Ndunda Ndonye Mbiti v Joseph Makali Nzuki & 1 other

5. That the Petitioner secretly without involvement of the Objectors applied for confirmation of the Grant with the sole intention of disinheriting the lawful beneficiaries including the Objectors of the shares in land parcel Mitaboni/Mutituni/2381 (hereinafter referred to as “the subject land”) currently registered in the names of Lengesi Kimbo, Ngila Kimbo, Nzuki Kimbo, Kiilu Kimbo Ndavi Kimbo each holding 1/5 (all the deceased herein). 6. In opposing the Summons, the Petitioner filed a Replying Affidavits sworn by Ndunda Ndonye Mbiti on 30/1/2017. He denied that the proceedings of obtaining the grant were defective nor were there concealment from the court of any material fact. That the Objectors were all along aware of the processes in the cause and were even cited to take letters of Administration in respect of the Estate herein but they failed to do so. The Petitioner annexed as “NNM1” an Orders issued on 13/2/2013 by Justice A. Makhandia, J citing Musyoki Kiilu to petition for letters of administration in regards to the Estates of deceased in the consolidated petitions. 7. The application proceeded via viva voce evidence after Parties filed their witnesses’ statements and documents. 8. The Petitioner called 3 witnesses; PW1-Dominic Musyimi Ndunda, PW2-Joseph Nzioka Kioko and PW3-John Ndonye Mbithi who adopted their respective witness statements. They all confirmed that they had nothing to show Ndunda Ndonye Mbiti (Deceased) on whose Estate they claim a share of the subject land owned the same. Although they claimed to be in occupation of the subject lad, no iota of evidence was placed before court to that effect, not even a letter from the area administration was filed in that regard. PW1 the current Petitioner also confirmed not to be a close relative of any of the deceased persons in the consolidated Succession Causes. 9. On the other hand, the Objectors called one witness. DW1-John Kiilu Musyoki, the current 2nd Objector. He adopted the witness statement dated 10/7/2018 by the previous 2nd Objector/his father who passed on while the case was pending. He stated that he is the immediate grandson to Kimbo Ngoma who initially owned the subject land which was later transmitted to his four sons, (the deceased persons in the consolidated Successions herein) upon his demise. He stated that his family resides on the subject land where they have lived all along, for him, for 42 years since he was born. That Ndunda Ndonye Mbiti on whose behalf the Petitioner is claiming, has his own land parcel number 798 where his family resides. They have never received any complaint on the subject land except for the consolidated Succession Petitions. He stated that the Petitioner failed to disclose to the court that the Kimbos were deceased when he took out citations and the confirmation of grant and that he lied to the court that he had served them. He prayed that the Grant made herein be revoked. 10. I have perused through the consolidated files, carefully considered the application for revocation of grant, the affidavits and the witness statements and filed, evidence adduced and the respective submissions filed by the parties. 11. In this court’s own analysis of the matter, the issues for determination are whether the subject land forms part of the Estate of the Ndunda Ndonye Mbiti (deceased), a grandfather to the current Petitioner herein and whether the Grant made on 23/2/2015 ought to be revoked. A. Whether the Subject Land Forms Part of the Estate of the Ndunda Ndonye Mbiti (deceased), a Grandfather to the Current Petitioner Herein. 12. The Petitioner alleges that the land parcel in dispute herein Mitaboni/Mutituni/2381was fraudulently and or wrongly acquired and registered by Lengesi Kimbo, Ngila Kimbo, Nzuki Kimbo, Kiilu Kimbo and Ndavi Kimbo as sons of Kimbo. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14329/eng@2025-03-03 2

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13. The Petitioner insists that any registration over the stated parcel of land was fraudulent since him and his family have always occupied the subject parcel of land and that the objectors have never been in occupation of the same. 14. From the Petitioner’s pleadings and submissions, this court is able to establish that the Petitioner’s claim over the subject parcel of land is founded on the fact that him and his family are in occupation of the said land and that this court should direct that each family should have a share of the Estate of the land Mitaboni/Mutituni/2381belonging to Ndonye Mbiti (his deceased father). 15. The record show that the Petitioner’s grandfather Ndunda Ndonye Mbiti (now deceased) filed citations against the Objectors herein sometimes in the year 2012. 16. The current certificate of official search dated 14/1/2016 exhibited in these proceedings show that Lengesi Kimbo, Ngila Kimbo, Nzuki Kimbo, Kiilu Kimbo and Ndavi Kimbo are the registered owners of the land parcel Mitaboni/Mutituni/ 2381 each holding 1/5 share and being a 1st registration on 20th August 1984. 17. One would be left to wonder why the Petitioner failed to first conduct a search to establish who legally owned the subject land before he could initiate the Citation proceedings when he clearly had an interest in the subject land. Otherwise, according to this court, these proceedings would not have been filed in the first place. 18. Having realized that the subject land is duly registered as aforestated, the Petitioner is now raising allegations of fraud on the registration which allegations in the opinion of this court have not been substantiated by the Petitioner. In addition, the Petitioner has not sought for any orders or relief from the court with regard to the alleged fraud. The allegations of fraud are thus unfounded and misplaced in the circumstances of these proceedings. In any event, this court lacks jurisdiction to determine the question of title and ownership of the subject land which vests in the Environment and Land Court. See Kageche v Kamande & 2 others; Wanjohi (Proposed Interested Party) (Succession Cause 11 of 2020) [2024] KEHC 5637 (KLR) (17 May 2024) (Ruling) where the court observed that: “ In the circumstances and bearing in mind the above, this court being a probate court is therefore, not clothed with the requisite jurisdiction to deal with the issue of who owns LR. No. Ondiri Farm Scheme/2. 25. 19. This court has no jurisdiction to determine any disputes that centre on ownership, occupation and use of land. It is also trite law that the probate court only deals with distribution of ascertained assets belonging to the deceased’s estate and that any prima facie claims must be first determined before this court sitting as a probate court can be seized of the matter. Therefore, this dispute is better placed for hearing and determination on the issue of ownership in the Environment Land Court.” This court is therefore convinced that the land parcel Mitaboni/ Mutituni/2381 currently registered in the names of Lengesi Kimbo, Ngila Kimbo, Nzuki Kimbo, Kiilu Kimbo and Ndavi Kimbo each holding 1/5 share does not form part of the Estate of the Ndunda Ndonye Mbiti (Deceased), a grandfather or Ndunda Ndonye (Deceased) father to the current Petitioner herein, thus the current Petitioner Dominic Musyimi Ndunda cannot claim any share on it. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14329/eng@2025-03-03 3

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B. Whether the Grant Made on 23/2/2015 Ought to be Revoked. 20. The Petitioner annexed to the Replying Affidavits Orders issued on 13/2/2013 by Justice A. Makhandia, J citing Musyoki Kiilu to petition for letters of administration in regards to the Estates of deceased persons in the consolidated petitions. However, this court noted that the Petitioner did not provide any proof of service of the said Orders upon Musyoki Kiilu. The Petitioner would have been expected to go a step ahead and confirm that indeed the Orders were served and received or declined by the said Musyoki Kiilu. 21. For the above reason alone, this court is convinced that the grant was obtained by making false statement or concealment from the court of material facts. Further, from the evidence, the Petitioner is not closely related to any of the deceased persons in the consolidated petitions and cannot be considered as a rightful beneficiary under the law of Succession. 22. The upshot is that the of Grant of letters of administration made herein on 23/2/2015 to the Petitioner/Respondent is hereby revoked. 23. That each party meets their own costs of this application. 24. It is hereby so ordered. RULING DATED & SIGNED AT MACHAKOS THIS 3RD MARCH, 2025. DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 3RD MARCH, 2025. NOEL I. ADAGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14329/eng@2025-03-03 4

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