In the Estate of MUKHABALI LITUNDA BITINYU

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

SUCCESSION CAUSE NO. 52 OF 2015

IN THE MATTER OF THE ESTATE OF THE LATE FESTUS MUHANDA BITINYU (DECEASED)

GEOFREY MUHANDA………..………………………………………..…...PETITIONER

VERSUS

DYIPHINE AHEMBELWA IMBIAKHA BITINYU……..………...…………..OBJECTOR

JUDGMENT

The Application

1. Before the court for determination is the objector’s summons for annulment of certificate of confirmed grant dated 27^th February, 2023, brought pursuant to section 76 (b) and (c) of the Law of Succession Act and Rule 44(1) & (2) of the probate and Administration Rules. The summons seeks in the main that the certificate of confirmation of grant issued on 9^th November, 2022 in the estate of the late FESTUS MUHANDA BITINYU and issued to GEOFREY MUHANDA in the above cause be annulled with the consequence that any subsequent registration arising from the said certificate of confirmed grant on LR No. ISUKHA/SHIRERE/2168 be equally nullified.
2. The application is supported by the affidavit of the objector, Dyiphine Ahembelwa Imbiakha Bitinyu, sworn on 27/2/2023. The objector introduces herself as the wife to the late Vincent Imbiakha Bitinyu aka Kaka Bitinyu a son to the deceased. She claims that property known as LR NO. ISUKHA/SHIRERE/2168 (hereinafter referred to as “the suit property”) was registered in the names of Litali Bitinyu, Mukhabali Bitinyu, Machisu Bitinyu and Festus Muhanda Bitinyu who were to hold the property in trust for their thirteen other brothers all of whom were the sons of the late Bitinyu Mweru and that her husband is one among the 13 sons. She contends that the suit property was a product of fraudulent subdivision of property known as LR NO. ISUKHA/SHIRERE/237 effected on 25/10/1982 though she claims that despite the subdivision, she continued to occupy the suit property. She claims that the purported beneficiaries and administrators in this cause are not part of the 13 brothers whom the suit property is held in trust for.
3. After being served with the replying affidavit by the administrator, the objector filed a further affidavit and contended the suit property was registered in the names of four trustees who are all deceased and none of whom held absolute interest in the suit land and therefore the suit property should not form part of the estate of the deceased herein alone. She added that even the administrator’s mother and eldest brother while applying for the administration of the deceased estate, did not include the suit property because it was not part of the deceased’s free estate. The objector considers this cause to have been fraudulently initiated and pursued with the sole purpose of disinherit the deceased’s beneficiaries hence the file should be closed to enable the property revert to the trustees for proper distribution. She adds that whether or not the 17 families signed or not does not make the property a part of the deceased’s estate and that the alleged consent is in any event a subject of active investigation by the DCI for forgery. She then exhibited copies of register of Shirere/2168 in the names of some four people as well as documents to evidence other causes involving the deceased.

Response to the Application

1. The application is resisted by Geoffrey Muhanda, the administrator, vide a replying affidavit sworn on 13/3/2023 in which he avers that property known as LR NO. ISUKHA/SHIRERE/237 was registered in the name of the late Bitinyu Mwera who was the father of the late Festus Muhanda Bitinyu, the deceased herein. He adds that the late Bitinyu Mwera had seventeen sons, including the deceased herein who is the father of Vincent Imbiakha Bitinyu. It is his averment that the late Vincent Imbiakha Bitinyu carried out a succession of his late father’s estate culminating in the creation of two parcels of land from LR NO. ISUKHA/SHIRERE/237 being;
2. LR NO. ISUKHA/SHIRERE/2168 registered in the joint names of Litali Bitinyu, Mykhabali Bitinyu, Machisu Bitinyu and Festus Muhanda Bitinyu holding in trust for themselves and 13 other brothers; and
3. LR NO. ISUKHA/SHIRERE/2169 registered in the sole name of Ronald Wendo Bidinyo who was the youngest son.
4. He further asserts that since the 17 brothers were unable to agree on the sharing of the suit property and for the reason that each of them had established their homesteads elsewhere, they agreed in a meeting held on 3^rd June, 1988 that the suit property be utilized for the benefit of the surrounding community.  He further contends that the joint registration of his name and that of Michael Taabu Machisu as the proprietors of the suit property is limited to them entering negotiations with the County Government of Kakamega for the transfer of the same so that it is put to public/ community use. 
5. The court, with the concurrence of the parties, directed that the objection be disposed of by way of viva voce evidence. At that hearing the objector called five witnesses while the petitioners called two witnesses on their side.
6. Dyiphina Ahembelwa Imbiakha Bitinyu, testified as OW1, adopted her supporting affidavit to the application and the further affidavit as her evidence in chief and was cross examined.
7. On cross examination she stated that though her husband did not object to the suit property being registered in the names of trustees in the year 1982, her late husband is entitled to the suit property because whereas her late husband’s brothers got three parcels, her husband only got two parcels. She added that she resides on the parcel with her grandchildren Selina and Sabet though they are both not supporting her application.  She further claimed that she was not aware of a meeting held in 1988 in which the sons of Bitinyu Mwera agreed to have the suit property devoted for public good. She grounded her objection on the fact that she needs a place to be buried.
8. OW2, Julius Manyengo Muchimba also adopted his statement dated 11/12/2023 in which he identified himself as the grandson of the late Henry Muchimba Bitinyu. He stated that his grandfather died in the year 1976 and that the only property left in his name was LR NO. ISUKHA/SHIRERE/237 where he was buried. He claimed that at the time of his father’s death, his grandfather was living with his three young sons namely Ronald, Jeremiah and Vincent and that it was these three who were entitled to LR NO. ISUKHA/SHIRERE/237 but Ronald subdivided the land into two and allocated himself LR NO. ISUKHA/SHIRERE/2169 instead of subdividing the land into three portions.
9. On cross examination he stated that he was aware that every child of his grandfather was given land and that the objector was given land through her husband. He further stated that he was aware that the deceased wished that the grandchildren build a school or a church on the land and that as at the date of his testimony there was only a church and graves on the suit land. He was not aware if his elder brother supported or opposed the objection.
10. The third witness for the objector was Vitalis Bitinyu Itechesi who adopted his statement dated 11/12/2023 as his evidence in chief in which he stated that that his family and that of the objector have been in occupation of the suit property in which they have distinct portions with fixed on the ground.
11. On cross examination he stated that he is the son to Sabeti and Jeremiah Bitinyu. That his mother was alive but he was not aware if she supported the objection. He further stated that there is a church erected on the suit property and that he did not have any documents to show that his father was opposed to the succession leading to the suit property being listed in the names of trustees. 
12. On reexamination he stated that on the suit property there is a church, an incomplete building of a school and two homesteads that is, one for his mother and the other for the objector.
13. On being questioned by the court he stated that his late father was given land at the Nyayo Tea Zones and that he died in the year 2008.
14. Eliud Okongo Konzolo testified as OW4 also by adopting his statement dated 11/12/2023 in which he stated that he was a grandson to the late Thomas Bitinyu Mwera and that his father, Elijah Konzolo was allocated own land by the father away from the suit land where they have settled up to date.
15. On cross examination he stated that he knows all the children of his grandfather who were all given land and none disputed the registration of the suit property in the name of the trustees. He further stated that the objector did not contest the building of the church and the incomplete school structure on the suit land.
16. Josephat Sohelo Lumiti testified as the last witness, OW5, by adopting his witness statement dated 11/12/2023 as the evidence in chief. In the statement he took the position that he is the grandson of the late Thomas Bitinyu Mwera. He confirmed that his father, the late Thomas Machisu Bitinyu was allocated land by his father and that the late Vincent Imbiakha Bitinyu was settled on the suit property.
17. On cross examination he stated that he was not aware that his late father was registered as one of the trustees of the suit property and he was further not aware the suit property was given for community purposes. He claimed that what he knows is that the suit property was given to the objector, Sabeti and Wendo Bitinyu though Wendo sold his share.
18. On being questioned by the court he stated that a nursery school was to be built of the suit property in the year 1970 and that the church was built in the 1990s.  He claimed that most descendants of Bitinyu Mwera are Catholics yet the church built on the land is PAG with very few followers.
19. The evidence of OW5 marked the close of the objector’s case and left the stage for the petitioner’s case. The first witness was Sabeti Itechesi, a widow of the late Jeremiah Itekesi Bitinyu. She testified as PW1 and adopted her statement dated 11/12/2023. In the statement she asserted that her late husband was the son of the late Bitinyu Mwera to whom she got married in the year 1959. She confirmed being aware that all the sons of Bitinyu Mwera were given at least two portions of land and that her husband was allocated LR NO. ISUKHA/SHIRERE/107 and a portion of LR NO. ISUKHA/SHIRERE/2168 where her late husband was buried. She claimed that she was aware that her brothers in law and her husband had resolved to surrender the suit property for use by the community, and to this extent, the PAG church had taken over a portion thereof where it runs Senior Chief Bitinyu Mwera Nursery School. She claimed that the portion of the suit property being claimed by the objector has always been fallow, serving as a playing field for the children in the neighborhood but then the objector started gradually ploughing it around 8 years ago. Upon cross examination she stated that she wanted a title for her share of the suit property.
20. Geofrey Muhanda Mwera testified as PW2. He also adopted his replying affidavit sworn on 13/3/2023. His position was that all the children of Bitinyu Mwera were given their inheritance including the objector’s husband who was given LR NO. ISUKHA/SHIRERE/217 and 240. That the objector’s late husband was buried in LR NO. ISUKHA/SHIRERE/2890 which borders the suit property. He added that the PAG church erected on the suit property boasts 127 members and Bitinyu ECD Centre has over 80 pupils. He further stated that PW1 lives on a share of the suit property which was allocated to her late husband. He stressed that there was a meeting of all the 17 sons of the deceased, chaired by one II Odoyo, the District officer, Kakmega, on 4.8.1988 when it was resolved that title Number Shirere/2168 be set apart and for community use in memory of the deceased, Thomas Bitinyu Mwera.  And that as at the date of giving evidence, there was a church and Early Childhood Education Centre on the land. He pointed out the nursery school has been well established since 1988 in that even OB3 was a pupil there.
21. On the registration of the land in the name of the trustees, the witness told the court that, the land was so registered pursuant to a succession cause in the matter of the estate of Thomas Bitinyu Mwera in which the objector’s husband participated, was named as a beneficiary and consented to the land being registered communally for the benefit of all. He added that the objector was just but a lone ranger acting contrary to the family grain. Any fraud in the registration is thus denied it being asserted that it was duly done in accordance with the law. He dismissed the evidence by the five Objector’s witnesses as not true but self-seeking adding that it would be uneconomical to subdivide the land among the 17 families. On his standing, he said that of the four trustees, his father was the last to die hence he was the right administrator having been so nominated to so act. In support of his evidence, he exhibited and produced 11 documents to include the minutes of the baraza, certificate of succession and documents of subdivision and transfer.
22. On cross examination he stated that if the administrators dispose the suit property to Kakamega County Government, for public benefit, any proceeds will be shared equally among the family members because they are registered as the proprietors but on behalf of the family members. He confirmed that the original title No. Shirere/237 belongd to his grandfather, Bitinyu Mwera, who was father-in-law to the objector. The estate of Bitinyu Mwera was administered by Robert Mwendo who had the land subdivided into two; Shirere/2168 and 2169. Bitinyu Mwera had allocated the property for public benefit and pointed same out a fact never challenged by the trustee.
23. When confronted with the fact that succession causes had been taken out in the name of his father, he denied knowledge of same and declined to speak on his mother’s behalf.
24. In reexamination he told the court that even though the co-administrator is not his blood brother but a cousin, they applied both because the land was communal and that the subject land was not included in the earlier causes by his mother because the other properties belonged solely to his father’s estate. When asked by the court on the trust, he said that no deed was created.

Issue For Determination

1. The court has enjoyed the benefit of reading application for objection and affidavits in support thereof, the response thereto and the oral evidence by the parties as well as the written submissions. It discerns the only issue that arises for determination by this court to be whether the application for revocation of the certificate of confirmation of grant issued on 9^th November, 2022 is merited.

Analysis

1. The grounds for revocation of a grant as set out in section 76 of The Law of Succession Act are not in doubt and have been the subject of interpretation by the court in several decisions. One only need s to cite In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR where it was stated that;

“Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the Applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.”

1. The gravamen of the objector’s contention is that the process leading up to the confirmed grant was marred by fraud and misrepresentation or concealment of matter. The objector claims that the suit property was a product of fraudulent subdivision of property known as LR NO. ISUKHA/SHIRERE/237.
2. From the record, LR NO. ISUKHA/SHIRERE/237 measuring 4 acres was registered in the name of Bitinyu Mwera who was survived by seventeen sons. The court issued grant of letters of administration to one Ronald Wendo who had title LR NO. ISUKHA/SHIRERE/237, subdivided into two as is common ground to the parties. From the record availed, it appears that Kaka Bitinyu, husband to the objector herein, participated in the proceedings.
3. Kaka Bitinyu was alive when the subdivision of LR NO. ISUKHA/SHIRERE/237 was effected leading to the creation of LR NO. ISUKHA/SHIRERE/2168 registered in the joint names of Litali Bitinyu, Mykhabali Bitinyu, Machisu Bitinyu and Festus Muhanda Bitinyu to hold same in trust for themselves and 13 other brothers; and LR NO. ISUKHA/SHIRERE/2169 registered in the sole name of Ronald Wendo Bidinyo. As this matter progressed in court, there was no allegation that any of the parties had sought to upset the succession of the estate of Bitinyu Mwera yet it was the root source of the title in dispute. The court considers the claim by the objector that her husband did not get three parcels as did his borthers to be a claim against the estaete of Bitinyu Mwera and not Festus Muhanda Bitinyu. It does not lie in this estate. The same goes for the claim that she ha always lived on the land or part of it.
4. More significantly, the objector’s husband appears to have participated in the proceedings leading up to the sub division and he did not object to any of the actions the objector now challenge. The court considers the husband to the Objector the immediate heir of the estate of Bitinyu Mwera, and that his widow can only claim on his title but not to challenge his position taken in life. In choosing to disagree or challenge the decisions made by her late husband in life, the Objector portray not very good faith.
5. The court finds that the creation and registration of Title No. Shirere/2168 was done with the sanction of the court and it cannot be said to have been done fraudulently or illegally. In any event, if there be any impropriety in the process leading to the creation of that title, the dispute lies in that file and not this one.
6. For the reason that the title was duly created and there being no demonstrated ground for revocation of the grant, the court finds the application for revocation to be devoid of merit and the same is thus dismissed with costs.

Dated, signed and delivered at Kakamega this 27th day of September, 2024

Patrick J O Otieno

Judge