[2017] KEHC 2068 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

SUCCESSION CAUSE NO. 335 OF 2008

IN THE MATTER OF THE ESTATE OF ELISHA NDIRANGU

KAHIGA ALIAS ELISHA NDIRANGU (DECEASED)

ELISHA KAHIGA NDIRANGU..................................APPLICANT

VERSUS

ROBERT KAHIGA NDIRANGU.............................PROTESTOR

RULING

1. The estate relates to the late Elisha Ndirangu Kahiga alias Elisha Ndirangu (deceased) who died on the 25th June, 2005; the identifiable properties comprising the estate of the deceased are the land parcel numbers listed hereunder;

(i) Nyandarua/Ndaragwa/ Block 1 (Kahutha) 134

(ii) Nyandarua/Ndaragwa/ Block 1/Kahutha/28

(iii) Gituamba/Mohotetu Block 2-1665

(iv) Gituamba/Mohotetu Block 2-357

(v) Tetu/Thatha 491

(vi) Tetu/Thatha 492

(vii) Tetu/Thatha 493

(viii) Tetu/Thatha 494

(ix) Plot No. 4 Njoguini

(x) Cash at KCB Nyeri Branch and Consolidated Bank of Kenya

(xi) Shares in the following Companies; Kenya Airways, KCB Ltd, ICDC, East African Breweries Ltd, Gathuthi Tea Factory, Muhotetu Farmers Co. Ltd, Kahutha Young Producers Ltd, Ihururu Dairy Men’s Co-op Society Ltd, Pyrethrum Board of Kenya, Nyamothe Company, Kedong Ranch.

2. The deceased died testate and at the time of his demise he left eight children surviving him namely;

(i) Robert Kahiga Ndirangu

(ii) Elisha Kahiga Ndirangu (Muriungu)

(iii) Robert Karuru Ndirangu (Kanyugo)

(iv) Amos Muriithi Ndirangu

(v) Loise Mbocha Ndirangu

(vi) Rose Wangui Ndirangu

(vii) John Murango Ndirangu

3. On the 30/06/2008 the petitioner under the mistaken belief that the deceased had died intestate initiated this cause by way of Citation whereby he cited the protestor for refusing to give his Consent to facilitate the taking out of Letters of Administration;

4. Subsequent thereto it was discovered that the deceased had died Testate but the Executor named in the WILL died before the estate was committed to him for distribution; on the 6th September, 2011 the petitioner sought and obtained leave of the Court for the appointment of an executor of the Written Will of the deceased; and on the 11th June 2012 a Grant of Letters of Administration was issued to both the petitioner and the protestor.

5. On the 9th December, 2013 the petitioner proceeded to file Summons for Confirmation of the Grant and proposed that the distribution of the properties be as set out in his late father’s WILL;

6. The protestor filed an Affidavit of Protest on the 20th January, 2015 and therein challenged the validity of the WILL; he proposed that the estate be distributed by himself and the clan elders in accordance with his late fathers Will; and contended that the Original WILL was the one annexed to the Affidavit of Protest and that Petitioner’s copy of the will and the CODICIL annexed thereto were forgeries;

7. Directions were taken on the 18th April, 2016 that the matter proceed for hearing and that ‘viva voce’ evidence be tendered; that witness statements be filed and exchanged; the matter proceeded for full hearing and all the concerned parties gave evidence and were subjected to cross-examination; hereunder is a summary of the evidence tendered by the respective parties.

THE PROTESTORS’ CASE

8. The protestor confirmed that he is a co-executor of the deceased’s estate; he contends that the signatures on the Will and Codicil are both forged; and his evidence was that the Will was written in English but the deceased was illiterate and was not conversant in either English, Swahili or in any other language; that the Will does not bear a Certificate of translation to confirm that the contents were read back to the deceased in a language he understood and that he had understood the contents before he executed it;

9. That the signatories to the will were both employees of the advocate who drew up the Will and that their signatures were not appended to each and every page of the Will; that a relative ought to have been present or been one of the signatories;

10. He further contends that the Codicil was not valid and that it had been drawn by the petitioner; that it ought to have been addressed and written to the executor of the Will and not to one Peter Thumbi Gitahi; that the Codicil is also attested by only one signatory who is also an heir and beneficiary, namely Robert;

11. That the application for Confirmation of the Grant dated 29th March, 2010 filed by the petitioner proposes a mode of distribution different to that which is outlined in the WILL;

12. That there are various properties that have been left out and that the petitioner had purposed to give Robert Kanyugo (who shall hereinafter referred to as ‘Robert’) the lions’ share of the deceaseds property;

13. He goes on to accuse his brother Robert and the petitioner of disposing of the deceased’s property in the form of land and livestock in the form of cows, sheep and goats; that the WILL had directed that the proceeds of the sales of the livestock were to have been deposited into a bank account; that the two failed to share these proceeds together with the cash at bank in the sum of Kshs.600,000/-; that the petitioner and the other beneficiaries had all along been utilizing their fathers wealth without sharing any of it with him and he therefore seeks compensation;

14. He therefore prayed that the WILL be disregarded and that he be allowed to distribute the estate with the help of elders of the clan; and that the petitioner be condemned to pay the costs herein.

THE RESPONDENTS CASE

15. The petitioners’ evidence in response was that the deceased left a WILL but the executor died before Probate was granted; that on the 11th June 2012 the petitioner and the protestor were jointly appointed as the executors of the WILL.

16. That the protestor’s contention is that the deceased left no WILL and that the WILL made in 1995 was a forgery; but he had provided no evidence to support this contention;

17. He submitted that the Will was in conformity with the provisions of Section 5 of the Law of Succession; and that capacity was not contested; as for attestation by two signatories this also was complied with as mandated by Section 11 of the Law of Succession Act; the Will is signed by the Testator and two witnesses as required;

18. That the bone of contention was really that that there had been unfair distribution of the deceased’s property in the Will and that other persons who were not children of the deceased namely the grandsons and the daughters in law had been included in the WILL; but the testator was free to bequeath his property in any manner he deemed fit provided it was not for an illegal purpose;

19. That it should be noted that out of the eight children that it was only the protestor who was contesting the WILL; and had not provided sufficient evidence to support his contentions; and that the protest be dismissed with costs.

ISSUES FOR DETERMINATION

20. After hearing the rival presentations of the respective parties this court has framed the following issues for determination;

(i) Whether the written will dated 19th April, 1995 is valid;

(ii) Distribution of the estate of the deceased.

ANALYSIS

Whether the written will is valid;

21. The deceased is said to have made a WILL and Mr Armitral Tulsidas Dharamshi Ghadialy was appointed by the deceased as the executor and trustee of his Will; unfortunately the executor who was the sole executor appointed died before the distribution of the estate was committed to him; the Petitioner applied to court for leave to be appointed as an executor and the court allowed both the petitioner and the protestor to jointly administer the estate herein.

22. The Protestor does not propose any mode of distribution in his Affidavit of Protest but attacks the validity of the WILL; on the one hand he contends that there is an Original Will which he states is the one annexed to his Affidavit of Protest but on the other hand he contradicts himself by challenging the validity of the will on the grounds that it is a forgery because his father was illiterate and was not capable of reading or writing in either English, Swahili and any the other language probably meaning in Kikuyu.

23. The applicable law on the validity of a will is found at Section 5 of the Law of Succession Act which provides that the testator must have capacity to make the Will; the only argument raised by the protestor in challenging the will relates to the illiteracy of the testator and him not being conversant with the English language that the Will was written in; and that there was no certificate of translation to show that the will was read back to the testator in a language he understood;

24. This evidence was rebutted by the petitioner who stated that their late father was an assistant chief from 1954-1973 and was a church elder from 1949; and knew how to read and write in Kikuyu and English;

25. The protestor also raised the issue of the signature of the testator being forged; and the evidence offered was illiteracy but this issue has been sufficiently dealt with hereinabove; this court is satisfied with the evidence in rebuttal and is satisfied that the testator was literate and knew how to read and write; and finds that the testator had testamentary intent;

26. The other challenge raised by the protestor was on attestation in that the will was attested by employees of the advocate who drew the will; the applicable law on attestation is found at Section 11(c) of the Law of Succession which provides that no written will shall be valid unless it is attested by two or more competent witnesses each of whom must have seen the testator sign or affix his mark to the will;

27. The protestor had the onus of tendering evidence on the incompetence of these two witnesses who attested the will; this court opines that the mere fact that they were employees of the advocate who drew the will did not render them as incompetent nor did the protestor produce any evidence on how these two stood to benefit from the will;

28. The protestor never raised the issue of mental capacity of the testator and nor was there any mention of coercion and thus this court is satisfied that the testator had testamentary capacity; and is satisfied that there are no valid grounds raised by the protestor challenging the validity of the WILL;

29. The written will is therefore found to be valid as it complies with the mandatory provisions of Section 11 of the Law of succession in that it bears the signature of the testator and was attested by two competent witnesses each of whom must have seen the testator sign or affix his mark to the will;

Distribution of the estate of the deceased

30. This court having found the written will to be valid it is still tasked with the duty of distributing the properties that constitute the estate of the deceased; the estate is found to comprise of two sets of properties; some are listed in the WILL and others were not listed in the WILL; those listed in the will are as listed hereunder and the manner of distribution as set out in the summons for confirmation is found to be in accordance with the Will; this court echoes the sentiments of the petitioner that the testator is free to bequeath his property in any manner he deems fit provided it is not for an illegal purpose; it shall therefore be distributed as per the WILLand as set out hereunder;

(i) Nyandarua/Ndaragwa/ Block 1/Kahutha/28 – to son Robert Kanyugo;

(ii) Nyandarua/Ndaragwa/ Block 1/Kahutha/134 – to daughters Rahab Wangechi wife of Ndumia and Loise Mboha wife of Kamakia in equal shares;

(iii) Tetu/Thatha 491- the son named Amos Muriithi (Ndigiriri) to get 2acres and the balance to the son named John Murango Ndirangu

(iv) Tetu/Thatha 492- to son Robert Kanyugo

(v) Tetu/Thatha 493- 1 ½ acres to the grandson Ndungu Muriungu and the balance to the son named Josiah Muriungu

(vi) Tetu/Thatha 494- to daughter Rose Wangui Ndirangu

(vii) Plot No. 4 Njoguini- to sons Josiah Muriungu, Robart Kanyugo and John Murango and daughter Rose Wangui Ndirangu in four equal undivided shares;

(viii) Cash in savings account at KCB Nyeri Branch- A/c No: [Particulars withheld]– to son Robert Kanyugo;

(ix) Cash at Consolidated Bank of Kenya Ltd – to daughter Rose Wangui, daughter in law Eunice Wanjiru and sons Amos Mureithi and John murango in four equal shares;

(x) Industrial Commercial Development Corporation- Five shares to daughter Rose Wangui and the balance to daughter in law Eunice Wanjiru;

(xi) East African Breweries Ltd- shares to son John Murango;

(xii) Gathuthi Tea Factory and Ihururu Dairy Men’s Co-op Society Ltd- shares to sons Robert Kanyugo, John Murango and daughter Rose Wangui in equal shares;

(xiii) Muhotetu Farmers Co. Ltd- comprising of 40 acres of land; 15 acres lower part to son John Murango; 5 acres lower part to daughter Rose Wangui Ndirangu; balance of 20 acres higher level to be divided equally between sons Robert Kahiga and Amos Muriithi (Ndigirigi)

(xiv) Muhotetu Farmwrs Company Ltd – shares and 72 acres to son Robert Kanyugo

(xv)Kahutha Young Producers Ltd – all the shares and land to son Robert Kanyugo

(xvi) Pyrethrum Board of Kenya- shares to Rose Wangui Ndirangu

(xvii) Nyamothe Company Ltd – the shares to sons Robert Kanyugo, John Murango and daughter Rose Wangui Ndirangu in three equal shares;

(xviii) Six (6) shares in Kedong Ranch- One (1) share to Josiah Muriungu, One (1) share to Robert Kanyugo, One (1) share to Amos Muriithi (Ndigirigi) and Three (3) shares to John Murango;

31. The properties not enumerated in the WILL shall be treated as those of a person who died intestate; from the evidence adduced it is not disputed that there is no surviving spouse therefore the provisions of Section 38 of the Law of Succession shall apply in distributing these assets; further it is not in dispute that the deceased was survived by eight children; and upon perusal of the letter from the Chief and the various consents filed herein this court is satisfied that the deceased was indeed survived by eight children;

32. The properties listed hereunder are found to be outside the WILL and shall be distributed in accordance with the provisions of Section 38 of the Law of Succession Act; that is these properties shall be divided equally among the eight surviving children of the deceased; the properties are;

(i) Gituamba/Mohotetu Block 2-1665

(ii) Gituamba/Mohotetu Block 2-357

(iii) Shares in the following Companies; Kenya Airways and Kenya Commercial Bank Ltd.

FINDINGS AND DETERMINATION

33. For the afore-going reasons this court makes the following findings;

(i) This court finds the written WILL to be valid;

(ii) The assets enumerated in the WILL shall be distributed in accordance with the mode proposed in the WILLas set out hereinabove at paragraph (30);

(iii) The assets that are not enumerated in the WILL and are as set out in paragraph (32) hereinabove shall be divided equally amongst all the children of the deceased;

(iv) The protest is found lacking in merit and it is hereby dismissed.

(v) Any beneficiary is at liberty to apply in the event of lack of co-operation;

(vi) This being a family matter each party shall bear their own costs.

It is so ordered.

Dated, Signed and Delivered at Nyeri this 5th day of October, 2017.

HON. A. MSHILA

JUDGE.