Teresina Mukele Rapando & Salome Natsala Malala v Grace Omukwaya Malala, Peter Waswa Rapando, William Wambani Rapando, Desterio Mango Rapando & 4 Bildad Achieng Rapando [2013] KEHC 2472 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

HCC NO. 78 OF 1998

TERESINA MUKELE RAPANDO........................... 1ST PLAINTIFF

SALOME NATSALA MALALA............................. 2ND PLAINTIFF

VERSUS

GRACE OMUKWAYA MALALA...........................1ST DEFENDANT

PETER WASWA RAPANDO ….......................... 2ND DEFENDANT

WILLIAM WAMBANI RAPANDO …................... 3RD DEFENDANT

DESTERIO MANGO RAPANDO …..................... 4TH DEFENDANT

BILDAD ACHIENG RAPANDO …....................... 5TH DEFENDANT

JUDGMENT

The two plaintiffs filed their suit vide a plaint on 29th October 1998 claiming for;

(a). General damages for breach of trust and transfer  of L.R. No.  E. Wanga/Malaha/626, 627,628,629,630, & 631  into their  names.

(b). Costs of the suit.

Interest at  court rates.

I have perused the court file.  I only found a memorandum of appearance filed on 4th November 1998 by E.K. Owinyi & Co. advocate on behalf of the defendants. Thereafter statement of issues were filed on 3rd  March 1999 with   additional issues filed on the same date.   Since  the defendants participated in the proceedings, I presume there was a  defence filed but I did not  trace any within the file and this matter has been in court for too long.

Trial commenced on 22nd June 2000 when PW1 testified.  She is the first plaintiff and daughter of Malala   Rapando – deceased and Grace Omukwaya Malaha – 1st  defendant. They were four siblings of which two of her brothers died in their infancy and left the two of them. Her evidence is that her  father owned land where they lived, i.e. E. WANGA/MALAHA/208.   The  2nd   defendant inherited her mother while they were young as she used to see him come to their house.

In 1977 as shown in the green card (Ex P1), the 2nd defendant subdivided the L.R No. E. WANGA/MALAHA/208 into six portions and shared out  amongst his brothers as follows;

Peter  W. (2nd defendant) --------5. 1  acres as 627

William  (3rd  defendant) ------    -5. 1 acres as  628

Mathew (father to 5th Def.) ------ 5. 1 acres as 629

Desteris (4th defendant) -------    5. 1 acres as 630

Peter L. (6th defendant) --------. 5. 1 acres as 631

Grace Wamukhwale (1st defendant) 5. 1 acres 626

Mathew  Rapando transferred land to the 5th Defendant Bildad A. Rapando in 1998.  The  1st Plaintiff had six (6) children.  She claimed the land was  registered  based on  customary trust because at the time Peter was taking care of them  when he registered himself as  administrator of the land. She was a minor. The 1st defendant has already transferred the piece given to her to the plaintiffs.  It is her evidence that she started demanding for  the land   once they were mature.  Their uncles who are the 2nd to the 5th defendants have their separate parcels of land they inherited from their father.

In cross examination, she claimed to be ready to  refund monies paid towards her  education by the 2nd Defendant.  She admitted that  she brought the case after  21 years.  The court has noted from the  green card (exp.1) the transfer was by way of succession from Malala Rapando to the name of 2nd defendant.  There was no  entry made in the register of the  land being held in   trust for the plaintiffs.  At the time of her father's death, the near male relatives  were the uncles as he had no surviving son or brother.  She did not agree that only male children inherit their fathers land.  She had a  case  in  point where daughters were allowed to  inherit their father's land.

PW2 Anacet Sakwa, testified on 21st September 2000.  She is 82 years old a  Luhya of Wanga of clan of Shitsetse. According to her, the Wanga customs allowed inheritance with  the inheritor taking care of  widow,  children and property of the deceased. If the deceased  left daughters only,  the daughters would inherit  the land.  She gave a case  in point where her colleague  at work died and his daughters took over his land. It is her evidence that the inheritors held the deceased's property for the benefit of the children alone.

On cross examination by Mr. Owinyi for the defendants, she mentioned the name of her colleague as Fanuel Ongato  Mwimali but could not recollect the details of the case. She maintained  Wanga customs allowed daughters to get their fathers land and she had herself acquired 2 acres from her father's land.  According to her all children would be given land irrespective of marital  status.

I note  from the proceedings an order was made for the in charge High court   Civil registry at Kakamega to produce  succession file  No. 231 of 1995.  It was not produced at the close of the proceedings. The plaintiff  then  chose to annex copy of  certificate of grant as well as the judgment of the court in the said cause to their submissions.  In this case the  land was  shared equally amongst the daughters

On 7th December 2009 when the matter came up  in court before Justice F. Muchemi, Ms.  Nanzushi for plaintiffs informed the court that  3 of the defendants have  died (not indicating which ones) and two bedridden (no specifics).  She asked for a  nearer hearing date.

On 24th May 2010 PW3 John  Omuemia Kulondotestified. He is 62 years old.  He  Knew the plaintiffs and the defendants as they are his neighbours.  At the time of death of Rasimu Malaha Rapando, his  children were young.  The 2nd defendant inherited the 1st defendant.  The 2nd defendant was  registered  as personal representative  when Rasimu died in respect of  E. WANGA/MALAHA/208. According to him Peter (2nd defendant) should have been registered as trustee of the land for the benefit of the children not owner.  He knew the land  was subdivided but does not know who got what.  He knew the plaintiffs  were denied a share of their father's land.

He was cross examined by  Mr.  Abok for the defendants. He confirmed he was  aware  the land was subdivided. Two of the defendants are deceased and have not been substituted.  The plaintiffs closed their case and Mr. Abok sought adjournment on behalf of 2nd, 3rd & 5th defendants.

The matter came up  twice for  further hearing when the defendants were not ready. On 9th October 2012 before Justice Muchelule, the plaintiffs' advocate asked the court to  mark the defendants case as closed. The court proceeded to have the defence case closed without any evidence  adduced in favour of the defence.  The plaintiffs then filed their written submissions.  The defendants' advocates was served with mention  notice for 27th  May 2013.  There was no appearance made  and the court set a  judgment date.

I would have treated this case as unopposed however given the defendants  participated  in the proceedings, I will analyze the evidence to verify if  indeed the plaintiffs have proved their case within the  required standards. Secondly being a land matter, it cannot be treated casually and it requires reasons to be given on why the plaintiff would win or lose the case. The plaintiffs' in their written submissions filed  cited the case of Bengawa Vs. Priscilla Njondo [1912] 4 EALR 160though copy was not availed to this court. The court was unable therefore to read it. A statement in the said case  is quoted to have  stated  that succession of an  African's estate followed customs of his tribe.  She also  referred to   the case of Re Maangi [1968] EA 637  that   Indian  Acts  did  not apply to  natives.

Counsel also referred the court to case of Kimani Vs. Gikanga [1965] EA 735 on the applicability of customary law in our legal  systems/jurisprudence. She further cited the case of Re Fanuel Onga'to Mwinali Kakamega succession cause No. 231 of 1995  where the estate  was distributed amongst the 6 daughters. The  said Ong'ato  was of the Wanga tribe  like the parties  in  this case.  The rest part of the submissions generally summarized the evidence as adduced and I will not repeat them here.

As briefly set out in the evidence of the plaintiff (PW1), it is not disputed  that L.R. No. E. WANGA/MALAHA/208 was initially owned by Malala  Rapando who was registered in  1966.  The land  was  25 acres as shown in green card produced as  Ex. P1. It is also not disputed that the  plaintiffs  were  daughters of Malala Rapando – deceased.   It is further not disputed that the 2nd defendant inherited the 1st defendant as per customs of the Wanga Clan.  He therefore automatically was nominated to be the administrator  of the  estate of Malala Rapando as per the customs of the Wanga clan.  The plaintiffs were minors when their father passed on. Their claim is that the  2nd defendant got himself registered as  trustee in respect of E. WANGA/MALAHA/208 in their favour and ought not to have distributed the land in question to the  other defendants.

The 2nd defendant however distributed  this land between the widow, the brothers and himself.  This action did not go well with the plaintiffs. The defendants did not  give evidence that  would have laid  a basis on the  sharing  out of the land.  The green card does   indicate how the 2nd defendant got the  land transferred from the names of Malaha Rapando to himself in 1970 as by way of succession.  Under section 41 of Cap 160 provides;

“Where reference is made in this Act to the  “net intestate      estate” or the  residue thereof, devolving upon a child or      children. The property comprised therein shall be held in      trust     in equal shares in the case of more than one child  for   all or      any of the children of the intestate who  attain the age of  18 years or who being  female marry under that age...”

Sec. 29  of the Law of succession provides  meaning of a dependant as

“(a) the wife or wives or former wife or wives and  the  children of the deceased whether or not maintained  by  the deceased immediately prior        to his death”.

The provision of the Succession Act gives the wife and children priority over the other relatives listed in  section  29 (b).  It follows therefore that the 2nd  defendant transferring the land to himself should have done  so in trust of the plaintiffs and 1st defendant as the administrator of estate of Malala Rapando-deceased and not as owner.

PW2 testified that the Wanga customs allowed girls to  inherit land  left by a deceased father.  She told  the court that  she was aware of a case  of a  colleague  whose property was shared out to his daughters.  She was  82 years old and conversant with the  Wanga  customs.  She stated that where  deceased left sons, then the property would be divided according to the houses.  That a clan member should not inherit another's land. Her evidence was, the  plaintiffs in spite of being  daughters  are  entitled to their father's land. There being no evidence to contradict her averments, the court finds it believable as the custom was also in conformity with the law of succession.

I find therefore that the plaintiffs had a right to inherit land  E. WANGA/MALAHA/208 by virtue of the provisions  of the   Succession  Act. I have also read through case  law dealing with  customary trust created in land ownership. The case law favour the plaintiff's claim. In the case of Gathiba Vs. Gathiba [E & L] KLR 356Justice Khamoni at page 387 paragraph 20 said;

“However, from that  evidence and  from my  experience as a  “native" judge in this country, I think I am entitled  to  take   judicial  notice of the fact   not only of the  existence  of  Kikuyu customary law  but also  of  the  existence of other African customary laws in Kenya have the “concept” of a       trust within the   jurisprudence as   demanded by sec. 48 & 51 of the Evidence Act” which  is  to be  read with Sections 13 (a), (b) & Section 59 & Section 60 of  same Act as well as Section 87 (1) of the Civil Procedure Act.”( underline mine for emphasis).

The judge also referred to  Eugene  Cotran's book: Restatement of  African law 2: The  Law of Successionwhich shows the concept of trust is found in  customary  laws of many tribes in Kenya including Kikuyu, the Kamba,  the Luhya, the Kisii e.t.c.It therefore follows  that customary law indeed exist among the Wanga clan which is a  sub tribe of the Luhya. The Judicature Act chapter  8 and at section 3 provides that  customary law shall be applicable in so far as it is not  repugnant to law and morality.

In the case of Mukangu v Mbui ( E& L) 1 p 622,the court of appeal held"However, since the same registration recognizes trusts in general terms w/out specifically excluding trusts originating from customary law and since African customary laws in Kenya, generally, have the concept or notion of trust inherent in them where a person holding a piece of land in a fiduciary capacity under any of the customary laws has the piece of land registered in his name ... either describing him or not, the registration signifies recognition by Registered Land Act, of the consequent trust with the legal effect of transforming the trust from customary law to the provisions of the Act because according to the proviso to section 28, such registration does not "relieve a proprietor from any duty or obligation to which he is subject as a trustee".

The provisions of section 28 of RLA has been imported to the the Land Registration Act which repealed the RLA. Under the new Act, section 28, unless the contrary is expressed, all registered land are subject to the following overriding interests ... without being noted in the register (b) trusts including customary trusts.I am aware there has been  from the 1990s quite a substantial  shift  in the law as regards inheritance which previously discriminated against women getting land from their fathers. It is my finding that discrimination channeled   through  some of the customs are  ousted by section  3 of chapter  8 of the laws of Kenya quoted above, section  29 ( of the  Law of  Succession Act and  article 27(3) of the Constitution.  The plaintiffs are  thus legally entitled to inherit their  father's land.

In light of the foregoing,I do find that the 2nd defendant got himself registered on this land as trustee on behalf of the plaintiffs in respect to land parcel No.  E.Wanga/Malaha/208. The subsequent subdivisions and transfer to himself and the 3rd to 6th defendants was therefore unlawful l, irregular and unprocedural. I do allow the plaintiffs claim  and do hereby issue an order directed at the  District Land Registrar, Kakamega to cancel  registrations of title deeds for parcels  L.R. Nos.  E. WANGA/MALAHA/627, 628, 629, 630, 631 in  the names of the defendants and register them jointly in the names of the plaintiffs. The 1st defendant's title shall not be canceled as  she is   entitled to  a life interest in the event she is still alive.

There was no proof of damages and none  was submitted on.  I  therefore  award none.  This being a  family dispute and some of the defendants  have been mentioned to have passed on, I order that each party to bear its own costs.

JUDGMENT DATED, SIGNED, READ and DELIVERED in open court this 4th day of July   2013.

A. OMOLLO

JUDGE.