1. George Ngewa Kilonzo died on 12/1/2015.
2. On 30/8/2018, - Tawa MC Succession Cause no. 22/2018 was filed by Kalewa Ngewa and Christine Kavindu Ngewa - in their capacities as wife and daughter respectively.
3. In the form P & A 5 dated 26/6/2018 they listed the beneficiaries, supported by the letter from chief Mbooni Location dated 3/5/2016. :Rightful beneficiaries of late George Ngewa Kilonzo ;
1) Kalewa Ngewa Kilonzo - 1st Wife
Children
i. Christinah Kavindu Ngewa
ii. Meli Peter Nthei
iii. Joseph Mutua Ngewa
2) Rael Nthambi Ngewa
Children
i. Jeremiah Mbithi Ngewa
ii. Rose Nduku Ngewa
NB The next of kin to the late Joseph Mutua is his only one Wife Elizabeth W. Nzive - ID No. 1779369
4. The estate was listed thus;
a) Assets
i. Account in KCB Mbooni Branch Kikima
b) Shares
i. Mbooni Diary & Raching Co-operative Society 42 shares- value Kshs. 9,680.
ii. Share in Kikima Market Plot no. 14 of 8.5%
iii. KREP (Sidiani Bank Account)
iv. Shares in Financial Services Association
v. Bank Account in Financial Services Association No. 3010 in Kikima.
c) Immovable Property
a) Makueni/Mutitu/778 - Value of Kshs. 150,000
b) Makueni/Mutitu/752 – Value of Kshs. 160,000
c) Portion of 30 by 100 ft in plot - No. Makueni/Mutitu/3688 Kikima Market Value - Kshs. 300,000
d) Makueni/Mutitu/581 - Kshs.50,000
e) Makueni/Mutitu 601 - Kshs. 200,000
f) Makueni/Mutitu/3520 - Kshs. 50,000
g) Makueni/Mutitu/573 - Kshs. 100,000
h) Makueni/Mutitu/3513 - Kshs. 150,000
i) Makueni/Mutitu/1335 - Kshs. 100,000
j) Makueni/Mutitu/3537 - Kshs. 100,000
k) Mbooni/Mutitu/1333 - Kshs. 100,000
l) Mbooni/Mutitu/4379 – Kshs. 100,000
Total estimated value Kshs. 1,550,000/=
It was indicated that the propertied (d) to (l) were were transferred to Rael Nthambi Ngewa on 24/8/2015 when the late George Kilonzo was already deceased.
5. Grant of letters of Administration intestate was issued to both petitioners on 24/1/2019.
6. Vide an application dated 11/3/2019 - the administrators sought orders inter alia.
That the court do order that all the parcels of land of the deceased that were transferred to the respondent were done illegally and be revoked and all the said parcels of land do revert to the estate of the deceased and these are the following;
i. Mbooni/Mutitu/581
ii. Mbooni/Mutitu 601
iii. Mbooni/Mutitu/3520
iv. Mbooni/Mutitu/573
v. Mbooni/Mutitu/3513
vi. Mbooni/Mutitu/3537
vii. Mbooni/Mutitu/1333
viii. Mbooni/Mutitu/4379
7. The grounds were that the parcels of land were in the names of the deceased but were changed into the appellant names through collusion with the Land Registrar on 31/8/2015 after the death of the deceased.
8. The applicants/respondent supported the application with a joint affidavit - the respondent/appellant filed a replying affidavit.
9. All parties filed written submissions.
10. On 20/9/2019 the learned trial magistrate rendered himself thus;
I have perused the application dated 11/3/2019 the supporting affidavit sworn on an even date and the annexures thereto as well as the supplementary affidavit sworn on 25/6/2019 and the oral submissions by counsel for the petitioners.
I am satisfied that the process of transfer for the properties of the deceased listed in the application was done in breach of the rules and procedure relating to administration of initial estate.
In the premises I allow prayer 3 as expressed on the face of chamber summons dated 11/3/2019.
11. The appellant Rael Nthambi Ngewa died on 8/11/2019 children of Lael (Rael) through an application dated 25/5/2020 sought to substitute her with Rose Nduku Ngewa .
12. The appellant now comes seeking to appeal against the orders in the application dated 11/3/2019.
13. The grounds for the appeal are that;
1) The trial magistrate erred in law and fact for allowing the application dated 11/3/2019 whereas there is no evidence on record that the registration was irregular.
2) The trial magistrate erred in law and fact for not taking into account that the appellant had raised opposition through their replying affidavit and in a further affidavit both dated 9th April, 2019 and never considered the same in his ruling.
3) The trial magistrate erred in law and in fact by giving adverse orders to reverse titles of an estate without hearing all the parties in the succession cause.
4) The trial magistrate erred in law and in fact failing to take into account as at the time the land parcels were not part of the estate of the deceased.
5) The trial honourable magistrate erred in law and fact by giving orders of reversal of land titles that are beyond his jurisdiction as under the Magistrate Act 2015.
14. The appellant seeks orders ;
a) The orders reversing registration of the titles to land parcels
Mbooni/Mutitu/58, Mbooni/Mutitu601, Mbooni/Mutitu/3520, Mbooni/Mutitu/573, Mbooni/Mutitu/3513, Mbooni/Mutitu/3537, Mbooni/Mutitu/1333, Mbooni/Mutitu/4379 issued on 20/9/2019 be set aside.
b) Costs be provided for
15. On 8/6/2021 this court through Dulu J’s orders granted stay of execution of the orders of 8/6/2021 pending the hearing and determination of the appeal herein.
16. The appeal was argued through written submissions.
17. For the appellant the main argument was that the applicant in the impugned application did not provide proof of the alleged fraud; and secondly; that the court in cancelling the said titles acted without jurisdiction.
18. Counsel for the appellant put a lot of weather in the argument matters land is the sole jurisdiction of the ELC court. Reliance was made on Section 107, 109 of the Evidence Act, Sections 26 and 80 of the Land Registration Act, Article 40 of the Constitution, and the Environment and Land Court Act No. 19 of 2011 to support the two propositions
19. For the Respondents the submissions set out for determination the issues whether titles cancelled by the court were in the name of the deceased, whether the transfer was regular , and whether court had jurisdiction .
20. It was argued that there was evidence that at the time of death of deceased the titles were in his name and were only issued to his 2nd wife Rael on 24/8/2015 and 31/8/2015 - 7 months after his demise - Reliance was had on Section 45 of the Law of Succession Act, and Santuzza Bilioti alias Mei Santuzza (Deceased) v Giancarlo Falasconi [2014] KEHC 467 (KLR) where the court pointed out that ;
There is no rule that any issue touching on land must be heard by the Environmental and Land Court even if the land is a subject of succession proceedings. Majority of succession cases involve the distribution of land. Where the deceased land has been sold before distribution is done, the succession court can hear both the administrator and the registered owner to determine whether the land is part of the estate or was lawfully sold.
21. I am in agreement. There is a line between land disputes that fall under the ELC and disputes over the estate of a deceased person that emanate from the intermeddling with the property of the deceased.
22. The jurisdiction of the P&A Court is clearly set out in the Law of Succession Act Cap 160 of the Laws of Kenya . The key one is to distribute the estate of the deceased through those appointed as Administrators of Estate of the deceased. Among the duties of an administrator is to ascertain the estate of the deceased and the beneficiaries and the court under the proviso to Section 71 cannot proceed to confirm the grant (i.e distribute the estate) where those beneficially entitled and whose respective shares have not been ascertained.
23. The administrators must have ascertained that estate which is defined as the free property of the deceased and free property - that which he would have disposed of in his life time.
24. In the event that the free property of a deceased person is land - the P & A Court has to ascertain that the property belongs to the deceased through the evidence supplied in the petition and where there is doubt or a dispute it could be through proceedings before the P&A court while appropriate cases are referred to the ELC court for determination. Where in the appropriate case the P & A court makes that determination that a property must revert to the estate of the deceased, that order amounts to revocation or cancellation of the impugned titles and other proprietary interests acquired in the estate contrary to the provisions of the LOSA. This does not amount to acting without jurisdiction It is my finding and holding that the trial court did not Act out of jurisdiction.
25. Having dealt with the issue of jurisdiction the only other issue is what orders to issue?
26. I note that the trial court proceeded from having perused the pleadings to granting the final orders with respect to the application of 11th March 2019.
27. The record shows that counsel for the administrators made oral submissions briefly and only to the effect that that the respondent/ appellant had illegally transferred the titles to herself.
28. I have perused the title deeds on the record and other than the fact that they were issued AFTER the death of the deceased, I could not tell by that mere fact that they were initially in the name of the deceased or how they ended up in the name of his second wife/appellant after his death.
29. This could only have been determined by way of evidence, oral or otherwise so that that issue could be established before the titles could revert to the deceased estate.
30. In the circumstances it is my considered view that the justice of the case requires that matter be determined by way of viva voce evidence and parties be granted the requisite time to prepare and proceed to hearing for the applicants and the respondent to establish their rival claims
31. In the circumstances: I find and hold;
1. that the appeal succeeds in part.
2. The lower court file be and is hereby remitted to the SPM Court Tawa for hearing and determination of the application dated 11th March 2019 by way of oral evidence by another Judicial Officer other than Hon L K Mwendwa
3. The status quo at the time of this Judgment be maintained pending the hearing and determination of the matter.
4. Considering the nature of the matter, there will be no orders as to costs.
5. The matter be placed before the Head of Station Tawa Law Courts within 14 days hereof for directions.
Dated, signed and delivered in open court this 21st March 2025
CA Chrispol
Ms Mjambili for the Respondents
N/A for Counsel for the Appellant