Simon Gatimu Gatuura v James Njau Gitau [2017] KEHC 9251 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 485 OF 2015

IN THE MATTER OF THE ESTATE OF JOSEPH GITAU NJAU ALIAS GITAU NJAU (DECEASED)

SIMON GATIMU GATUURA ………..…….....……..….APPLICANT

VERSUS

JAMES NJAU GITAU…………………………….…RESPONDENT

JUDGMENT

1. The deceased Joseph Gitau Njau alias Gitau Njau died intestate on 29th October 1995.  He was survived by a widow Margaret Wanjiru (now deceased) and five children.  The grant of letters of administration intestate was issued to the widow on 19th November 1996 at the Chief Magistrate’s Court at Thika, and confirmed on 13th June 1997.  The estate of the deceased had the following properties:-

a. Gatundu Plot 37;

b. Gatundu Plot 97;

c. Ndalani/Mavoloni Block 1/892;

d. Ndalani/Mavoloni Block 1/983;

e. Ndalani/Mavoloni Block 1/984;

f. Ngenda/Gitaru/158;

g. Kiganjo/Handege/1228; and

h. Thika M/Block 21/796.

2. On 2nd March 2015 the applicant Simon Gatimu Gatuura filed this application to have the grant herein  revoked and/or annulled on the grounds that:-

a. the proceedings leading to the grant were defective in substance;

b. the grant was obtained fraudulently by making of a false statement;

c. the grant was obtained by concealment from the court of evidence material to the case; and

d. the grant was obtained by means of an untrue allegation of a fact essential in point of law.

3. In the affidavit sworn to support the application, the applicant stated that land parcel Ndalani/Mavoloni Block 1/982 did not form part of  the estate of the deceased but belonged to him having acquired it as shareholder of Mavoloni Company Limited; that following his acquisition of the land he sold it to James Ngandu Muthigani to whom he gave possession; unknown to him, the land  became registered in the name of the deceased and title issued; again unknown to him, the parcel became the subject of the succession cause following the deceased’s death; and that he has brought the application to claim back the land.  His case was that the registration of the land in the name of the deceased was by means of fraud and/or mistake as he was the rightful owner of the same.

4. The respondent is one of the sons of the deceased and a beneficiary of the estate.  His case was that the deceased, a shareholder of Mavoloni Company Limited, was allocated the shares that eventually led to him being registered as the owner of Ndalanai/Mavoloni Block 1/982; that at the time of the deceased’s death he was the registered owner of the land, and it was on that basis that the parcel was included in that petition and certificate of confirmation; that, lastly, the deceased was in continuous and actual possession of the land up to his demise, following which his family continued in occupation.

5. The applicant was represented by Mr. Mureithi and the respondent by M/s King’oo.  It was agreed that the application be disposed of by written submissions.

6. It is clear that the applicant did not claim to be either a beneficiary or a dependant of the estate of the deceased.  His claim was that he was a shareholder of Mavoloni Company Limited which gave him land which the deceased, another shareholder of the company, got himself registered as the owner.  He alleged fraud on the part of the deceased.  There is no dispute that when the deceased died he was the registered owner of the parcel.  The parcel, along with others, became the subject of these succession proceedings which were filed by the family, and this led to the certificate of confirmation.  The applicant challenges the title that was held by the deceased.  He challenged the deceased’s ownership of the parcel.  The jurisdiction of this court is limited to the determination of the estate and beneficiaries of the deceased, and the ascertainment of their respective shares.   Where a third party challenges the title held by a deceased or his beneficiary, that is a matter that would go beyond the jurisdiction of this court.  The party should make that challenge in a court created under Article 162(2)(b) of the Constitution of Kenya 2010 and section 13of theEnvironment and Land Court, 2011(Cap 12A of the Laws of Kenya).

7. The jurisdiction to revoke or annul a grant is conferred under section 76 of the Law of Succession Act (Cap 160). A challenge to the ownership of land subject of the estate by a third party would be a claim beyond the purview of the provision.   The applicant has no issue with the administration of the estate of the deceased.

8. The consequence is that this application is misconceived and is 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