In the Estate of MUTUNGA MWAKAVI In the Estate of MUTUNGA MWAKAVI

Mutunga Mwakavi died on 7/8/2002 at Nziu Sublocation.
His daughter in law Agnes Mwose Nzioka and grandson Kimanthi Sammy filed Succession Cause 1435 /2010 at High court of Kenya at Nairobi.
A grant was made on 27/1/2011, and confirmed on 29/11/2011 where the two administrators shared the sole estate - Nzaui/Nziu 185 between themselves.
Vide a Chamber Summons dated 21/4/2022 Amos Kimanthi Mutunga filed an application seeking the transfer of the matter from Nairobi to Makueni.
In that application the Applicant sought other prayers;
That the honourable court before hearing this application to order and stop the money Safaricom paying Agnes Nzioka and Kimanthi Sammy the Administrators of the Estate of Mutunga Mwakavi.
That it is my prayer to honourable court to transfer this cause to High Court of Makueni for reason that I am domiciled in Makueni and all the administrators reside and carry business in Makueni also the subject property is situated in Makueni County.
That I pray the honourable to include my name to be the one of the administrators of the Estate of Mutunga Mwakavi.
That the estate of Mutunga Mwakavi is supposed to be divided among his three children of Mutunga Mwakavi namely;
Agnes Nzioka the wife to Nzioka Mutunga (deceased)
Kimanthi Sammy son to Sammy Mutunga (deceased)
Amos Kimanthi Mutunga son to Sabina Maemi Mutunga (Deceased).
That I pray the honourable court to order Agnes Nzioka and Kimanthi Sammy Administrators to divide the money the Safaricom pay the family of Mutunga Mwakavi since 2008 up to 2021.
In the affidavit in support he deponed that his mother Sabina Mueni Mutunga deceased, was a daughter of the deceased. He sought to be included as one of the administrators and to receive a share of the estate of grandfather.
The order was granted on 21^st February by the Hon Riechi J. Vide a letter dated 31/3/2023 the file was transferred to Makueni and became Succession Cause No. 6BB of 2023 In the estate of Mutunga Mwakavi (deceased)
On 2/5/2023 Amos Kimanthi Mutunga filed Notice of Motion dated same day – seeking orders;
Stay of proceedings in Makueni MCCR E107/2023 pending the hearing and determination of this cause, and a conservatory order in relation to LR Nzaui/Nziu/925 and proceedings thereof received from Safaricom Ltd pending determination of the succession cause.
The application is supported by the certificate of urgency and the affidavit in support.
In the certificate of urgency, he states;
That the Applicant herein applied for revocation of grant issued by this court and which sermons are still pending hearing and finally determination.
That the crux of the revocation is the distribution of the estate of the deceased herein particularly land parcel No. Nziu/Nziu/925.
That the Applicant lives on the land and he was not awarded and/or allocated his rightful share and hence the sermons for revocation of the grant.
That in the normal and usual utilization and occupation of the land, the Respondent herein accused him of malicious damage to property.
That the tree fell down is within the parcel No. Nzaui/Nziu/925 occupied by the Applicant since his birth and the subject matter in this succession cause.
That the ownership of the land parcel is pending determination herein and as such, unless the criminal charges proffered against the Applicant in Makueni magistrates criminal case No. E107/2023 are stayed, the Applicant will suffer injustice.
That its therefore urgent sought that this court do certify the application urgent and be heard expeditiously and for orders sought in the interim to be granted to prevent the end justice being defeated.
Annexed to the application is a charge sheet where the Applicant is the accused person and the complainant is one of the administrators of the said estate Ages Mwose Nzioka title deed for Nzaui/Nziu/925 registered in the name of Agnes - & Kimanthi Sammy on 17/10/2018.
Counsel for the Respondent filed grounds of opposition with respect to this application;
That this honourable court lacks jurisdiction to issue conservatory orders in relation to land parcel number Nzaui/Nziu/925 since this is a preserve of the Environment & Land Court.
That this honourable court lacks jurisdiction to issue an order staying the proceedings in Makueni Chief Magistrate’s Court Criminal Case No. E107 of 2023 as this is a preserve of the Constitutional Court.
The grounds relied upon in the application are therefore misleading and misconception of facts and law.
That from the foregoing the Respondents shall raise a preliminary objection in opposing the present application.
Parties filed written submissions. The 1^st thing to note is that the Applicant is not represented. The Respondents are represented by the firm of O.N Makau & Company Advocates. It is submitted for the Respondents that this court has no jurisdiction to issue a conservatory order over land as that is the jurisdiction of the ELC Court.
That the suit by the Applicant is an abuse of the court process. The Applicant’s submissions are that this court has the jurisdiction to hear and determine the matter.
His position is that the Respondents are using the criminal case to stop his pursuit of his mother’s share of the estate that in any case the tree subject of the criminal case against him fell on the parcel land subject to the cause. That the Respondents are enjoying the proceeds of the estate of the deceased to his exclusion.
I have carefully considered the submissions by counsel, the submissions by the Applicant – and the record.
The issue is whether the Preliminary Objection is sustainable and whether application has any merit to determine those issues, the court must look at the entire record. Looking at the letter of the chief – the deceased was survived by a daughter in law, two daughters and several grandchildren. In the letter of the chief the mother of the Applicant is marked as deceased but the Applicant is not listed as one of the grandchildren benefiting from the estate. The Applicant was also not a signatory of the consent to the mode of distribution.
It is noteworthy that the respondents have not controverted the fact that the applicant is beneficially entitled to the estate of the deceased as grandchild, a child of a deceased daughter of the deceased herein.
The preliminary objection raised by counsel for Respondent is on the basis that the application the applicant raises issue of land which is the remit of the ELC Court. In my view that approach is not tenable because the issue here is the estate of the deceased. It is a dispute over the estate of the deceased which happens to be a parcel of land. It is not an issue ownership/ or title to that land - but whether or not the Applicant is beneficially entitled to his mother’s share of the said property.
The applicant raises the issue that the grant that gave the respondents title to the land was obtained without following the due process. My understanding of what the applicant is saying is that the respondents obtained the grant without involving him as a bona fide beneficiary, then they obtained title to the property and are now frustrating him as a beneficiary of his mother’s share. That the criminal case is tied to these issues related to the estate.
Rule 73. Of the P&A Rules Saves the inherent powers of court to do justice and present abuse of the court process.

Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

In addition, section 47 of the LOSA provides for the Jurisdiction of High Court

The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient:

A consideration of the application brought by the applicant shows that the crux of the matter is the distribution of the estate of his deceased grandfather and his claim over his deceased mother’s share. He is saying that the criminal case is based on what the complainant who is his aunt by marriage to the brother of his mother, who is also deceased, claims from the estate. That without a proper determination of his beneficial estate the criminal case only comes in to muddy the waters.
In the light of the foregoing the preliminary objection begins to show itself as not being a pure point of law as envisaged by precedent, on which if allowed would settle all the issues in this matter. It is also evident that basis upon which the preliminary objection is laid is factual - and there are facts that still need to be determined. The facts on the other side are not all correct. The issue of the criminal case will depend on whether the land or the tree belonged to Agnes Mwose or tote estate of the deceased.
What that means is that the proceedings in the Criminal court would will require the determination of that fact which depends on the distribution of the estate of the deceased.
That brings us to the application dated 21^st April 2022. In this one the applicant seeks to be included in the grant as one of the administrators and for the estate to be redistributed into three shares to include him. What that means is that he is requesting the court to revoke the grant issued herein because the administrators excluded him.
Should I proceed to determine that issue? My view is that I have the jurisdiction to so even without the parties addressing me on the issue. That power is derived from Rule 73 of the P&A rules which empowers this court to make orders that ensure justice is done, and abuse of the court process is prevented; as read with Section 76 of the Law of Succession Act which empowers this court, on its own motion to revoke any grant which falls afoul of the grounds laid out in the provision It states A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion-

(a) that the proceedings to obtain the grant were defective in substance;

(b) that 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) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

(d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either-

(i) to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or

(ii) to proceed diligently with the administration of the estate; or

(iii) to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or

(e) that the grant has become useless and inoperative through subsequent circumstances.

The manner in which the grant was obtained prima facie runs afoul section 76(a), (b), (c) because it is not denied that the applicant is a grandson of the deceased, the administrators aware of that fact concealed from the court and proceeded to share the estate among themselves to his exclusion. That grant calls out for its revocation, regardless of the fact that respondents have shared the estate and obtained a title deed.
The effect of the revocation is to set aside all the transactions that may have resulted from the grant, hence their title deed would stand revoked as upon the revocation of the grant.

Disposition

In the circumstances;

I find and hold that the preliminary objection is not sustainable.
I find and hold that the prayer for stay of the criminal proceedings is not sustainable.
The grant issued to Agnes Mwose Nzioka and Kimanthi Sammy on 27^th January 2011 and confirmed on 27^th November 2011 be and is hereby revoked.
The Land Registrar, Makueni Land Registry, be and is hereby is directed to cancel the tittle deed LR Nzaui/Nziu/925 issued to the administrators of this estate Agnes Mwose Nzioka and Kimanthi Sammy - and to revert it to the name of the deceased Mutunga Mwakavi. The Deputy Registrar to serve the order upon the Land Registrar for compliance.
A fresh grant be and is hereby issued in the names of Amos Kimanthi Mutunga, Agnes Mwose Nzioka and Kimanthi Sammy
The administrators either jointly or individually to file a fresh summons for confirmation of grant with a fresh proposal on the distribution of the estate.
The administrators are at liberty to pursue the matter through court annexed mediation.
Mention before the Deputy Registrar within 30 days hereof to

(i) confirm compliance with the filing of the Summons for Confirmation of grant

(ii) assign a mediator.

Each party to bear its own costs.

Dated and signed on 12^th day of April, 2024.

Delivered on 15^th day of April, 2024 due to system downtime on 12/4/2024