1. Timothy Mutisya Musembi died on 1st January 2005 . He died intestate and was married to Anna Mbaluka Mutisya and blessed with eight children: Thus
i. Anna Mbaluka Mutisya - wife
ii. Ruth Nthenya Mutisya - Daughter
iii. Josephen Kanini Mutisya - Daughter
iv. Joseph Kilatya Mutisya - Son
v. Daniel Kisumbi Mutisya - Son
vi. Stephen Kyalo Mutisya - Son
vii. Peninnah Ndunge Mutisya - Daughter
viii. Joshua Musembi Mutisya - Son
ix. Christine Munyiva Mutisya - Daughter
2. He had assets Ukia/Kilala/15 and Makueni/Iuani/423.
3. On 9/9/2015 the widow filed for grant of letters of administration intestate and listed all her children and herself as the beneficiaries of the estate.
4. The grant was made on 24th March 2016 and on 16th March 2017 she filed Summons for Confirmation of the grant. In the supporting affidavit she described herself as the purchaser and sought that “ the said grant be confirmed pursuant to s. 7(1) (4) of Cap 160 laws of Kenya to be registered wholly in the names of the Purchaser Anna Mbaluka Mutisya, and the land Registrar to issue “the above named purchaser with title deed accordingly”.
5. The Consent to the confirmation of the grant was not signed by two of the children Joseph Kilatya Mutisya and Joshua Musembi Kilatya.
6. The certificate of confirmation of grant was made as requested on 17th July 2018 and the two parcels were directed to be registered in the names of Anna Mbaluka Mutisya.
7. On 18th November 2021, the two sons who had not signed the consent filed summons for revocation of the grant .
8. The main grounds were that the 1st respondent did not disclose to the court that she was the widow of the deceased at the time of confirmation of the grant and after obtaining the grant, transferred Ukia/Kilala/15 to a third party, One Alex Mutinda Ngwili, not a beneficiary of the estate without the involvement of the objectors.
9. The objection was heard by way of viva voce evidence and the learned trial court determined that the objection was not merited and dismissed the same.
10. Aggrieved the objectors filed this appeal on the grounds:
1. That the learned magistrate erred in law and in fact when she failed to take cognizance of the fact that the 1st respondent with impunity had obtained the impugned grant issued on 17/7/2018 with clear intentions of disinheriting the lawful heirs of the deceased’s estate more so the appellants herein without having obtained their proper and full consent nor pegging their respective lawful share out of the estate.
2. That the learned magistrate erred in law and in fact by failing to understand and appreciate the peculiar circumstances of the appellant’s case in that they pleaded that the 1st respondent had unlawfully sold the deceased’s land title number Ukia/Kilala/15 to the 2nd respondent without having a confirmed grant in place.
3. That the learned magistrate erred in law and in fact when she acknowledged that the 1st respondent had she subdivided/distributed /sold the deceased land Makueni/Iuani/4 23 and Ukia/Kilala/15 without any tangible evidence.
4. That the learned magistrate erred in law and in fact when she acknowledged the 1st respondent had proven her case and that the estate’s beneficiaries more so the appellants had been included, received and/or benefited from her unlawful sharing out of the deceased’s estate without their consent.
5. That the learned magistrate erred in law and in fact by occasioning a miscarriage of justice when she reached a decision that the appellants had benefited from the unlawful conduct of the 1st respondent when she unlawfully sold the deceased’s land tittle number Ukia/Kilala/15 to the 2nd respondent without any evidence.
6. That the learned magistrate erred in law and in fact by allowing the 1st respondent’s allegation that she called the appellants to consent when the matter came up for confirmation yet the same is not supported by any concrete evidence.
7. That the learned magistrate erred in law and in fact by recognizing that the 2nd respondent is a lawful heir of the deceased entitle to share it out yet he is a total stranger to the estate.
8. That the learned magistrate erred in law and in fact when she failed to hold that the 1st respondent had obtained the impugned grant fraudulently and on the basis of misrepresentations of fact when she indicated she was a purchaser in the mode of distribution yet she is the deceased wife.
9. That the learned magistrate erred in law and in fact when she dismissed the appellants summons for revocation without according all beneficiaries an opportunity to advance their mode of distribution before court.
Reasons wherefore the appellants sought r the following orders from this honourable court:-
a) That the appeal be allowed.
b) That the ruling and order of the honourable Otieno, Magistrate, delivered on 22nd day of September, 2022 at the Chief Magistrate’s Court at Makueni vide Succession Cause NO. 42 of 2015 be set aside.
c) That cost of the appeal be awarded to appellant.
d) Any further relief that this honourable court deems fit to grant the appellant.
11. Parties filed written submissions.
APPELLANTS SUBMISSIONS
12. It was submitted that the deceased’s estate is governed by the Laws of Succession Act Cap 160 of Laws of Kenya.
13. It was argued that the alleged sale of the 2 properties assets of the estate of the deceased happened before the grant was confirmed.
14. That the certificate of confirmation of grant was made contrary to the provisions of Section 26 (2) of Laws of Succession Act without the consent of the objectors.
15. That the court did not confirm compliance with Section 71 (1) of the same law that requires the court to confirm that the beneficiaries and their respective shares have been identified.
16. That there was no evidence that the objectors were served with any hearing notice with regard to the distribution of the estate.
17. On ascertainment of beneficiaries and their shares the appellant relied on Rosemary Njeri Njamura V Samuel Kimaru Njamira & 4 others [2017] eKLR where it was held that beneficiaries must consent to the mode of distribution.
18. Further reliance was had on re-estate of Fredrick Njuguna Ndoro (deceased) [2021] eKLR and Re Estate of Amos Odundo Gombe[2022]Eklr on the requirement to comply with Section 71(1) of the Laws of Succession Act.
19. On the capacity of the respondent to sell the property of the deceased before the confirmation of the grant it was argued that she had none hence her actions were null and void.Reliance was had on Re-estate of Barasa Kaneje Manya (deceased) Succ Cause 263/2002 [2002] KEHC 1 (KLR) where it was held that such a transaction was null and void, and amounted to intermeddling, and the purchasers could not have acquired valid titles from the alleged sale. On the nullity of this the appellant relied on Macfoy Vs United Africa Co. Ltd [1961] 2 All ER 169.
20. It was submitted that the testimonies of the 1st respondent and her witness in the subordinate court that she had distributed Makueni/Uani and that the objectors had received each 2 acres of land was not supported by any evidence.
21. I checked the file and CTS and did not see submissions by the respondent.
22. The issue is whether the appeal has merit.
23. It is true that the 1st respondent described herself as a purchaser of the estate of the deceased when she applied for confirmation of the grant and not as the widow. In those circumstances - she misled the court, because as a widow - the confirmation of the grant is subject to section 35 of the Laws of Succession Act together with section 71(1) of the Laws of Succession Act.
24. In the event that she chose to distribute the estate among her children - then they would be required to consent to the distribution
25. In here, she did not proceed distribute the estate or hold it in trust for herself and her children, but proceeded to sell transfer the property to a non-beneficiary of the estate. As a widow, section 35 of the Laws of Succession Act, does not confer to her those powers. The powers she has are well defined under sections 3 and 35 of the Laws of Succession Act. Further, under section 37 any sale of any property under the LOSA would have to be consented to by the beneficiaries who are of age and the court.
26. The 1st respondent did not demonstrate before the subordinate court that she had obtained any of those consents. The application before the subordinate court was founded on the observe of the required consent. The 1st respondent – though rightfully the administrator - she obtained this certificate of confirmation of grant by stating that she was the purchaser, in her evidence before the trial court she alleged she had purchased the property and registered in her husband’s name. She did not produce any evidence to that effect and hence - the only conclusion is that the property belonged to the estate at all times.
27. Evidently, she obtained the transfer of the property to herself through the grant obtained by concealing that she was the widow. As a widow she was entitled to life interest of the property of the deceased – and not to absolute ownership of the estate.
28. Hence it was clear on the face of it - that the 1st respondent had misled the court in a material particulars . Section 76 of the Laws of Succession Act is clear that where this happens then the grant will be up for revocation.
29. Having found that she misled the court, obtained the grant as a buyer - and proceeded to transfer the property to herself and others: the only available order is that the grant issued to the 1st respondent and confirmed on the 22/3/2016 be and is hereby revoked, together with all the consequent actions arising out of the said grant.
30. Consequent to that; the estate of the deceased to revert to the name of the deceased.
31. A fresh grant to issue to the 1st respondent together with the 1st Objector/appellant .
32. A reviewed certificate of confirmation of grant to issue where the estate of the deceased is registered in the name of the 1st respondent as a life interest.
33. For the avoidance of doubt, any sale of the property be consented to by the children of the deceased, and the court as required by section 37 of the Law of Succession Act.
34. There will be no orders as to costs.
35. Orders accordingly
Dated, signed and delivered virtually this 4th April 2025
Mumbua T Matheka
Judge
Langalanga for appellants
N/A for Judah Kioko for the Respondents
Chrispol Court Assistant