[2023] KEHC 21808 (KLR)

In re Estate of Alexander Meeme Kajoi (Deceased) (Succession Cause E015 of 2021) [2023] KEHC 21808 (KLR) (10 August 2023) (Ruling)

Neutral citation: [2023] KEHC 21808 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause E015 of 2021

EM Muriithi, J

August 10, 2023

In the matter of

Edith Karimi Mwenda

1st Petitioner

Janet Kananu Murungi

2nd Petitioner

Ruling

1. This is a ruling on the final order on distribution of the estate herein, the parties having already concluded a consent as to the distribution of all the other assets save for two plots Plot No 121 and 176 at Githurai, Nairobi both registered in the name of the deceased and which are separately claimed partially and wholly, respectively, by the 1st and 2nd Petitioner

2. The two plots and the other assets distributed by consent of the party are acknowledged as properties of the deceased. In her testimony before the court the 2nd Petitioner who claims both plots indicated that the 1st petitioner’s proposal that she (2nd Petitioner) takes plot 121 and the 1st petitioner plot no 176 is not acceptable because plot 176 had been obtained when the 1st petitioner had gone to live separately in the United States of America and that plot no. 121 was where the deceased had established a matrimonial home with the 2nd petitioner, while the 1st Petitioner’s matrimonial home with the deceased had been established at Mathare Nairobi. She also claimed to have indirectly contributed to the construction and development of the plots by bringing up the children while the deceased was working.

3. The 2nd Petitioner on cross-examination admitted that she had possession of the two plots and was solely benefitting from the rental income from the plots. She described the plot 121 as a house where she lived with'a first floor and 2nd floor. It has rental houses. There are 24 rooms[and] the 1st floor is leased out. The 1st floor has 10 rooms. I collect rent from the tenants.'As regards the plot 176 Githurai she said'the construction has not been completed. It has 5 frontal shops all leased to tenants. The first floor has 4 tenants. The others in the basement and ground floor and parts of 1st floor are not occupied. I receive the rent from plots 121 and 176. I use it to educate my children. I have not given any share to the 1st Petitioner as my husband never told me to give any share. I do not know that Edith assisted in the construction of plot no. 176 Githurai.'

4. The 1st Petitioner testified that contrary to 2nd Petitioner’s averment that the deceased had established a matrimonial home for the 1st petitioner at Mathare Nairobi, and that the plot not 121 was acquired in 1994 before the marriage of the 2nd Petitioner after 1999 when she came to work for them as a house help, producing some photograph of the 2nd Petitioner with the 1st Petitioner’s children. She contended that the 2nd Petitioner could not have contributed to the construction and development on the plot 121 as she only had a house-help’s wages. She produced a sale agreement for plot no 121 and said that she had paid a down payment of Ksh 16,000/- from her shop towards the purchase price, and alleged that the they had to sell their car finance the roofing of the house on the plot. She conceded that while her two daughters had initially lived in the 3-bedroomed house on plot no. 121 and the deceased and the 2nd Petitioner had lived on first floor of the plot 121, the 2nd Petitioner had subsequently moved to the 3 bedroomed house. She further conceded that the plot no. 176 was acquired when she was away in the Unted States of America and she had agreed to assist her husband but could not tell how much of the money she assisted the deceased through their daughter with was used for the purchase and development of the plot.

5. On the distribution, the 1st Petitioner proposed equal treatment that each petitioner gets a plot of the estate as follows:'The two plots are developed. [The] Consent also shares the estate. The 2nd Petitioner seeks the two plots. I claim that she should get one plot while I take the other plot. Both are developed. I would pray for plot 121 which I contributed but since she is living there. I can take 176, as she claims 121 as a matrimonial home. If she prefers 176 I can also take 121. She takes rent for the two plots. She benefits from the whole estate. My children are also in school, the last in master’s class. The deceased was helping me in paying school fees. It is not a good ground to say that she has children in school as the estate should also help me pay school and for our upkeep. We should both benefit from the constructed plots for our upkeep.'

Verdict 6. The Court has considered the question of the proposed distribution of the estate two disputed assets bearing in mind that this is not a matrimonial dispute but succession proceedings governed by the law of succession. The alleged contribution to the acquisition and development of the estate has not been proved by either side to the standard requisite for the court to adjudicate property rights to any of the petitioners. None of the Petitioners claimed to own any of the two assets. Only some form of contribution in the acquisition, construction and development was alleged but in not in sufficient cogency to establish title or interest legal or beneficial in the said assets. The whole estate must be distributed in accordance with the law of intestate succession of the deceased’s assets. The baseline of the determination is that the entire estate in issue in these proceedings is the property of the deceased. The 1st Petitioner has 2 children and the 2nd Petitioner 3 children, and the parties have distributed the entire assets of the estate by consent save for the two constructed plots subject of this ruling. There was no evidence on the respective value of the two plots and the court must treat them equally valued for purposes of distribution between the two households of the deceased.

7. The evidence on the alleged contribution to the estate only goes here to establish connexion to the particular asset as would assist the court in determination as to which asset should go to which house of the deceased.

8. However, upon considering the evidence of the parties in this petition, the court on a balance of probabilities finds that the 1st petitioner assisted in the acquisition, construction and development of the plot no. 176 by direct contribution of money therefore and the 2nd petitioner as a housewife also contributed in the development of the plot no 121 where she lived with her husband indirectly through the care and bringing up of heir children while the husband worked. Consequently, the two petitioners are entitled to share the two assets of the deceased in line with their established connexion.

9. In distributing the estate, the court must take cognisance of the portions of the estate already occupied by the two beneficiaries and as much as possible align the distribution to such occupation so as to cause minimal disruption of the parties established settlement and developments on the estate.

ORDERS 10. Accordingly for the reasons et out above, the court finds that the two undistributed plots Nos 121 and 176 Githurai, Nairobi shall be distributed to the Petitioners as follows:i.Plot No 121 Githurai, Nairobi is distributed to the 2nd Petitioner, Janet Kananu Murungiii.Plot No 176 Githurai, Nairobi is distributed to 1st Petitioner, Edith Karimi Mwenda.

11. The Deceased’s estate shall be distributed, and a certificate of confirmed Grant for the distribution of the estate shall issue forthwith, in terms of the consent of the parties and the order of this court in this ruling.

Order accordingly.

DATED AND DELIVERED THIS 10THDAY OF AUGUST, 2023. EDWARD M. MURIITHIJUDGEAPPEARANCESMr. Mageria for the 1st Petitioner.Mr. K. Kiara for the 2nd Petitioner.2MERU HC P&A NO. E015 OF 2021