[2016] KEHC 2123 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

SUCCESSION CAUSE NO. 37 OF 2016

(FORMERLY CHUKA SPM SUCCESSION CAUSE NO. 192 OF 2010)

IN THE MATTER OF THE ESTATE OF THE LATE STANLEY NKUMA MAITI (DECEASED)

GLADYS MURUGI STANLEY.........................................PETITIONER

- VERSUS -

JUDITH MAITHA...........................................................PROTESTOR

J UD G M E N T

1. Stanley Nkuma Maiti “the deceased”, died at Chuka District Hospital on 20th September, 1998. He left behind a widow Gladys Murugi Stanley and several children. On 21st September 2010, Gladys Murugi Stanley (hereinafter “the Petitioner”) petitioned for Letters of Administration Intestate. She set out the following as the beneficiaries:-

a) Gladys Murugi Stanley

b) Willison Mbae Stanley

c) Japhet Mugambi Stanley

d) Nathaniel Muindi Stanley

e) Clifford Mundi Stanley

f) Geoffrey Gitonga Stanley

g) Nephat Kaburia Nkunda

h) Felix Gitari Stanley

i) Alfred Nyaga Stanley

j) Judith Maitha Stanley

k) Sylvia Mukwaiti Stanley

2. Further, the Petitioner set out in Form No. P&A 5 the following properties as constituting the estate:-

a) Muthambi/U.Karimba/795

b) Muthambi/U.Karimba/399

c) Muthambi/U.Karimba/834

d) Muthambi/U.Karimba/908

e) Muthambi/U.Karimba/1081

f) Muthambi/U.Karimba/251

On 9th January, 2012, the grant was issued to the Petitioner.

3. Pursuant thereto, on 6th July, 2012, the Petitioner applied for confirmation of the grant and proposed to distribute the entire estate to herself. On 18th July, 2012, Judith Maitha, a daughter of the deceased protested to the proposed distribution alleging that LR Muthambi/U.Karimba/399 had been given to her by the deceased during his life time. That she had been evicted from that property by her brothers but the Land Dispute Tribunal made an award that she remains in occupation thereof which award had been adopted by the court on 4th October, 2011.

4. On 6th March, 2013, the Petitioner filed yet another application for confirmation in which she proposed to distribute the entire estate only to the male children of the deceased and excluded the Protestor from that distribution. The Protestor once again protected vide an Affidavit filed on 6th May, 2013 on the same grounds as earlier; that LR Muthambi/U.Karimba/399 (hereinafter “plot No. 399”) belonged to her. On 30th September, 2013, the Petitioner filed a Replying Affidavit now proposing a fresh distribution, in which she allocated plot No. 399 to herself.

5. On 20th November, 2013, the parties recorded a consent distributing the entire estate leaving out plot No.399 to be litigated on. The distribution which led to partial confirmation of the grant on 25th June, 2014 was as follows:-

a) Muthambi/U.Karimba/795

i Geofrey Gitonga Stanley - 1. 0 acre

ii. Dickson Karani Mbae - 1. 6 acres

(b) Muthambi/U.Karimba/908

i. Nebat Kaburia Nkuma - 1. 6 acres

ii. Clifford Mwiandi - 0. 6 acres

(c) Muthambi/U.Karimba/834

i. Clifford Mwiandi - 1. 0 acres

ii. Alfred Nyaga - 2. 0 acres

(d) Muthambi/Lower/Karimba/1081

i. Erick Bundi - whole

(e) Muthambi/Lower/Karimba/251

i. Erick Mutembei Nyaga - 1 acre

ii. Felix Gitari Nyaga - 1 acre

6. On 5th August, 2014 the Protestor lodged a summons under Rules 25 and 59 (1) seeking the rectification of the certificate of confirmation to include plot No.399 and have the same distributed to her. Of course the Petitioner could hear none of that and she filed an Affidavit of Protest on 30th April, 2015 insisting that since she had not distributed anything to herself, plot No.399 should go to her. Directions were made and the application was heard through viva voce evidence. Both the Protestor and the Petitioner testified but none called any witness.

7. The Protestor’s case was that plot No.399 was given to her by the deceased in 1984 when she returned from where she had been married; that her brothers Nebat Kaburia Mbae and Geoffrey Gitonga colluded and evicted her from the said property in 2009 and demolished her house which she had erected thereon. She sued Mbae Stanley in LDT No. 21 of 2009 in which an award was made that she continues to occupy the said property; that award was adopted by the Chuka Principal Magistrate’s Court LDT No.21 of 2011 on 30th August, 2011. She produced documentation to back up her said claims. In cross-examination, she admitted that she had not sued the administrator of the estate of the deceased in the aforesaid land dispute. She admitted that her two sons had been given Muthambi/Lower Karimba/251 (“plot No.251”) but explained that the same had been purchased from the deceased by her husband between 1976 and 1984. She told the court that she was prepared to share the property equally with the Petitioner.

8. The Petitioner testified and told the court that plot No.399 had been left out of earlier distribution because of the controversy raised by the Protestor; that the same had been left to her by the deceased; that the Protestor had been catered for through her sons Erick Mutembei Nyaga and Felix Gitari Nyaga in Plot No.251. That she was not prepared to cede an inch of plot No.399 to anyone including the Protestor. In cross-examination, she said that she was 90 years; that she is the one who gave plot 399 to the Protestor after the latter was chased away from Mojwa. She urged that plot No. 399 be distributed to her.

9. Having considered the Affidavits on record and the testimonies of the parties, the issues that fall for determination are; Is the Protestor catered for in the distribution through her children? To whom should plot No. 399 be distributed?

10. On the first issue, it was the Petitioner's case that she had not distributed any property to any of her daughters. That she had only catered for the male children of the deceased. That the Protestor’s sons Erick Mutembei and Felix Gitari had been given plot No. 251 and the Protestor should benefit therefrom. The Protestor's answer was that the said property had been bought by the father of the said children from the deceased between 1976 and 1984. That the said children were therefore entitled to that property as of right and she had nothing to do with it.

11. This court notes that the testimony of the Protestor that Plot No. 251 was bought by the father of the said Eric Mutembei and Felix Gitari was not denied. That being the case, it belongs to them as of right. In any event, the evidence on record shows that the said children lived on the property of the deceased until he passed on in 1993. They therefore qualified to be dependants in terms of section 29 (b) of the Law of Succession Act, Cap 160 Laws of Kenya (hereinafter “the Act”). In this regard, they were given that property as of right and not to hold in trust for and on behalf of their mother, the Protestor. The Protestor had therefore not been catered for.

12. As regards, the second issue, it is not in dispute that plot No.399 belonged to the deceased. It is also not in dispute that the Petitioner and Protestor are widow and daughter of the deceased, respectively. It is clear that the Petitioner had intended from the beginning not to provide for the Protestor. Indeed in her testimony in court, she insisted that the Protestor having been married, she is not entitled to inherit anything from her father. That she should go back to her husband. The law is clear, that a child of a deceased parent is entitled to inherit from his/her parent. It does not matter whether that child is a son or daughter, married or unmarried. Before the law and in matters inheritance, children are all equal and are entitled to inherit from their parents (see Rono .v. Rono & Anor. [2008] 1 KLR 803andNyeri CA No. 3 of 2015, Stephen Gitonga M’Murithi .v. Faith Ngira Murithi).

13. The evidence on record, shows that Plot No. 399 was where the deceased settled the Protestor in 1984. She continued to be in occupation thereof until the deceased passed on in 1993. She had constructed her house thereon in which she lived until her brothers brought it down in 2009 and evicted her therefrom. That illegal act was adjudicated upon and nullified by an award of the tribunal which ruled that she should be left to go back to that property. That award was adopted in Chuka PMCC No. 21 of 2011 on 30th August, 2011. The same has not been appealed against, reviewed or set aside. Clearly, the Protestor has established her right of entitlement over that property.

14. On the other hand, the Petitioner is the widow of the deceased. She did not distribute anything from the estate to herslf. Under section 35 of the Act and by the authority of Nyeri CA No. 30 of 2014 Justus Thiora Kiugu & 4 Others .v. Joyce Nkatha & Anor [2015] eKLR, the Petitioner is entitled to the net intestate estate. Since there is nothing to stop the Protestor from taking possession and using the same in terms of the decree of the court of 30th August, 2011, this court sees no prejudice if the life interest of the Petitioner thereon is maintained.

15. Accordingly, the application succeeds, the Petitioner shall have a life interest over LR Muthambi/U.Karimba/399 to hold in trust for the Protestor absolutely. The Protestor may take possession thereof and establish her home in the meantime.

This being a family dispute the court makes no order as to costs.

DATED and delivered at Chuka this 3rd day of November 2016

A.MABEYA

JUDGE

Judgment read and delivered in open court in the presence of Counsel for Petitioner and absence of Counsel for the Protestor who had notice of the ruling date.

A.MABEYA

JUDGE

3/11/2016