M'Nyiru (Suing as the legal representative of the Estate of Stanley M'Nyiruu M'Nchau) & another v Koome & another (Legal representative of the Estate of M'Ajogi M'Nchau alias Nchau) [2024] KEELC 4812 (KLR)

M'Nyiru (Suing as the legal representative of the Estate of Stanley M'Nyiruu M'Nchau) & another v Koome & another (Legal representative of the Estate of M'Ajogi M'Nchau alias Nchau) (Environment & Land Case E003 of 2023) [2024] KEELC 4812 (KLR) (12 June 2024) (Judgment)

Neutral citation: [2024] KEELC 4812 (KLR)

Republic of Kenya

In the Environment and Land Court at Meru

Environment & Land Case E003 of 2023

CK Nzili, J

June 12, 2024

Between

John Bundi M'Nyiru (Suing as the legal representative of the Estate of Stanley M'Nyiruu M'Nchau)

1st Plaintiff

David Kibiti Igweta (Suing As The Legal Representative Of The Estate Of Kirema M'Igweta M'Nchau)

2nd Plaintiff

and

Stanley Koome & Catherine Ntinyari Grace (Legal Representative Of The Estate Of M'Ajogi M'Nchau Alias Nchau)

Defendant

Judgment

1. By a plaint dated 21. 7.2023, the 1st & 2nd plaintiffs suing as the legal representative of the estate of Stanley M'Nyiru M'Nchau, and the estate of Kirema M'Igweta M'Nchau sued the defendants as the legal representative of the estate of M'Ajogi M'Nchau alias Nchau for breach of ancestral and customary trust.

2. It was averred that L.R No. Nyaki/Mulathankari/9, measuring approximately 14 ha, was registered in the name of M'Ajogi M'Nchau alias Ajogi Nchau as the eldest son to hold in trust for his two brothers, the father of the plaintiff who passed on before equally sharing the said land, leaving behind their wives and children occupying and utilizing it.

3. It was averred that the registered owner passed on 25. 4.1993. in breach of the said family's customary or ancestral trust, the defendants purported to denounce the plaintiff’s proprietor's interest in the suit land during succession cause proceedings and threatened to evict them from the land. The plaintiffs sought declaratory orders that the suit land is family and or ancestral land held in equal shares, a transfer of a half share of the land and a permanent injunction restraining the defendants from evicting; constructing; trespassing; harvesting crops; selling or in any way interfering with the suit land.

4. Through a statement of defence and defence to the counterclaim dated 6. 9.2023, the defendants denied the claim. It was alleged that the late M'Ajogi M'Nchau bought the land from one Kiugu in 1960 and that the plaintiffs were trespassers, therein, who acquired full possession of the suit land immediately upon the death of the owner and chased away his children, rendering them destitute. The defendants termed the occupation illegal and unlawful and amounting denial of the beneficiaries' rights to access and use their inheritance by unjustly subdividing it amongst themselves.

5. The defendants averred that the plaintiffs, in an attempt to acquire the land, secretly filed a successful suit purporting to be the sons of the deceased, leaving out the genuine beneficiaries only for a revocation to be made and the defendants appointed as the genuine administrators of the estate. The defendants averred that the plaintiffs were the ones out to disinherit them.

6. By way of a counterclaim, the plaintiffs to the counterclaim reiterated that the land was not ancestral or family for the deceased solely acquired it, took vacant possession and was living there with his family until he passed on in 1993, only for the defendants to the counterclaim to chase away his children after his demise following mistreatment.

7. The plaintiffs to the counterclaim averred that the 1st defendant's late father's ancestral land was in the Kanje area where he was buried, which land they sold and were now illegally occupying the land by disinheriting the genuine heirs and their siblings.

8. The plaintiffs to the counterclaim termed the defendants as out to disinherit them by all means, including by purporting to file a succession cause as if they were the genuine beneficiaries only for the court to revoke it, replace the plaintiffs as the legal administrators and issue inhibition orders against the title. The plaintiffs counterclaimed for eviction of the defendants from the suit land and order to exhume the body of the late George Thuranira M'Nyiruu illegally buried on the land and for a permanent injunction.

9. Through a reply to the defendant and defence to the counterclaim the plaintiffs in the main suit reiterated the contents of the plaint that the land was family or ancestral. The plaintiffs term the contents of the counterclaim as unfounded, a concoction of falsehood and averred that the registered owner had allowed their families to occupy and utilize the land which they have extensively developed or occupied in furtherance of the trust.

10. As to the succession cause, the plaintiffs averred that the decision to file the cause by the three houses was arrived at by consent so as to subdivide the land equally and that the 2nd defendant in the original claim was willingly chosen to be the legal representative.

11. At the trial, the plaintiffs testified through John Bundi M'Nyiru, David Kibiti Igweta, Francis Kithinji Gerald Mbwiri and Raphael Botania as PW 1 – PW 5, respectively. PW 1, after adopting his witness statement dated 21. 7.2023, he told the court that he was the son of the late M’Nyiruu, who was a brother to the 2nd plaintiff's father and the defendant's late father. PW 1 said the suit land was registered in the name of his uncle as the eldest son to hold for himself and for the rest of the brothers, who unfortunately all died before subdividing the land amongst themselves.

12. PW 1 said that after his late uncle passed on on 25. 4.1993 the three houses agreed to file a succession cause to share the land equally and consented for him to be the proposed legal representative. PW 1 said that he filed Succession Cause No. 17 of 2017, only for the defendant to lodge an objection claiming disinheritance by them. PW 1 said that they were all born and brought up on the suit land, where all have permanent buildings and undertake farming and grazing activities, but the defendants have threatened them with eviction. PW 1 relied on limited grants dated 26. 7.2023 for the estate of Stanley MNyiruu M’Nchau, Kirema M’Igweta M’Nchau, M’Njogu M’Nchau as P. Exh No. (1), (2) & (3), death certificates, official search certificates and land certificates as P. Exh No. 4, 5 & 6.

13. In cross-examination, PW 1 told the court that the suit land was registered in 1967, initially belonging to their grandfather, but he had no adjudiciaotn record to that effect. PW 1 denied that in the succession cause, there was the omission of the defendant's children, given that Stanley Koome was listed as representing them. Further, PW 1 admitted that in the confirmed grant for the estate of the defendant's father, none of the plaintiffs were listed as beneficiaries in the distribution schedule, despite the protest affidavit filed on 12. 9.2023 in Succession Cause No. 17 of 2017.

14. PW 2 adopted his witness statement dated 21. 7.2023 as his evidence in chief. He associated himself with the evidence of PW 1 that the land belongs to the three families. He denied applying for a grant of his uncle's estate while omitting the names of the genuine beneficiaries, given that they had included Stanley Koome to represent them. Similarly, PW 2 confirmed that he applied to stop the distribution of the land among the defendants whose outcome he could not tell. PW 2 appeared evasive in answering questions.

15. PW 3, as the area manager, told the court that the three families had been his neighbours since 1960. His evidence was that the land initially belonged to the patriarch of the family, the late M'Nchau, though registered in the name of his eldest son, M'Ajogi. He confirmed to the court that all the parties herein were born and brought up together in the suit land.

16. PW 4, a neighbour to the plaintiffs, confirmed the version of events as given by PW 3. As a clan member, he said that the land adjudication in the area started around 1965 and that though the patriarch had three sons, the land was registered in the name of the eldest son as a trustee to the rest who had been occupying the land.

17. Raphael Botania, testifying as PW 5, told the court that he was an assistant chief from 1975 up to 1996. He confirmed that land adjudication in the area started in 1963 and that there was consolidation of the parcels of land in Kooje village. He was emphatic that the suit land was ancestral, where the late M'Ajogi acted as a trustee, otherwise known as "mureaukua".

18. Catherine Ntonyiru, Nancy Kendi Ajogi, Catherine Kagwiria Ngugi & Joyce Thirindi testified as D.W. 1 adopted her witness statement dated 6. 9.2023 as her evidence in chief. Her evidence was that her grandfather's father, M'Ajogi M'Nchau, bought the land from one Kiugu in 1960. She said that her grandfather had only a daughter but later on married Joyce Tirindi, who had four children among them the 1st defendant. DW 1 said that after the demise of her grandfather, the plaintiff started misleading her nieces and nephew, who sought refuge with neighbours, and after she intervened, the 1st defendant was given a small portion of the land. Eventually, DW1 said that the 2nd plaintiff applied for letters of administration to finally take over the land, claiming to be a son of her grandfather, while the 2nd plaintiff described himself as a child of M'Njogu, going by the chief's letter.

19. DW 1 said that the plaintiffs left out the children of the 2nd wife of her grandfather only for them to apply for the revocation of the grant. Eventually, DW 1 said that they were appointed as the new administrator of the estate of their grandfather. He also said that the plaintiffs took over the suit land and cut down all the macadamia, bananas, coffee, yams and other trees growing on the land. DW 1 said that before their grandfather passed on, he left the coffee trees, which he used to take to the Kaaga Muturai tea factory, for the 1st defendant as the next of kin.

20. Similarly, DW 1 relied on a certificate of search for L.R No. Nyaki/Mulathankari/9 application for letters of administration by PW 2, chiefs letter, summons for confirmation of grant, replying affidavit by David Kibiti, petition for letters of administration dated 25. 7.2023, order dated 7. 10. 2021, copy of I.D. card for Nancy Kendi M'Ajogi, grant of letters of administration dated 16. 6.2021 to David Kibiti Igweta, letter dated 24. 8.2023 from Nyaki Farmers’ Cooperative Society Ltd indicating the next of kin of M'Ajogi M'Nchau as the 1st defendant and Fredrick Kirimi, certificate of confirmation of grant dated 25. 10. 2023 together with order and lastly Misc. Application, Succession Cause No. E020 of 2023 as D. Exh No. 1-14 respectively.

21. DW 1 terms the application for letters of administration, which were issued to the plaintiff lacking a chief's letter and a death certificate. DW 1 denied that the plaintiffs were born and brought up on the suit premises. DW 1 also said that the plaintiffs did not protest the defendant's application for the issuance of letters of administration, yet they were aware of it.

22. In addition, DW 1 denied that any of them was aware or privy to the plaintiff's application for letters of administration at the lower court. She said that none of them had been included in the chief's letter dated 14. 1.2021 as beneficiaries of the estate. She termed the plaintiffs as invaders in the land who came in and chased away the genuine beneficiaries. DW 2 told the court that the plaintiffs were her cousins, DW 1 was her niece, and the 1st defendant was a brother. She said that M'Ajogi Nchau was her late father, who passed on in 1993, leaving behind a homestead on the suit land, which the plaintiffs demolished after they invaded it and chased her away in 1999. DW 2 said that they went to live in a neighbour's home after making a report to the assistant chief and the area manager.

23. DW 3 told the court that she used to live with DW 1 after the plaintiffs chased them away from their father's land, warning them that the land was not theirs. She said that despite reports that were made to the area chief and manager, no assistance was availed to her. Further, DW 3 told the court that the plaintiffs had initially obtained letters of grant, which were eventually revoked.

24. Joyce Tirindi, as DW 4 on her part, after the adoption of her witness statement dated 6. 11. 2023 as his evidence in chief, told the court that the plaintiffs were her nephews while the late M'Ajogi M'Nchau was her late husband, as a 2nd wife.

25. DW 4 said that despite being a beneficiary, the plaintiffs had left her out in the initial application for the letters of administration for her late husband's estate. She, however, confirmed that they had divorced and married another man. DW 4 said that before she got married in 1973 and divorced in 1989, they had five children with M'Ajogi M'Nchau, namely Kendi, Makena, Kagwiria, purity and Koome. She termed Catherine as belonging to the 1st wife. DW 4 also said that the suit land was bought by her late husband in 1960 after he gave the seller a goat.

26. Again, DW 4 told the court that after divorcing the late M'Anjogi M'Nchau, she left the suit land and established a homestead elsewhere. She, however, confirmed that the plaintiffs were utilizing a portion of the suit land when she got married. DW 4 said that her late husband was the one owning all the coffee trees, banana, sugarcane and macadamia trees on the suit land. She said that it was her late husband who temporarily settled the plaintiff on a small portion of his land as they looked for land of their own, for the ancestral home was in the Kooje area, which the plaintiffs and their families sold to follow her husband to his land.

27. Moreso, DW 4 said that after divorcing the deceased, her children were left behind until their father passed on, only for the plaintiffs to forcefully eject them out after taking away the title deed from Nancy Kendi. DW 4 said that the plaintiffs were ungrateful for they were only given half an acre of land by her late husband, only to take over the entire land and lock out her children from it. She denied that the land was ancestral or family; otherwise, the plaintiffs would not have attempted to apply for letters of administration excluding the defendants, fraudulently.

28. With leave of court, parties were directed to file written submissions by 26. 3.2024 the plaintiff submitted that they had led evidence that the land was family or ancestral land and that the court should proceed to grant the reliefs sought.

29. On the other hand, the defendants relied on written submissions dated 27. 3.2024. It was submitted that the plaintiff had no locus standi to initiate the suit since the suit was filed before a limited grant adlitem was issued on 26. 7.2023; hence, the suit is incompetent. Reliance was placed on Otieno v Ougo & another [1986 – 1989] eKLR.

30. Secondly, it was submitted that the limited grants were obtained without a chief letter or a death certificate; hence, it was not possible to ascertain the children of the late M'Nyiruu and M'Igweta giving them the right to use on behalf of their father's estates.

31. Regarding customary trust, the defendants submitted that the plaintiffs were unable to meet the requirements of customary trust as laid out in Kiebia v Isaaya Theuri M'Lintari [2020] eKLR, since their testimonies and that of their witnesses were unclear on how and when the late M'Nchau acquired the suit land, their alleged grandfather, when adjudication and demarcation process occurred, when he died and where he was buried, if he gave instructions that the land be registered in the name of the deceased as a trustee.

32. The defendants submitted that it was doubtful whether the land was indeed family and how the plaintiffs came into it, more so when the contents of paragraph 7 of the plaint contradict their testimonies that they were born and brought up on the land. The defendants submitted that the conduct of the plaintiffs in filing a succession cause, leaving out the defendant while misrepresenting their capacities in relation to the deceased, created doubts as to whether the suit land was ancestral. Reliance was placed on Cosmas Cherono & 2 others v Veronica Cherono [2021] eKLR.

33. The defendants submitted that the fact that one lived on a parcel of land for over 50 years would not give them proprietary rights over the land. The defendant submitted that the plaintiff's late parents never staked their claim during their lifetime, coupled with the fact that the plaintiffs chased away the children of the deceased and also attempted to unjustly acquire the land without disclosing the existence of the beneficiaries of the estate, raises more questions than answers, on whether the trust was intended.

34. The issues calling for determination are:i.If the plaintiffs had locus standi to institute the suit.ii.If the plaintiffs have established a customary or family trust.iii.If the defendants are entitled to eviction, exhumation and permanent injunction as prayed for in the counterclaim.

35. The plaintiffs described themselves in the suit as the legal representatives of the estate of Stanely M'Nyiruu M'Nchua and Kirema M'Igweta M'Nchau pursuant to P. Exh No’s. (1) & (2), issued on 26. 7.2023. The defendants term the suit filed on 21. 7.2023 as incompetent since it was filed before the plaintiffs were granted the letters of administration; hence, they could not lodge the suit.

36. Further, the defendants submitted that the plaintiffs had no certificates of death and chiefs letters, which are pre-requisite documents before issuance of letters of grant or adlitem. After the preliminary objections as raised in the defence and counterclaim, the plaintiffs pleaded in paragraph 3 of their reply to the defence and defence to the counterclaim that they obtained letters of administration ad litem in Meru Misc Succession Cause No’s. E116 and E117 of 2023; hence, they have locus standi to file the suits.

37. In Bolton v Salim Khanoi [1958] E.A 360, the court held that a suit filed without letters of administration was null and void. Further, in Isaya Masira Mwangi vs Daniel Omwoyo & another ELC No. 167 of 2016, the court observed that a suit filed without obtaining such letters is invalid and cannot be cured by a party obtaining letters of administration.

38. Sections 45 and 82 of the Law of Succession Act provide that only a personal representative can enforce by suit or otherwise all cases of action surviving the deceased or arising out of his death.

39. In this suit, the plaintiffs have not denied that as of the filing of the suit. In Alfred Njau v City Council of Nairobi [1983] KLR 625 the Court of Appeal held locus standi means a place of standing and refers to a right to appear or be heard in court. In this suit, even if the plaintiffs obtained the limited grants ad litem after the filing of the suit, they did not bother to seek to amend the pleadings so as to cure the defects.

40. In Fredrick Wachira Ndegwa v Richarda Wanjiku Ndanjeru & another [1997] eKLR, the court cited Virginia v Joseph Ougo & another [1987] eKLR, that a letter of administration entitles the administrator to all rights belonging to an estate as efficiently as if the administration had been granted at the moment after death, and that without letters of administration an administrator is not entitled to bring an action in such a capacity and if he does the action is incompetent at the date of its inception.

41. The second issue raised by the defendants is that the death certificate for the first estate and a chief's letter was missing, making the limited grant ad litem fatal. PW 1 was cross-examined on this issue and admitted that the death certificate for his father was unavailable. In the Re-estate of Penina Waithera Williams (deceased) [2018] eKLR, the court said that under Section 76 of the Law of Succession Act, a grant obtained fraudulently could be declared useless or inoperative. The court said that missing from the record was a chief's letter listing the people who had survived the deceased. The death certificate was also fake. The court annulled the grant as tainted with fraud. In JM v SMK & others [2022] eKLR.

42. Applying the preceding, the plaintiffs suit could, therefore, not be cured retrospectively by the plaintiffs obtaining P. Exh No’s. (1) & (2), four days later. I find the suit incompetent.

43. The next issue is whether the plaintiffs have proved the suit land was ancestral, customary or family land. The ingredients to found customary trust were set in the Kiebia vs M'Lintari case (supra). The onus was upon the plaintiff to prove that:i.The land was before registration family, clan or group land.ii.They belong to such family, clan or group.iii.Their relationship with such family, clan or group is not remote.iv.They could have been entitled to be registered as the owners or beneficiaries, but for some intervening circumstances.v.The claim is directed against the registered proprietor who is a member of the family, clan or group.

44. Tracing the history of L.R No. Nyaki/Mulathankari/9, the plaintiffs relied on a copy of the official search as P. Exh No. (5). The exhibit shows that the suit land came under the name of M’Ajogi Nchau on 25. 10. 1967, and a title deed was issued to him on 18. 12. 1967. The plaintiffs failed to lead any evidence to show that the suit land before 25. 10. 1967 belonged to their late grandfather M'Nchau.

45. No evidence was brought to show when the alleged grandfather gathered the land, settled therein, when he passed on and where he was buried. The legal burden to prove the existence of a trust vests with the one who is asserting a right under customary trust. The person must prove that the suit land was ancestral and that one family member was designated to hold the properties on behalf of the family.

46. In Juletabi African Adventure Ltd & another v Christopher Lockley [2017] eKLR, the court observed that trust is established through evidence and that the intention of the parties to create a trust must be clearly determined before a trust is implied. In Kiebia v M'Lintari (supra), the court said that what was essential was the nature of the holding of land and the intention of the parties.

47. In Cosmas Cherono & others v Veronica Cherono (supra), the court cited Alice Wairimu Macharia v Kirigo Philip Macharia [2019] eKLR that to discharge the burden on customary trust, the person must prove that the suit properties were ancestral or clan land during adjudication and consolidation one member of the family was designated to hold on behalf of the family the registered person was the designated family members who were registered to hold the parcels of land on behalf of the family.

48. In this suit, the evidence of PW 1 & 2 was shaky and disjointed as to the history of the suit land. PW 2 was very evasive in answering questions posed to him. Again, PW 2 was unable to explain why he had omitted to include the defendants in the initial application for letters of administration. He did not appear as a truthful or credible person. PW 3 was unable to explain how and when he witnessed the registered owner being designated as the trustee, his late father. He also said that the said father was buried on the suit land. The inference to be drawn from all this is that the plaintiffs were not truthful or creditworthy and were dishonest persons.

49. PW 4 was unable to tell where the late M'Nyiruu was buried. He also came from a different village with three families. He did not appear as a truthful witness, more so regarding witnessing the sharing of the suit land among the three, yet he could not give precise details of when and how. PW 5 was also from a different village. He was not aware of where M'Ajogi Nchau was buried. PW 5 said that the initial ancestral land for M'Nchau was Kooje and not the suit land. PW 5 was unable to explain if the suit land arose out of a consolidation. Similarly, he was unable to explain how and when the registered owner was designated as a trustee.

50. The plaintiffs and their witnesses were unable to shed light on the nature of their occupation and why they had taken up letters of administration unilaterally without involving the defendants. Why misrepresent the facts in the first instance as to who the beneficiaries were and the change of their narrative from sole beneficiaries to family or ancestral land only after the defendants were issued with letters of administration?

51. The plaintiffs were unable to lay bare the root of the title in order to create the nexus or link between their grandparents, partners, siblings, and mothers, the nature of their possession, occupation, developments and the title holders and the defendants. When the death of their late grandfather occurred, it was not established. Where he lived and where his remains were interred was not clarified. Whether he died before or after the registration in 1967 is not clear. Similarly, the plaintiffs were unable to explain why their parents or themselves did not raise the claim during the lifetime of the registered owner. D. Exh No. (12) was clear on who the registered owner intended to be his next of kin.

52. Fiduciary capacity had to be established through clear and cogent evidence. None of the plaintiffs’ witnesses was able to connect the plaintiffs with their grandfather. In fact, none of the witnesses could tell when the parties moved into the land through their grandfather. The defendants had pleaded that the registered owner solely sought the land from one Kiugu in the 1960's. DW 4, as the estranged wife of the registered owner, corroborated that evidence by DW 1, 2 & 3. Unfortunately, none of the plaintiff's witnesses dislodged that person of events by DW 4, that there was no intended trust and without the plaintiff's parents had was a permissive temporary occupation after disposing of the ancestral land in Kooje. See Mathuita v Mathuita [1982 – 1988] 1 KLR 42, and Peter Ndungu Njenga v Sophia Watiri Ndung’u [2000] eKLR.

53. In my considered view, therefore I find that the plaintiffs were unable to prove the ingredients of customary trust. They failed to call any of their siblings to corroborate their evidence.

54. As to the defendant's counterclaim, the defendants hold confirmed grants as D. Exh No. (13) wherein the land was decreed to them. A protest against the confirmed grant was not filed. D. Exh No. (12) was clear on the intention of the registered owner on whom he wished to be a beneficiary of his estate. The defendants in the counterclaim had fraudulently obtained D. Exh No’s. (2) (3) & (4), with a view of unjustly enriching themselves to the detriment of the plaintiffs in the counterclaim.

55. The plaintiffs to the counterclaim hold valid documents enlisting the right to enjoy their proprietary rights on the land. The court finds no justification why the plaintiffs to the counterclaim should not be granted vacant possession of what rightfully belongs to them. The defendants to the counterclaim are trespassers to the land.

56. Eviction is permissible in law so long as it is justified under Section 152 A- F of the Land Act. Similarly, the plaintiffs of the counterclaim have established all the ingredients as to a plea of a permanent injunction to perpetually restrain the defendants of the counterclaim from infringing or violating their right to the suit land. In INN v N.K. [2020] eKLR, the court cited KPLC v Sherrif Molana Habib [2018] eKLR that a permanent injunction is given after hearing a case for it fully determines the rights of the parties and in this a decree of the court.

57. In this suit, the evidence tendered shows that the plaintiffs in the main suit unjustifiably took advantage of the death of the registered owner, lack of widow(s) and chased away DW 1, 2 & (3) from the land. As if that was not enough, PW 1 & PW 2 sought to obtain a confirmed grant to acquire the land, deliberately misleading the court that there were no heirs to the estate of the M'Ajogi M'Nchau.

58. The plaintiffs in the main suit are self-proclaimed trespassers to the suit land, and therefore, a permanent injunction is merited. As a result of this, the same is granted to prevent any further interference with the inheritance rights of the plaintiffs to the counterclaim. Consequently, the main suit is dismissed, and the counterclaim allowed costs to the plaintiff in the counterclaim.

DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERUON THIS 12TH DAY OF JUNE, 2024In presence ofC.A KananuNo appearanceHON. C K NZILIJUDGE