In re Estate of the Late Charo Nguma Kalama [2022] KEHC 737 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

SUCCESSION CAUSE  NO. 361 OF 2011

IN THE MATTER OF THE ESTATE OF THE LATE CHARO NGUMA KALAMA

DONALD CHARO NGUMA ……………………………………APPLICANT

VERSUS

SAMUEL KARISA NGUMAH

JULIUS CHARO NGUMA

ERICK KAINGU CHARO …………………………………….RESPONDENTS

RULING

1. The deceased herein died intestate on 27th July, 2000. On 5th September, 2020 Donald Charo Nguma the respondent herein, petitioned for a grant of representation. According to form P&A 5, the deceased was survived by 3 widows, two daughters and 6 sons. The only asset listed as comprising the estate was Kilifi /Mtwapa/558.

2. A grant of letters of administration was issued to the petitioner on 21st September, 2012 and the grant confirmed on 14th February, 2013 with the estate being distributed equally. Later, Samuel   Karisa Nguma , Julius  Charo Nguma and Erick Kaingu Charo  all  beneficiaries to the  estate  filed  a summons for  revocation or  annulment of  the  grant on grounds that the grant was fraudulently obtained through concealment and non-disclosure of material facts.

3. It was alleged that the deceased had disappeared sometime 1997 and his whereabouts was unknown hence the date of death given was false. They also claimed that the deceased was survived by 4 widows, 8 daughters and 7 sons hence necessary consents were not given by all beneficiaries. They also stated that the administrator had embarked on sub division of the subject property without the consent of other beneficiaries.

4. After hearing the revocation application exparte owing to non-attendance of the respondents, the court pronounced itself through a ruling delivered on 6th April 2018 thus revoking the grant. It was further ordered that status quo to be restored and tittle No Kilifi/Mtwapa/558 do revert to the deceased Charo Nguma  Karisa.

5. However,  vide the  application dated 5th June, 2018, one  Eliud Mburu Kariuki  an interested party  claiming  to have bought a portion of the subject land sought orders  to set aside the  ruling of 6th April, 2018 and  review its  orders  in his  favour on grounds that  he  was  condemned unheard.  At the same time, Donald Charo  Nguma  filed an application dated 18th June, 2018 seeking also to set aside the impugned ruling and also a declaration on the deceased’s presumption of death who  disappeared without trace.

6. After hearing the two applications, the court delivered its ruling on 19th October, 2018 thus dismissing the same. The court found that an illegally obtained grant in  respect of an estate  of a person who had  disappeared but not died was  a nullity and void abinitio hence any sale of  the  subject land would not be  legitimized.

7. Aggrieved by these orders, Eliud Mburu Kariuki filed an appeal to the court of appeal challenging the said ruling. By its judgment delivered on 5th July, 2021 in civil appeal No 161/2018, the said appeal was dismissed thus confirming the high court finding. The court of appeal concurred that the sale of the subject land by Donald Charo  without a valid title was  irregular and that the  only  remedy to the  interested party  was to  claim for  a refund from  Donald.

8. Despite  service of all these  court orders upon the Land  Registrar Kilifi to  cancel  all dealings of  land  transfers in  respect of the  said land, the Land Registrar has  been adamant.

9. Aggrieved by the land registrar’s refusal to honour the court order, the  applicants  through a notice of motion dated 30th July, 2021 filed in  person  moved this court pursuant to  Section  1A, 1B and 3 of the  Civil Procedure Act and order 40 Rules  3 of the   Civil Procedure  Rules seeking orders;

a. That this application be certified as urgent and be heard on a priority basis and service be dispensed with in the 1st instance.

b. That this honourable court be pleased to order that summons do issue to the Land Registrar Kilifi Ms Stella Gaturi Kinyua to appear before this honourable court and show cause why she has refused and /or declined to obey the court order issued on 10th April, 2018 directing her to revert title No Kilifi/Mtwapa/558 to the deceased Charo Nguma Kalama.

c. That this honourable court be pleased to order that the District Land Registrar Kilifi Ms Stella Gaturi Kinyua be compelled to obey the court order issued on the 10th April 2021 and revert Title No Kilifi/Mtwapa/558 to the deceased Charo Nguma Kalama.

d. That this honourable court do find the district Land Registrar Kilifi Ms Stella Gaturi Kinyua in contempt of court.

e. That costs be provided for.

10.  The application is anchored on the grounds stated on the face of it and  averments  contained in the  affidavit  in support sworn on 30th July, 2021 by  Samuel Karisa Nguma  in which they gave a brief history on the events  preceding the  filing of the instant application which facts I have  already  outlined  herein  above.

11. In reply, the Land Registrar Kilifi filed a replying affidavit sworn on 25th October, 2021 by one Stella G Kinyua.  She averred that on 8th July, 2012 forms LR 19 and RL7 (repealed) were registered in favour of Donald Charo Nguma as the administrator and beneficiary of the subject land. That on the strength of succession case No 361/91 confirmed grant, a title deed was issued.

12.  That on 31st July, 2013 the land was subdivided into Nos 4211,4212. 4213,4214 4723 and 4724. She further stated that green cards in respect of these portions cannot be traced in the land registry.

13.  She averred that the revocation orders cannot be implemented until the green cards  are reconstructed .In her view, the land  might have been subdivided further  thus affecting  several  innocent  persons whose  records  should not be cancelled without  due notice or being offered a chance to be  heard.  She contended that the court does issue orders directing restoration of the relevant records without gazettement.

14. In his rejoinder, Samuel Karisa filed a further affidavit on 15th November, 2021. He averred that, the disappearance of green cards was stage managed as the land registrar has not shown any efforts made to reconstruct the green card despite admitting that their office was served with revocation of the grant orders. Regarding the issue of innocent purchasers, he retorted that it was for the court to determine and not the land registrar.

15.   When the matter came up for hearing, the applicant submitted orally thus reiterating the averments contained in the affidavit in support and a further affidavit. Equally, Mr Waga state counsel representing Attorney General on behalf of the respondent, adopted fully the content contained in the replying affidavit.

16. I have considered the application herein, response thereto and oral submissions by both parties. The application is seeking summons to compel the Land Registrar to appear before court to show cause why she should not obey the court order and also an order directing that the land registrar in contempt of court.

17. There is no dispute that a lawful court order issued by the high court and confirmed by the court of appeal has not been honoured by the land registrar Kilifi.  Among the grounds advanced for non-compliance is that, green cards disappeared from the land registry; that she needs time to reconstruct the green cards ; that innocent buyers will suffer if the order is implemented; the court should direct cancellation of title deeds  already issued without gazettement.

18.  It is trite law that unless set aside or reviewed, a court order must at all times be obeyed or complied with. Equally, court orders are not made in vain lest the dignity and authority of the court be subjected to ridicule or a laughing stoke.  See B vs Attorney General ( 2004) e KLAR 43 where the court held that;

“ The court  does not, and ought not to be seen to  make orders, in  vain,; otherwise the court will be  exposed to ridicule and no agency of the   constitutional order would then be left in  place to  serve as  aguarantee for  legality, and for the  rights of all  people”

19.  In Hadkinson vs Hadkinson ( 1992) 2 all  EA 567 Romer L.J had this to say;

“it is  the  plain and unqualified obligation  of every person, against , or  in respect of, whom an order is made by a court of competent jurisdiction  to obey it unless and until that  order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void”.

20.  In the instant case, the Land Registrar does not deny knowledge of the orders in question. She is simply giving conditions to justify her failure to comply. I must make it clear that, it is not the duty of the court to order reconstruction of Land Registry records. If the registry by omission or commission caused disappearance of land registry documents, it is their duty to use their powers or legally   bestowed mandate to reconstruct their records.

21.  Therefore, this court has no business issuing orders without a specific application being filed before the court. Orders do not issue through pleas made in a replying affidavit. The registrar knows better on what to do to maintain the integrity and safe custody of land records.

22. Regarding innocent purchasers, that is not her duty. Those affected will move the court for appropriate orders. The  registrar should have been more informed if she  read through court documents  where  one of the   purchaser’s  claim one  Eliud Mburu  was  dismissed and advised to direct his  claim against the   person who sold him the land illegally.

23. The Land Registrar cannot play the role of a lawyer of unknown purchasers. If any, they shall wake up when they become aware and then seek appropriate remedy. That excuse is therefore misplaced to that extent. The land registrar has not suffciently shown to the satisfaction of the court that she had good reason not to obey the court order.  In any event, it is more than two years since she became aware of the court orders yet no action taken. These time was sufficient to reconstruct records but she chose not to.

24.   Having held that the land registrar had no reason not to implement the court order, I am left with the issue whether she should be punished for contempt or not. In the case of Samuel  M. N Mweru &others   vs National Land Commission  &2 others (2020)e KLR Mativo J highlighted four  elements which must be  established  before finding a person  cited for  contempt  guilty. The elements are; the terms of the order must clear or unambiguous and binding on the defendant/respondent; the respondent/defendant must have knowledge of the terms of the order; the defendant/respondent must have acted in breach of the order and that the defendant’s / respondent’s conduct was deliberate.

25.  In the instant case, the land registrar was aware of the clear terms of the order, had proper notice of the order and she acted in   breach of the order and the  disobedience  was deliberate.The purpose of issuing  a court order is to  ensure compliance  failure to  which  punishment comes in the place  to safeguard the  rule of law See  Teachers service commission  vs Kenya  National Union of Teachers & 2 others  (2013) e KLR

26. In view of the above holding, I am satisfied that the application is merited and that the respondent is in contempt of the court order herein to which she is liable to punishment. However, I will give  a widow  of  90 days within which the order requiring  cancellation of all transfers and any dealings affecting the original L.R No Kilifi/Mtwapa/558 is effected so as the land to revert to the  original owner. In default, the land registrar the respondent herein shall be condemned to serve four months imprisonment in jail upon expiry of the said 90 days. Costs of the application are awarded to the applicant.

Dated, signed and delivered virtually at Mombasa this 25th day of March, 2022

J. N. ONYIEGO

JUDGE