[2017] KEHC 2646 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

IN THE MATTER OF ESTATE OF NAOMI WANJIRU NGAREGA (DECEASED)

HIGH COURT CIVIL APPEAL NO. 151 OF 2016

BETH WANJIKU KAMAU……………………………..………APPELLANT

VERSUS

PETER NJOROGE WANJIRU……………...…………1STRESPONDENT

JOYCE WAITHERERO WANJIRU………...…..……..2NDRESPONDENT

(Being an appeal from the Judgement and Certificate of Confirmation of grant of Honourable M. W. Mutuku Ag Principal Magistrate, delivered on 16thOctober 2015 in Succession Cause No. 72 of 2013 - Thika)

JUDGMENT

1. This is an appeal from the judgment and certificate of confirmation of a grant delivered on 16/10/13 by Honourable M. N. Mutuku ( Senior Principal Magistrate) in succession cause No. 72 of 2013-Thika in the matter of the estate of Naomi Wanjiru Ngarega (deceased).

2. The Appellant herein, Beth Wanjiku Kamau, filled this appeal and raised the following grounds:

a) The Trial Magistrate erred in law and fact in failing to appreciate that the Deceased died intestate and that the applicable law that deals with distribution of the estate in this cause is Section 40 of the Law of Succession Act Cap 160 Laws of Kenya.

b) The trial magistrate erred in law and in fact by failing to distribute the estate of the deceased equally among the three children of the deceased, in clear contravention of the provision of the law of Succession Act Cap 160 Laws of Kenya.

c) The trial magistrate erred in law and in fact in favouring the son of the deceased by allocating him larger share of the deceased’s estate contrary to Article 27(4) of the Constitution of Kenya, which clearly prohibits discrimination on grounds of sex among other forms of discrimination.

d) The trial magistrate erred in law and in fact in distributing land parcel No. Loc. 16/Kimandi Wanyaga/466 to the appellant and 2nd respondent knowing very well that land parcel No. LOC. 16/Kimandi Wanyaga/466 does not form part of the deceased’s estate.

e) The trial magistrate erred in law and in fact in disregarding the evidence tendered by the appellant and thus making a wrong holding and/or judgment.

f) The trial magistrate failed to take into consideration the acreage of the deceased’s assets and therefore, rendered the wrong decision.

g) The trial magistrate erred in law and fact in making a finding and or holding contrary to the weight of evidence.

h) The trial magistrate erred in law and fact by relying on irrelevant matters which led to a wrong conclusion.

3. The Appellant and the 1st Respondent agreed to file their written submissions. The 2nd Respondent conceded the appeal vide consent filed in court on 14/2/2017.

4. The Appellant through her counsel outlined the background of the succession cause. Counsel listed all the 3 beneficiaries as Peter Njoroge Wanjiru, Beth Wanjiku Kamau and Joyce Waitherero Wanjiru. The real estate assets available for distribution are:

i. Loc.16/Kimandi Wanyaga/760 (hereinafter ?Parcel No. 760?);

ii. Loc.16/Kimandi Wanyaga/764 (hereinafter ?Parcel No. 764?);

iii. Loc.16/Kimandi Wanyaga/765 (hereinafter ?Parcel No. 765?);

iv. Loc.16/Kimandi Wanyaga/766(hereinafter ?Parcel No. 766?)

v. There is also Loc.16/Kimandi Wanyaga/466 (hereinafter ?Parcel No. 466?) where there appears to be some doubt as to whether it forms part of the Deceased’s estate.

5. All was well until the matter came up for Confirmation of Grant when the 1st Respondent filed a protest. The Appellant and the 2nd respondent had their own proposal on the mode of distribution while the 1st Respondent had his own proposal. After taking in viva voce evidence, the Court decided on its own mode of distribution

6. The proposed and the summarized as follows in courts decision. actual mode of distribution can be regard to how each party proposed and

Loc.16/Kimandi Wanyaga/760APPELLANT 1ST RESPONDENT COURT

Peter Njoroge Wanjiru 2/3 share 2/3

Beth Wanjiku Kamau ½ of 1/3

Joyce Waitherero Wanjiru SOLELY ½ of 1/3 1/3

Loc.16/Kimandi Wanyaga/764APPELLANT 1ST RESPONDENT COURT

Peter Njoroge Wanjiru

Beth Wanjiku Kamau SOLELY ½ share SOLELY

Joyce Waitherero Wanjiru ½ share

Loc.16/Kimandi Wanyaga/765APPELLANT 1ST RESPONDENT COURT

Peter Njoroge Wanjiru SOLELY SOLELY SOLELY

Beth Wanjiku Kamau

Joyce Waitherero Wanjiru

Loc.16/Kimandi Wanyaga/766APPELLANT 1ST RESPONDENT COURT

Peter Njoroge Wanjiru 2. acres

SOLELY

SOLELY

Beth Wanjiku Kamau 1. 5 acres

Joyce Waitherero Wanjiru 1 acre

Loc.16/Kimandi Wanyaga/466APPELLANT 1ST RESPONDENT COURT

Peter Njoroge Wanjiru

Beth Wanjiku Kamau ½

Joyce Waitherero Wanjiru ½

7. Counsel for the Appellant submitted that the applicable provision of law that deals with distribution of the estate in this cause is section 38 of the law of Succession Act which provides that where the intestate has left surviving children, the estate should be divided equally among the surviving children and section 42 on how to treat previous benefits to a beneficiary. That section stipulates as follows:

Previous benefits to be brought into account

Where—

(a) an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or

(b) property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35 of this Act, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.

8. The Appellant complains that the 1st Respondent has been unduly favoured by the trial court against the daughters which amounted to discrimination. She cited Article 27(4) of the Constitutionof Kenya and the decisional law inCicily WawiraMbugua vs Lydia Kuthii Magondu (2015) eKLR.

9. Counsel submits that land parcel No. Loc.16/Kimandi Wanyaga/466 does not belong to the estate of the deceased hence should not have been the subject of distribution since it is registered in the names of the 1st Respondent and one Manasses Kuria.

10. The Appellant resists the idea that parcel No. Loc.16/Kimandi Wanyaga/766 was bequeathed to the 1st Respondent by the Deceased during her lifetime. She pointed out to the court that that only 2000 tea bushes had been transferred to the 1st Respondent by the deceased so he must have misrepresented himself to the officers to have them transfer 6000 tea bushes after the death of the deceased. In any event, she points out that transfer of tea bushes is separate from the transfer of property.

11. The Appellant submitted that just as the Appellant and the 2nd Respondent had benefited from title nos. 762 and 763, the 1st Respondent had also benefited from title no. 761 which is also not subject to this distribution. Therefore, the Appellant argues that to bequeathe parcel No. Loc.16/Kimandi Wanyaga/766 solely based on the argument that the daughters had benefitted from the parcels nos. 762 and 763 argument would amount to injustice.

12. Counsel also submitted that the 1st Respondent had benefited from motor vehicle KAE 139B and shares at MC, BBK, KCB and ICDC which the Court did not take into account – but does not seriously pursue this line.

13. It was the Appellant’s submissions that the 1st respondent got the biggest share of the deceased estate thus occasioning great injustice to the other beneficiaries.

14. The 1st Respondent through his counsel filed his submissions. He stated that the trial court treated this case as intestate and that he was not given a larger share bearing in mind all the circumstances and the evidence on record.

15. Counsel submitted that No. Loc.16/Kimandi Wanyaga/765 was properly distributed as consented. He also submitted that parcel No. Loc.16/Kimandi Wanyaga/760 was also properly distributed to the 1st Respondent and the 2nd Respondent as Beth had renounced her share to her sister. Further, that court took notice of the fact that the sisters had benefitted from land parcels nos. 762 and 763.

16. In regard to title no. 766, counsel submitted that it was proper that the 1st Respondent was granted sole ownership as he had built his matrimonial home and that the deceased always stated that the parcel of land belonged to the 1st respondent. Also because the 1st respondent had developed the land and had refunded a debt owed by the deceased of Kshs. 85,000/= to Samuel Mwangi who wanted 1 acre of that land.

17. Lastly, in regard to title no. 466, they argued that it was part of the estate as the 1stRespondent only held it in trust for the deceased and was willing to transfer it to his two sisters.

18. The 1st Respondent relied on the case of Johannes MbuguaMuchuku vs Lois Wangui Muchuku & 6 others (2016) eKLRand Rose Kuthii Weru vs Mercy Koina (2015) eKLR where both cases emphasis that parcels of land given in the lifetime of the deceased are to be taken into account during distribution of the deceased’s estate.

19. The duty of the 1st appellate court was explained in the case of SELLE AND ANOTHER VERSUS ASSOCIATED MOTOR BOAT COMPANY LTD & OTHERS [1968] EA 123,where it was observed thus:-

“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusion. Though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial Judges findings of fact if it appears either that he has clearly failed in some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence on the case generally”

20. Section 38 of the Law of Succession Act provides that:-

''Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.''

21. The applicability of section 38 of the law of succession act was discussed in the case of CHRISTINE WANGARIGACHIGI VS ELIZABETH WANJIRA EVANS & 11 OTHERS [2014] eKLR.

22. Section 42 of the Law of Succession Act provides that;

Where—

(a) an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or

(b) property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35 of this Act, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.

23. The main issue presented by on this appeal is whether the mode of distribution proposed by the Learned Magistrate is fair and equitable. To come to the correct view of that the following sub-issues will need to be determined:

i. First, was it established in evidence that the Deceased gave parcels Nos. 762 and 763 to the Appellant and 2nd Respondent respectively?

ii. Second, was there evidence on record that the Deceased gave parcel No. 761 to the 1st Respondent?

iii. Third, was it established in evidence that Parcel No. 766 was given to the 1st Respondent and are there other factors which militate in favour of solely transmitting the parcel to the 1st Respondent?

iv. Fourth, was Parcel No. 466 part of the estate of the Deceased and therefore available for distribution by the beneficiaries?

24. In my view, it is important to come the correct view of these questions before one determine how the distribution should be done. This is because one must have a global view of what is available for distribution in order to determine the fairest mode of distribution. To this extent, it is important to point out that proceeding with distribution on an asset by asset basis juxtaposing what the different beneficiaries have proposed against each other is likely to lead into error because it denies the Court the global view which is needed to ensure that the overall distribution is fair and equitable. In my view this is what happened here. The Learned Magistrate ended up determining the mode of distribution by looking at the different proposals by the parties and lost sight of the provisions of Section 42 of the Law of Succession Act.

25. On my part, I propose to start by determining the extent of the Deceased’s estate. In this regard, I would make the following three findings:

i. First, all the shares at MC, BBK, KCB and ICDC were once part of the estate of the Deceased but there appears to be little contestation that the Deceased transferred them to the 1st Respondent during her lifetime. They are, therefore not available for distribution although this will be taken into account.

ii. The cash in the Deceased’s Account at the Bank of Baroda is part of the estate of the Deceased and is available for distribution. There does not appear to be any dispute that the monies therein should be equally divided among the three beneficiaries.

iii. Third, there appears to be enough evidence to show that the Motor Vehicle had long outlived its shell life but that it was given to the 1st Respondent during the Deceased’s lifetime. It should, thus, not be part of the estate for purposes of distribution but this will be taken into account in distributing the assets of the estate.

iv. Fourth, the Trial Magistrate was correct to hold that Parcel No. Loc.16/Kimandi Wanyaga/466 is part of the estate of the Deceased and is, therefore, available for distribution. Indeed, it is a little jarring to hear the Appellant’s counsel arguing that it should not be available for distribution considering the viva voce evidence by his client in the lower Court where she proposed that it should be divided among all the three beneficiaries. In any event, the two persons in whose names the parcel is registered have come out clearly and indicated that they only hold the title in trust for the estate of the Deceased. It is quite odd that Appellant’s lawyer proposes that the Court goes behind this and declare that it is not part of the estate of the Deceased.

In any event, the Appellant states in her Replying Affidavit sworn on 23/05/2014 that this parcel should be part of the estate of the Deceased (see paragraph 9 of that affidavit). It is, therefore, my holding that parcel No. Loc.16/Kimandi Wanyaga/466 is part of the estate and will be available for distribution.

26. Having come to the above conclusions, therefore, it follows that the distribution of the following assets remains disputed:

i. Parcel No. Loc.16/Kimandi Wanyaga/760

ii. Parcel No. Loc.16/Kimandi Wanyaga/764

iii. Parcel No. Loc.16/Kimandi Wanyaga/765

iv. Parcel No. Loc.16/Kimandi Wanyaga/766

v. Parcel No. Loc.16/Kimandi Wanyaga/466

27. Before deciding on the mode of distribution, it is imperative that we return to the four sub-issues raised in paragraph 23- above. First, there is need to determine if there evidence that Parcels Nos. 762, 763 and 761 were given to the Appellant, the 2nd Respondent and the 1st Respondent respectively during the lifetime of the Deceased. The parties agree that Parcels Nos. 762 and 763 were so given to the Appellant and the 2nd Respondent and the 1st Respondent uses that as the argument to defend the Trial Court’s decision to give him a bigger portion of the remaining assets. However, in her Replying Affidavit sworn on 23/05/2014 at paragraph 6, the Appellant depones that the Deceased owned Parcels Nos. 761, 762 and 763 and that she gave out to each of the three children one parcel each. Hence, just as the Appellant and the 2nd Respondent benefitted from Parcels Nos 762 and 763, so did the 1st Respondent benefit from Parcel No. 761.

28. The 1st Respondent does not dispute this allegation at all. Indeed, he has remained silent on it throughout the proceedings. To my mind, this unrebutted and unchallenged averment is taken as proven especially considered the contextual evidence of the sketch map availed to the Court which shows the proximity of the three parcels.

29. The conclusion, then, is that all the three beneficiaries benefitted from one parcel of land of roughly equal value during their mother’s lifetime.

30. This brings me to the question whether the Deceased gave Parcel No. 766 to the 1st Respondent and whether that fact, in addition to him paying Kshs. 85,000/= to Samuel Mwangi Kamau entitles him to that parcel. The 1st Respondent called at least one witness who testified that the Deceased had given Parcel No. 766 to him during her lifetime.

That witness was Ezekiel Njuguna Kuria. It is important to capture exactly what he said in his testimony. He said thus:

When Naomi Wanjiru (Deceased) was alive, she also acquired [Parcel No.) 466. She would state that the matrimonial home belonged to herself and her son, and that her daughter[s] would inherit [the] 2 acres. She also had plots and gave each of her children.

31. I note that this witness does not positively say that the Deceased had given Parcel No. 766 to the 1st Respondent. The language used is much more diffuse: that the Deceased said that the ?matrimonial home belonged to herself and her son.?

It is not clear whether this was a statement of intention to bequeath the land to the 1st Respondent. In any event, there is no evidence whatsoever that the Deceased intended an inter vivos transfer of the parcel or that she, in fact, transferred the land inter vivos. Neither is there evidence that she intended to customarily transmit the property to her son. This is because the customary rituals or rites for such a transfer were not carried out. Indeed, the 1st Respondent does not even make the claim that this was attempted or intended.

32. What about the fact that the 1st Respondent paid Samuel Mwangi Kamau Kshs. 85,000/= which the Deceased had borrowed from him in the promise that she would sell to him part of Parcel No. 766? First, it is my express finding that the 1st Respondent has sufficiently established that he paid this amount to Samuel Mwangi Kamau. Both the documentary evidence adduced as well as the unchallenged testimony of Samuel Mwangi Kamau establish this fact unmistakably. The only question is whether this entitles the 1st Respondent to the parcel of land. I do not think so. At most, this would qualify as a debt to the estate which the 1st Respondent should be repaid. However, I do not find that it is a debt that is payable. This is because I have noted that the loan to the Deceased was actually to repair her Motor Vehicle Registration No. KAE 139B. This Motor Vehicle was later given to the 1st Respondent by the Deceased. We do not know the true value of the Motor Vehicle – but I would venture to suggest that its value was in excess of Kshs. 85,000/= especially considering that the 1st Respondent, by his own admission, used the vehicle until 2004 – that is more than 4 years. It would be, therefore, fair and equitable to balance the Kshs. 85,000/= he paid Samuel Mwangi Kamau with the value of the Motor Vehicle since section 42 requires the Court to take into account any property given during the lifetime of the Deceased.

33. The only other evidence that the 1st Respondent adduced in an attempt to show that Parcel No. 766 was given to him by the Deceased is the documentary evidence which show that 2,000 tea bushes were transferred to him by the Deceased.

However, there is evidence to show that after the death of the Deceased he ended up transferring 6,000 tea bushes to himself raising the question whether the Deceased truly intended him to inherit the whole portion of land.

34. In addition, it would appear that where the Deceased intended to give property to any of her children, she actually transferred it. This is what she did with Parcels Nos 761-763. Why, then, did she not transfer this parcel to the 1st Respondent as he had done for the other parcels she intended to bequeathe during her lifetime?

35. The conclusion from this analysis is that the 1st Respondent has not been able to establish, on balance, that Parcel No. 766 was given to him by the Deceased and that it should be solely awarded to him.

36. Having established this, and since all the three beneficiaries agree that Parcel No. 760 has been, with the acquiescence of each other, developed by the 1st Respondent (to the tune of two thirds) and the 2nd Respondent (to the tune of one third) and since Parcels Nos 760, 764 and 765 are of equal acreage, and bearing in mind that inheritance is not meant to be equal but equitable (see Madris Mukwambiro Muchiri & 2 others v Njeru Muchiri [2016] eKLR),the following distribution recommends itself to me:

Description of Property

Name and share of Heir

Parcel No. Loc.16/Kimandi

Peter Njoroge Wanjiru – 2/3

Wanyaga/760

Joyce Waitherero Wanjiru–1/3

Parcel No. Loc.16/Kimandi

Beth Wanja Kamau (Solely)

Wanyaga/764

Parcel No. Loc.16/Kimandi

Peter Njoroge Wanjiru – 1/3

Wanyaga/765

Joyce Waitherero Wanjiru–2/3

Parcel No. Loc.16/Kimandi

Peter Njoroge Wanjiru – 1/3

Wanyaga/766

JoyceWaithereroWanjiru–1/3

Beth Wanja Kamau – 1/3

Parcel No. Loc.16/Kimandi

Peter Njoroge Wanjiru – 1/3

Wanyaga/466

Joyce Waitherero Wanjiru–1/3

Beth Wanja Kamau – 1/3

Cash in Bank of Baroda

To be divided equally among the three heirs

37. The result, then, is that the appeal has succeeded in part. Each party will, therefore, bear its own costs in the appeal.

Orders accordingly.

Dated and delivered at Kiambu this 12thday of October, 2017.

……………………………………

JOEL NGUGI

JUDGE