PRISKA KWAMBOKA MARANGA AND PIUS MARANGA NYAKUNDI VS SAMWEL ONSARE MARANGA AND GRACE NYABONYI AND 1 Others

(Being an Appeal from the Ruling in the Chief Magistrate’s Court at Nyamira in Nyamira Succession Case No. 155 of 2019 delivered by Hon. W.K. Chepseba delivered on 31^st August 2023.)

Introduction

1. Peter Maranga Nyang’au (deceased) died intestate on 12^th December 2013 and was survived by one wife, the 1^st Appellant herein. The deceased and the 1^st Appellant were blessed with nine (9) children namely: -
2. Lilian Mwango Maranga – Daughter
3. Pius Nyakundi Maranga – Son /Administrator/2^nd Appellant
4. Nancy Bosibori Maranga – Daughter
5. Samwel Onsare Maranga – Son/1^st Respondent
6. Roseline Moraa Maranga – Daughter
7. Wilfred Mokua Maranga – Son
8. Emily Gesare Maranga – Daughter
9. Francis Nyang’au – Son (deceased) survived by Edwin Ongeri and Japtheth Yoge Maranga/3^rd Respondent)
10. William Onchiri Maranga – Son (deceased) survived by wife: Grace Nyabonyi (2^nd Respondent) and daughters: Sharon Obaga and Angela Ombati Maranga.
11. Grant of Letters of Administration in respect of the deceased’s Estate was issued on 8^th July 2020 and confirmed on 7^th August 2020. On the same date of confirmation of grant, the Appellants herein filed an Application dated 7^th August 2020 seeking, inter alia, orders to restrain the 1^st, 2^nd and 3^rd Respondents from dealing with the suit land parcel and further, an order for eviction against the 4^th, 5^th 6^th, 7^th, 8^th and 9^th Respondents from the suit land.
12. On 22^nd September 2020 the lower court issued temporary orders of injunction restraining the Respondents from intermeddling with the Estate of the deceased until the determination of the Application. The Application was subsequently heard inter partes and in a ruling rendered on 31^st August 2023 the lower court dismissed the Appellants Application in its entirety thereby precipitating the filing of this Appeal.

The Appeal

1. The Appellants filed a Memorandum of Appeal dated 25^th September 2023 seeking, inter alia; orders to set aside the Ruling delivered by the trial court on 31^st August 2023; a permanent injunction restraining the Respondents from dealing with the suit property GESIMA SETTLEMENT SCHEME/137; an eviction Order against the 4^th to 9^th Respondents; and a declaration that the suit property forms part of the Estate of the deceased and thus necessitating its inclusion in the Schedule of Distribution filed by the Appellants in the Application for Confirmation of Grant dated 1^st August 2021. The Appellants listed the following grounds of appeal in the Memorandum of Appeal: -
2. That the Honourable Court erred in law and in fact by dismissing the Appellant’s Chamber Summons Application dated 7^th August 2020 without including within its Ruling a concise statement of the case, the points for determination and the reasons for the decision.
3. The Honourable Court erred in law and in fact in failing to deliberate on and make its finding or decision with reasons therefor, upon each separate issue raised by the parties.
4. The Honourable Court erred in law and in fact in dismissing the entirety of the Appellants’/Applicants’ Chamber Summons Application dated 7^th August 2020 without acknowledging the Ruling issued by Hon. Margaret Wambani Onditi granting the Appellants/Applicants permanent injunctive orders against the Respondents.
5. The Honourable Court erred in law and in fact by purporting to review the decision of Hon. Margaret Wambani Onditi without an Application for review having been filed by the Respondents.
6. The Honourable Court erred in law and in fact in purporting to sit on Appeal on the decision of Hon. Margaret Wambani Onditi which decision equally emanated from a Magistrate Court.
7. The Honourable Court erred in law and in fact in finding that the Petitioner/Applicants Application dated 7^th August 2020 was without merit and proceeding to dismiss the same failing to appreciate that the Ruling was only with respect to the eviction orders sought against the Respondents with respect to the deceased’s land parcel land No. GESIMA SETTLEMENT SCHEME/137.
8. That the Honourable Court erred in law and in fact in failing to take into account the fact that the suit property was still registered in the deceased’s name and hence formed part of his Estate and as such, the 1^st, 2^nd and 3^rd Respondents could not purport to sell portions of the said property to the 4^th, 5^th 6^th, 7^th, 8^th and 9^th Respondents without the authorization of the court.
9. That the Honourable Court erred in law and in fact in failing to evict the 4^th, 5^th 6^th, 7^th, 8^th and 9^th Respondents who were in illegal occupation of the suit premises.
10. That the Honourable Court erred in law and in fact by failing to find that the actions of the Respondents were detrimental to the interests of the beneficiaries of the Estate and greatly hampered the distribution of the Estate.
11. That the Honourable Court erred in law and in fact in failing to find that the Respondents herein intermeddled in the Estate of the deceased by selling, leasing, occupying, cultivating, erecting structures and/or in any other way interfering with the suit property.
12. The Appeal was canvassed by way of written submissions which I have considered.
13. The duty of a first appellate court was restated by the Court of Appeal in the case of Abok James Odera & Associates vs. John Patrick Machira t/a Machira & Co. Advocates Civil Appeal No. 161 of 1999 thus:-

“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority versus Kusthon (Kenya) Limited 2000 2EA 212 wherein the Court of Appeal held, inter alia, that:-

“On a first appeal from the High Court, the Court of Appeal should consider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.”

Issues for Determination

1. The main issues for determination are: -
2. Whether the suit property forms part of the Estate of the deceased.
3. Whether the Appellants made out a case for granting permanent injunctive orders against the Respondents.
4. Whether the suit property formed part of the Estate of the deceased
5. A perusal of the trial court’s record reveals that the 1^st Respondent, Samwel Onsare, testified that he was born on the suit property where his father, the deceased, was buried. He stated that his mother and father lived on the portion of the land known as ‘Embonga’ which is the family homestead according to the Abagusii culture. He stated that his father summoned all the uncles and children while he was still alive and shared the suit property equally amongst his children. He added that each of them had developed their respective portions and that the daughters and his youngest brother, William, did not demand a share of the estate. According to the 1^st Respondent, the suit property was subdivided and given to them as a gift intervivos.
6. Gift intervivos refers to grants issued by a deceased person during his lifetime. Section 42 of the Law of Succession Act provides for the same as follows:-

42. Previous benefits to be brought into account

Where—

(a) an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or

(b) property has been appointed or awarded to any child or   grandchild under the provisions of section 26 or section 35,

that property shall be taken into account in determining  the  share of the net intestate estate finally accruing to  the child, grandchild or house.

1. For a gift intervivos to be valid, the donor must take certain steps or actions to give effect to the gift. Halsbury’s Laws of England 4^th Edition Volume 20(1) at paragraph 67 states as follows: -

“Where a gift rests merely in promise, whether written or oral, or in unfulfilled intention, it is incomplete and imperfect, and the court will not compel the intending donor, or those claiming under him, to complete and perfect it, except in circumstances where the donor’s subsequent conduct gives the donee a right to enforce the promise. A promise made by deed is however, binding even though it is made without consideration. If a gift is to be valid the donor must have done everything which according to the nature of the property comprised in the gift, was necessary to be done by him in order to transfer the property and which it was in his power to do.”

1. It is therefore not sufficient for a donor of a gift intervivos to merely point out or show his beneficiaries the portions of land that they are to occupy as the donor must undertake further actions to actualize his donation or gift to his beneficiaries. In Lucia Karimi Mwamba vs. Chomba Mwamba [2020] eKLR Gitari J. aptly expounded on this issue when she held thus:-

“18. I must point out with respect to the learned Magistrate, that she misconstrued the term gifts intervivos. …..

There are operative words which are paid, given, settled, appointed awarded.  It refers to properties which deceased has in his life time given out to a beneficiary and it no longer forms part of his estate.  The marginal notes of the Section clearly demonstrate this as it states – previous benefits to be brought into account.  This is what the judge was saying in Peter M. Murungi & Another -vs- Eliud Gitone Mwongera & Another which I have quoted above.  A gift inter vivos is given and settled for the beneficiary and does not form the free estate or net estate. There must be evidence in gift inter vivos that the gift was granted by deed, payment or by executing a transfer.  The gift inter vivos must be complete during the life of the deceased.

In this case the deceased had not given the estate to the sons during his lifetime. He applied for sub division but never transferred the land to his sons. Though he pointed out where each of the sons could occupy, the land remained in his name.  It was property which formed free estate of the deceased and was available for distribution.  It did not form a gift inter vivos for the sons only as there was evidence that even the deceased and his wife continued to live on the land even after he applied for sub-division. The trial Magistrate erred by holding that it was a gift inter vivos. Even if the sons were occupying the land since the appellants were children of deceased who were claiming a rightful share, the option was not to deny them a share, Section 26 & 27 of the Act called upon her to exercise discretion and make provision for them.  (emphasis added)

1. In the instant case, I find that the 1^st Respondent’s assertions that the deceased had given them their respective portions of land, during his lifetime, and that the said property did not therefore form part of his intestate Estate, cannot stand in law because no evidence was presented to show that the deceased took any steps to have the portions sub-divided and transferred to them. I have also perused the copy of the deceased’s title for the suit land parcel and noted that it is still registered in his name. My finding is that the gift was incomplete and the suit land cannot therefore be excluded from the deceased’s net intestate Estate. It is my further finding that the suit parcel of land forms the deceased’s net intestate Estate and should therefore be included in the schedule of distribution.
2. I have considered the positions of the 4^th, 5^th, 6^th, 7^th, 8^th and 9^th Respondents who exhibited various sale agreements as follows:-
3. Sale agreement between Samwel Onsare and Jason Ogecha Onchari dated 14^th October 2016
4. Sale agreement between Samwel Onsare and Onchiri Samuel Mayani dated 21^st May 2019.
5. Sale agreement between Samwel Onsare and Thomas Onsongo Apiri dated 22^nd January 2015
6. Sale agreement between Grace Nyabonyi Onderi and Kevin Omoga Mogire dated 21^st January 2019
7. It was not disputed that the Grant of Letters of Administration was issued on 8^th July 2020 and confirmed on 7^th August 2020. The Respondents however entered into the above sale agreements before the issuance and confirmation of Grant which transactions amounted to intermeddling with the Estate of the deceased.
8. Section 45 of the Law of Succession Act provides for the offence of intermeddling as follows:-

(1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.

(2) Any person who contravenes the provisions of this section shall—

(a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and

(b) be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.

1. In Veronica Njoki Wakagoto (Deceased) [2013] eKLR Musyoka, J. held that:-

“The effect of [section 45]…is that the property of a dead person cannot be lawfully dealt with by anybody unless such a person is authorised to do so by the Law. Such authority emanates from a grant of representation and any person who handles estate property without authority is guilty of intermeddling. The law takes a very serious view of intermeddling and makes it a criminal offence.”

1. Section 82 further prohibits the sale of a deceased’s property before the issuance and confirmation of grant thus:-

82. Powers of personal representatives

Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers—

1. to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative;
2. to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best:

Provided that—

1. any purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased; and
2. no immovable property shall be sold before confirmation of the grant;
3. The above provisions posit that the property belonging to a deceased person cannot be sold off before the confirmation of grant. The 1^st, 2^nd and 3^rd Respondents herein are therefore guilty of intermeddling with the deceased’s Estate by selling the suit property to the 4^th to 9^th Respondents. I find that the sale transactions were invalid, null and void before the law because the alleged sellers lacked the legal capacity to sell or transfer the said land parcels to third parties.
4. Whether the Appellants made out a case for granting permanent injunctive orders against the Respondents.
5. What then is the effect of the sale of the suit land to third parties and what remedies are available before this Court? Section 47 of the Law of Succession Act provides as follows: -

47.Jurisdiction of High Court

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

Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.

1. In re Estate of John Mathiu Irware (Deceased) [2022] KEHC 2183 (KLR) Muriithi J. held as follows in this regard: -

“14. The Law of Succession Act is a complete legal regime with substantive and procedure rules for the governance of succession matters including their civil and criminal sanctions for dealings with the estate of deceased persons.  Intermeddling with the estate will attract both civil and criminal sanction under section 45 of the Law of Succession Act.  In its civil jurisdiction, a succession court may therefore grant civil remedies including the eviction of a trespassing intermeddler or injunction and other relief against a person who otherwise intermeddles, a term of art which means any dealing with estate property inconsistent with the Grant of Representation, in the estate of a deceased.  The statutory injunction under section 45 that “no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person” is capable of protection and enforcement by an order for eviction of such a person.  In addition, apart from the criminal penalty under section 45 (2), Section 46 of the Act obliges the police officers, administrative officers and chiefs to take steps to protect the estate of a deceased person.”

1. In its ruling dated 14^th March 2024 this court found that the Appellants had established the conditions for the granting of injunctive orders against the Respondents. Having already addressed itself on the principles governing the granting of orders of injunction as stated in Giella vs. Cassman Brown (1973) E.A. 358 against the facts of this case, this Court reiterates its findings in the said Ruling. This court is also alive to the fact that a permanent injunction can only be granted upon hearing the merits and demerits of the case. In Kenya Power & Lighting Co. Limited vs. Sheriff Molana Habib [2018] eKLR it was held that:-

“It is apparent from the pleadings that the Respondent was seeking a permanent injunction against disconnection of his electricity by the Appellant.  A permanent injunction which is also known as perpetual injunction is granted upon the hearing of the suit.  It fully determines the rights of the parties before the court and is thus a decree of the court.  The injunction is granted upon the merits of the case after evidence in support of and against the claim has been tendered.  A permanent injunction perpetually restrains the commission of an act by the defendant in order for the rights of the plaintiff to be protected.

A permanent injunction is different from a temporary/interim injunction since a temporary injunction is only meant to be in force for a specified time or until the issuance of further orders from the court.  Interim injunctions are normally meant to protect the subject matter of the suit as the court hears the parties…”

1. This court notes that the Appellants’ attempts to have the 4^th to 9^th Respondents evicted from the suit land were unsuccessful as shown in the numerous letters attached to the Appellants’ bundle of documents. 
2. I have also considered the 1^st Respondent’s testimony that Kisii Customary Law did not permit daughters to inherit their deceased father’s estate. The 1^st Respondent also testified that the suit property was to be subdivided between himself and the Administrator/2^nd Respondent because they were the male heirs of the deceased.
3. My finding is that the position taken by the 1^st Respondent is not only discriminatory, retrogressive and against the tenets of fairness and equality as enshrined in our Constitution under Article 27, but is also a move aimed at disinheriting the other surviving beneficiaries of the deceased’s Estate. The 1^st Respondent made no mention of the daughters of the deceased and his brother Wilfred Mokua Maranga.
4. I note that the 1^st Respondent was only interested in advancing his own personal interests in order to cover up the illegal actions of intermeddling with the estate of the deceased. Having sold off portions of the suit property to third parties and having allowed the said third parties to occupy the suit land I find that even if the suit property were to be distributed in the manner stipulated in the Schedule of Distribution, the said distribution will not be effected because the 4^th to 9^th Respondents are already occupying the said land.
5. Based on the foregoing, it is my finding that the Appellants made out a case for the granting of permanent injunctive orders against the Respondents. I am however of the view that this court, sitting in the succession cause, cannot grant the orders for eviction sought before the trial court as matters of eviction fall within the purview of the Environment and Land Court (ELC).
6. I have also considered the Ruling delivered by the trial court and I note that the trial court did not specify the reasons for dismissing the Appellant’s Application in its entirety. I find that the trial court erred in overlooking the fact that the Respondents had transacted with the deceased’s Estate before the issuance and confirmation of Grant contrary to the clear provisions of the Law of Succession Act. I therefore set aside the said Ruling in its entirety.
7. Accordingly, I find that the instant Appeal has merit and I therefore allow it in the following terms:-
8. The Appeal is hereby allowed and the Ruling delivered by the trial Court in Nyamira Succession Case No. 155 of 2019 on 31^st August 2023 is set aside.
9. The 1^st, 2^nd and 3^rd Respondents are hereby permanently restrained either by themselves or through their agents,, servants and/or assignees from intermeddling with the deceased’s Estate by selling, transferring the deceased’s land parcel No. GESIMA SETTLEMENT SCHEME/137 either to the 4^th, 5^th, 6^th, 7^th, 8^th or 9^th Respondents or to any other person or in any other way dealing with the said parcel of land.
10. The land parcel No. GESIMA SETTLEMENT SCHEME/137 forms part of the deceased’s Estate and shall be included and distributed in the manner stipulated in the Schedule of Distribution filed by the 2^nd Appellant in the Application for Confirmation of Grant dated 1^st August 2021.
11. I grant the Appellants herein the costs of the Appeal and the Application dated 25^th September 2023.
12.