[2017] KEHC 7136 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

SUCCESSIONCAUSE NO. 122 OF 2014

In the Matter of the Estate of MUGAMBI M’MUTHIGE

alias M’MUGAMBI M’MUTHIGE (DECEASED)

FREDRICK GITUMA MUGAMBI.......................PROTESTOR

AND

1. ROSALINE MWENDWA MUGAMBI

2. PETER MWITHI MUGAMBI....................PETITIONERS

JUDGMENT

1. Ezekiel M’Mugambi M’Muthige (“the deceased”) died on 16th August,2002. He was survived by various beneficiaries and left behind several properties. On 25th March, 2014, Rosaline Mwendwa Mugambi and Peter Mwiti Mugambi being daughter and son of the deceased, respectively, (hereinafter “the Petitioners”) petitioned for Letters of Administrationin testate for the estate of the deceased.The grant wasissued to them on 10th June, 2014 whereupon they applied for confirmation thereof on 29th September, 2015.

2. That application was first objected to by Eliud Mugambi, whocontended that, as son of the deceased, the proposed distribution had discriminated upon him since he had been given the least share compared to the others.Consequently, it would seem that the family once again met and reviewed the mode of distribution and by an agreement dated 12th July,2015 and filed in court on 26th July, 2016, all the beneficiaries, save for Fredrick Gituma Mugambi (“the Protestor”), agreed on a fresh mode of distribution.

3. Pursuant thereto, on 2nd November, 2016, the Protestor filed his Protest against the fresh mode of distribution.In that Protest, he singled out three (3) properties as his basis of disagreement.He contended that he should get two (2)acres in Nyaki Thuura/1858 (“Plot 1858”) and that Eliud Mugambi should get nothing; that Plot No. 4 Chugu/Kirwiro Market (“Plot No. 4”) should be distributed to him wholly and that the shares in Co-operative Bank of Kenya Limited should be shared between him and Eunice Njiru Mugambi, the widow jointly.

4. The Petitioners opposed the Protest.They contended that the deceased had two (2) households; that the Protestor is the onlyone who was not agreeable with the rest of the family and had refused to attend the family meetings that had settled the distribution.; that there was no basis for denying Eliud Mugambi a share in Plot 1858; that Plot No. 4 belonged to the deceased who had given the Protestor half a share thereon; that it had been agreed that the shares in the Co-operative Bank be given to the widow as she was still alive. According tothe Petitioners, the proposed distribution was equitable.

5. At the hearing, the Protestor testified in support of his Protest but called no other witness.He told the court that thedeceased had two households; that the deceased in 1978 divided Plot 1858 to him and his brother Julius Murithi equally and the two have been cultivating it to-date; that Eliud Mugambi was supposed to get his share in Kiirua/Ruiri/6031and not in Plot 1858; that he, the Protestor, had purchased Plot No. 4 jointly with the deceased.He concluded that hewas the second next of kin in the shares with Co-operativeBank but the Petitioners had changed the names of the next of kin to the widow without his consent. He insisted that he wanted tohave a total of three (3) acres distributed to him.

6. PW1 was Rosaline Mwendwa, the 1st Petitioner.She told theCourt that the Protester had been invited family meetings toagree on distribution but he had declined the invitation; that Plot 1858 had been given to the Protestor in 1978 to becultivating pending the rest of the beneficiaries becoming of age; that it isthe deceased himself who had appointed thewidow (the 2nd wife) as next of kin in the Co-operative Bank shares in 2000 after the demise of the 1st wife (the mother tothe 1st Petitioner and the Protestor); that Plot No. 4was purchased by the deceased who gave the Protestor a half share thereof;that Plot 366 was the matrimonial home. P2W1Peter Mwiti, adopted the evidence of PW1.

7. PW3 was Julius Murithi.He told the Court that he is a son of the deceased.That in 1978 he was in Form 3 when his father divided Plot 1858 into three (3) portions, one for the Protestor,one for himself (PW3) and a 3rd portion for the daughters;that the rest of the children of the deceased were at the timevery young. He confirmed that is for that reason that no one had constructed any residence on Plot 1858.

8. After considering the affidavits on record and the testimoniesof the witnesses, the issues for determination are; whether the deceased had settled any of his immoveable properties; whether Plot No. 4Chugu/Kirwiro/Market is part of theestate of the deceased and therefore available for distribution and how the estate should be distributed.

9. From the evidence on record, the assets constituting the estatewere agreed upon and identified as follows:-

(a) Nyaki/Thuura/237

(b) Nyaki/Thuura/1858

(c) Nyaki/Mulathankari/366

(d) Ruiri/Rwarera/2585

(e) Plot No. 04 Chugu/Kirwiro Market

(f) Kiirua/Ruiri/6031

(g) Shares with Co-operative Bank

(h) Isiolo Plaza

10. It was also not in dispute that the deceased had twohouseholds as follows:-

(a)1st House

(i) Loice Gaceri (deceased)

(ii)Eliud Mugambi

(iii) David Karithia Mugambi

(iv) Fredrick Gituma Mugambi

(v) John Muteria (deceased)

(vi) Rebecca Kanyore Mugambi

(vii) Gladys Makena Mugambi

(viii) Mary Karwirwa Mugambi

(ix) Susan (deceased)

(x) Roselyne Mwendwa Mugambi

(b) 2nd House

(i) Eunice Njiru (widow)

(ii) Julius Murithi Mugambi

(iii) Peter Mwiti Mugambi

John Muteria and Susan are deceased and they left behind Purity Kendi and Hilary Ncebere who are also included as dependants and are provided for in the proposed distribution.

11. The Protestor testified that during his lifetime, the deceased had divided Plot 1858 equally between him and Julius Murithi Mugambi (PW3); that he had been cultivating two (2) acres thereon since 1978 to-date and that Julius took possession of his portion later on and started cultivating it; that in the circumstances, Plot 1858 was not available for distribution. The Petitioners and PW3 contradicted theProtestor and testified that, the Protestor had been given part of Plot 1858 to be cultivating only pending the other siblings growing up.

12. This court has considered the testimonies of the witnesses whom it keenly observed.It was not disputed that in 1978, the deceased showed the Protestor a portion of Plot 1858 to be cultivating.He alsoshowed Julius Murithi (PW3) his portion on that Plot likewise to be cultivating.However, there was dispute as to whether Plot 1858 was divided into two orthree portions.PW3 told the court that the deceased divided Plot1858 into 3 portions, a portion for the Protestor, a portion for PW3 and a 3rd portion for the sisters.He was firm that the division was temporary as therest of the children of thedeceased were very young at that time.Indeed most of them were still in school with both the Petitioners being in class three (3) at the time.

13. The division is said to have been in 1978. The deceased diedfourteen (14) years later.There is no evidence to show that thedeceased showed any of his other children, who areexpected to have matured by the time of his demise, any other property for eitheroccupation or cultivation.It is expected that if the deceased had intended to settle his dependants onhis property, he could have done so for the otherproperties which he did not.Fourteen (14) years after 1978 most if not all of his children were of the age of majority but he did not show or divide any property to any of them.This court tendsto believe that the deceased showed the Protestor a placeto cultivate in 1978 because he was already of age and had tofend for himself whilst the others were still growing up.I donot think that the deceased intended that theProtestor and Julius were to exclusively own the portions he had shownthem on Plot 1858. Accordingly, the deceased had not settled any ofhis immoveable properties during his lifetime.

14. The second issue is whether Plot No. 4 is available fordistribution or it exclusivelybelongs to the Protestor exclusively or is available for distribution. It was thePetitioners’ case that the said plot was bought by thedeceased who gave the Protestor a half share.The Protestor testified otherwise.He told the Court that heis the one whohad purchased the said plot and had given the deceased a portion.The Protestor stated that he had anagreement toshow that he is the one who bought the plot.However, he did not produce a copy of the same.He did not tell the court when and from whom he bought the plot.Neither did hedisclose when he allegedly gave a share to the deceased.In any event, I found his testimony contradictory. In his Affidavit of Protest sworn on 29th September, 2016, he stated:-

“That Plot No. 4 CHUGU/KIRWIRO MARKET should go to me alone as I had bought it and invited my deceased father as a joint owner.”(Emphasis added)

In his testimony in court, he stated on oath;-

“Plot No. 4 Chugu/Kirwiro Market was purchased by me jointly with the deceased.I had an agreement to show this but I left it at home.”

15. On the foregoing, it is not clear whether the Protestor purchased Plot No. 4 jointly with the deceased or he purchased it first, then invited the deceased to own it jointly with him.As regards the existenceof an agreement to prove that fact, the Petitioner could not claim to have left it at home and rely on it. He was aware that he was coming tocourt to prove his Protest and that to prove that he had bought Plot No. 4, a copy of the sale agreement would berequired.Nevertheless, he decided not to carry it.He did not even exhibit it in his Affidavit of Protest that was filed in courtin November, 2016. For that reason, this Court finds it difficult to believe of its existence and if it exists, by virtue of Section 112 of the Evidence Act Cap 80 Laws of Kenya,the court makes an inference that if produced, it would not have been in favour of the Protestor.What is not in issuehowever, is the half share on that plot. It belongs to the Protestor having been given to him by the deceased duringhis lifetime. The balance thereof is free and available fordistribution.This Court so finds.

16. As regards the shares in the Co-operative Bank of Kenya Limited, the evidence on record shows that the deceased had changed the names of the next of kin from his first wife after her demise in 2000, to his second wife, Eunice Njiru M’Mugambi.The Protestor was unable to show how thename of the widow was wrongly inserted as the next of kin.He alleged that some brother-in-laws, whose names he did not disclose, made the deceased thumb print some documents and remove the Protestor as the next of kin.He never told the court where and when this wrongful thumb printing was allegedly done.To this court’s mind, the allegations were unfounded and the change of name of the next of kin must have been properly effected by the deceased during his lifetime.If it had been wrongfully effected as alleged by the Protestor, there is no evidence that either the deceased or the Protestor protested or challenged that fact.In any event, I find those shares to be moveable property which by law should devolve to the widow of the deceased without much ado (see Section 35 of the Law of Succession Act, Cap 160, Laws of Kenya).

17. In view of the foregoing, how should the estate be distributed? I have looked at the proposed distribution. The same has maintained the principle of equity.The male children ofthe deceased have been given as nearly as possible equal shares amongst themselves.The same principle has been maintained in respect of the other beneficiaries/dependents.The distribution on all the other properties was not contested save for Plot 1858 and Plot No. 04. As regards Plot 1858, Inote that the Petitioners have distributed four (4) acres.The Certificate of Search on recorddated 10th March, 2014 shows that the area for that property is approximately 0. 97 Hactare (2. 3959 Acres). Since the intention was to distribute that property equally amongst the named beneficiaries, I will retain that formula. All the rest of the distribution is retained asproposed by the beneficiaries.

18. Accordingly, the estate will be distributed as follows:-

SCHEDULE

PROPERTY DESCRIPTIONNO. OF SHARES

NYAKI/THUURA/237

1. Peter Mwiti Mugambi …1 Acre

2. David Kairithia M’Mugambi … 1 Acre

3. Hillary Ncebere..……………... ½ Acre

NYAKI/THUURA/1858

1. Julius Murithi Mugambi ………}

2. Eliud Mugambi ….………………} Equal Shares

3. Fredrick Gituma Mugambi ……}

4. Eunice Njiru M’Mugambi………}

NYAKI/MULATHANKARI/366

1. Peter Mwiti Mugambi ……………1 Acre

2. Julius Murithi Mugambi ……….1 Acre

3. David Kairithia M’Mugambi …...1 Acre

4. Eliud Mugambi ……………....1 Acre

5. Fredrick Gituma Mugambi …….1 Acre

6. Euncie Njiru Mugambi ……………..¼ Acre

7. Monica Makandi Mugambi …………¼ Acre

8. Rosaline Mwendwa Mugambi ………¼ Acre

9. Mary Karwirwa Mugambi ……………¼ Acre

10. Gladys Makena …………………….¼ Acre

11. Rebecca Kanyore Mugambi ………….¼ Acre

RUIRI/RWARERA/2585 ADJUDICATION SECTION

1. Purity Kendi ……………………………..1 Acre

2. Elizabeth Mukomunene Mugambi…. 1 Acre

PLOT NO. 04 CHUGU/KIRWIRO MARKET

1. Fredrick Gituma Mugambi ……………….)

2. Julius Muriithi Mugambi …………………. )Equal Shares

KIIRUA/RUIRI/6031

1. Peter Mwiti Mugambi ……………………½ Acre

2. David Kairithia M’Mugambi …………….½ Acre

SHARES WITH CO-OPERATIVE BANK OF KENYA LIMITED

Eunice Njiru Mugambi … Whole

ISIOLO PLAZA

David Kairithia M’Mugambi …Whole

It is so decreed.

DATED AND DELIVERED AT MERU THIS 16TH DAY OF MARCH, 2017.

A. MABEYA

JUDGE