In re Estate of the Late Iramu Mute Ayub (Deceased) [2016] KEHC 779 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

MISC. SUCCESSION CAUSE NO. 16 OF 2015

(FORMERLY CHUKA PM'S SUCC. CAUSE NO. 42 OF 2016 & MERU  MISC SUCC. CAUSE NO. 66 OF 2008)

IN THE MATTER OF THE ESTATE OF THE LATE IRAMU MUTE AYUB (DECEASED)

AND

ANTIPAS MATIBU AYUB MUGO..................................APPLICANT

- VERSUS -

TIRAS NTHIGA AYUB.......................PETITIONER/RESPONDENT

J  U D G M E N T

1. Betha Kangai Ayub died in or about 2005. She had four (4) sons and five (5) daughters one of whom predeceased her. While alive, all        her daughters were and, as at the time of this Succession Cause, still happily   married. Her sons were Mukuru Njue, Iramu Mute Ayub, Antipas Matibu   Ayub Mugo ("the Objector") and Tiras Nthiga Ayub ("the Petitioner").

2. As an organised, focused and loving mother, she bought and settled all her sons on various properties while she was still alive.  It is on that basis   that in 1990 she bought the property known as Karingani/Ndagani/2363 measuring 0. 0672  Ha and caused it to be transferred  to Iramu Mute Ayub ("the deceased") in 2001. The deceased was challenged in that he was deaf  and mute. As at that time, she is said to have been in her late 90s. On 30th October, 2002, that property, Karingani/Ndagani/2363 (hereinafter"plot 2363") was registered in the names of the Petitioner in   trust for the deceased. But fate as would have it, Iramu Mute Ayub passed away  on 26th July, 2005 aged 64 years and his said mother followed  twenty (20)  days after.

3. On 16th June, 2006, the Petitioner, one of the brothers to the deceased, applied for Letters of Administration  Intestate for the estate of, the deceased. In Form No. P&A 5, he stated that he was the only person surviving him and the asset comprised plot 2363  plot only. On 29th August, 2006, the grant was issued  to him which was  subsequently confirmed on 11th April, 2007. In the meantime, immediately  after the demise of the deceased the other brothers of the deceased, namely  Antipas Matibu Ayub and Njue Ayub ("the Applicant") entered plot 2363   and started cultivating the same. Pursuant thereto, on 11th March, 2008  after the confirmation of the grant in which plot 2363 was distributed to the Petitioner wholly, Ms Mokua Mong'are & Associates wrote to the said two  brothers accusing them of having trespassed on to plot 2363 which belonged to  the Petitioner. It is then that the Applicant rushed to the lands office and discovered that by virtue of the present Succession Cause, the Petitioner was the sole and exclusive owner of the Plot 2363. The two  brothers faithfully obliged and vacated from that property.

4. On 8th April, 2008 through the firm of Wilson P. Mburugu and Company Advocates, the Applicant took out summons under Section 76 of the Law of Succession Act (hereinafter "the Act") for the revocation of said grant. Of course the Petitioner opposed the application which was heard by  way of viva voce evidence.

5. PW1 was the Applicant. He testified that the Petitioner was his youngest brother. That  the deceased  was also one of his brothers who died without leaving a  wife or child. That  he  had assisted  his mother to buy plot 2363.  That his late mother was in occupation and was cultivating plot 2363   before  her demise. He told the court that after the deceased passed on, all  the brothers entered into occupation and started cultivating the said   property. Two years later,  the Petitioner evicted them therefrom after  having been registered as the owner.   That he did not know about the    present Succession Cause until he received   the letter from the Petitioner's  Advocates to vacate from plot 2363. He produced his mother's passbook with Chuka Farmers Co-operative Society  Ltd wherein he was a Co-signatory and the letter dated 11/3/2008 by Mokua Mong'are & Associates as P Exh 2 and 3, respectively. In cross-examination, he told the court     that   he was unaware that the Petitioner had been registered  as a trustee of the   deceased in the said property; that he had once attempted  to have that property transferred to himself  before it was transferred to the  deceased.  He closed his case and did not call any witness.

6. RW1 was the Petitioner. He adopted his Affidavit which he had filed in    opposition to the application. He told the court that neither he nor the Applicant contributed to the acquisition of plot 2363. The same was sorely  purchased by their mother. That after the attempt by the Applicant to be registered as owner of the said property were thwarted in 2000 by the area Land Board, his mother and the deceased decided that he  the Petitioner be  registered as trustee of the said property on behalf of the  deceased. That he  was  the one taking care of both the mother and the deceased  before they passed on. That his trusteeship became absolute after the  deceased died. In cross-examination, he told the court that he never   depended on the  Applicant for his studies nor  did the Respondent assist in the purchase of his land. The Petitioner further testified that he  indicated in the application for grant that he was the only survivor because  he had been advised that the  trust became absolute after the deceased passed on. He admitted that  after the deceased passed on the Applicant  and his  other brother had taken  possession of the property and commenced cultivating the same.

7. RW1 and RW2 were Grace Ciakuthii and Lydia Kaari, respectively. They testified that they were  both daughters of the late Betha Kangai Ayub and  sisters to the deceased. That plot 2363 belonged to their mother who had expressed the wish that the same be held by the Petitioner in trust for the deceased and in the deceased's  absence, the same belong to the Petitioner. That the Applicant had tried to trick their  mother to be registered as the  owner of plot 2363 but the Land Board bursted his intention when it  summoned the other brothers whereupon it was agreed that the property be registered in the name of the deceased. According to them, they were happily married and the deceased's property should devolve to the Petitioner    in terms of his and their mother's wish. That was the close of the   Petitioner's case.

8. Although the court directed counsel's to file their submissions, none were filed and the court had to determine the matter on the basis of the evidence   on record.

The issues for determination are; was the Succession Cause lodged secretly without the requisite consent of those  entitled? Was, plot No. 2363 to  devolve to the Petitioner on the demise of the deceased? How should the estate be distributed?

9. Before delving  into the issues that arise for determination, I think it is proper to note the findings that are not disputed. It is not in dispute, as stated at the beginning of this judgment that the mother of the deceased and the  parties to this cause had settled all her sons on their various lands. It is not in dispute that plot 2363 was first registered in the name of the mother, the late Betha Kangai Ayub and later transferred to the deceased in 2001. It   is in 2002 that the property was then registered in the name of the Petitioner     in trust for the deceased.

10. Although there seemed to be a dispute on whether or not the Applicant   contributed to the purchase of Plot 2363, this court's finding after  considering the evidence in totality is that; plot 2363 was purchased by Betha Kangai for her own use. There was evidence to show that from her coffee proceeds, bananas and some goat, she paid the purchase price for the said property. Apart from stating that he had been in hi-flying jobs,  including that of a banker and a co-signatory in the mother's passbook, the   Applicant produced no  evidence to show that he participated in the purchase of that property. Being a mere co-signatory in the pass book in my  view was not evidence of co-ownership of the coffee proceeds. As at the  time of the demise of the deceased, plot 2363 was registered in the name of  the Petitioner but in trust for Iramu Mate Ayub.

11. On the first issue, the Petitioner admitted that he did not involve the Applicant and his other brother when lodging the Petition. Indeed he did not  disclose in Form No. P&A 5 that there were other persons surviving the  deceased other than himself. When asked  why he  did so, he frankly stated  that he was  advised by the officers at the lands office that on the demise of   the deceased the trust  had become absolute and he was the sole heir thereof.   That there was no need to name the others as the property was not up for  distribution. That  this was a fact known  by even the local chief who  wrote a letter of introduction along  those lines. This court saw the witnesses testify, the Petitioner seemed to be genuine.    Even in his Affidavit, he was candid with the court. He swore in paragraphs   5 (c)   and 7 of his Replying Affidavit sworn on 13th April, 2016 as follows:-

"5

(a) .........................................

(b) .......................................

(c ) That I was not advised when filing the petition forms that I was required to list my other siblings nor seek                                            their consents as the property herein was not subject to  being shared but was to devolve absolutely to me  following my late mother's wishes and which wishes were well known to my other siblings.

6. ..................................................

7. That I do wish to state that I have come to court with  clear hands and would wish to express that if the courtdoes so hold that the parcel herein is part of mydeceased brother's estate and should therefore be shared between all the siblings, then I would not have a problem with this direction so long as, all the siblings,myself and the two brothers including our three sistersdo get a share." (Underlining provided).

In this court's view, that is not a position that is expected of a stealth and fraudulent Petitioner. He acted on wrong advice. He should have disclosed all those who are expected to have survived the deceased notwithstanding the existence of the trust.

12. The next issue is whether with the demise of the deceased, plot No. 2363  devolved to the Petitioner. The record shows that all the sons of the late Betha Kangai Ayub were settled by her during her lifetime. She purchased  and became registered  as owner of plot No. 2363 on 7th May, 1990. It  became clear at the hearing that the Applicant did  attempt in 2000 to have   the property  transferred from her to him.  He explained that he wanted to be  its administrator on behalf of the deceased who was challenged but the Land Board declined. That the Land Board directed that the incapacity of the   deceased did not prevent him from being registered as owner. It is then that  the family was called and the deceased was registered as  owner instead of  their mother. This version differed with the testimony of RW2  Grace  Ciakuthii Nyaga his sister. She told the court how she stumbled upon the  Applicant and her mother at the local District Officer's office. That she was   summoned into the office and found her mother crying. On being asked  if   she had brought her  mother to transfer plot 2363 to the  Applicant she denied. The mother was crying because she  had discovered that the Applicant had tricked her to transfer plot 2363 to him. It is then that  the  Land Board directed that the rest of the family members be consulted on the issue.

13. The Applicant testified that he was not aware how the Petitioner came to be registered as trustee of the deceased. That the registration of plot No.2363 in the Petitioner's name in trust for the deceased was fraudulent. On his part,   the Petitioner testified that the registration was at the instance of  both his  mother and the deceased. That there was no fraud whatsoever on his part. RW2 and RW3 were categorical that their mother had stated that the property be registered in the name of the Petitioner in trust for the deceased  because it is the Petitioner who was looking after both the mother and the   deceased before their demise. That the said decision  was made because of    the deceased's apparent incapacity. That in the absence of the deceased, the     property was to belong to the Petitioner.

14. The court has considered the evidence on record. It became clear  at the   hearing that the deceased and the mother were living together in plot No.2363. When the mother fell sick, she moved to live with the Petitioner and  the deceased used to go to the Petitioner's home daily for food. The mother  was about 100 years and the deceased  about 64 years. The Petitioner's home was about a kilometre away while the Applicant was living five (5)  kilometres away. It is more likely than not that the two (2), the mother and  deceased, at their advanced age would seek help and readily get assistance from the Petitioner who was  living a stone throw away as testified by the sisters than  the Applicant who lived a little while away. It also became clear at the trial that the Petitioner was the one cultivating the property for the benefit of the two before their demise. It is after their demise that the Applicant and his other brother, Mukuru Njue Ayub invaded the same and started  using it. The mother was too old to cultivate it. It required a person with energy to utilize it profitably for both the mother and the deceased.

15. From the evidence on record, this court is satisfied that the trusteeship of the Petitioner was not procured  by fraud. It must have been the apprehension of both the mother and the deceased that since the Applicant had  previously attempted to acquire that property through trickery, nothing would  prevent such a likelihood in the future. That in order to secure the interests  of the deceased, it would be safe to have it held by the Petitioner in trust for the deceased.

16. What happened after the demise of the deceased? I believe that this was  a revocable trust that  the deceased created. In bestowing the property upon  the Petitioner in trust, he must have intended the same to be held on his    behalf. He could have revoked that trust during his lifetime. On his death, it became irrevocable. He  could not change the terms thereof. He must have intended the property to pass to the Petitioner absolutely. If it was his  intention that it passes on to his beneficiaries who are his three (3) brothers upon his death, nothing would have been easier than to have registered all the three jointly in trust for himself. This he did not do during his  lifetime.  Further, considering that  the property had escaped being taken by the Applicant earlier, the intention of the deceased was clear, that on his demise, the trustee becomes the owner absolute. This intention was  expressed by the very act of having a property which had just been registered in his name in 2001 transferred to the name of the Petitioner in trust for himself only a year later, 2002. It should be recalled that, none of his brothers were taking care of both the mother and the deceased except the Petitioner. It is the Petitioner who was using plot 2363 for the benefit of both the deceased and his mother.

16. In view of the foregoing, I find that the trust was properly created by the  deceased. It was his intention that the property be held by the  Petitioner on  his behalf and that on his demise the same remains  or passes on to the Petitioner. In this regard, upon his demise, there was no estate available for distribution.

18. In the premises, the application is without merit and the same is hereby dismissed. This being a family dispute, I make no order as to costs.

DATEDand Delivered at   Chuka this 13th day of December, 2016.

A. MABEYA

JUDGE