[2017] KEHC 3157 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 555 OF 2015

IN THE MATTER OF THE ESTATE OF NAOMI MAITHA M’TWAMWARI (DECEASED)

GRACE MPINDA MUGAMBI ……………....…. PETITIONER

VERSUS

JOSEPH MUTHEE M’TWAMWARI ………1ST PROTESTOR

JESTUS MAINGI MUTHEE …………..…. 2ND PROTESTOR

J U D G M E N T

1. The late Naomi Maitha M’twamwari (hereinafter “the deceased”) whose estate is the subject matter of these proceedings died at Kaaga on 9th November, 2013. She left behind Land Parcel Nos. Nyaki/Kithoka/3959, 3960 and 3961as her estate and the following six children surviving her:-

a. Grace Mpinda Mugambi - daughter

b. Paul Mwenda M’Itwamwari - son

c. Purity Kagendo M’Itwamwari - daughter

d. Joseph Muthee M’Itwamwari - son

e. Jane Karoki M’Itwamwari - daughter

f. Hellen Kinya Murithi - daughter

2. On 15th August, 2015, Grace Mpinda Mugambi (hereinafter “the Petitioner”) applied for letters of administration intestate which was issued to her on 18th February, 2016. Subsequently, on 10th August, 2016, the Petitioner applied for confirmation and proposed to distribute the estate as follows:-

a. Nyaki/Kathoka/3959

Paul Mwenda M’Itwamwari - whole

b. Nyaki Kithoka/3961

Joseph Muthee M’Itamwari - whole

c. Nyaki/Kithoka/3960

Grace Mpinda }

Purity Kagendo M’Itwamwari }

Jane Karoki M’Itwamwari } – To be shared equally

Hellen Kinya Murithi }

3. On 4th April, 2017, the Protestors lodged a Protest against the proposed distribution. The 1st Protestor is the son of the deceased while the 2nd Protestor is the 1st Protersor’s son and therefore a grandson of the deceased. They contended that they were neither consulted nor their consent sought when the matter was being filed; that during her lifetime, the deceased caused the original Nyaki/Kithoka/3070 to be subdivided into three parcels, Nyaki/Kithoka/3959, 3960 and 3961;that the 1st Protestor was allowed to occupy and use Nyaki/Kithoka/3959(sic); that it was agreed that all the sisters were to occupy Nyaki/Kithoka/3961.

4. The 1st Protestor further contended that pursuant to that agreement, the 1st Protestor developed Nyaki/Kithoka/3960and handed it over to his son, the 2nd Protestor. He later learnt that the sisters wanted to occupy the said Nyaki/Kithoka/3960and push the 2nd Protestor to Nyaki/Kithoka/3961. He gave his own preferred mode of distribution in a Further Affidavit of 2nd June, 2017. He swore that Nyaki/Kithoka/3961 has no developments.

5. The Petitioner opposed the Protest vide a Replying Affidavit sworn on 8th May, 2017. She contended that the 1st Protestor had refused to give his consent to the filing of the Cause; that during her lifetime, the deceased had shown her children which of the subdivisions to occupy with the 1st Protestor occupying Nyaki/Kithoka/3961while the sisters were given and took occupation of Nyaki/Kithoka/3960 which they have been farming. Nyaki/Kithoka/3959was given to Paul Mwenda.

6. The Petitioner further stated that at a meeting held on 6th May, 2012, the deceased reduced her will into writing; that after the demise of the deceased, the 1stProtestor pulled down the structures that he had built on Nyaki/Kithoka/3961and proceeded to forcibly construct onNyaki/Kithoka/3960. The Petitioner further contended that if the 1st Protestor insited on occupying Nyaki/Kithoka/3960 instead of occupying Nyaki/Kithoka/3961, then she and her sisters would insist on the entire estate being distributed equally amongst all the children of the deceased. That the 2nd Protestor being only a grandson of the deceased, he had no right to the estate.

7. It was submitted for the Protestors that it was fraudulent on the part of the Petitioner to have left out the 1st Protestor from the succession cause; that the dispute is all about which property should be allocated to who. On their part, it was submitted for the Petitioners that the 2nd Protestor had no locus or right of claim in the estate; that the 1st Protestor had not been excluded from the succession cause but he had declined to sign the relevant documents. That the Petitioner had produced a will by the deceased on how she wished to be succeeded; that the proposed distribution by the 1st Protestor has no basis and that since the Constitution of Kenya does not discriminate between a boy and a girl child, the estate may as well be divided equally.

8. Having considered the evidence on record and submissions of learned Counsel, the issues that arise for determination in this mater are; who are the beneficiaries of the estate of the deceased and how should the estate be distributed.

9. The Petitioner did not file the letter of introduction from the local chief at the time of lodging these proceedings as is the requirement. However, from the evidence on record, it is not in dispute that the deceased had only six children as set out in paragraph 1 of this judgment. There was no evidence to show that there was any dependent except her children. Accordingly, the beneficiaries of the estate of the deceased are as follows:-

a. Grace Mpinda Mugambi - daughter

b. Paul Mwenda M’Itwamwari - son

c. Purity Kagendo M’Itwamwari - daughter

d. Joseph Muthee M’Itwamwari - son

e. Jane Karoki M’Itwamwari - daughter

f. Hellen Kinya Murithi - daughter

10. In this regard, the Protest by the 2nd Protestor has no basis at all. He can only claim through his father the 1st Protestor. Any interest he may harbor towards the estate can only be through or by virtue of the right or interest his father, the 1st Protestor, has.

11. As regards the second issue, there was conflicting testimonies by both sides. The Protestor testified that the deceased had divided her property into three equal portions; that it was agreed that the 1st Protestor takes Nyaki/Kithoka/3960, his brother Paul Mwenda M’Itwamwari takesNyaki/Kithoka/3959 while the Petitioner and her three other sisters do takeNyaki/Kithoka/3961. That pursuant thereto, the 1st Protestor took possession of his portion and developed it. That Nyaki/Kithoka/3961 has to-date remained undeveloped. He produced photographs to back up his contentions. The Petitioner was of a different view. According to her, Nyaki/Kithoka/3960 was distributed to her and her sisters while Nyaki/Kithoka/3961was given to the 1st Protestor.

12. One thing that is clear from the evidence on record is that during her lifetime, the deceased divided her original Nyaki/Kithoka/3070 into three equal properties. Out of these three subdivisions, Nyaki/Kithoka/3959 was given to and remains in the occupation Paul Mwenda M’Itamwari and is without any dispute. The dispute is who is entitled to own and occupy Nyaki/Kithoka/3960and3961.

13. None of the parties called any witness in support of their respective versions. Not even their brother Joseph Muthee was called. The Petitioner produced a “Will” dated 6th May, 2012. That ‘will’ seemed to support the Petitioner’s version. The question that arises is; where was that ‘Will’ at the time the Petitioner applied for Letters of Administration Intestate? If that ‘Will’ was in existence, the Petitioner would have applied for Probate. She could have submitted it to court and would have been advised by the registry that what was appropriate was a Probate with Will Annexed and not for Letters of Administration Intestate. Further, if it was out of ignorance; that the Petitioner did not lodge the “Will” together with her Petition at the time she commenced these proceedings, she would have annexed the ‘Will’ to her application for confirmation. In any event, in paragraph 8 of her Affidavit sworn 10th August, 2015 annexed to the Petition, the Petitioner had stated on oath:-

“8. That I am a daughter of the deceased NAOMI MAITHA M’TWAMWARI who diedintestate 9th November, 2013 domiciled in Kaaga Location of Imenti North County within Meru County”

14. Accordingly, it is doubtful that the alleged ‘Will’ existed or was made by the deceased as alleged. It is more likely than not that it may have been manufactured during the pendency of these proceedings to support the Petitioner’s case. It was an afterthought. The court rejects the invitation that the deceased made a ‘Will’ as was alleged by the Petitioner.

15. The 1st Protestor produced exhibits “JMMb”, “JMMc”, “JMMd” and “JMMe” which were photographs showing the homestead he had constructed and other developments he has undertaken on Nyaki/Kithoka/3960. None of those structures or any other were alleged to belong to the Petitioner or any of her sisters. All the said developments were undertaken by the 1st Protestor for the use and benefit of his son, the 2nd Protestor. Although the Petitioner stated that she and her sisters had taken possession of and had developed Nyaki/Ktithoka/3960, no evidence of such occupation and development was produced.

16. ‘Exhibit ‘’JMMg’ was a photograph showing that Nyaki/Kithoka/3961 was fallow land that was undeveloped. That supported the 1st Protester’s version on the state of affairs on the ground.

17. The Petitioner alleged that the 1st Protestor had been in occupation of Nyaki/Kithoka/3961 during the lifetime of the deceased but had pulled down his structure and moved to construct on Nyaki/Kithoka/3960 after the demise of the deceased.

18. The deceased died on 9th November, 2013. The Petitioner lodged the present cause on 15th August, 2015, a period of 20 months from the date of the deceased’s demise. The Petitioner did not state when the 1st Protestor allegedly invaded Nyaki/Kithoka/3960 and undertook the developments he produced to court. She also did not explain why she and her sisters who had allegedly been bequeathed Nyaki/Kithoka/3960 by the deceased did not either protest at the time or promptly seek legal redress.

19. The view and conclusion this court makes is that; the deceased divided her original Nyaki/Kithoka/570during her lifetime into three equal subdivisions; she distributed two subdivisions thereof to her two sons and gave one subdivision (Nyaki/Kithoka/3961) to her daughters, the Petitioner included. The 1st Protestor fully developed his portion, Nyaki/Kithoka/3960,and handed it over to his son, the 2nd Protestor and moved away to another property which he owns. Seeing that the 1st Protestor had moved away and left his son on Nyaki/Kithoka/3960, the Petitioner took out the grant and decided to inherit that portion so as to benefit from the developments already undertaken thereon.

20. Indeed, in a bid to cajole the 1st Protestor into agreeing to surrender Nyaki/Kithoka/3960, the Petitioner threatened to abandon her proposed distribution in her application for confirmation and invoke the constitutional right of equality and demand that the estate be distributed equally between all the six children of the deceased. In the view of this court, that amounts to blackmail. The Petitioner knew the intention of the deceased that the daughters of the deceased were entitled to one subdivision only. That is why the deceased had sub-divided her property into three portions.

21. In any event, it would be unfair to distribute the estate and force the 1st Protestor to abandon the developments he has already undertaken on Nyaki/Kithoka/3960. The Petitioner and her sisters would suffer no prejudice if they are given Nyaki/Kithoka/3961.

22. Accordingly, the opinion of this court is that the Protest has merit. The estate is to be distributed as follows:-

a. Nyaki/Kathoka/3959

Paul Mwenda M’Itwamwari - whole

b. Nyaki Kithoka/3960

Joseph Muthee M’Itamwari - whole

c. Nyaki/Kithoka/3961

Grace Mpinda }

Purity Kagendo M’Itwamwari }

Jane Karoki M’Itwamwari } – To be shared equally

Hellen Kinya Murithi }

23. This being a family dispute, there will be order as to costs.

DATED and DELIVERED at Meru this 5th day of October, 2017.

A. MABEYA

JUDGE