1. Before this court is Summons dated 23rd May 2018 seeking the following orders:-
(a) Spent;
(b) That this honourable court be pleased to issue a conservatory and prohibitory order to preserve LR No.Kwale/Mbuguni Phase 11 SS/196,Kwale/Ngómbeni /295,Kwale/Ng’ombeni/714,Kwale /Ngómbeni/761,Kwale/Ngómbeni/779,Kwale/Ng’ombeni/814,Kwale/Ngómbeni/960,Kwale/Ngómbeni/1096,Kwale/Ngómbeni/1806,Kwale/Ng’ombeni/1067,Kwale/Shimoni SS/182,Kwale/Pungu/Fuel Area/1,And Kwale/Pungu/Fuel Area/2,Kwale/Pungu/Fuel Area/4,Kwale/Pungu/Fuel Area/102,and Kwale/Shimba Hills/646 to bar and restrain the respondent,Fatuma Bakari Nimbweta or anyone claiming under her, from dealing with the aforesaid parcels of land in any manner howsoever pending hearing and determination of this application interparties.
(c) That this honourable court be pleased to issue a conservatory and or prohibitory order to preserve LR No.Kwale/Mbuguni Phase 11 SS/196,Kwale/Ngómbeni /295,Kwale/Ng’ombeni/714,Kwale /Ngómbeni/761,Kwale/Ngómbeni/779,Kwale/Ng’ombeni/814,Kwale/Ngómbeni/960,Kwale/Ngómbeni/1096,Kwale/Ngómbeni/1806,Kwale/Ng’ombeni/1067,Kwale/Shimoni SS/182,Kwale/Pungu/Fuel Area/1,And Kwale/Pungu/Fuel Area/2,Kwale/Pungu/Fuel Area/4,Kwale/Pungu/Fuel Area/102,and Kwale/Shimba Hills/646 to bar and restrain the respondent,Fatuma Bakari Nimbweta or anyone claiming under her, from dealing with the aforesaid parcels of land in any manner howsoever pending hearing and determination of this application and ultimately the summons for confirmation of a grant application herein dated 4th April,2016.
(d) That this honourable court be pleased to order the Land Registrar-Kwale to reverse all dealings and or transactions on LR No. Kwale/Ng’ombeni/761, Kwale /Ng’ombeni /1806, Kwale/Shimba Hills/646, Kwale/Pungu/Fuel Area/4, Kwale/Shimoni SS/182 And Kwale/Ng’ombeni/Mbunguni/Ss/196 by registering the parcels of land back into the names of the deceased herein the original owner for distribution purposes.
(e) That the respondent,Fatuma Bakari Nimbweta be ordered to render a full account for the assets forming part of the estate of the deceased namely;LR No. Kwale/Ngómbeni/761,Kwale/Ng’ombeni/1806,Kwale/Shimba Hills/646,Kwale /Pungu/Fuel Area /4,Kwale /Shimoni SS/182 And Kwale/Ngómbeni/Mbunguni/SS/196 by explaining on whose authority and or in what capacity she dealt with properties forming part of the estate of the deceased herein by transferring to herself and thereafter to third parties whereas she is neither the appointed administrator nor a sole heir.
(f) That failure by the respondent Fatuma Bakari Nimbweta to account as sought in prayer 5 above the respondent be cited for intermeddling with assets forming part of the estate of the deceased by the court recommending appropriate action to be taken against the respondent as provided by the law and or as the court may deems fit to punish and compensate the estate of the deceased herein.
(g) That this court to summon the registrar of land, Kwale County to appear before court and produce the green card for LR No. Kwale/Ngómbeni/Mbuguni/SS/196, Kwale/Shimoni SS/182, Kwale /Pungu/Fuel Area/2, Kwale/Pungu/Fuel Area/4 And Kwale/Pungu/Fuel Area/102 as all efforts to get the same from the Registrar of Land,Kwale County has been futile.
(h) That the orders issued by the Kadhi’s Court on 13th June,2016 and 23rd January,2018 vide Kadhi’s Court at Kwale Succession Case No.224 of 2016 and Kadhi’s Court at Kwale Succession Case 103 of 2017 be stayed and or suspended pending hearing and determination of this application.
(i) That this court declare all orders issued by the Kadhi’s Court on 13th June,2016 and 23rd January,2018 vide Kadhi’s Court at Kwale Succession Case No.224 of 2016 and Kadhi’s Court at Kwale Succession Case 103 of 2017 as null and void being irregular and a duplicity of administration duties as there exists an appointed administrator of the estate of the deceased herein (the public trustee) having been appointed on 24th February,2016 and that the orders by the Kadhi were obtained un-procedurally without the participation of all the other heirs of the deceased herein.
(j) That this court to suspend and or cancel the orders issued by the Kadhi’s Court on 13th June,2016 and 23rd January,2018 vide Kadhi’s Court at Kwale Succession Case No.224 of 2016 and Kadhi’s Court at Kwale Succession Case 103 of 2017 as they are being used by the respondent herein to defraud the estate of the deceased herein.
(k) That the court to order that confirmation of the grant and distribution of all the assets forming part of the estate of the deceased herein proceed for hearing and determination before this honourable court.
2. The application premised on the supporting affidavit of Jafred Erima Maliro the assistant Public Trustee and Maalim Bakari Mngumi A.K.A Mwalim Bakari Mngumi all filed on 28th May,2018.
3. The Public Trustee in his affidavit stated that the death of the deceased was reported to him by one Lucy Bakari Mngumi the 2nd widow of the deceased. The heirs of the deceased informed him that the deceased was the registered owner of the following properties;
LR Kwale/Ng’ombeni /761
LR Kwale/Ng’ombeni/779
LR Kwale/Ng’ombeni/814
LR Kwale/Ng’ombeni/960
LR Kwale/Ng’ombeni 1096
LR Kwale /Shimba Hills/646
LR Kwale/Shimoni SS/182
LR Kwale/Ng’ombeni/1806
LR Kwaale/Ng’ombeni/295
LR Kwale/Mbunguni Phase 11 SS/196
LR Kwale/Ng’ombeni /714
LR Kwale/Ng’ombeni /1067
LR Kwale/Pungu Fuel Area/1
LR Kwale/Pungu Fuel Area/2
LR Kwale/Pungu Fuel Area /4
LR Kwale/Pungu Fuel Area /102
4. He further stated that this honourable court issued a grant of letters of administration intestate to him on 24th February 2016. The same could not be confirmed as it emerged that some of the deceased’s properties had been illegally transferred to third parties thus the matter was stood over generally. It emerged that the respondent herein was involved in the illegal transfer to herself and thereafter to third parties. That he tried to have the matter resolved amicably in vain.
5. He averred that he conducted an official search from lands office Kwale County which confirmed that some of the assets forming part of the estate of the deceased had been transferred to the respondent herein and thereafter to third parties. He prepared a caution and presented the same to the Land’s Registrar Kwale County only to later realize that the same was not registered and that there was no response on the same from the Registrar of Lands. He then lodged a complaint of fraud and intermeddling with the estate properties with the County Criminal Investigation Officer, Kwale County. However, he has never received any response from the said office to date, making his efforts futile.
6. He stated that the respondent herein secretly and without the consent of the other beneficiaries fraudulently obtained an order from the Kadhi’s Court Kwale vide Kadhi’s Court Kwale Succession Cause no.224 of 2016 in the pretence that she was sole heir of the estate of the deceased and used the same to transfer the deceased’s properties to herself with no regards to the beneficial rights of the other heirs. That she has been abusing the Kadhi’s Court Kwale by obtaining orders in respect to the estate without involving other heirs and despite consenting to the administration of the estate by the Public Trustee.
7. He further stated that he was served with an order from the Kadhi’s Court Kwale to hand over the remaining estate to the court for distribution vide Kadhi’s Court Kwale Succession Cause No.103 of 2017.That the beneficiaries are apprehensive there will be no fairness in the distribution of the estate by the Kadhi’s Court and wish the same to be heard and determined by this court. That the actions of the respondent are fraudulent and illegal in nature, which amount to intermeddling. That the respondent has to be restrained from dealing and wasting the estate of the deceased. That the respondent do render a full account for the assets forming part of the estate of the deceased.
8. He urged this court to declare orders of the Kadhi’s Court of 13th June,2016 and January ,2018 vide Kadhi’s Court at Kwale Succession Case No.224 of 2016 and Kadhi’s Court at Kwale Succession Case 103 of 2017 null and void as they are discriminatory in nature.
9. Maalim Bakari Mngumi a beneficiary of the estate of the deceased in his affidavit reiterated the averments by the Public Trustee. He also filed a supplementary affidavit 25th March,2021 and denied all allegations by the respondent in her affidavit. He stated that the respondent was the link between the public trustee and the beneficiaries and thus cannot feign ignorance on the process. That the Public Trustee could only petition the court upon obtaining consent to making of grant from all the beneficiaries of the estate of deceased which was submitted to him on 2nd March 2015. That the lack of co-operation by the respondent is what to led to the failure to reach an amicable settlement.
10. In response the respondent filed a replying affidavit sworn on 14th December 2018 and filed on 17th December 2018.She denied the allegations made by the applicant and urged the court to hear the matter by way of viva voce evidence and all interested parties be enjoined in the interest of justice. That the Registrar of Lands, Kwale be enjoined in this suit so as to respond to the issues raised. She denied the allegation that she has intermeddled with the estate of the deceased. She alleged that she is the one who reported the dispute relating to the distribution of the estate of the deceased to the Public Trustee vide refence from the DC Ali Korani.
11. She further states that she was not aware of the grant issued to the Public Trustee nor did she know some of the properties claimed to form part of the assets of the estate of the deceased. That there are properties not listed in paragraph 2 of the summons. That the applicant did not disclose that there was a local arrangement whereby some properties to the estate of the deceased were distributed amongst three surviving widows of the deceased. That she did not illegally transfer any properties of the estate of the deceased.
12. She stated that no reasons were given as to why it took the applicant 12 years to petition for grant of representation and 3 years to confirm the same since the date of making the initial report. She denied the allegation that a meeting was held to resolve the matter amicably or that there was any fraudulent and or intermeddling on her part.
13. The interested party filed a response to the summons sworn on 1st April,2021 and filed on 9th April, 2021.He stated that he is the legal owner of Plot No. Kwale/Ngómbeni/761 having purchased the same from the respondent after Kadhi’s Court Kwale Succession Case No.224 of 2016 which granted her ownership. Thus, the same does not form part of the assets of the estate of the deceased. That he is an innocent purchaser and he stands to suffer loss and damage if the respondent acquired the same on account of non-disclosure. He urged the court to dismiss the summons with costs.
14. In response to interested party replying affidavit Maalim Bakari Mngumi A.K. A Mwalim Bakari Mngumi filed an affidavit sworn on 11th May 2021 and stated that the interested party has always been aware of this matter thus cannot feign ignorance of the pendency of the same at the time of his transaction with the respondent. That he lodged complaint against the respondent over sale of the said property at Kwale CID Headquarters where they met with the respondent.
15. He further stated that the respondent had no capacity to deal with any of the properties of the estate of the deceased as she is neither an appointed administrator nor has the estate been distributed. That the actions of the respondent and the interested party are fraudulent and illegal amounting to intermeddling thus the interested party cannot rely on an illegality to claim interest in the estate of the deceased. That the interested will suffer no loss as the respondent is still available.
16. That the High Court supersedes the Kadhi’s Court and thus all orders issued by the Kadhi’s Court are irregular with no legal basis. That none of the beneficiaries consented to the filing of the Kadhi’s Court matters. That the same are res judicata. That the estate will suffer irreparable loss if the transaction is not reversed. That the respondent’s share cannot compensate the other beneficiaries. That the transaction was irregular, illegal, null and void for all purposes and ought to be reversed for the rightful beneficiaries to enjoy the fruit of inheritance.
17. The summons was canvassed by way of written submissions.
18. The Public Trustee filed written submissions through J.E Maliro State Counsel dated 7th June 2021 and filed on the same day. He submitted that Kadhi’s Court Kwale lacked jurisdiction to entertain Succession Causes No.224 of 2016 and 103 of 2017 in respect of the estate of the deceased. That the beneficiaries being Muslims had option of moving the Kadhi’s Court to deal with the estate of the deceased but opted to the jurisdiction of this court that parties who profess Muslim faith have liberty to submit to either the jurisdiction of the Kadhi or the High Court. Counsel relied on the case of Abdisatar Haji Mohamed & Another versus Omar Ahmed & Another [2017] eKLR, Article 162 of the Constitution and Section 4(3) of the Kadhi’s Court and submitted that all courts must operate within the hierarchical parameters set out in the constitution and statute. He submitted that this court should suspend and subsequently cancel and or reverse the proceedings and subsequent orders issued by the Kadhi in the two matters filed at Kwale for being nullity. He submitted that the parties did not disclose to the Kadhi’s Court that this matter was being dealt with by this court.
19. He urged the court to order Land Registrar Kwale to reverse all transactions on LR No. Kwale/Ngómbeni /761, Kwale /Ngómbeni/1806, Kwale/Ng’ombeni /Mbuguni /SS/196 by registering them back to the names of the deceased herein for distribution purposes. That No. Kwale/Ngómbeni /761 forms part of the estate of the deceased who was the registered owner before it was fraudulently transferred to the respondent then the interested party. That the restriction registered against the said property has never been removed thus subsequent entries on the register are a nullity.
20. He urged the court allow the summons.
21. On the other hand, the respondent filed her written submissions through the firm of H.A. Mwadzogo Advocates dated 18th November 2021 and submitted on four issues namely; whether the instant proceedings are proper; whether the issues raised herein can fairly be adjudicated without involving all heirs and beneficiaries to give viva voce evidence; whether the orders sought can be granted in the absence of involving of the Land Registrar; whether the orders sought are untenable.
22. On the 1st issue Counsel submitted that the proceedings herein are premature as the public trustee ought to have confirmed grant and thereafter move the court for the properties which are considered contentious.
23. On the second issue counsel submitted that this can only be fairly adjudicated through viva voce evidence where all heirs are enjoined.
24. On the third issue counsel submitted that the orders sought cannot issue in the absence of land registrar.
25. On the fourth issue counsel submitted that the prayer is untenable as summons cannot overturn decisions of a court with competent jurisdiction. Further the orders of the Kadhi’s Court had already been consummated at the time the applicant moved this court.
26. The interested party also filed written submissions through his advocate Birir & Co. Advocates dated 7th June, 2021. Counsel submitted that there was no inhibition on the land and if it was there the Interested Party would not have bought the property. Counsel submitted that his client is a purchaser for value without notice who should not be prejudiced by the differences between the beneficiaries over the deceased’s estate.
27. I have considered the summons, responses therein and rival submissions by counsel for the parties respectively and the issues that emerge for determination are:-
a) Whether the orders from the Kadhi’s Court were obtained procedurally;
b) Whether the orders of the Kadhi’s Court Kwale should be declared null and void;
c) Whether the respondent should be cited for intermeddling with the estate of the deceased;
d) Whether the respondent should be ordered to render full account for the assets forming part of the estate specifically; LR No. Kwale/Ngómbeni/Mbuguni/SS/196, Kwale/Shimoni SS/182, Kwale /Pungu/Fuel Area/2, Kwale/Pungu/Fuel Area/4 And Kwale/Pungu/Fuel Area/102.
e) Whether the Land Registrar Kwale should be ordered to reverse all dealings and transactions on LR No. Kwale/Ng’ombeni/761, Kwale /Ng’ombeni /1806, Kwale/Shimba Hills/646, Kwale/Pungu/Fuel Area/4, Kwale/Shimoni SS/182 and Kwale/Ng’ombeni/Mbunguni/Ss/196.
f) Whether the Land Registrar Kwale should be summoned to appear before court to produce green card for LR No. Kwale/Ngómbeni/Mbuguni/SS/196, Kwale/Shimoni SS/182, Kwale /Pungu/Fuel Area/2, Kwale/Pungu/Fuel Area/4 And Kwale/Pungu/Fuel Area/102.
28. On whether the orders of the Kadhi’s Court Kwale on the two succession matters were obtained procedurally and whether they should be declared null and void, the respondent herein petitioned the Kadhi’s Court vide Succession Cause No.224 of 2016 and listed the following as the survivors of the deceased; Mwanamisi Bakari, Lucy Bakari, Fatuma Bakari, Mwalim Bakari, Mwanahalima Bakari, Hassan Bakari, Silvia Bakari and Fatuma Bakari. She also listed Plot No. Kwale/Ng’ombeni/761 as the property left behind by the deceased. The petition is dated 25th May 2016.
29. In her evidence in court on 13th June,2016 the respondent told the court that the parcel of land had dispute. That the deceased had two wives whom he gave a piece of land each and that her prayer was to inherit the land.
30. The Principal Kadhi Hon.Said Hamisi Bedzenga in his judgement of 13th June 2016 stated that the deceased gave each widow a land and in this case the petitioner being the only child of the first widow is entitled to ½ share of the estate and the widow 1/8 share of the estate according to Qur’anic share.
31. The Hon. Principal Kadhi in his judgement held,
“the two females -widow and daughter -being the heirs of the estate in this matter, the estate devolves to them entirely. For the purpose of registration, the estate Kwale/Ng’ombeni/761(4.2 Ha) be and is hereby issued to Fatuma Bakari Nimbweta holding it as a trustee on her own behalf and that of the other heir.”
32. The respondent then applied to be registered as the proprietor of the said parcel of land by transmission and also for transfer of the same by personal representative to person entitled under a will or intestacy on 13th June,2016.
33. The respondent also petitioned the Kadhi’s Court Kwale vide Succession Case No.103 of 2017 Fatuma Bakari Nimbweta versus Mwalim Bakari Mngumi through petition dated 13th April,2017. She listed Kwale/Ngómbeni /761 and the following as the survivors of the deceased;Mwanamisi Bakari Mngumi,Lucky Bakari Mgumi,Hellen Luvuno Yawa,Fatuma Bakari Nibweta,Mwanahamisi Msena Bakari,Mwanamwinyi Bakari Nyototo,Mngumi Bakari Mwalimu,Mngumi Bakari Juma,Mwanalima Bakari Mngumi,Mngumi Bakari Mngumi,Fatuma Bakari Mngumi,Sylvia Bakari Mngumi and Hassan Bakari Mngumi.
34. The Principal Kadhi Hamisi Bedzenga in his order of 23rd January,2018 ordered that the estate of the deceased herein under the custody of public trustee be remitted to the court for distribution to the heirs accordingly.
35. The Public Trustee petitioned this court for grant of letters of administration vide petition dated 13th May 2015 and filed on 19th June 2015. The petition is supported by a consent signed by the beneficiaries. He was appointed the administrator of the estate of the deceased vide a grant of letters of administration intestate made on 24th February 2016 and issued on 1st March 2016.
36. From the above it’s evident that the succession proceedings before the Hon. Principal Kadhi were filed way later after the issuance of the grant of letters of administration to the public trustee. No evidence tendered to show that the respondent was not aware of this suit or the existence of the grant of letters of administration intestate. In her replying affidavit filed on 17th December,2018 paragraph 7 the respondent stated she is the one who reported the dispute relating to the distribution of the estate of the deceased to the public trustee. She has also not denied the allegation that she is the one who took the consent for signing to the other beneficiaries. Thus, it cannot be said that she was not aware of the happenings in this suit.
37. Accordingly, it’s my view that the orders were obtained fraudulently by non- disclosure of material facts by the respondent. Full disclosure of material facts is key in any case as it was held in the case of In re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR where the court observed:-
“Needless to state that, in any judicial proceeding, parties must make full disclosures to the court of all material facts to the case including succession cases. This general rule of law emphasizes utmost good faith (uberimaefidei) from parties who take out or are subject of the court proceedings. The said responsibility is part of justice itself. Accordingly, non-disclosure of material facts undermines justice and introduces festering waters into the pure steams of justice; such must, immediately be subjected to serious reverse osmosis to purify the streams of justice, if society is to be accordingly regulated by law.”
38. On the orders being null and void despite being informed of the existence of this suit and the grant herein the Hon.Principal Kadhi in his order of 23rd January,2018 went ahead to order the Public Trustee to remit the properties in his custody to court for distribution. The court in the case of MCFOY versus UNITED AFRICA CO. LTD (1961) 3 All ER 1169- stated that:
‘’… If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay here. It will collapse.”
39. Accordingly, it’s my finding that the orders of the Hon.Principal Kadhi are a nullity in law.
40. I will discuss the last four issues together.
41. Plot No. Kwale/Ng’ombeni /761 is registered in the name of Andrew Kaindi as per the search of 20th December, 2017. The respondent first transferred the property to herself before selling the same to the interested party. The same was registered in her name as trustee on 27th June 2016 and later in the name of the interested party’s name on 1st June 2017. It is not clear how and or where the respondent got permission to transfer and or sale the said property.
42. Property LR No. Kwale/Ngómbeni /1806 was registered in the name Matano Salim Matano on 8th August,2000 as per the search dated 20th December,2017 and a title deed was issued. The said property was registered in the name of the respondent on 20th July,1993 and a title deed issued as per the search dated 30th July,1993.
43. Plot No. Kwale/Shimba Hills/646 was registered in the name of James Wakila Barasa Wandera on 3rd January,2013 as per search dated 17th December,2015 and a title deed issued. It was first registered in the name of the deceased herein on 15th April,2016, then in the name of the respondent on 5th July,2007, to the name of Joseph Ogwobo Wandera and to the current registered proprietor James Wakila Barasa Wandera.
44. Property no. Kwale/Pungu/Fuel Area /4 was registered in the name of Parul Shashikant Khimasia, Shah Shashikant Mepa on 8th October,2003 and a title deed issued. The same was initially registered in the name of the deceased as per the letter from the district land adjudication & settlement officer dated 7th October,2016.
45. Property No. Kwale/Shimoni SS/182 was registered in the name of Mariam Omari Mbwana on 7th September 2005 as per the search dated 20th December, 2017.The initial registration as at the time of demarcation was in the name of the deceased as per the letter from the district land adjudication & settlement officer dated 20th December 2017.
46. Plot No. Kwale/Ng’ombeni /Mbunguni SS/196 was resgistered in the name of Thomas Morara Nyangau and Trevor Dzimba Ongechi Morara (minor) on 4th March,2016 and title deed issued.
47. In dealing with the issue of intermeddling the court in the case of Benson Mutuma Muriungi versus C.E.O. Kenya Police Sacco & another [2016] eKLR stated that:-
“There is no specific definition of the term intermeddling provided in the Law of Succession Act. The Act simply prohibits taking possession of or disposing of, or otherwise intermeddling with, any free property of a deceased person by any person unless with the express authority of the Act, any other written law or a grant of representation under the Act. But in my understanding, the use of wide and general terms such as; ‘’for any purpose’’ and‘’or otherwise intermeddle with’’ in the Act portends that the category of the offensive acts which would amount to intermeddling is not heretically closed or limited to taking possession and disposing of the property of the deceased. I would include in that category such acts as; taking possession, or occupation of, disposing of, transferring, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with existing lawful liens or charge or mortgage of the free property of the deceased in contravention of the Law of Succession Act or any other written law. I do not pretend to close the list either or make it exhaustive. The list could be long. However, any act or acts which will dissipate or diminish or put at risk the free property of the deceased are acts of intermeddling in law.
I treat this subject as important because intermeddling with the free property of the deceased is a very serious criminal charge for which the person intermeddling may be convicted and sentenced to a jail term or fine or both as prescribed under section 45 of the Law of Succession Act. Parties should also note that the law has emphasized the need to protect the free property of the deceased by providing for a very firm stance on intermeddling; has clothed the court with wide powers to punish for intermeddling and to issue any appropriate order(s) of protection of the estate against any person. Even the police officers and administration officer have powers to take steps towards protection of and prevention of intermeddling with the free property of the deceased.”
48. From the record and analysis above it’s evident that the respondent has intermeddled with the estate of the deceased and is hereby restrained from any further intermeddling with the estate of the deceased.
49. Further the court in the case of In re Estate of Paul M’Maria (Deceased) [2017] eKLR stated:-
“The restriction provided by law that no immovable property shall be sold or distributed before confirmation of grant is not merely directory or an embellishment. It is a statutory command with fatal consequences on any transaction done in contravention of the said law. Accordingly, acquisition of immovable property of the estate in contravention of the Law of Succession Act is tinctured with killer poison; and is unlawful acquisition; thus, property so acquired does not enjoy the protection of property rights under article 40(6) of the Constitution. See the claw-back provision of the Constitution that:-
40(6) The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.
Therefore, applying the law and the Constitution, the sale of Plot 18A MITUNGUU MARKET on 12th July 2004 was in contravention of the Law of Succession Act and therefore vitiated by that illegality. It is thus invalid, null and void transaction. Such contract is ex facie illegal and is unenforceable; no person can maintain an action based on or recover on the basis of a contract which is prohibited by statute. Therefore, the argument that there was a suit by the 1st Respondent or a decree therefrom does not change this reality of the law or fetter the jurisdiction of a probate court to preserve estate property for purposes of succession. As long as the transaction is void, it is also futile to argue that subsequent transfer thereof was done by the 1st Respondent who was the administrator of the estate of the deceased. Such was not an act of relation back; and the 1st Respondent cannot purport to validate that which is illegal, null and void. What Lord Denning stated in the case of MCFOY vs. UNITED AFRICA CO. LTD (1961) 3 All ER 1169- is true of this case, that:
‘’… If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay here. It will collapse.”
50. Accordingly, it is my finding that the actions of the respondent were a nullity. I hereby order the Land Registrar Kwale to reverse all dealings and or transactions on LR No. Kwale/Ng’ombeni/761, Kwale/Ng’ombeni/1806, Kwale/Shimba Hills/646, Kwale/Pungu/Fuel Area/4, Kwale/Shimoni SS/182 and Kwale/Ng’ombeni/Mbuguni/SS/196.
51. The upshot of the above is that the summons herein has merit. The same is hereby allowed with no orders as to costs.
Orders accordingly.
Dated, signed and delivered at Mombasa this 18th day of August 2023 via Microsoft TEAMS
GREGORY MUTAI
JUDGE
In the presence of: -
Mr. Maliro for the Public Trustee/Applicant;
Mr. Mwatzogo for the Respondent;
Mr. Birir for the Interested Party; and
Mr. Arthur Ranyondo – Court Assistant.
(a) Spent;
(b) That this honourable court be pleased to issue a conservatory and prohibitory order to preserve LR No.Kwale/Mbuguni Phase 11 SS/196,Kwale/Ngómbeni /295,Kwale/Ng’ombeni/714,Kwale /Ngómbeni/761,Kwale/Ngómbeni/779,Kwale/Ng’ombeni/814,Kwale/Ngómbeni/960,Kwale/Ngómbeni/1096,Kwale/Ngómbeni/1806,Kwale/Ng’ombeni/1067,Kwale/Shimoni SS/182,Kwale/Pungu/Fuel Area/1,And Kwale/Pungu/Fuel Area/2,Kwale/Pungu/Fuel Area/4,Kwale/Pungu/Fuel Area/102,and Kwale/Shimba Hills/646 to bar and restrain the respondent,Fatuma Bakari Nimbweta or anyone claiming under her, from dealing with the aforesaid parcels of land in any manner howsoever pending hearing and determination of this application interparties.
(c) That this honourable court be pleased to issue a conservatory and or prohibitory order to preserve LR No.Kwale/Mbuguni Phase 11 SS/196,Kwale/Ngómbeni /295,Kwale/Ng’ombeni/714,Kwale /Ngómbeni/761,Kwale/Ngómbeni/779,Kwale/Ng’ombeni/814,Kwale/Ngómbeni/960,Kwale/Ngómbeni/1096,Kwale/Ngómbeni/1806,Kwale/Ng’ombeni/1067,Kwale/Shimoni SS/182,Kwale/Pungu/Fuel Area/1,And Kwale/Pungu/Fuel Area/2,Kwale/Pungu/Fuel Area/4,Kwale/Pungu/Fuel Area/102,and Kwale/Shimba Hills/646 to bar and restrain the respondent,Fatuma Bakari Nimbweta or anyone claiming under her, from dealing with the aforesaid parcels of land in any manner howsoever pending hearing and determination of this application and ultimately the summons for confirmation of a grant application herein dated 4th April,2016.
(d) That this honourable court be pleased to order the Land Registrar-Kwale to reverse all dealings and or transactions on LR No. Kwale/Ng’ombeni/761, Kwale /Ng’ombeni /1806, Kwale/Shimba Hills/646, Kwale/Pungu/Fuel Area/4, Kwale/Shimoni SS/182 And Kwale/Ng’ombeni/Mbunguni/Ss/196 by registering the parcels of land back into the names of the deceased herein the original owner for distribution purposes.
(e) That the respondent,Fatuma Bakari Nimbweta be ordered to render a full account for the assets forming part of the estate of the deceased namely;LR No. Kwale/Ngómbeni/761,Kwale/Ng’ombeni/1806,Kwale/Shimba Hills/646,Kwale /Pungu/Fuel Area /4,Kwale /Shimoni SS/182 And Kwale/Ngómbeni/Mbunguni/SS/196 by explaining on whose authority and or in what capacity she dealt with properties forming part of the estate of the deceased herein by transferring to herself and thereafter to third parties whereas she is neither the appointed administrator nor a sole heir.
(f) That failure by the respondent Fatuma Bakari Nimbweta to account as sought in prayer 5 above the respondent be cited for intermeddling with assets forming part of the estate of the deceased by the court recommending appropriate action to be taken against the respondent as provided by the law and or as the court may deems fit to punish and compensate the estate of the deceased herein.
(g) That this court to summon the registrar of land, Kwale County to appear before court and produce the green card for LR No. Kwale/Ngómbeni/Mbuguni/SS/196, Kwale/Shimoni SS/182, Kwale /Pungu/Fuel Area/2, Kwale/Pungu/Fuel Area/4 And Kwale/Pungu/Fuel Area/102 as all efforts to get the same from the Registrar of Land,Kwale County has been futile.
(h) That the orders issued by the Kadhi’s Court on 13th June,2016 and 23rd January,2018 vide Kadhi’s Court at Kwale Succession Case No.224 of 2016 and Kadhi’s Court at Kwale Succession Case 103 of 2017 be stayed and or suspended pending hearing and determination of this application.
(i) That this court declare all orders issued by the Kadhi’s Court on 13th June,2016 and 23rd January,2018 vide Kadhi’s Court at Kwale Succession Case No.224 of 2016 and Kadhi’s Court at Kwale Succession Case 103 of 2017 as null and void being irregular and a duplicity of administration duties as there exists an appointed administrator of the estate of the deceased herein (the public trustee) having been appointed on 24th February,2016 and that the orders by the Kadhi were obtained un-procedurally without the participation of all the other heirs of the deceased herein.
(j) That this court to suspend and or cancel the orders issued by the Kadhi’s Court on 13th June,2016 and 23rd January,2018 vide Kadhi’s Court at Kwale Succession Case No.224 of 2016 and Kadhi’s Court at Kwale Succession Case 103 of 2017 as they are being used by the respondent herein to defraud the estate of the deceased herein.
(k) That the court to order that confirmation of the grant and distribution of all the assets forming part of the estate of the deceased herein proceed for hearing and determination before this honourable court.
2. The application premised on the supporting affidavit of Jafred Erima Maliro the assistant Public Trustee and Maalim Bakari Mngumi A.K.A Mwalim Bakari Mngumi all filed on 28th May,2018.
3. The Public Trustee in his affidavit stated that the death of the deceased was reported to him by one Lucy Bakari Mngumi the 2nd widow of the deceased. The heirs of the deceased informed him that the deceased was the registered owner of the following properties;
LR Kwale/Ng’ombeni /761
LR Kwale/Ng’ombeni/779
LR Kwale/Ng’ombeni/814
LR Kwale/Ng’ombeni/960
LR Kwale/Ng’ombeni 1096
LR Kwale /Shimba Hills/646
LR Kwale/Shimoni SS/182
LR Kwale/Ng’ombeni/1806
LR Kwaale/Ng’ombeni/295
LR Kwale/Mbunguni Phase 11 SS/196
LR Kwale/Ng’ombeni /714
LR Kwale/Ng’ombeni /1067
LR Kwale/Pungu Fuel Area/1
LR Kwale/Pungu Fuel Area/2
LR Kwale/Pungu Fuel Area /4
LR Kwale/Pungu Fuel Area /102
4. He further stated that this honourable court issued a grant of letters of administration intestate to him on 24th February 2016. The same could not be confirmed as it emerged that some of the deceased’s properties had been illegally transferred to third parties thus the matter was stood over generally. It emerged that the respondent herein was involved in the illegal transfer to herself and thereafter to third parties. That he tried to have the matter resolved amicably in vain.
5. He averred that he conducted an official search from lands office Kwale County which confirmed that some of the assets forming part of the estate of the deceased had been transferred to the respondent herein and thereafter to third parties. He prepared a caution and presented the same to the Land’s Registrar Kwale County only to later realize that the same was not registered and that there was no response on the same from the Registrar of Lands. He then lodged a complaint of fraud and intermeddling with the estate properties with the County Criminal Investigation Officer, Kwale County. However, he has never received any response from the said office to date, making his efforts futile.
6. He stated that the respondent herein secretly and without the consent of the other beneficiaries fraudulently obtained an order from the Kadhi’s Court Kwale vide Kadhi’s Court Kwale Succession Cause no.224 of 2016 in the pretence that she was sole heir of the estate of the deceased and used the same to transfer the deceased’s properties to herself with no regards to the beneficial rights of the other heirs. That she has been abusing the Kadhi’s Court Kwale by obtaining orders in respect to the estate without involving other heirs and despite consenting to the administration of the estate by the Public Trustee.
7. He further stated that he was served with an order from the Kadhi’s Court Kwale to hand over the remaining estate to the court for distribution vide Kadhi’s Court Kwale Succession Cause No.103 of 2017.That the beneficiaries are apprehensive there will be no fairness in the distribution of the estate by the Kadhi’s Court and wish the same to be heard and determined by this court. That the actions of the respondent are fraudulent and illegal in nature, which amount to intermeddling. That the respondent has to be restrained from dealing and wasting the estate of the deceased. That the respondent do render a full account for the assets forming part of the estate of the deceased.
8. He urged this court to declare orders of the Kadhi’s Court of 13th June,2016 and January ,2018 vide Kadhi’s Court at Kwale Succession Case No.224 of 2016 and Kadhi’s Court at Kwale Succession Case 103 of 2017 null and void as they are discriminatory in nature.
9. Maalim Bakari Mngumi a beneficiary of the estate of the deceased in his affidavit reiterated the averments by the Public Trustee. He also filed a supplementary affidavit 25th March,2021 and denied all allegations by the respondent in her affidavit. He stated that the respondent was the link between the public trustee and the beneficiaries and thus cannot feign ignorance on the process. That the Public Trustee could only petition the court upon obtaining consent to making of grant from all the beneficiaries of the estate of deceased which was submitted to him on 2nd March 2015. That the lack of co-operation by the respondent is what to led to the failure to reach an amicable settlement.
10. In response the respondent filed a replying affidavit sworn on 14th December 2018 and filed on 17th December 2018.She denied the allegations made by the applicant and urged the court to hear the matter by way of viva voce evidence and all interested parties be enjoined in the interest of justice. That the Registrar of Lands, Kwale be enjoined in this suit so as to respond to the issues raised. She denied the allegation that she has intermeddled with the estate of the deceased. She alleged that she is the one who reported the dispute relating to the distribution of the estate of the deceased to the Public Trustee vide refence from the DC Ali Korani.
11. She further states that she was not aware of the grant issued to the Public Trustee nor did she know some of the properties claimed to form part of the assets of the estate of the deceased. That there are properties not listed in paragraph 2 of the summons. That the applicant did not disclose that there was a local arrangement whereby some properties to the estate of the deceased were distributed amongst three surviving widows of the deceased. That she did not illegally transfer any properties of the estate of the deceased.
12. She stated that no reasons were given as to why it took the applicant 12 years to petition for grant of representation and 3 years to confirm the same since the date of making the initial report. She denied the allegation that a meeting was held to resolve the matter amicably or that there was any fraudulent and or intermeddling on her part.
13. The interested party filed a response to the summons sworn on 1st April,2021 and filed on 9th April, 2021.He stated that he is the legal owner of Plot No. Kwale/Ngómbeni/761 having purchased the same from the respondent after Kadhi’s Court Kwale Succession Case No.224 of 2016 which granted her ownership. Thus, the same does not form part of the assets of the estate of the deceased. That he is an innocent purchaser and he stands to suffer loss and damage if the respondent acquired the same on account of non-disclosure. He urged the court to dismiss the summons with costs.
14. In response to interested party replying affidavit Maalim Bakari Mngumi A.K. A Mwalim Bakari Mngumi filed an affidavit sworn on 11th May 2021 and stated that the interested party has always been aware of this matter thus cannot feign ignorance of the pendency of the same at the time of his transaction with the respondent. That he lodged complaint against the respondent over sale of the said property at Kwale CID Headquarters where they met with the respondent.
15. He further stated that the respondent had no capacity to deal with any of the properties of the estate of the deceased as she is neither an appointed administrator nor has the estate been distributed. That the actions of the respondent and the interested party are fraudulent and illegal amounting to intermeddling thus the interested party cannot rely on an illegality to claim interest in the estate of the deceased. That the interested will suffer no loss as the respondent is still available.
16. That the High Court supersedes the Kadhi’s Court and thus all orders issued by the Kadhi’s Court are irregular with no legal basis. That none of the beneficiaries consented to the filing of the Kadhi’s Court matters. That the same are res judicata. That the estate will suffer irreparable loss if the transaction is not reversed. That the respondent’s share cannot compensate the other beneficiaries. That the transaction was irregular, illegal, null and void for all purposes and ought to be reversed for the rightful beneficiaries to enjoy the fruit of inheritance.
17. The summons was canvassed by way of written submissions.
18. The Public Trustee filed written submissions through J.E Maliro State Counsel dated 7th June 2021 and filed on the same day. He submitted that Kadhi’s Court Kwale lacked jurisdiction to entertain Succession Causes No.224 of 2016 and 103 of 2017 in respect of the estate of the deceased. That the beneficiaries being Muslims had option of moving the Kadhi’s Court to deal with the estate of the deceased but opted to the jurisdiction of this court that parties who profess Muslim faith have liberty to submit to either the jurisdiction of the Kadhi or the High Court. Counsel relied on the case of Abdisatar Haji Mohamed & Another versus Omar Ahmed & Another [2017] eKLR, Article 162 of the Constitution and Section 4(3) of the Kadhi’s Court and submitted that all courts must operate within the hierarchical parameters set out in the constitution and statute. He submitted that this court should suspend and subsequently cancel and or reverse the proceedings and subsequent orders issued by the Kadhi in the two matters filed at Kwale for being nullity. He submitted that the parties did not disclose to the Kadhi’s Court that this matter was being dealt with by this court.
19. He urged the court to order Land Registrar Kwale to reverse all transactions on LR No. Kwale/Ngómbeni /761, Kwale /Ngómbeni/1806, Kwale/Ng’ombeni /Mbuguni /SS/196 by registering them back to the names of the deceased herein for distribution purposes. That No. Kwale/Ngómbeni /761 forms part of the estate of the deceased who was the registered owner before it was fraudulently transferred to the respondent then the interested party. That the restriction registered against the said property has never been removed thus subsequent entries on the register are a nullity.
20. He urged the court allow the summons.
21. On the other hand, the respondent filed her written submissions through the firm of H.A. Mwadzogo Advocates dated 18th November 2021 and submitted on four issues namely; whether the instant proceedings are proper; whether the issues raised herein can fairly be adjudicated without involving all heirs and beneficiaries to give viva voce evidence; whether the orders sought can be granted in the absence of involving of the Land Registrar; whether the orders sought are untenable.
22. On the 1st issue Counsel submitted that the proceedings herein are premature as the public trustee ought to have confirmed grant and thereafter move the court for the properties which are considered contentious.
23. On the second issue counsel submitted that this can only be fairly adjudicated through viva voce evidence where all heirs are enjoined.
24. On the third issue counsel submitted that the orders sought cannot issue in the absence of land registrar.
25. On the fourth issue counsel submitted that the prayer is untenable as summons cannot overturn decisions of a court with competent jurisdiction. Further the orders of the Kadhi’s Court had already been consummated at the time the applicant moved this court.
26. The interested party also filed written submissions through his advocate Birir & Co. Advocates dated 7th June, 2021. Counsel submitted that there was no inhibition on the land and if it was there the Interested Party would not have bought the property. Counsel submitted that his client is a purchaser for value without notice who should not be prejudiced by the differences between the beneficiaries over the deceased’s estate.
27. I have considered the summons, responses therein and rival submissions by counsel for the parties respectively and the issues that emerge for determination are:-
a) Whether the orders from the Kadhi’s Court were obtained procedurally;
b) Whether the orders of the Kadhi’s Court Kwale should be declared null and void;
c) Whether the respondent should be cited for intermeddling with the estate of the deceased;
d) Whether the respondent should be ordered to render full account for the assets forming part of the estate specifically; LR No. Kwale/Ngómbeni/Mbuguni/SS/196, Kwale/Shimoni SS/182, Kwale /Pungu/Fuel Area/2, Kwale/Pungu/Fuel Area/4 And Kwale/Pungu/Fuel Area/102.
e) Whether the Land Registrar Kwale should be ordered to reverse all dealings and transactions on LR No. Kwale/Ng’ombeni/761, Kwale /Ng’ombeni /1806, Kwale/Shimba Hills/646, Kwale/Pungu/Fuel Area/4, Kwale/Shimoni SS/182 and Kwale/Ng’ombeni/Mbunguni/Ss/196.
f) Whether the Land Registrar Kwale should be summoned to appear before court to produce green card for LR No. Kwale/Ngómbeni/Mbuguni/SS/196, Kwale/Shimoni SS/182, Kwale /Pungu/Fuel Area/2, Kwale/Pungu/Fuel Area/4 And Kwale/Pungu/Fuel Area/102.
28. On whether the orders of the Kadhi’s Court Kwale on the two succession matters were obtained procedurally and whether they should be declared null and void, the respondent herein petitioned the Kadhi’s Court vide Succession Cause No.224 of 2016 and listed the following as the survivors of the deceased; Mwanamisi Bakari, Lucy Bakari, Fatuma Bakari, Mwalim Bakari, Mwanahalima Bakari, Hassan Bakari, Silvia Bakari and Fatuma Bakari. She also listed Plot No. Kwale/Ng’ombeni/761 as the property left behind by the deceased. The petition is dated 25th May 2016.
29. In her evidence in court on 13th June,2016 the respondent told the court that the parcel of land had dispute. That the deceased had two wives whom he gave a piece of land each and that her prayer was to inherit the land.
30. The Principal Kadhi Hon.Said Hamisi Bedzenga in his judgement of 13th June 2016 stated that the deceased gave each widow a land and in this case the petitioner being the only child of the first widow is entitled to ½ share of the estate and the widow 1/8 share of the estate according to Qur’anic share.
31. The Hon. Principal Kadhi in his judgement held,
“the two females -widow and daughter -being the heirs of the estate in this matter, the estate devolves to them entirely. For the purpose of registration, the estate Kwale/Ng’ombeni/761(4.2 Ha) be and is hereby issued to Fatuma Bakari Nimbweta holding it as a trustee on her own behalf and that of the other heir.”
32. The respondent then applied to be registered as the proprietor of the said parcel of land by transmission and also for transfer of the same by personal representative to person entitled under a will or intestacy on 13th June,2016.
33. The respondent also petitioned the Kadhi’s Court Kwale vide Succession Case No.103 of 2017 Fatuma Bakari Nimbweta versus Mwalim Bakari Mngumi through petition dated 13th April,2017. She listed Kwale/Ngómbeni /761 and the following as the survivors of the deceased;Mwanamisi Bakari Mngumi,Lucky Bakari Mgumi,Hellen Luvuno Yawa,Fatuma Bakari Nibweta,Mwanahamisi Msena Bakari,Mwanamwinyi Bakari Nyototo,Mngumi Bakari Mwalimu,Mngumi Bakari Juma,Mwanalima Bakari Mngumi,Mngumi Bakari Mngumi,Fatuma Bakari Mngumi,Sylvia Bakari Mngumi and Hassan Bakari Mngumi.
34. The Principal Kadhi Hamisi Bedzenga in his order of 23rd January,2018 ordered that the estate of the deceased herein under the custody of public trustee be remitted to the court for distribution to the heirs accordingly.
35. The Public Trustee petitioned this court for grant of letters of administration vide petition dated 13th May 2015 and filed on 19th June 2015. The petition is supported by a consent signed by the beneficiaries. He was appointed the administrator of the estate of the deceased vide a grant of letters of administration intestate made on 24th February 2016 and issued on 1st March 2016.
36. From the above it’s evident that the succession proceedings before the Hon. Principal Kadhi were filed way later after the issuance of the grant of letters of administration to the public trustee. No evidence tendered to show that the respondent was not aware of this suit or the existence of the grant of letters of administration intestate. In her replying affidavit filed on 17th December,2018 paragraph 7 the respondent stated she is the one who reported the dispute relating to the distribution of the estate of the deceased to the public trustee. She has also not denied the allegation that she is the one who took the consent for signing to the other beneficiaries. Thus, it cannot be said that she was not aware of the happenings in this suit.
37. Accordingly, it’s my view that the orders were obtained fraudulently by non- disclosure of material facts by the respondent. Full disclosure of material facts is key in any case as it was held in the case of In re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR where the court observed:-
“Needless to state that, in any judicial proceeding, parties must make full disclosures to the court of all material facts to the case including succession cases. This general rule of law emphasizes utmost good faith (uberimaefidei) from parties who take out or are subject of the court proceedings. The said responsibility is part of justice itself. Accordingly, non-disclosure of material facts undermines justice and introduces festering waters into the pure steams of justice; such must, immediately be subjected to serious reverse osmosis to purify the streams of justice, if society is to be accordingly regulated by law.”
38. On the orders being null and void despite being informed of the existence of this suit and the grant herein the Hon.Principal Kadhi in his order of 23rd January,2018 went ahead to order the Public Trustee to remit the properties in his custody to court for distribution. The court in the case of MCFOY versus UNITED AFRICA CO. LTD (1961) 3 All ER 1169- stated that:
‘’… If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay here. It will collapse.”
39. Accordingly, it’s my finding that the orders of the Hon.Principal Kadhi are a nullity in law.
40. I will discuss the last four issues together.
41. Plot No. Kwale/Ng’ombeni /761 is registered in the name of Andrew Kaindi as per the search of 20th December, 2017. The respondent first transferred the property to herself before selling the same to the interested party. The same was registered in her name as trustee on 27th June 2016 and later in the name of the interested party’s name on 1st June 2017. It is not clear how and or where the respondent got permission to transfer and or sale the said property.
42. Property LR No. Kwale/Ngómbeni /1806 was registered in the name Matano Salim Matano on 8th August,2000 as per the search dated 20th December,2017 and a title deed was issued. The said property was registered in the name of the respondent on 20th July,1993 and a title deed issued as per the search dated 30th July,1993.
43. Plot No. Kwale/Shimba Hills/646 was registered in the name of James Wakila Barasa Wandera on 3rd January,2013 as per search dated 17th December,2015 and a title deed issued. It was first registered in the name of the deceased herein on 15th April,2016, then in the name of the respondent on 5th July,2007, to the name of Joseph Ogwobo Wandera and to the current registered proprietor James Wakila Barasa Wandera.
44. Property no. Kwale/Pungu/Fuel Area /4 was registered in the name of Parul Shashikant Khimasia, Shah Shashikant Mepa on 8th October,2003 and a title deed issued. The same was initially registered in the name of the deceased as per the letter from the district land adjudication & settlement officer dated 7th October,2016.
45. Property No. Kwale/Shimoni SS/182 was registered in the name of Mariam Omari Mbwana on 7th September 2005 as per the search dated 20th December, 2017.The initial registration as at the time of demarcation was in the name of the deceased as per the letter from the district land adjudication & settlement officer dated 20th December 2017.
46. Plot No. Kwale/Ng’ombeni /Mbunguni SS/196 was resgistered in the name of Thomas Morara Nyangau and Trevor Dzimba Ongechi Morara (minor) on 4th March,2016 and title deed issued.
47. In dealing with the issue of intermeddling the court in the case of Benson Mutuma Muriungi versus C.E.O. Kenya Police Sacco & another [2016] eKLR stated that:-
“There is no specific definition of the term intermeddling provided in the Law of Succession Act. The Act simply prohibits taking possession of or disposing of, or otherwise intermeddling with, any free property of a deceased person by any person unless with the express authority of the Act, any other written law or a grant of representation under the Act. But in my understanding, the use of wide and general terms such as; ‘’for any purpose’’ and‘’or otherwise intermeddle with’’ in the Act portends that the category of the offensive acts which would amount to intermeddling is not heretically closed or limited to taking possession and disposing of the property of the deceased. I would include in that category such acts as; taking possession, or occupation of, disposing of, transferring, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with existing lawful liens or charge or mortgage of the free property of the deceased in contravention of the Law of Succession Act or any other written law. I do not pretend to close the list either or make it exhaustive. The list could be long. However, any act or acts which will dissipate or diminish or put at risk the free property of the deceased are acts of intermeddling in law.
I treat this subject as important because intermeddling with the free property of the deceased is a very serious criminal charge for which the person intermeddling may be convicted and sentenced to a jail term or fine or both as prescribed under section 45 of the Law of Succession Act. Parties should also note that the law has emphasized the need to protect the free property of the deceased by providing for a very firm stance on intermeddling; has clothed the court with wide powers to punish for intermeddling and to issue any appropriate order(s) of protection of the estate against any person. Even the police officers and administration officer have powers to take steps towards protection of and prevention of intermeddling with the free property of the deceased.”
48. From the record and analysis above it’s evident that the respondent has intermeddled with the estate of the deceased and is hereby restrained from any further intermeddling with the estate of the deceased.
49. Further the court in the case of In re Estate of Paul M’Maria (Deceased) [2017] eKLR stated:-
“The restriction provided by law that no immovable property shall be sold or distributed before confirmation of grant is not merely directory or an embellishment. It is a statutory command with fatal consequences on any transaction done in contravention of the said law. Accordingly, acquisition of immovable property of the estate in contravention of the Law of Succession Act is tinctured with killer poison; and is unlawful acquisition; thus, property so acquired does not enjoy the protection of property rights under article 40(6) of the Constitution. See the claw-back provision of the Constitution that:-
40(6) The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.
Therefore, applying the law and the Constitution, the sale of Plot 18A MITUNGUU MARKET on 12th July 2004 was in contravention of the Law of Succession Act and therefore vitiated by that illegality. It is thus invalid, null and void transaction. Such contract is ex facie illegal and is unenforceable; no person can maintain an action based on or recover on the basis of a contract which is prohibited by statute. Therefore, the argument that there was a suit by the 1st Respondent or a decree therefrom does not change this reality of the law or fetter the jurisdiction of a probate court to preserve estate property for purposes of succession. As long as the transaction is void, it is also futile to argue that subsequent transfer thereof was done by the 1st Respondent who was the administrator of the estate of the deceased. Such was not an act of relation back; and the 1st Respondent cannot purport to validate that which is illegal, null and void. What Lord Denning stated in the case of MCFOY vs. UNITED AFRICA CO. LTD (1961) 3 All ER 1169- is true of this case, that:
‘’… If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay here. It will collapse.”
50. Accordingly, it is my finding that the actions of the respondent were a nullity. I hereby order the Land Registrar Kwale to reverse all dealings and or transactions on LR No. Kwale/Ng’ombeni/761, Kwale/Ng’ombeni/1806, Kwale/Shimba Hills/646, Kwale/Pungu/Fuel Area/4, Kwale/Shimoni SS/182 and Kwale/Ng’ombeni/Mbuguni/SS/196.
51. The upshot of the above is that the summons herein has merit. The same is hereby allowed with no orders as to costs.
Orders accordingly.
Dated, signed and delivered at Mombasa this 18th day of August 2023 via Microsoft TEAMS
GREGORY MUTAI
JUDGE
In the presence of: -
Mr. Maliro for the Public Trustee/Applicant;
Mr. Mwatzogo for the Respondent;
Mr. Birir for the Interested Party; and
Mr. Arthur Ranyondo – Court Assistant.