[2020] KEHC 90 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

MISC. SUCCESSION CAUSE NO. 7 OF 2017

IN THE MATTER OF THE ESTATE OF ASHFORD MICHENI NGAINE (DECEASED)

LISPAR WANJA MICHENI............ADMINISTRATRIX/APPLICANT

VERSUS

DORES C. FRANCIS......................PROTESTOR/ADMINSTRATRIX

J U D G E M E N T

1. This cause related to the estate of the late ASHFORD MICHENI NGAINE (deceased) who died intestate on 27th February 2017 leaving behind the following dependants surviving him namely:-

i) Lisper Wanja Micheni - 1st widow

ii) Dores C. Francis - 2nd widow

iii) Caroline Karimi Micheni

iv) Dennis Njeru Micheni

v) Kennedy Ireri Micheni

vi) Dissy Murugi Micheni

vii) Morris Mwenda Micheni &

viii) Ann Muthoni Micheni

2. The estate of the deceased herein comprises the following assets;

a) Karingani/Muiru/1313 - 0. 141 Ha

b) Karingani/Muiru/2224 - 0. 202 Ha

c) Karingani/Mugirirwa/2190 - 0. 36 Ha

d) Death Gratuity

3. The two widows Lisper Wanja Micheni and Dores C. Francis were appointed joint administratrixes by this court on 27th July 2017 and Lisper Wanja Micheni moved this court through summons for confirmation of grant dated 9th November 2017 for confirmation of grant and proposed the following made of distribution.

i) Karingani/Muiru/1313 - Lisper Wanja Micheni

ii) Karingani/Muiru/2224 - Dores C. Francis

iii) Death Gratuity

a) Lisper Wanja Micheni - 582,036/-

b) Dores C. Francis - 482,036/-

(iv) Karingani/Mugirirwa/2190

a) Lucyline Ciakuthi

b) Elizabeth Kaari

c) Dores Wanja

d) Harriet Kainda

e) Jenai Kangai

f) Emily Murugi Ngaine...............jointly

4. In support of her proposal the 1st administratrix testified that she was the 1st wife of the deceased and recognized the 2nd administratrix as the 2nd wife. She added that she was married by the deceased on 6th April 1984 and separated in 1990 upon which the 2nd administratrix was married. She further told this court that their union was blessed with 3 children namely;

i) Caroline Karimi Micheni

ii) Dennis Njeru Micheni &

iii) Kennedy Ireri Micheni

5. She justified the proposal to be given parcel No. Karingani/Muiru/1313 claiming that this is where a house she financially assisted the deceased construct is situate. She further claimed that the 2nd administratrix found the house complete because the construction of the house was reportedly finished in 1988.

6. The 1st administrator recognizes the following children from the 2nd house.

i) Dissy Murugi Micheni

ii) Morris Mwenda Micheni &

iii) Ann Muthoni Micheni

She denied knowledge of Lilian Kawira Micheni stating that she is not a beneficiary to the estate but a stranger.

7. According to her parcel No.Karingani/Mugirirwa/2190 measuring 0. 36 Ha was just held by the deceased in trust of his sisters namely Emily Murugi Ngaine, Lucyline Ciakuthi, Elizabeth Kaari, Dores Wanja, Harriet Kainda and Jenai Kangai. She claimed that the sisters are currently occupying that parcel and that the parcel should wholly go to them.

8. The 1st administratrix further stated that parcel No. Karingani/Muiru/2224 was bought in 2001 and that because the 2nd Respondent currently ploughs and utilizes the parcel the same should go to her and her children.

9. On death gratuity the 1st administratrix states that, since the 2nd administratrix has already benefitted from 100,000/-, the remaining amount should be divided equally with her getting 100,000/- more to cover for what the 2nd administratrix was given by court on 26th July 2017.

10. In her written submission made through Njeru Ithiga & Co. Advocate, the 1st administratrix faults the proposal made by the 2nd administratrix stating that the proposal is skewed to favour her and that her original intention was to lock her out of the estate knowing well that she had not been divorced.

11. The 1st administratrix in her submissions has contended that all the children named in this cause were dependants as they were brought up and cared for by the deceased.

12. Finally she submits that parcel No. Karingani/Mugirirwa/2190 should be left to the sisters of the deceased who all along have been residing and utilizing that land.

13. On the other hand Dores C. Francis, the 2nd administratrix has protested to the mode of distribution suggested by the Applicant. She contends that the deceased had written a will and though she concedes that the purported will is not legally binding, she avers that the wishes of the deceased should be respected. She contends that the deceased had omitted the applicant Caroline Karimi and Kennedy Ireri from the list of beneficiaries. She confirms the Applicant's claim that the deceased and the Applicant had separated from 1987 and that Kennedy Ireri was born after the separation. In her view the said Kennedy Ireri cannot be referred to as dependant.

14. The 2nd administratrix/protestor proposes the following mode of distribution;

i) L.R. Karingani/Mugirirwa/1313 - Dores C. Francis to hold it in trust for her benefit and her children namely; Lilian Kawira Micheni, Dissy Murugi Micheni, Morris Mwenda Micheni and Ann Muthoni Micheni.

ii) L.R. Karingani/Muiru/2224

Dores C. Francis to hold in trust for her benefit and her children Lilian Kawira, Dissy Murugi Micheni, Morris Mwenda Micheni and Ann Muthomi.

(iii) L.R. Karingani/Mugirirwa/2190

(a) 0. 15 acres - Dores C. Francis to hold in trust for her benefit and her children Lilian Kawira Micheni, Dissy Murugi Micheni, Morris Mwenda Micheni and Ann Muthoni Micheni.

(iv) Death Gratuity

a) Lisper Wanja Micheni - 166,296

b) Dennis Njeru Micheni - 166,296

c) Dores C. Francis - 166,296

d) Lilian Kawira Micheni - 166,296

e) Dissy Murugi Micheni - 166,296

f) Morris Mwenda Micheni - 166,296

g) Ann Muthoni Micheni - 166,296

15. In her written submissions made through her learned counsel I.C Mugo and Co. Advocates, the protestor contends that the sisters of the deceased are not dependants and cannot be considered for distribution because this cause is about the estate of Ashford Micheni Ngaine and not the father of the deceased. She insists that Caroline Karimi was born before the Applicant got married to the deceased while Kennedy Ireri in her view was born out of wedlock and the deceased never took any parental responsibility over him.

16. She further submits that she has lived in L.R. Karingani/Muiru/1313 for over 30 years now while the Applicant has been living in L.R Karingani/Ndagani/10114. She claims that she has carried out developments in L.R Karingani/Muiru/1313 including, building a, cowshed, goat pen planting coffee, bananas, Macadamia and pawpaw trees.

17. This court has considered this application and the protest launched. I have looked at both the modes of distribution proposed by both the 1st administratrix and the 2nd administratrix. The main bone of contention in this matter are two namely;

i) Who are the dependants to the deceased in this cause

ii) Which mode of distribution of the estate is fair and legit.

(i) Dependants of the deceased

18. I will begin with the question of dependants. The Applicant has recognized all the children from the 2nd house (Protestor's house) except one Lillian Kawira Micheni. Her contention is that she is a stranger and not a child of the deceased. On the other hand the protestor recognizes only one child from the 1st house- Dennis Njeru Micheni. In her view Caroline Karimi Micheni was born before the Applicant was married to the deceased while Kennedy Ireri was born after the Applicant and deceased had separated.

19. The provisions of Section 29(a) of Law of Succession Act defines a dependant to be a wife or former wife and/or children of the deceased whether or not maintained by the deceased immediately prior to his death. Under Subsection (b)the definition also includes children whom the deceased had taken into his family as his own and were maintained by the deceased prior to his death.

20. There is no dispute that the deceased was married to the 1st administratrix on 6th April 1984 and even if they had separated by the time the deceased died, she is still recognized in law as the wife. The provision of Section 3(1) defines 'wife'to include a wife who is separated from her husband. This means that separation does not disentitle or deprive a spouse her right to inherit the property of her deceased spouse. The 1st administratrix is therefore entitled to get a share of the estate in this cause.

21. This court is not persuaded that Caroline Karimi Micheni is qualified to be referred to as a dependant within the meaning of the above cited provision of law for 2 reasons.

i) The Applicant states that she is 34 years old which means she was born in 1978 before her marriage to the deceased in 1984. She has not attached birth certificate to prove that the deceased was the father.

ii) It is also apparent that though the said Caroline may have been taken by her mother to the matrimonial home when she got married, it is clear that the mother had separated from the time deceased when he died in 2012. This means that she was not possibly taken care of by the deceased immediately prior to his demise because the separation had occurred more than 20 years before the deceased died. The Applicant has not also adduced any evidence to establish paternity on a balance of probability to persuade this court that Caroline Karimi is a dependant within the meaning of Section 29 (b) of Law of Succession Act.

22. In regard to Kennedy Ireri Micheni, the Applicant depones that he is 23 years old which means that he was born in 1995 when she was separated from her husband. She has also not tendered any evidence to prove that despite the separation, the deceased was the father or that he assumed any parental responsibility over him in his lifetime. This court is not satisfied that the said Kennedy Ireri Micheni does qualify to be referred to as a dependant within the meaning of Section 29(a) of Law of Succession Act.

23. The protestor has claimed that Lilian Kawira Micheni was a daughter of deceased born out of wedlock but she has not tendered any evidence to prove either paternity or the fact that the deceased assumed any parental responsibility over her immediately prior to his demise. Besides that in her affidavit sworn on 23rd October 2013, the protestor clearly left her out in the list of dependants she presented to court and the question posed is what changed her position? It is certain that the change of her position in regard to Lilian Kawira only came as an afterthought after the 1st administratrix staked her claim in the estate. She may have brought her up in order to stake more interests in the estate but whatever the case, this court based on the evidence tendered is not persuaded that the claim of dependency in respect to Lilian Kawira has been proved to the required standard.

24. In view of the foregoing this court finds that the persons who in law are dependants surviving the deceased are;

1) 1st House

(i) Lisper Wanja Micheni

(ii) Dennis Njeru Micheni

2) 2nd House

(i) Dores C. Francis

(ii) Dissy Murugi Micheni

(iii) Morris Mwenda Micheni

(iv) Ann Muthoni Micheni

25. This court has considered the evidence tendered by both parties in regard the assets comprising the estate and the only bone of contention between the parties herein is that property known as Karingani/Mugirirwa/2190. The Applicant claims that the said property was held by the deceased in trust for her sisters as the property belonged to their late father. On the other hand the protestor claims that the said property belongs to the deceased because it was registered in his name and there is no trust registered against the title to that effect. I have considered the evidence tendered by the Applicant and Lucyline Ciakuthi (PW2) and it is evident that though Karingani/Mugirirwa/2190 was registered in the name of the deceased he was to hold it for his benefit and in trust for his sisters. The evidence of PW2 is clear that that property was gotten from their late father and the deceased and her sisters were to share it. That explains the reason why the sisters to the deceased are in occupation and indeed are utilizing the said property. This court finds that based on the evidence tendered that property known as Karingani/Mugirirwa/2190 though registered in the name of deceased was held by the deceased for his benefit and that of his sisters. The property shall therefore be shared in such way that the sisters named by the Applicant will have a share but the dependants in this cause will equally get a share.

26. In regard to gratuity, both parties are in agreement that the same be shared equally between the two houses but in view of the fact that the 2nd house benefitted from 100,000/- earlier ordered by this court to cater for school fees, that figure should be factored in as proposed by the Applicant.

In the end this court for the aforesaid reasons hereby confirm the grant issued on 27th July 2017 in the following terms;

(a) Karingani/Muiru/1313

Dores C. Francis to hold it for her benefit and in trust for;

(i) Dissy Murugi Micheni

(ii) Morris Mwenda Micheni

(iii) Ann Muthoni Micheni

(b) Karingani/Muiru/2224

Lisper Wanja Micheni to hold it for her benefit and in trust for her son Dennis Njeru Micheni

(c) Death Gratuity

(i) Lisper Wanja Micheni - Kshs.582,036

(ii) Dores C. Francis - Kshs.482,036

(d) Karingani/Mugirirwa/2190

(i) Lisper Wanja Micheni to get 0. 12 ha to hold it for her benefit and in trust for her son Denis Njeru Micheni

(ii) Dores C. Francis to get 0. 12 ha to hold it in trust for Dissy Murugi Micheni, Morris Mwenda Micheni and Ann Muthoni Micheni.

(iii) Lucyline Ciakuthi to get 0. 12 ha to hold it jointly with Elizabeth Kaari, Dores Wanja, Harriet Kainda, Senai Kanai and Emily Muruti Ngaine.

This is a family matter so I shall make no order as to costs.

Dated, signed and delivered at Chuka this 15th day of June 2020.

R.K. LIMO

JUDGE

15/6/2020

Judgment dated, signed and delivered in the open court in presence of Ithiga for Applicant and Mugo for Protestor.

R.K. LIMO

JUDGE

15/6/2020