(Being an appeal from the Ruling and or order of Hon. B.S. Khapoya (PM) delivered on 7th December 2022 in Kithimani Succession Cause No. 43 of 2020)
1. The appellants dissatisfied with the Ruling delivered on 7th December 2022 in Kithimani Succession Cause No. 43 of 2020 lodged this appeal seeking that the appeal be allowed and the said ruling be set aside. This appeal is premised on the grounds that the Learned Trial Magistrate erred in fact and in law by; holding that the Respondent was a creditor to the estate of Mukora Hiuhu Kahaki and thus a beneficiary of his estate; by holding that there was a valid sale agreement between the late Mukora Hiuhu Kahaki and the Respondent herein in respect of Land parcel number Machakos/Mamba/386; by failing to observe that the court was bereft of jurisdiction to determine whether or not there was a valid sale agreement between the deceased and the Respondent; by holding that the deceased had authorized Hiuhu Njenga, his son, to proceed with the sale of land parcel number Machakos/Mamba/386; by going against the weight of the evidence, submissions and jurisprudence relied upon by the Appellants.
2. The facts leading to this appeal are that the respondent filed an Affidavit of Protest against a confirmation of grant dated 11th May 2022 seeking that the court: -
a. Refrains from confirming the summons for confirmation of grant dated 11th May 2022 as drawn.
b. Finds and declares that he is a lawfully entitled to one acre piece of land as a bona fide purchaser for value and or creditor to the estate and;
c. Orders that the one acre be excised from Machakos/Mamba/386 and registered in his name.
3. The basis of the protest was that the deceased, on 6th July 2002, agreed to sell to him one acre of land from Machakos/Mamba/386 at Kshs 150,000/- and instructed his son Hiuhu Njenga (now deceased) to sign the sale agreement on his behalf which agreement was witnessed by two witnesses and later formalized before the area chief on 29th November 2013.
4. The trial court, upon hearing the parties herein, allowed the application and declared that the applicant is entitled to one acre piece of land as a bona fide purchaser for value to be excised from Machakos/ Mamba/386.
5. The appeal was canvassed by written submissions. The Appellants filed their submissions dated 2nd July 2024 in support of the Appeal while the Respondent’s submissions are dated 3rd July 2024 in opposition thereto.
Appellants’ submissions
6. The Appellants set out the brief facts of the case, as follows; that the deceased passed away in 2007 and subsequently, his son was granted letters of administration. That, during the petition for letters of administration intestate, the deceased’s son failed to disclose that the deceased was survived by the Appellants. Upon learning about the succession proceedings, the Appellants entered appearance, and the court thereafter directed the area chief to issue a re-introduction letter confirming that the deceased was indeed survived by other beneficiaries, namely the Appellants herein.
7. The Appellants submitted that prior to the death of the administrator, Hiuhu Njenga, he had listed the Respondent as a bona fide purchaser for value of the parcel of land known as L.R. Machakos/Mamba/386, having purchased it for a consideration of Kshs. 150,000/=. They further submitted that it was alleged that the deceased had authorized his son to conduct the sale through a Power of Attorney which was never tendered in court. It was also submitted that the purported sale agreement did not bear the signature of the deceased and that the transaction was formalized in 2013, long after the deceased’s demise in 2007. It was only after the Appellants were joined in the succession cause that they challenged the credibility of both the alleged sale agreement and the Power of Attorney.
8. The Appellants set out one issue for determination that is, whether the appeal is merited. They faulted the trial court’s holding that the Respondent was a creditor of the deceased’s estate and thus a beneficiary thereof. They argued that the estate property, being L.R. Machakos/Mamba/386, was at all material time registered in the name of the deceased, and that the dispute between the parties revolved around ownership and title to the suit property. It was the Appellants’ submission that, once the issue of title arose, the trial court was duty-bound to down its tools. In support of this position, they relied on In the Matter of the Estate of Kirae Muyaweru, Succession Cause No. 8 of 2018 [eKLR], and submitted that the Respondent lacked the requisite locus standi to file a protest before the trial court since the agreement in question was not executed by the deceased.
9. They further submitted that the trial court was bereft of jurisdiction to determine whether there was a valid sale agreement and transfer. They argued that the primary duty of the probate court is to distribute the estate of a deceased person to rightful beneficiaries, and that its jurisdiction is limited to the net estate of the deceased—being that which the deceased was legally free to deal with during his lifetime.
10. The Appellant submitted that even if there was prima facie evidence that the deceased dealt with the protestor, the only lawful remedy would have been to set aside the disputed portion of the estate pending determination in separate proceedings before the Environment and Land Court. Relying on the case of In the Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR, the Appellants argued that the claim against the estate had not yet crystallized. They urged the court to allow the appeal.
Respondent’s submissions
11. The Respondent set out and submitted on three issues; that is, whether the trial court erred in finding that the Respondent was a creditor of the estate by virtue of being a bona fide purchaser for value; whether the trial court usurped the jurisdiction of the Environment and Land Court and held that there was a valid sale agreement and whether the appeal is meritorious.
12. On the first issue, the Respondent urged the court to re-evaluate, re-assess and re-analyse the trial court record and determine whether the conclusions reached are sustainable. He relied on the case of Mkube v Nyamuro [1983] eKLR in submitting that the trial court arrived at a proper finding, having been satisfied with the facts and evidence on record demonstrating that the Respondent was a creditor of the estate by virtue of being a bona fide purchaser. The Respondent further relied on Section 66 of the Law of Succession Act and submitted that creditors are among the persons beneficially entitled to apply for letters of administration. It was the Respondent’s submission that the trial court was satisfied that the deceased sold an acre of land to the Respondent, and that this transaction was formalized before the area chief on 29th November 2013.
13. While relying on the case of Kenya Power & Lighting Company Limited v Rassul Nzembe Mwadza [2020] eKLR, the Respondent submitted that the trial court observed that the Appellants had never challenged the Respondent’s claim of interest in the deceased’s estate until after the demise of their brother, Hiuhu Njenga, who was the administrator of the estate prior to substitution. The Respondent further submitted that since the late administrator had recognized the Respondent as a creditor during his lifetime, and this recognition was never objected to, the Appellants had effectively acknowledged the Respondent as a creditor. The Respondent included the beneficial interest in the pleadings that ultimately led to the issuance of the grant.
14. On the second issue, the Respondent submitted that he was an acknowledged creditor of the estate, and therefore the validity of the sale agreement between him and the Appellants’ late brother was not in dispute. He contended that the late brother, acting on behalf of their father, sold a portion of land to the Respondent and affirmed this position by acknowledging the Respondent as a creditor to the estate. The Respondent argued that the trial court neither usurped the jurisdiction of the Environment and Land Court nor did it analyze or determine the validity of the sale agreement in question. He further submitted that if the Appellants genuinely believed the matter fell under the jurisdiction of the Environment and Land Court, they ought to have pursued their position in that forum.
15. On the third issue, the Respondent submitted that the appeal, as framed, lacks merit on the basis that the grounds of appeal are far-fetched and unfounded. He argued that the Appellants are attempting to re-litigate their case on issues of the sale agreement’s validity and the trial court’s jurisdiction at the appellate stage, which amounts to an abuse of the court process and should therefore be dismissed.
16. The Respondent concluded his submissions by stating that the trial court’s decision was sound and proper, and urged that the appeal be dismissed with costs for lacking merit.
Analysis and Determination
17. This court has considered the grounds of appeal, the proceedings of the lower court and the submissions by both the Appellant and the Respondent. However, I must remind myself of the duty of this court as the appellate court.
18. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. The foregoing duty was succinctly stated by the Court of Appeal in the case of Selle v Associated Motor Boat Company Ltd (1968) EA 123 and Peters v Sunday Post Limited [1985] EA 424). Summarily, this court ought not to interfere with the exercise of the discretion by an inferior court unless it is satisfied that its decision is clearly wrong or the court has misdirected itself and acted on matters which it should not have acted or it has failed to take into consideration matters which it ought to have taken into consideration and in doing so, arrived at a wrong conclusion.
19. I therefore have a duty to delve into factual details and revisit the evidence as presented in the trial court, analyze the same, evaluate it and arrive at my own independent conclusion having in mind that the trial court had the advantage of hearing the parties.
20. I have considered and analyzed the parties’ pleadings and evidence adduced before the trial court, as well as the respective parties’ submissions and I am of the considered view that the only issue for determination is Whether the appeal is merited.
21. The Appellants’ grievance stems from the following holding by the trial court:
“Stemming from the court documents filed by both parties herein it is not in dispute that Hiuhi Njenga is the son of the deceased herein and alongside the petitioners herein a beneficiary to the deceased’s estate. The petitioners are his siblings.
The Applicant has availed a copy of the sale agreement for land between the petitioners’ deceased brother and himself for one acre and it has been shown that the deceased acted on behalf of his father who needed funds for medication a position hotly contested by the petitioners.
Be it as it may, there is no doubt that Hiuhu Njenga sold the Applicant a portion of the suit land. This view and intention is crystallized by his act of filing a succession cause before this very court and listing the Applicant as a creditor entitled to benefit from the deceased’s estate before his own demise.
I note with regret that his family is not represented and therefore we cannot get their views but under the circumstances I am convinced that a transaction exists between the applicant and the petitioners’ deceased brother whether on his own behalf and or that of his father is not of importance for the sole reason that what is critical; is his acknowledgment by even going ahead and filing the succession cause and thus through him, the Applicant herein is entitled to the estate of the deceased and therefore in finality find that the Affidavit of Protest dated 24th August 2022 is merited and a declaration is hereby issued that the Applicant is entitled to one acre piece of land as a bona fide purchaser for value to be excised from Machoka/Mamba/389 and be registered in his names John Njoroge Kanga’atta….”
22. Thus, the appellants are challenging this finding on a two-fold basis. First, that the respondent lacks the requisite locus standi to file a protest in a probate matter and secondly, they are challenging the credibility of the sale agreement since the purported sale agreement did not bear the signature of the deceased and that the transaction was formalized in 2013, long after the deceased’s demise in 2007.
23. On the other hand, the Respondent has submitted that he was an acknowledged creditor of the deceased’s estate, whose interest was recognized by the then Administrator of the estate, Hiuhu Njenga (now deceased), and therefore, such interest ought to be safeguarded.
24. The following are the uncontested facts; that Hiuhu Njenga (now deceased) filed a petition for letters of administration to the estate of Mukora Hiuhu Kahaki who died intestate on 14th September 2007 in his capacity as a the only surviving son of the deceased; the court issued the letters of administration intestate and a grant was obtained on 2nd October 2020. In that petition, the respondent herein was recognized as a creditor by way of purchase of the estate of the deceased. That Hiuhu Njenga then died on 6th May 2021 before the said grant could be confirmed.
25. However, the appellants, upon entering appearance, applied for confirmation of the grant, failed to acknowledge the Respondent as a creditor, as had been done by the Hiuhu Njenga (deceased administrator). Their contention was that the deceased administrator took out letters of administration without informing the rest of the family, he failed to disclose that the deceased was also survived by the Appellants, that the purported sale agreement did not bear the signature of the deceased and that the transaction was formalized in 2013, long after the deceased’s demise in 2007.
26. I have looked at the sale agreement and I note that the same is for sale of one acre of the subject property that belonged to the deceased. The agreement was executed in 6th July 2002 by the Appellants’ deceased brother and witnessed by two people and has the chief’s official stamp of 29th November 2013. I have also perused the Affidavit of Protest and I note that the Respondent alleges that the Appellants’ deceased brother who was the first administrator of the deceased’s estate and had been instructed to sign the agreement on his behalf.
27. The appellants are challenging the validity of this sale agreement on the grounds that it was not signed by the property owner and was witnessed 11 years after its purported execution. It is imperative that evidence be presented to substantiate the claim that the agreement is legitimate, including providing proof of the transaction and possibly obtaining confirmation from the alleged witnesses. The absence of such evidence raises significant doubts regarding its validity, as highlighted by the Appellants.
28. This is buttressed by the fact that the deceased administrator moved the succession court to the exclusion of the appellants who are in equal measure with the deceased administrator entitled to the estate of the deceased. In these circumstances, the fact that the deceased administrator is the only one who acknowledged the agreement between the deceased and the respondent and his estate was unrepresented in the present succession process, I am satisfied that this calls for further determination. It is also not lost to this court that there is need to explore the circumstances of the formalization of the sale agreement before the area Chief after over 10 years on one hand, and the appellants inaction between the time of execution of the agreement and the death of the deceased administrator including the formalization of the sale agreement before the area Chief. These issues in my view require further interrogation separate from the present proceedings.
29. Given that the validity of the sale agreement was raised by the appellants and remains an unresolved question, I am persuaded by the authority In re Estate of David Ng’ombe Masinde (Deceased) [2021] eKLR where the court when faced with the issue of validity of a sale agreement held as follows;
“The only issue for determination is whether the administrator is entitled to the portion that he says he bought from the deceased. I have seen the sale agreement, and I also heard his witness, who was privy to the sale as a witness. It would appear that there could have been a transaction of sorts between the deceased and the administrator. That sale is, however, contested by the protestor. That being the case, I cannot distribute the property before the validity of the said sale is determined.
Unfortunately, I have no jurisdiction to handle disputes that turn on the matter of ownership, use and occupation of land, by dint of Articles 162(2) and 165(5) of the Constitution. The disputed sale revolves around ownership, of the one acre that the administrator claims to have bought. Of course, he was never registered as proprietor of the one acre, and the issue for determination would be whether there was a valid sale transaction, which the estate of the deceased was bound to honour, by excising that one acre and getting it registered in his name. Subsequent, to buying land, is the accrual of the right to use and occupy that land. All these are matters that are governed by the Land Registration Act, No. 3 of 2012, and the Land Act, No. 6 of 2012, but not the Law of Succession Act, Cap 160, Laws of Kenya. The provisions of the two statutes are very clear, at sections 2 and 101 of the Land Registration Act and sections 2 and 150 of the Land Act, that the court, for the purposes of these Acts, is the Environment and Land Court.”
30. In this regard, and in light of the circumstances of this case, the trial court lacked jurisdiction to distribute the one acre of land from the subject property, Machakos/Mamba/386, before the issue of the validity of the sale agreement is resolved.
31. Therefore, this appeal is allowed to the extent that, the trial court’s ruling in Principal Magistrate Court at Kithimani Succession Cause No 43 of 2020 delivered on 7th December 2022 is hereby set aside to enable the parties move the Environment and Land Court, appropriately, for determination of the validity of the sale transaction, and the entitlement therein taking into account the divergent interests of the appellants and the respondent.
32. Since the appellants did not pray for costs, each party will bear their costs of this appeal.
Orders accordingly