a Report dated 26^th June 2023 in reference to 16 acres of the land but that the matter was further discussed, and it was agreed on 12 acres leaving 4 acres to cater for the expenses of subdivision of land. He testified that all parties, including the Objector, agreed to cater to the expenses of subdivision and all signed the agreement.

Administrators’ case

1. Mary Kakai one of the administrators of the estate testified that the deceased was her husband. That she knew the Objector as a friend of the deceased and that he had bought land from him. She stated that she was not aware of another Succession Cause; that there were meetings held concerning the land, but they were not attending, although her co-wife Sisita Kakai used to attend. She stated that they resolved the issue and the Objector signed the agreement which was for 12 acres.

Submissions

1. In addition to the evidence, parties filed submissions. The Objector’s submissions are dated 9^th August, 2024. The Objector has reiterated his case as already set out in this judgment. He has submitted that the deceased’s family during the AJS meeting agreed and are ready to surrender 12 acres as per the recommendations of the AJS committee, which is evidence that he bought the land and therefore has a legitimate and enforceable claim. He relied on section 86 of the Law of Succession Act which provides that, “Debts of every description enforceable at law and owed by or out of an estate shall be paid before any legacy.”
2. He relied on various cases showing that he is a creditor to the estate of the deceased. Among the cases were the estate of John Gakungo Njoroge (deceased) 2015eKLR where the court held that “an interested party who had bought land from the deceased person before obtaining a letter of consent from the Land Control Board was entitled to recovery of his principle purchase price unless parties agreed by consent to have the creditors given the land they were claiming.”
3. It was his case that his claim to the land crystallized during the life time of the deceased since he bought the land from the deceased and even lodged a caution on the property during his lifetime. He relied on In the Matter of the Estate of Boniface Njeru Ngemi Succession cause 1614 of 2018 where it was held that,

“Although section 66 of the Law of Succession Act recognizes creditors as interested parties in succession proceedings, such claim must have crystallized during the lifetime of the deceased. In the instant case, the property was not sold by the deceased nor the administrator or his legal representative. The claim against the estate is not capable of litigation before the probate court for enforcement. In situations where a creditor is claiming beneficial interest from the estate of a deceased person, he must prove a legitimate claim which is enforceable before a probate court.”

1. He also relied on in the matter of the Estate of Barack Deya Okul succession cause No. 236 of 2015.

Administrators’ submissions

1. The Administrators’ submissions are dated 1^st October, 2024. They have raised three issues for determination as follows:
2. Whether the court has jurisdiction to determine the above matter.
3. Whether the Objector has a valid and enforceable interest in the land title number Kajiado/Kaputei – North/1598.
4. Who bears the cost.
5. On the first issue they raised issues of jurisdiction of this court to deal with this matter. They relied on the Supreme Court  of Kenya case In the matter of Interim Independent Electoral Commission [2011] eKLR to the effect that assumption of jurisdiction by courts in Kenya is a subject regulated by the Constitution, by statute law and by principles laid out in judicial precedent. They also relied on Owners of the Motor Vehicle M.V Lillian’s – vs- Caltex Oil Kenya Limited (1989).
6. They submitted that this court lacks jurisdiction to determine ownership of land which is what the Objector is calling this court to do and that the court with that jurisdiction is the ELC court. They relied on the case in Re Estate of Francis Njuguna Rurigi (deceased) [2016] eKLR.
7. They further argued that in the previous Succession Cause no 2816 of 1999 the court in its ruling of 30^th November, 2020 held that, “it is important to disclose the role of Stephen Kinyanjui Ngugi. He is not a survivor and is not entitled to the estate. If he claims as a creditor then he must await the cause to be completed and sue the two administrators or send them a demand note of his share if he can prove this prior to the deceased having died.”
8. They argued that no appeal has been brought against the ruling. They further relied on the Succession Cause Number 864 of 1996 [2015] eKLR where the court held that:

“Even if there was material establishing that there was such a trust, I doubt that the resolution of this issue would be a matter of the probate court. The mandate of the probate court under the Law of Succession Act is limited. It does not extend to determining issues of ownership of the property and declaration 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 an issue. A party who wishes to have such matters resolved ought to file a substantive suit to be determined by the Environment and Land Court. Consequently, and for the reasons above stated, I must find and hold that this court has no jurisdiction to resolve the proprietory interest on land based on the alleged trust. In this case therefore, the only path legally open to the applicants is to institute separate proceedings to articulate their claim/rights in the right forum and which is the Environment and Land Court.”

1. On the second issue they argued that the Objector’s claims are based on a sale agreement where proof that the deceased signed or consented to the same cannot be determined. Further, that there is no sufficient proof of payment of the purchase price. It is their case that the burden of proof lies with the Objector to prove validity of his interest. They relied on the case of Arun C. Sharma vs Ashana Raikundalia T/A A. Raikundalia & Co. Advocates & 4 others [2014] eKLR where the court held as follows: 

“The objector bears the burden of proving that he is entitled to or has legal or equitable interest on the whole or part of the attached property. The key words are; entitled to or to have a legal or equitable interest in the whole or part of the property.”

1. Section 3(3) of the Law of Contract Act provides as follows:- “3(3) No suit shall be brought upon a contract for the disposition of an interest in land unless- (a) the contract upon which the suit is founded: (i) is in writing; (ii) is signed by all the parties thereto; and (b) the signature of each party signing has been attested by a witness who is present when the contract was signed by such party; provided that this subsection shall not apply to a contract made in the course of a public auction by an auctioneer within the meaning of the Auctioneers Act nor shall anything in it affect the creation of a resulting, implied or constructive trust”
2. It was their submissions that in this case the agreement was only signed by the Objector hence not legally valid. They relied on the case of Kukal Properties Development Limited Vs Tafazzal H Maloo & 3 Others (1993) eKLR where the Court of Appeal pronounced itself on a similar dispute where only one party had signed the agreement for sale of land. Commenting on the legal framework in Section 3(3) of the Law of Contract Act, Muli JA held as follows:

“With the greatest respect, the learned trial judge misdirected himself completely. In the first place it matters not what the parties or one of them believed or was made to believe. The real issue was whether the agreement was duly executed by the parties, and if not, was the agreement binding and enforceable against any of the parties?.................. It is trite law on this point and is made beyond doubt under Section 3(3) of the Law of Contract Act (cap 23) Laws of Kenya) I hold that the intended agreement between the appellant and the Porbundarwallas was inoperative and therefore unenforceable for lack of execution by the appellant; the sum total was that there was no valid agreement enforceable in law”

1. On the issue of costs they relied on section 27 of the Civil procedure Act that costs follow the event.

Analysis and determination

1. I have read the court file record keenly considered the Summons for Confirmation of the Grant and the Affidavit of Protest. I have also considered the evidence of all the parties. To my mind, the issues arising for determination are the following:
   1. Whether this court has jurisdiction to deal with this matter?
   2. Whether the Objector has any claim over the deceased property?
   3. Costs
2. I have considered the claims by the Objector that he bought land from the deceased. It is his case that they entered into 2 agreements, one entered into on 30^th April, 1986 (for 40 acres) and the other entered into on 18^th January, 1991 which he claims to be the final agreement in which the deceased was to sell to him 20 acres from Kajiado/Kaputei – North/1598 after subdividing Kjiado/Kaputiei-North/704.
3. The administrators in their affidavit have denied that there was a valid agreement entered into by the deceased and the Objector. From the record of the Court, parties agreed to hold negotiations towards resolving this matter. However, the negotiations failed and parties failed to agree and came back to court for its determination. It is not lost to me that the family of the deceased and the Objector participated in AJS proceedings who report was alluded to by the Chairman of the Kaputiei AJS Segment.
4. Turning on the issues before this court, it is trite that a court’s jurisdiction flows from either the Constitution or legislation or both as held by the Supreme Court of Kenya in Samuel Kamau Macharia vs KCB & 2 Others, Civil Application No. 2 of 2011, where that Court pronounced itself as follows:

“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.

We agree with Counsel for the first and second Respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This court dealt with the question of jurisdiction extensively in the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application No. 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”

1. Under Article 165(3) of the Constitution, matters related to, inter alia, titles to land as provided under Article 165(5) (b) of the Constitution are a preserve of the Courts contemplated under Article 162 (2) (b) of the Constitution.
2. This Court is a Probate Court whose primary duty is to distribute the estate of the deceased to he rightful heirs. In Priscilla Ndubi and Zipporah Mutiga vs Gerishon Gatobu Mbui, Meru Succession Cause No. 720 of 2013, the Court held that:

“The primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries. As of necessity, the estate property must be identified. Thus, where issues of ownership of the property of the estate are raised in a succession cause, they must be resolved before such property is distributed. And that is the very reason why rule 41(3) of the Probate and Administration Rules was enacted so that claims which are prima facie valid should be determined before confirmation.”

1. The procedure to be adopted during confirmation of the grant proceedings where an interested party claims an interest in the estate of the deceased is stated in Rule 41 of the Probate and Administration Rules. Rule 41 (3) provides that:

Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71(2) of the Act, proceed to confirm the grant

1. The Court in In re Estate of Francis Peter Njuguna Rurigi (Deceased) [2016] eKLR had this to say in respect of a

“6. My understanding of this is that where a claim is brought by anyone, whether a beneficiary or survivor of the deceased or even a third party, that he has an interest of one sort or other in estate property, such property shall be set aside or be removed from the schedule of assets to await determination of the question as to the interest of the claimant. Should it be established that the property or part thereof belongs to the claimant then the asset or part thereof remains removed from the schedule. However, should it be established that the claimant had no interest of any sort in it; the property is restored to the schedule and thereafter distributed under section 71 of the Act.

7. The nature of the proceedings for determining such interest is set out partly in Rule 41(3) and wholly in Rule 41(4). What is envisaged is an Originating Summons under the successor of Rule XXXVI Rule 1 of the Civil Procedure Rule. The summons ought to be at the instance of the administrator where the claimant is named as a respondent. That does not preclude a suit properly brought before the Environment and Land Court by the claimant against the estate under the Civil Procedure Act and Rules for determination of the question of ownership as between the deceased and the claimant. The effect of these provisions is that such questions ought not to be determined within the probate cause.”

1. After considering the issue of jurisdiction and the applicable law, it is my considered view that this Court lacks jurisdiction to determine ownership of a portion of the property forming the estate of the deceased to the Objector. It is not lost to me that the Objector admitted that there is a ruling in which the Court pronounced itself to the effect that the Objector is not a beneficiary. He admitted that he has not appealed against that ruling. I have not had the benefit of that ruling and cannot comment on it. Suffice it to state that there is some information that was not brought to my attention in respect of this matter.
2. On the second issue of whether the Objector has any claim over the deceased property this in my view would be determined after the issue of ownership is determined. This is because the Objector is claiming that he bought land from the deceased when he was alive, but the actual acreage is still not well determined. From the evidence of the Objector, he is claiming 40 acres, which he changed to say it is 20 acres. The evidence of the Chairman of the AJS Kaputiei Segment whose report is dated 26^th June, 2023, the Objector is said to have agreed to 16 acres out of which 4 acres was to cater for expenses. The AJS report may not be binding on this court but may be useful evidence in a clam for ownership of land by the Objector in the right forum.
3. After careful analysis of the evidence presented before this Court, the property Kajiado/Kaputiei-North/1598 measures 58.68 hectares which translates into 145 acres. The distribution proposed by the Administrators equals to that size. For ends of justice to be met and in order not to deny the beneficiaries their share of the estate, it is my view that 20 acres out of the estate be set aside as contemplated under Rule 41(3) of the Probate and Administration Rules pending determination of the question as to the interest of the Objector in proceedings under the Civil Procedure Rules or a claim filed in the ELC.
4. The Summons for confirmation of the grant is hereby allowed partly to the effect that the administrators and the beneficiaries shall propose a distribution of 125 acres less the 20 acres to be set aside as stated above in line with Rule 41(3) of the Probate and Administration Rules. The beneficiaries are at liberty to move the court after they have agreed how to share the 125 acres as they await the determination of the court in respect of the 20 acres set aside.
5. Orders shall issue accordingly.

Dated, signed and delivered this 21^st February 2025.

S. N. MUTUKU

JUDGE