Joseph Alexander Kimani v Jacinta Wairimu Rugaita & Fracia Njoki Rugaita [2017] KEHC 9255 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 2660 OF 2005

IN THE MATTER OF THE ESTATE OF ELIUD RUGAITA W. MURANGO (DECEASED)

JOSEPH ALEXANDER KIMANI ………….....APPLICANT

VERSUS

JACINTA WAIRIMU RUGAITA ….……1ST RESPONDENT

FRACIA NJOKI RUGAITA…………….2ND RESPONDENT

JUDGMENT

1. The deceased Eliud Rugaita W. Murango died intestate on 21st October 2004.  He was survived by two widows, Jacinta Wairimu Rugaita (1st respondent) and Fraciah Njoki Rugaita (2nd respondent), and four children, Salome Muthoni Rugaita, Joyce Wanjiru Rugaita, Dennis Munene Rugaita and Sandra Wendo Rugaita.  He was also survived by his mother Salome Muthoni Rugaita.  His estate comprised the following property:-

a. Mwea Tebere B/1904 – 1905

b. 1665 -  shares at Anjeli Ltd

c. 1 share/block 93/225;

d. Kiine/Sagana/3142, 2758, 2686 and 185;

e. Kabarel/Nyangati/3144;

f. Mutithi/Strip/504-506;

g. Gaturi/Githimu/1234; and

h. Nthawa/Riandu/1764;

The respondents petitioned the court for the grant of letters of administration intestate on 26th September 2005.  The grant was issued on 15th December 2005, and confirmed on 5th December 2006.

2. On 14th August 2012 the applicant Joseph Alexander Kimani filed this application under section 76of theLaw of Succession Act (Cap.160)seeking to have the grant issued to the respondents revoked.  He asked that land parcels Mwea/Tebere B/1908, 1909, 1910, 1914 and 1928 do revert to the deceased, and that he be joined in the administration of the estate of the deceased.  His case was that in 2003, he bought these parcels from the deceased.  He extensively developed and occupied them.  The parcels were registered in the joint names of the deceased and the 1st respondent.  The deceased died before he could transfer the same to him.  He stated that the respondents did not inform him when they petitioned for the grant so that he could protect his interests.

3. It became clear from the applicant’s pleadings that following the deceased’s death he filed before the Kirinyaga South District Land Disputes Tribunal a claim for the parcels.  The Tribunal found in his favour and ordered that he gets the parcels.  The 1st respondent challenged in the High Court the jurisdiction of the Tribunal to hear and determine the issue of the ownership of the parcels.  The High Court agreed with her and quashed the proceedings before the Tribunal.  The applicant stated that all this time he was not aware that the 1st respondent had initiated this succession proceedings.

4. The 1st respondent opposed the application by filing a replying affidavit.  Her case was that the applicant had not annexed evidence of any written agreements entered into with the deceased over the parcels, and had not shown that the transactions had the blessings of the relevant land control board.  Without the consent of the land control board, she said, the alleged sales could not be enforced.  If there was no consent, she continued, all that was available as a remedy was for the applicant to file a civil suit to recover the purchase price.

5. The applicant was represented by Mr. Kimwere and the respondent by Mr. Kagwa.  Each filed written submissions which I have considered.

6. The jurisdiction of a court dealing with a succession matter is to ascertain the beneficiaries and the estate of the deceased person, and to determine and distribute the shares of the estate to the respective beneficiaries.  The court cannot be called upon to determine a dispute between the deceased and a third party regarding the ownership of a piece of land.  Such a dispute can only be heard and determined by a court established under Article 162(2)(b)of the Constitution of Kenya 2010 and section 13 of the Environment and Land Act (Cap.12A).So, whether the agreement of sale of the parcels between the deceased and the applicant were valid or void is a matter this court cannot hear or determine.  Now that the estate of the deceased has administrators, the applicant shall be at liberty, in an appropriate forum, pursue his claim over the parcels.

7. In the instant application, it is material that the parcels were registered in the name of the deceased and formed part of his estate.  The applicant was neither a beneficiary nor a dependant of the deceased.  Strictly speaking, the respondents were not under any duty to involve him in this succession proceedings.

8. Consequently, the application is misconceived and is therefore dismissed with costs.

SIGNED at NAIROBI this 14TH day of SEPTEMBER 2017.

A.O. MUCHELULE

JUDGE

DATED and DELIVERED at NAIROBI this 18TH day of SEPTEMBER 2017.

W. MUSYOKA

JUDGE