Kemboi

2. The suit is premised on the grounds that on or about 15th March 2010, the defendants, without any colour of right, entered into and occupied land parcels number 690, 691, 700, 701 and 702 belonging to the plainti. The defendants are also said to have unlawfully entered into and occupied parcels number Mosop/Kapchorua 682, 683, 684, 685, 686 and 687 belonging to the plainti and reserved for occupation by the children of Hogla Masai (deceased). 3. The defendants led a defence and counterclaim denying the allegations levelled against them and contending that the plainti’s registration of parcels number Mosop/Kapchorua 680, 688, 700, 682 and 670 is subject to a trust for them and other beneciaries of the estate of Masai Kapcali (deceased). 4. Terming their occupation of the suit properties lawful, the defendants have pleaded that they had been in use and occupation of the suit properties for over 24 years as members of the plainti’s family. 5. It is the defendants’ case that the plainti was fraudulently registered as the proprietor of the suit properties, which emanated from the estate of Masai Kapcali (deceased). Particulars of fraud urged against the plainti are listed under paragraph 12 of the amended statement of defence and counterclaim thus:- 6. 7. 8. a. Attempting to dispose o an interest in land without regard to the interest of the defendants as owners of the suit property; b. Attempting to disinherit the beneciaries; c. Dealing with land that does not belong to them; It is further contended that the plainti acted irregurarly, illegally and in breach of the trust vested in her. The particulars of irregularity/illegality and breach of trust urged against the plainti are listed in paragraph 12 of the amended defence and counter-claim thus:a. Attempting to create other interests in the suit property in breach of trust; b. Disinheriting heirs of their rightful shares; c. Displacing letigitimate beneciaries. By way of counterclaim, the defendants seek judgment against the plainti for:i. A declaration that the move to disinherit the legal owner and beneciaries of the parcels of land known as Mosop/Kapchorua/682, 688, and 670 is null and void; ii. An order of injunction restraining the plainti by herself, her agents, assigns or anybody acting through her from transferring, charging, wasting, alienating, selling, disposing or otherwise interferring with the parcels of land known as Mosop/Kapchorua/682, 688 and 670. The defendants also seek the following reliefs:a. A declaration that they are the beneciaries of the estate of Masai Kapcali; b. A declaration that they have overriding interest in the parcels known as Mosop/Kapchorua/682, 688 and 700 measuring 1/8, 1/8 and ½ of an acres respectively; https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20735/eng@2023-10-17 2

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c. A declaration that the plainti holds the parcels of land known as Mosop/ Kapchorua/682, 688 and 700 measuring 1/8, 1/8 and ½ of an acre respectively in trust of beneciaries of the estate of Masai Kapcali; d. A mandatory injunction to compel the plainti to give an account of the estate of Masai Kapcali; e. The plainti be compelled to pay costs of the suit as well as those of the counterclaim. 9. The plainti led a reply to defence and defence to counterclaim denying the defendants’ contention that the suit properties are subject to a trust in their favour and that they were fraudulently registered in the name of the plainti. The plainti further contended that there was no property for inheritance as the original property Mosop/Kapchorwa/541 was registered in her name. 10. In support of her case, the plainti availed four witnesses all of whom adduced evidence in support of the plainti’s pleaded case. The 1st defendant gave evidence in support of the defendants’ defence and counterclaim. 11. From the testimonies of the plainti’s witnesses and the 1st defendant, the following facts of the case are either common ground or uncontroverted and/or undisputed:i. That the plainti and the defendants are relatives-The 1st defendant is a daughter in law of the plainti while the 2nd and 3rd defendant are grand children of the initial plainti, Soti Masai; ii. That the suit properties-Mosop/Kapchorua 682, 683, 684, 685, 686, 687, 688, 689, 690, 691, 692, 693, 694, 695, 696, 697, 698, 700, 701, 702 and 703 are subdivisions of Mosop/Kapchorua/541 which belonged to Kaptalai Masai, deceased; iii. That Kaptalai Masai passed on in 1994 and was survived by his wife Soti Masai and several children, the 1st defendant’s husband being one of the children who survived him; iv. That title number Mosop/Kapchorua/541 was transferred to Soti Masai on 12th May, 1995, way after the registered owner had passed on; v. That no succession process/proceedings in respect of the estate of Kaptalai Masai comprised in parcel number Mosop/Kaptalai/541 was carried out before the property was transfered to the original plainti, Soti Masai; vi. That title number Mosop/Kapchorua was closed on 25th January, 1996 after subdivision and creations of the parcels listed in (ii) above which parcels were transferred to the plainti. vii. That the defendant were in use and occupation of parcel number 700 before the plainti required them to move out of the parcel and to go and live in parcel number 703; viii. That there is no dispute concerning the defendant’s use and entitlement to parcels number Mosop/Kapcherop/682, 683, 684, 685, 686 and 687 and https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20735/eng@2023-10-17 3

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parcels number 692, 693, 694, 695 and 703 (at least going by prayer (b) of the further amended plaint and the testimony of Naomi Jemeli Kemboi) (P.W.1). ix. 12. That the initial plainti passed on during the pendency of this suit and her estate comprised in the suit properties was not succeeded to as by law required. At close of hearing parties led submissions which I have read and considered. Submissions Plaintis Submissions 13. In her submissions led on 16th June 2023, the plainti has given an overview of the case urged by the parties and the evidence given in support thereof and identied the following as the issues for the court’s determination:i. Whether the plainti is entitled to the injunctive reliefs sought; ii. Whether the defendants have shown that the plainti held the suit parcels in trust for them; iii. Whether the defendants have demonstrated that the plainti engaged in fraud. iv. Whether the defendants have proved that they are entitled to orders of mandatory injunction. 14. On Whether the plainti is entitled to the injunctive reliefs sought, based on the evidence produced showing that the plainti is the registered proprietor of the suit properties, it is submitted that the plainti has satised the legal requirements for grant of the injunctive reliefs sought. 15. With regard to the 2nd issue, whether the defendants have shown that the plainti held the suit parcels in trust for them, reference is made to several cases where the law undergirding the issue of trust is espoused and submitted that the defendants hardly led any evidence capable of proving that registration of parcels number Mosop/Kapchorua 688, 700 and 701 in favour of the plainti is subject to any trust in their favour. The plainti is said to have demonstrated that it was the family’s intention that the suit properties be distributed in the manner they were distributed. It is conceded that parcels number 690, 691, 692, 693, 694, 695, 702 and 703 are subject of a trust in favour of the 1st defendant by virtue of having been the wife of the late Ben Kibet Masai. 16. Maintaining that the suit properties were distributed as per the wishes of the late Masai Kapcali, the plainti urges this court to exercise great caution and restraint before interferring with the late Masai Kapcali’s wishes. 17. On whether the defendants have demonstrated that the plainti engaged in fraud, it is submitted that the defendants did not prove to the required standard of proof that the plainti engaged in the pleaded acts of fraud. To the contrary, the plainti is said to have proved that she is the bona de registered proprietor of the suit parcels and that the defendants are way o from showing any legal or benecial interest in the suit properties. 18. As to whether the defendants have proved that they are entitled to orders of mandatory injunction, it is submitted that owing to their conduct, the defendants are not entitled to any equitable reliefs, since a person seeking equitable reliefs must do so with clean hands. The defendants are said to have approached the court with unclean hands as they took the law in their own hands by trespassing https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20735/eng@2023-10-17 4

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into the suit properties thereby mocking judicial proceedings. The defendants are also said to have disobeyed injunctive orders issued against them and meted violence on the plainti, the late Soti Masai. Defendants Submissions 19. In their submissions led on 30th June 2023, the defendants have given an overview of the cases urged by the parties to the suit and identied the following as the issues for the court’s determination:a. Whether original suit property was held in trust; b. Whether subdivision was legally done; c. Whether the titles to the suit property should be cancelled and the suit properties reverted to its original title; d. Whether the plainti has locus standi to maintain the suit; and e. Whether this court has jurisdiction to entertain this matter. 20. On whether the original suit property was held in trust, reference is made to the case of Isack M’Inanga Kiebia vs. Isaaya Theuri M’Lintari & Isack Ntongai Mlintari SCOK Petition 10 of 2015, Section 35 of the Law of Succesion Act, Cap 160 Laws of Kenya, and to the evidence adduced in this case showing that the original parcel of land was registered in the name of the family patriarch, the late Masai Kapcali, before it was registered in the name of the original plainti, Soti Masai, and submitted that registration of the original plainti was subject to a trust in favour of the beneciaries of the estate of Masai Kapcali. 21. On whether subdivision of the original parcel of land, Mosop/Kapchorua/541 was done legally, reference is made to the evidence adduced in the case to the eect that the property was transferred to the original plainti at a time when the registered owner was deceased without succession proceedings for the estate of the deceased comprised in Mosop/Kapchorua/541 and submitted that subdivision of the original parcel of land and the subsequent transfer of the subdivisions to the original plainti, Soti Masai, was illegal and incapable of conferring any legal rights on the plainti. The contention by the plainti that the original parcel of land was transmitted to the original plainti during the lifetime of Masai Kapcali is said to be unsupported by the totality of the evidence adduced in the case. 22. Based on the provisions of Section 55 and 82 of the Law of Succession Act, Cap 160 Laws of Kenya and the decision in the case of In the Matter of the Estate of Paul M’maria (Deceased) (2017) eKLR, it is asserted that the transfer and the subsequent subdivision of the original parcel of land and the transfer of the subdivisions therefrom to the original plainti was illegal and incapable of conferring any rights on the original plainti and/or extinguishing the trust to which it was subject to. 23. On whether the titles of the suit properties should be cancelled and reverted to the original title, reference is made to the decision in the case of Mcfoy vs. United Africa Co. Ltd (1991) ALL ER 1169 where it was inter alia held that if an act is void, then it is a nullity in law; that avoid act is not only bad, but incurably bad and on account of the illegality in the transfer of the original parcel of land to the original plainti it is submitted that the subsequent subdivisions and titles issued in respect thereof ought to be cancelled. This court is said to be clothed with the power to cancel titles obtained by fraud or mistake. In that regard reference is made to Section 80 of the Land Registration Act, 2012 and the case of Republic vs. Kisumu District Lands Ocer & another (2010) eKLR. 24. As to whether the plainti has locus standi to maintain the suit based on the fact that the suit properties relate to the estate of Masai Kapcali for which the plainti is not the administratix and/or legal representative, it is submitted that the plainti has no locus standi to maintain the instant suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20735/eng@2023-10-17 5

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Concerning the import of having locus standi, reference is made to the cases of Alfred Njau vs. City Council of Nairobi (1983)KLR and the case of Julian Adoyo Ongunga vs. Francis Kiberenge Abano Migori Civil Appeal No.119 of 2015. 25. As to whether this court has jurisdiction to entertain this matter, it is submitted that the issue before this court is purely a succession matter for which this court lacks jurisdiction to determine. Analysis and determination 26. From the pleadings led in this case, the evidence adduced and the submissions led, the issues for the court’s determination are:i. Whether the applicable law and procedures were complied with in registration of the plainti, Soti Masai, as the proprietor of the parcel of land Mosop/ Kapchorua/541; ii. Subject to the outcome of (i) above, whether the plainti acquired good title to Mosop/Kapchorua/541 which she could pass to herself or any other person; iii. Whether the defendants have any benecial interests to the suit properties? iv. What orders should the court make? 27. On whether the applicable law and procedures were complied with in registration of the plainti, Soti Masai, as the proprietor of the parcel of land known as Mosop/Kapchorua/541, the evidence adduced in this suit shows that the original parcel of land, Mosop/Kapchorua/541 belonged to Masai Kapcali, deceased, when it was purportedly transferred/trans-mitted to the plainti, Soti Masai. Admittedly, no succession proceeding were taken up or conducted before the property was transferred to the plainti yet the property constituted part of the estate of a deceased person when it was purportedly transferred to the plainti. Transfer of the property to the plainti, without any succession proceedings being undertaken in respect thereof clearly violated the provisions of Section 45 as read with Section 82 of the Law of Succession Act, Cap 80 Laws of Kenya. 28. In the case of Re Estate of Paul M’ Maria (Deceased) (2017)e KLR it was held:“ The restriction provided by law that no immovable property shall be sold or distributed before conrmation of grant is not merely directory or an embellishment. It is a statutory command with fatal consequences on any transaction done in contravention of the said law. Accordingly, acquisition of immovable property of the estate in contravention of the Law of Succession Act is tinctured with killer poison; and is unlawful acquisition; thus, land so acquired does not enjoy the protection of property rights under article 40(6) of the Constitution. See the claw-back provision of the Constitution that: Rights under this Article do not extend to any property that has been found to have been unlawfully acquired.” 29. Similar sentiments were expressed in the case of Re Estate of John Gakunga Njoroge, (Deceased) (2015) eKLR where it was held:“ A person can only deal with the estate of a deceased person pursuant to a grant of representation made to him under the Law of Succession Act. In this regard, the jurisdiction of the court to protect the estate of a deceased person set out in section 45 of the Law of Succession Act….............................................. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20735/eng@2023-10-17 6

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For the transactions between the applicants and the beneciaries of the estate of the deceased entered into before the grant of letters of administration to them and before the conrmed grant, the contracts of sale are in valid for oending the provisions of section 45 and 82 of the Law of Succession Act. Even if the sale transaction were by the administrators, the dealings with immovable property of the estate is restricted by the provisions of the powers and duties of the personal representatives under section 82(b) proviso (ii) which provides that:(ii) ‘no immovable property shall be sold before conrmation of the grant” 30. In applying the above cited authorities to the circumstances of this case, where there is evidence that the plainti dealt with the estate of Masai Kapcali without compliance with the applicable law and procedures, I do nd that the purported dealings with the suit property by the plainti were not only unlawful but also illegal hence incapable of forming the basis of her claim against the defendants. 31. As to whether the plainti acquired a good title to parcel number Mosop/Kapchorua/541 which she could pass to herself or any other person, following the determination that her dealing with the parcel of land known as Mosop/Kapchorua/541 was unlawful and illegal, I do nd the purported transfer of the parcel of land known as Mosop/Kapchorua/541 to the plainti and the subsequent subdivision and transfer of the subdivisions therefrom to have been a nullity in law hence incapable of forming the basis of her claim against the defendants. 32. As to whether the defendants have any benecial interest to the suit properties, there being evidence that the suit properties are subdivisions of Mosop/Kapchorua/541 which belonged to the plainti’s husband, and further, there being evidence that the plainti and the defendants are members of the family of Masai Kapcali, deceased, I do nd as a fact that the suit property is family land hence subject of a customary trust in favour of the plainti and the defendants. In view of the foregoing, I return a positive verdict into the question as to whether the defendants have benecial interest to the suit properties. It is the considered view of this court that the extent of that benecial interest can only be determined by a succession court upon administration of the estate of Masai Kapcali deceased. 33. On what orders the court should make; having determined that the parcel of land was unlawfully/ illegally transferred to the plainti, I declare that registration a nullity and direct the Land Registrar of the responsible land registry to cancel all transanctions concerning the parcel of land known as Mosop/ Kapchorua/541 and to revert the property to the status it was before it was unlawfully registered in the name of Masai Soti, deceased. 34. All persons with interest in the suit property should pursue their interest when the estate of the deceased is administered. In the meantime, the status quo, which obtained before the current suit was led shall be maintained. 35. For avoidance of doubt, neither the plainti nor the defendant should lay a claim to the estate of the Masai Kapcali comprised in Mosop/Kapchorua/541 until and unless the same is administered in accordance with the applicable law and procedures. Parties are at liberty to continue using and occupying the portions they were using and occupying before the suit. administration of the estate of Masai Kapcali should be done taking into account the interest of all persons with interest therein, to give them a fair chance to defend their interest. 36. The upshot of the foregoing is that the plainti’s suit is dismissed. The defendants suit only succeeds to the extent contemplated in this judgment. 37. This being a family dispute, parties shall bear their costs of the suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20735/eng@2023-10-17 7

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38. Orders accordingly. DATED, SIGNED AND DELIVERED, AT ITEN THIS 17TH DAY OF OCTOBER 2023. L. N. WAITHAKA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20735/eng@2023-10-17 8

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