Grace Maundu Kilungya v Matheka Makuthi & Mutisya Lonza [2018] KEELC 3455 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND  LAND COURT

AT MAKUENI

ELC 64 OF 2017

GRACE  MAUNDU KILUNGYA.........................PLAINTIFF

VERSUS

MATHEKA MAKUTHI...............................1ST DEFENDANT

MUTISYA LONZA......................................2ND DEFENDANT

JUDGMENT

1. Grace  Maundu Kilungya  who is the plaintiff herein is one of the administrators of the estate of her late husband,  Maundu Kilungya, after having been appointed  on the 27th April, 2016 vide Machakos High Court  Succession Cause No.  563 of 2014. She claims  that one Daniel Ndava  Maundu  sold off  land to the two defendants herein before he was appointed as a joint-administrator of the estate in question.

2. By her plaint dated 26th July, 2016 and filed in court on the 10th August, 2016 the plaintiff prays for judgement against the defendants jointly and severally for:

1) A declaration that NZAUI/KIKUMINI/158 is  the sole  property of the estate of MAUNDU KILUNGYA.

2) A permanent injunction restraining the defendants  by themselves, their agents and/or servants from entering onto and/or  encroaching   and/or remaining on and /or grazing   on and or in any other manner  whatsoever interfering  with land parcel NZAUI/KIKUMINI/158.

3) Costs of this  suit and  interest.

4) Any other  relief that the honourable court deems fit and just to grant.

3. The  claim  is denied  by defendants in their  joint  statement of defence  dated 16th September, 2016 and filed in court on even date. In paragraph 5 of their  defence, the first and the second defendants have  averred  that  they bought 2 and 7 acres respectively out of the portion belonging to David Ndava who had  an  interest in the suit land.  They  have also averred that they took possession of their  respective portions as purchasers for value and have been in occupation and possession of the said portions lawfully while awaiting transfer of their  portions to themselves.

4. On 20th December, 2016 the  plaintiff filed her reply to the  defence,  the same  being  dated  19th December, 2016.

5. The plaintiff’s case  was that before she and one  Daniel Ndava Maundu were appointed  as administrators of the estate of Maundu Kilungya, Daniel Ndava Maundu sold land to the two defendants herein.  It was also her evidence  that she does not know how    Daniel  Ndava Maundu sold the land  in question to the two  defendants as she  only found  houses having been built on the suit land.  Further, it is her evidence  that  the suit  premises is still  in the name  of Maundu Kilungya.  She said  that she instructed her advocate to issue demand letter to the two defendants before filing this suit.

6. In the  support of her evidence, the plaintiff produced  letters of administration certificate of official search and demand letter as PEX no. 1,2 and  3 respectively.

7.  Her evidence in  cross- examination was that Maundu Kilungya had 2 other wives and that he subdivided his  land amongst his 3 wives.  She said that Nzaui/Kikumini/158 was allocated to her and that she was yet to acquire  the title  deed for  the said  land.  She denied the suggestion  by the defendants’ counsel that she was supposed to subdivide land with one Mwikali  who is her co-wife. She reiterated   that  she does not  know how the defendants bought land from  Daniel Ndava Maundu.

8. The case for the first defendant was that  he bought 7 acres of the suit land  from  Daniel Ndava Maundu sometime in March, 2014. He said   that  he took  up possession of the suit land  where he has built a home   where he resides with his family.

9.  He said that Daniel Ndava Maundu  (DW1) informed  him that he was selling part of his share of the suit land  as he was entitled to  17 acres of the  said  property.  He added that both the plaintiff and Daniel Ndava  Maundu are beneficiaries   of the registered proprietor, Maundu Kilungya, who is now deceased.

10. The first defendant disclosed that the two are also joint administrators of the estate of the deceased.  He denied having ever trespassed  into the suit  premises and  asserted that he is a purchaser for  value.  He produced the agreement dated 20th August, 2017 between himself and Daniel Ndava as Dex no. 1 in support of his evidence.

11. His  evidence in cross-examination was that when  he carried  out a search before purchasing  the suit property, he found that  it  to belong  to Maundu Kilungya. He said  that Ndava  informed him that he had been allocated his share and that  the latter showed  him letters of succession. He said that the 34 acre suit land was to be subdivided between 2  people.  He pointed out that  only Grace Maundu resides on the suit land   and  revealed that he did not  talk to her before he purchased the land from Daniel  Ndava .   He went on to say that he knows that it is an offence to intermeddle with  the  property of a deceased person.

12. The defence  of the second defendant is similar to that of the first defendant.  He too produced a land  sale  agreement dated 13th March, 2014 as Dex no. 2.  His evidence  in cross-examination is similar  to that  of the first defendant  save that he told the court that he did not  take copies of letters  which Ndava showed to him to  indicate the size of his share in the suit land.

13. Daniel Ndava Maundu’s (DW1) evidence in chief was that  Nzaui/Kikumini/158 is an asset of his  father’s estate. He said  that he  was entitled to 17 acres out   of the said parcel of land Nzaui/Kikumini/158 and that he sold  7 and 2   acres  to the first  and the second defendants  respectively.  According to him, the plaintiff did not consult him before   she filed this suit.

14. Ndavas’s evidence in cross-examination was that the plaintiff was allocated the land on which  she  now resides.  He said that the plaintiff cited him  and others in Machakos High Court Succession Cause No. 771 of 2013.  He revealed that  he did not file  for probate and administration cause  as was ordered by the High Court whereupon the plaintiff sought for and was granted leave  to file one. This  was in Machakos  Succession cause No. 563 of 2014 where he filed an objection after which he and the  plaintiff were  appointed  joint administrators.  He revealed that he is yet to file for confirmation of the grant (DEX No. 1) dated 11th May, 2016. He admitted  that he  did not have  grant of  letters of administration when he sold part of the suit land  to the  defendants.  He said that   he did  not know  that it was against the law to sell such land without  letters  of administration.

15. The counsel  on record for plaintiff and the defendants filed their  written submissions on  7th February, 2018 and 14th March, 2018 respectively.

16. Even though  the plaintiff’s counsel had on the 20th December, 2016 filed a list containing seven (7)  issues, in her  submissions, she reduced  the issues to three (3) namely,

i. Whether   the acts of the defendants herein and the said  Daniel Ndava Maundu who is a beneficiary of the deceased’s estate amount to intermeddling  with the deceased’s  free property.

ii.  Whether   the selling of the deceased’s property prior to the confirmation of the grant by the  said Daniel Ndava Maundu a beneficiary of the deceased’s estate to the defendants herein offends  section 45(i) and section 82 (b) (ii) of the law of succession.

iii. The validity of the transaction between the defendants and Daniel Ndava Maundu.

17. On the other   hand, the defendants’ counsel framed up the issues for determination as follows:-

a)  Whether  the proprietor of land parcel Nzaui/Kikumini/158 is one  Maundu Kilungya , the deceased.

b) Whether  Grace Maundu  Kilungya  has capacity to sue alone on behalf  of land parcel member  Nzaui/Kikumini/158?

c)  Whether  the defendants trespassed into Nzaui/kikumini/158?

d) Whether  this court can issue injunctive  orders  against the defendants?

e) What orders are to costs?

18.     The  submissions by  the plaintiff’s counsel were that section 45 of the  Law of Succession  Act   bars  intermeddling  with the property of a deceased person.  The counsel referred  the court to the case of  re Estate of M’Ngarithi M’Muriti [2017]eKLR  as guided by the observation of the court in; Benson  Mutuma Muriungi Vs C.E.O Kenya  Police Sacco & Another [2016] eKLRwhere  the  court  defined what would  constitute  intermeddling   as follows:-

“Whereas there  is no specific definition provided by the Act for the  term intermeddling, it refers to any act or acts which are done by a person in relation to the free property of the deceased without the authority of any law of grant of representation to do so.  The category of the offensive acts  is not heretically closed but would certainly include taking possession, or occupation of, disposing of, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with lawful liens or charge or mortgage of the free property of the deceased in contravention of the  law of Succession Act.  I should add that any act or acts which will dissipate or diminish or put at risk the free property of the deceased are also  acts of intermeddling in law.  I reckon that 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 imprisonment or fine or both under section 45 of the Law of Succession Act.  That is why the law has taken a very firm stance on intermeddling and has clothed the court with wide  powers to deal with cases of intermeddling and may issue any appropriate order(s) or protection of the estate against any person.”

19. The counsel further  cited section 82 of the  same Act which prohibits sale of immovable property before  confirmation of grant.

20. Arising from the  above, the counsel submitted,  Daniel  Ndava Maundu was a stranger  to the  estate  of Maundu  Kilungya at the time  of  the alleged sale of part of the deceased’s estate  to the  defendants. She added that Daniel Ndava Maundu was not an administrator  at the time and that he lacked capacity to enter  into the contracts for sale of the deceased’s  estate.

21. The counsel correctly submitted that in intestacy, a deceased person retains the legal title and interest to  his property until a grant has  been confirmed and his estate has been  distributed to the beneficiaries when the latter acquire legal title and interest in their  respective portions and are capable of transferring the same to other persons .

22. The counsel submitted that the defendants bought  nothing from  Daniel Ndava  Maundu since one cannot  purport to sell that which he does not own.

23. The counsel submitted  that the acts of Daniel  Ndava  Maundu amounted  to intermeddling with the free property of the deceased and urged the court to find that the plaintiff has proved her case as by law required.

24. The submissions by the defendant’s counsel were that the defendants bought portions of  suit property from Daniel  Ndava Maundu who was a beneficiary of the estate of his father’s estate.  The counsel pointed out that the defendants were  purchasers for value.  According to the counsel, the plaintiff has not proved her case on a balance of probabilities.

25. Having  read   the evidence on record and the submissions filed, my determination is as follows;

The two defendants’ evidence was that Daniel Ndava Maundu disclosed  to them that he was a joint administrator with the plaintiff of  the estate of Maundu Kilungya.  In their evidence  in cross-examination, the two defendants  told  the court that  Daniel  Ndava  showed them a letter that  indicated that he was entitled to 17 acres out of the  34 acres of the land belonging to the  estate of Maundu Kilungya.  However  no such letter was ever produced in evidence to support the defendants’ contention.

26. They admitted that  when they carried out a search of the suit property, they realized that it was  registered in the name  of Maundu Kilungya  as can be seen  from the certificate of search produced by the plaintiff  as PEx No. 2.  The agreements by the two defendants and Daniel Ndava (DW1) clearly show that they were entered into  20th August, 2013 and 13th March, 2013 respectively.

27. This was close to 2 years before Daniel Ndava  (DW1) and the plaintiff were issued with the grant of letters of administration produced as PEX. No. 1 by the plaintiff. The defendants also  rely on the same  copy of grant of the same letters of the administration.

28. Daniel Ndava Maundu (DW1) did admit in his evidence in cross-examination that he  did not  have grant of letters of administration by the time he sold  portions of the suit land to the two defendants.  In my view, it is clear that Daniel Ndava Maundu (DW1) did not have capacity to sell parts of the estate of Maundu Kilungya in the absence of a confirmed grant. I am in agreement   with plaintiff’s counsel that the actions of Daniel Ndava Maundu and the two defendants offend the provisions of section 45(1) and 82 (b) (ii) of the Law of Succession Act.  Section  45(1) of the Act  provides as follows;

“45. No intermeddling with property of deceased person

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.”

Section  82 (b) 11 of  the  same Act provides  as follows:-

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

a)  ........

b)  to sell or otherwise to count, 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.

i.   ……..

ii.  no immovable  property shall be sold before confirmation of the grant”

29. From the evidence  on record Daniel Ndava Maundu was  not  a personal representative of the estate of Maundu Kilungya as the time  when he and the two defendants entered into  land sale agreements in respect of Nzau/Kikumini/158. He had  no capacity to enter into the said agreements and neither could he  purport to sell that which he did not own. The defendants  therefore cannot be heard to say that they are  purchasers for value.

30. My finding  is that the  agreement  between Daniel Ndava Maundu and the two defendants  are of no probative value.  In the circumstances, it is my finding that the  plaintiff  has  satisfied  this  court that she has on a balance  of probabilities a cause of action against the  two defendants.  I, therefore, proceed to enter judgement for the plaintiff and against the defendants in terms of   prayers 1, 2 and 3 of  the plaint.  It is so ordered.

Signed, dated    and delivered at Makueni this 10th day of April, 2018

MBOGO C.G

JUDGE

In the  presence of ;

Mr.  Muthiani for the defendant

Mr. Hassan holding brief for Mrs. Bika for the plaintiff

Mr. Kwemboi Court Assistant

Plaintiff

1st and 2nd Defendants

MBOGO C.G, JUDGE

10/4/2018