[2022] KEHC 908 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

SUCCESSION CAUSE NO. 385 OF 2013

IN THE MATTER OF THE ESTATE OF CAXTON LEWA TSUMA (DECEASED)

LUCY PASHU LEWA................................................................................................OBJECTOR

VERSUS

MARTHA MBAKE LEWA.......................................................PETITIONER /RESPONDENT

JUDGMENT

1. The deceased herein died intestate on the 16th September, 2009. According to form P&A5, he was survived by two widows namely; Martha M. Lewa and Lucy Pashu Tsuma plus three sons and seven daughters. The assets listed as comprising the estate are; three houses without land, parcel of land at Tsalu Chonyi, plot at Mnarani - Kilifi and exgracia refund-kshs 666,000. Liabilities were indicated as Kshs761,608 hospital bill paid by Elias Mbwana Lewa and kshs350,000 hospital bill paid by Martha Lewa hence creditors to the estate.

2. Vide a petition filed on 30th October, 2013, Martha M Lewa (widow) (2nd wife) and Lilian Tsuma a daughter, petitioned for a grant of representation. The same was made on 19th March, 2014 and issued on 21st March, 2014. On 10th April, 2005, one Lucy Pashu (2nd widow) alleging to be the 1st wife applied for confirmation of the grant through summons of even date. She claimed that the petitioners/administrators had failed to apply for confirmation of the grant without any reasonable cause. However, from the original record, it is not clear whether the grant was confirmed.

3. Subsequently, Lucy pashu moved the court again through another summons for confirmation dated 5th May, 2015 and filed on 6th May, 2015 seeking orders that;

a. Pursuant to the order given on 15th April, 2015 for confirmation of grant, this court do make an order for distribution of the estate of the late Lewa Caxton Tsuma

b. That costs of the application be in the cause.

4. As stated above, I am unable to see any proceedings held on 15th April, 2015 as page one of the original court proceedings appears to be missing from the file. The proposed mode of distribution according to Lucy Pashu is as follows;

Martha M Lewa

i. Mnarani house

ii. Malindi plot which was not disclosed at the filing of the proceedings

iii. piece of land at Kavueni measuring 4 acres which was not disclosed

iv. Ksh 1. 2 million which Martha Lewa received from Cooperative shares (Mwalimu Sacco)

Lucy Pashu Lewa

(I Mtwapa house which was not disclosed at the filing of the proceedings

(ii Kisauni house

(iii TSC pension proceeds

(iv the exgratia refund held by TSC amounting to kshs750,000 be paid to the creditor Elias M Mbwana Lewa

(iv Mnarani plot be sold and proceeds shared

(v Money held in standard bank account No 0150190248400 be shared equally.

5. In reply, Martha Mbwana Lewa the 1st administrator filed a replying affidavit sworn on 15th October, 2015 by herself stating that she was opposed to the proposed mode of distribution on grounds that; Mnarani house is her matrimonial home; that She was not aware of the property known as Mnarani Malindi or Mavueni; Mwalimu Sacco does not form part of the estate as she had lawfully received the same as the nominee; Mtwapa house is Lucy Pachu’s matrimonial house; there is a plot in Mtwapa which Pashu’s son has not disclosed but has constructed a house therein.

6. Equally, one Alex Lewa claiming to be a son to the deceased filed a replying affidavit sworn on 15th October, 2015 opposing the application thereby stating that he had not been provided for despite being a son to the deceased. He further claimed that the year 2007 before his father died, he had showed him a vacant plot in Mtwapa as his but his step brothers Ziro Tsuma and Amani Tsuma conspired and forcefully built a mud house therein.

7. Reacting to the aforesaid replying affidavit of Martha and Alex, Lucy Pashu Lewa filed a further affidavit sworn on 5th November, 2015 and filed on 16th November, 2015 stating that the deceased bought Kisauni plot in 1981. That she jointly with the deceased constructed a Swahili house consisting 9 rooms.

8. She further claimed that in 1985, the deceased bought a plot in Mnarani. She deposed that between the years 1981-1986, the deceased entered into a marriage relationship with Martha culminating to family wrangles and her being evicted from their Chonyi house hence causing a separation with the deceased.

9. She stated that after separating with the deceased, she rented a house at Mtwapa and thereafter bought her plot measuring 55x100ft where she lived with her children after the deceased differed with them while at the matrimonial house at Mnarani. That her children Amani and Ziro i were allowed by the deceased to occupy one room at Kisauni property while Ziro collected rent from tenants occupying the other rooms.

10. She denied the allegation that she did not provide for Alex a son to the deceased in the proposed distribution. It was her case that Martha had recognized the existence of Mnarani plot in her affidavit in support of the citation application. That in their family meeting held on 11th May, 2010 at Nyali restaurant Martha did admit that there existed a beach plot at Mnarani. She further stated that Mavueni property in Malindi is in existence.

11. Regarding land in Chonyi, she was of the view that it was community land hence cannot be distributed. She deposed that Martha having taken Mwalimu Sacco shares, worth kshs1,200,000, she should also take TSC pension equivalent to similar amount. Regarding exgratia amounting to kshs750,000 the same should be paid to the creditor Elias Mbwana Lewa who assisted in paying the medical bills left behind.

12. During the pendency of the application for confirmation, parties entered into a consent on 8th November, 2016 thus agreed on a partial confirmation as follows.

a) House without land in Mnarani, to Martha Lewa,

b) House without land in Mtwapa to Lucy Lewa

c) House without land in Chonyi to12 beneficiaries in equal share

d) The disputed properties inter alia house without land in Kisauni, exgratia payment from the Teachers Service Commission, pension from Teachers Service Commission and parcel of land in Tsalu to be determined by the court.

13. The court further ordered Lucy Lewa to produce accounts of house without land in Kisauni and that standard chartered bank to produce bank statements for account No 0150190248400 for the period 16th September, 2009 to date.

14. It was also directed that the court was to receive evidence to determine whether the following assets were part of the estate;

a. Plot in Mnarani Kilifi

b. Mwalim Sacco shares

c. Malindi plot

d. Piece of land in Mavueni

e. Piece of land in Mtwapa as per Lucy Tsuma’s affidavit of 15th October, 2015.

15. Mwalimu Sacco was directed to produce statements of the deceased’s shares respectively.

16. Subsequently, Alex Lewa Tsuma filed an affidavit of protest claiming that he was a son to the deceased and that he was a dependant to the father prior to his death. He averred that after his mother separated with his father (deceased) he remained with the father who paid for his secondary and college education while living together.

17. He told the court that the year 2006 his father took him, his step brother Amani and a cousin to a plot in Kisauni where each of them was assigned space to live in. He stated that at that time, Martha Lewa was the only recognized mother to all male children to the deceased and that their father used to stay with Martha Lewa at their matrimonial house at Mnarani.

18. That upon the death of their father, a family meeting was held under the chairmanship of their uncle Mbwana where it was held that each of the three sons (himself, Amani and Ziro) be allocated 3 rooms each out of the 9 rooms in Kisauni plot.

19. He deponed that the year 2014 he was forcefully evicted out of his three rooms by Lucy the first wife to the deceased with whom they had separated after Lucy instructed Coastal innovators to collect rent which was then 1500 per room per month.

20. He averred that during the time of sickness of his father, Lucy never cared. That she never visited him nor did she attend his burial ceremony. He deponed that the two adjoining properties at Mavueni were bought by Martha.

21. In his affidavit sworn on 19th March, 2019, Ziro Lewa stated that he, his sibling Alex and Amani were given Kisauni plot by their father who showed them the property. He claimed to have spent over 160,000 to renovate the property after evicting Alex the years 2014 who had run down the premises from 2011. He claimed that the property currently fetching about kshs5000 per month is what he and his brother Amani depend on.

22. In response to the affidavit of protest by Alex, Lucy Pachu filed an affidavit sworn on 19th March, 2019 claiminng that Kisauni property was bought jointly by her and the deceased in which she contributed ¾ towards its acquisition and development. She resisted the court order of 8th December,2016 to account for rent collected from the property since 2006 todate yet different people managed the property in question among them the deceased from 1986 when they separated to 2005 when he handed over to Ziro Tsuma who managed the same up to 2011 when Alex kicked him out up to 2013 when Amani took over. She denied ever managing the said property hence not the right person to account for rent collected from 2006.

23. When the matter came up for hearing, Lucy Pashu Tsuma reiterated her averment contained in the affidavit in support of her application for confirmation as well as response to Alex’s affidavits of protest. She confirmed that she was the first wife to the deceased with whom they separated while Martha was the second wife. It’s her evidence that the deceased had acquired property at Mnarani and Kisauni in 1984 before he married Martha in 1986. She further claimed that the deceased had community land in Chonyi a plot in Malindi and a shamba at Mavueni. She stated that the deceased was a member of Mwalimu Sacco but she did not know how many shares were there and who were the nominees in the declaration form.

24. Concerning exgratia money with TSC, it was her contention that the same was money meant to be a refund spent by her brother in law in clearing the hospital bill for the deceased. She stated that her separation with the deceased was short lived as they later reconciled.

25. She recognized Alex as the deceased’s son and that the properties in question were theirs and children. Concerning Malindi plot, she admitted that she did not know where the plot is located. As to Kisauni plot, she claimed that she bought and developed the same with the deceased although there was no proof. On cross examination, she admitted that the land was not registered in the deceased’s name but rent went ahead to propose sale of the same and proceeds shared between the two.

26. She finally proposed the estate to be distributed as follows;

a. Mnarani house to Martha (Martha’s current residence)

b. Mtwapa house to her (her current residence)

c. Malindi plot to Martha

d. Piece of land in Mavueni to Martha

e. Kisauni house to her

f. 1. 2 million out of pension to her to equal 1. 2 million received by Martha from Mwalimu Sacco

g. Plot at Mnarani be sold and proceeds shared equally

h. Chonyi land be left out as its clan land.

27. Pw2 Elias Mbwana brother to the deceased claimed to have cleared a medical bill of kshs736,609 in favour of the deceased hence needs a refund. He further stated that Martha spent kshs88,000 towards clearing the bill. He urged the court to share out the estate equally amongst the beneficiaries. On cross examination he denied conspiring with Lucy to make a false claim.

28. The witness went further to state that the first instalment of the medical bill for the deceased was kshs30,000 cleared by Martha, 2nd instalment of 370,000 deposited by his wife and 3rd instalment by cheque made by his wife. He claimed that Lucy was staying in a house in Mtwapa while Ziro was residing in his home at Mtwapa.

29. On cross examination, he told the court that Mavueni plot was bought by his brother (deceased) although Martha claimed it and had it sold.

30. Pw3 Ziro Tsuma told the court that the property in Mtwapa where he was staying was bought by himself the year 2005 from BW Hamisi Mohamed hence it was not part of the estate. He stated that during his father’s life time he used to collect rent from Kisauni property and that as the first born he utilized all the rental income in educating his father’s children.

31. On her part, Martha (Rw3) adopted her affidavit sworn 15th October, 2015 and list of documents filed on 16th January, 2018 and supplementary list filed on 20th March, 2018. She told the court that she was the sole nominee and beneficiary of Mwalimu Sacco shares. It was her evidence that after Lucy separated with the deceased, she took care of all the children including those of Lucy. She claimed that Mavueni property was hers and that the deceased did not contribute any amount.

32. She denied receiving kshs750,000 as exgratia from TSC. She however stated that she received kshs100,000 from TSC to take care of the deceased. As to Kisauni property, she claimed that it was occupied by their children.

33. As to pension, she stated that the same should be shared equally. She however stated that she was not interested in the Kisauni property.

34. Rw2 Kahindi Kitsao adopted his witness statement dated 7th March, 2019 in which he stated that he was the one who sold 3. 5 acres of land at Mavueni plot 407 to Martha in the presence of the local chief one Kenneth Mumba and Mwangombe as witnesses. He denied selling to the deceased the property in question. He however stated that a neighbour also sold Martha one acre which she consolidated with the one he sold her. It was his evidence that he was the one who signed the transfer for Martha.

35. Rw1 Douglas Mwatsuma Nyambu sub-chief Mavueni corroborated the testimony of Rw2 and Pw3 to the effect that he was the one who witnessed the sale agreement between Martha and Rw2 and that later Martha sold the same to one Samuel. He also denied that the deceased was present during the sale transaction.

36. Rw 4 Francis Oburia Oseko land adjudication officer Kilifi County simply came to confirm that plot No Mavueni/Block BG/1207 was registered in the name of Martha. He however told the court that the property was measuring 1. 3 acres.

37. RW5 Alex Lewa also adopted the content contained in his affidavits sworn on 15th October, 2015 and 19th March, 2019 stating that he was a son to Rose Haido second wife to the deceased with whom they had divorced. He claimed that Kisauni house had been given to him by his father but after his death, the family agreed on the three sons (himself, Ziro and Amani) to share the rooms with each getting 3 rooms. He claimed that he had been locked out for no apparent reason. He admitted that he was listed as a dependant but urged the court to have Kisauni property shared between the three sons.

38. At the close of the case, parties agreed to file submissions. Mr Gikandi for the objector one Lucy Pachu filed his submissions on 5th November, 2021. The firm of Shariff for the petitioner did not file any submissions.

Objectors’ submissions.

39. Mr Gikandi submitted on two issues;

a. Whether the land in Mtwapa, plot in Malindi, plot in Mavueni Kilifi, piece of land in Mavueni, Mwalimu Sacco shares form part of the estate.

b. Distribution of land in Tsalu, house without land in Kisauni, exgratia payment from TSC and pension from TSC

40. Learned counsel submitted that there was no proof that Mtwapa or Malindi plots does exist hence the court cannot distribute property that does not exist. Concerning the alleged plot in Mnarani, counsel contended that its existence was acknowledged by Martha in her affidavit in support of the citation.

41. As concerns Mavueni property, counsel submitted that there was no tangible evidence to substantiate the allegation that it was bought by Martha. According to learned counsel, the evidence of Elias Mbwana brother to the deceased was sufficient enough to confirm that the property belonged to the deceased hence the sale of the said property after the death of the deceased was unlawful. To support this position, the court was referred to the holding in the case of Munyu Maina Vs Hiram Gathiha Maina Nyeri civil appeal No 239 of 2009where the court stated that;

“…the moment the appellant testified that the suit property belonged to their deceased father, the evidential burden shifted to the respondent to dislodge this item of evidence…”

42. With regard to Mwalimu Sacco shares, a sum of kshs1,216,371 has since been distributed to the benefit of Martha alone hence Lucy should first get the equivalent sum out of the TSC Pension.

43. Regarding how the estate should be distributed, it was Mr Gikandi’s contention that the same should be shared equally taking into consideration the number of the children in each house and also taking into account the benefits already enjoyed by other beneficiaries. To buttress this position, the court was referred to the case of Rono & another Vs Rono (2008) KLR 803 CG&Fs. Touching on the exgratia, it was contended that Kshs 736,600 be paid to Elias Mbwana as a creditor and Kshs 1,216,731 out of the pension to Lucy and the balance to be shared to all beneficiaries equally.

44. Touching on the land at Tsalu, counsel submitted that the same be sold and proceeds shared out equally to all beneficiaries.

45. That Swahili house without land in Kisauni to be sold to the highest bidder and proceeds be distributed equally to Lucy, Ziro, Amani and Alex based on the ground that it was acquired before marriage and that the 3 sons have been maintaining the same. Secondly, that Martha having sold Mavueni property at kshs 500,000 cannot benefit twice by getting a share from Kisauni property. Finally, counsel urged the court to direct TSC to calculate pension and then release funds to court for distribution.

Analysis and Determination.

46. I have considered the application herein and the objection thereof. I have also considered the affidavits in support, various witness’ testimonies and objector’s written submissions.

47. Issues that arise for determination are;

a. Who are the beneficiaries to the estate

b. Which properties constitute the estate of the deceased

c. Who is entitled to what share.

50 There is no dispute that the deceased died intestate leaving 12 survivors. This is evident from form P&A5 in which the petitioner Martha listed the said survivors. The same position was confirmed by the objector one Lucy Pashu in her affidavit sworn on 10th April, 2015 filed the same day. Therefore, the beneficiaries are;

First house.

i. Lucy Pashu Lewa (widow)

ii. Ziro Tsuma –son

iii. Amani Tsuma L ewa

iv. Penninah Pendo Lewa

v. Mercy Mjii Lewa

vi. Winnie Tsuma

Second house

vii. Martha Mbake Lewa (widow)

viii. LilianTsuma - daughter

ix. Eldine Tsuma - daughter

x. JoanTsuma - daughter

xi. Faith Tsuma daughter

Third house

Alex Lewa Tsuma

48. As regards assets comprising the estate, parties gave contradictory evidence regarding what assets formed part of the estate. According to the consent agreement entered and adopted by the court on 8th November, 2016 for purposes of a partial confirmation, the following assets were agreed upon as comprising the estate herein distributed as follows;

a. House without land in Mnarani to Martha Lewa

b. House without land in Mtwapa to Lucy Lewa

c. House without land Chonyi to the 12 beneficiaries in equal share

49. Among the disputed properties were;

a. House without land in kisauni

b. Ex gratia payment from Teaches Service Commission

c. Pension from Teaches Service Commission

d. Parcel of land in Tsalu

50. The court was to hear evidence to determine whether properties below listed form part of the estate;

a. Plot in Mnarani Kilif

b. Mwalimu Sacco shares

c. Malindi plot

d. Parcel of land in Mtwapa as per Alex Tsuma’s affidavit of 15th October, 2015.

51. It is therefore clear from the said consent that the agreed properties herein were shared out hence this court cannot re-distribute them. Consequently, I would like to deal with the ascertainable disputed properties (category two) and unascertainable disputed property (category c)

52. I wish to start with the unascertainable assets. First in the list is a plot in Mnarani Kilifi. This property was allegedly introduced by Martha Lewa in her affidavit in support of the citation application. However, none of the beneficiaries tendered documentary proof over the existence of the plot. Merely mentioning that such property existed is not sufficient proof. Equally, there was no proof that Malindi property existed.

53. As regards Mtwapa property, it was Alex who claimed that Ziro had occupied Mtwapa property. This was deponed in the affidavit sworn on 15th October, 2015. However, Ziro Lewa in his affidavit sworn on 16th November, 20 15, claimed that property as his having bought the same on 12th October, 2007 at kshs150,000. Also, he attached a sale agreement marked “ZTL-2” as proof that he bought the said property. Again, there was no proof that the property in question belonged to the deceased. To that extent, that property is not available for distribution.

54. Concerning a plot at Mavueni, Martha claimed the same. She stated that she bought the same from one Kahindi Kitsao (Rw2). She produced a copy of the sale agreement to that effect witnessed by the area assistant chief Mavueni sub location one Douglas Mwatsua Nyambu (Rw1) who confirmed that allegation. Acopy of the sale agreement was produced showing that on 23rd July 2013 Martha bought a plot known as Mavueni G.L 3B at Kshs500,000 in the presence of the assistant chief, Kariba Ndolani Magaro and Joshua Mwero.

55. According to Martha, the deceased was not a joint owner nor did he participate in the purchase of the same. The land adjudication officer one Oseko produced land records to show that the property was registered in the name of Martha.The claim by Elias Mbake brother to the deceased ( Pw2) that Mavueni plot belonged to the deceased was unsubstantiated. In a nut shell, Martha did submit prima facie evidence that she was the owner of the plot Mavueni and that she sold the property. It is my holding that the property does not form part of the estate. The allegation that the sale agreement relied on by Martha was altered to suit her interest is not material as the alleged alteration does not touch on the substance of the sale agreement.

56. Last item on the unascertainable assets is Mwalimu Sacco shares. Martha admitted that she was paid a sum of kshs1,216,731 in her capacity as the nominee of the deceased. Obliviously, the shares did not form part of the estate as they were governed by special Sacco rules and regulations (by laws) under the cooperative Act in which the deceased’s wishes are expressed by nominating beneficiaries.

57. Therefore, this money is not available as part of the estate. However, when determining the final distribution of the estate, the beneficiary will receive less the said amount so as to bring the rest of the beneficiaries to bar.

58. As concerns exgratia benefits from Mwalimu Sacco, it is a refund of monies incurred in clearing hospital bill paid by Elias Mbwana a brother the deceased. Pw2 Elias Mbwana said that he paid the deceased’s medical bill of kshs736,600. Martha also claimed to have contributed towards the deceased’s medical bill besides Elias. Martha attached a letter dated 31st July 2015 from Afya Sacco where she is a member to prove that she took a loan of kshs 250,00 to pay part of the medical bill.

59. In her evidence in chief Martha proposed to share exgratia at 50% to 50% with Mbwana. She further explained that it was the wife to Mbwana who paid most of the bills. However, on cross examination by Gikandi, Martha admitted that in her citation application she stated that she signed an affidavit that the estate owes Elias Mbwana Kshs 761,600. In her form P &A 5 filed on 30th October, 2013 she listed liabilities of the estate as kshs 761,609. Having admitted that the estate owed Mbwana that much she cannot turn around and deny that admission.

60. There is no proof that the money she took as a loan went to hospital to clear the medical bill. Accordingly, I am convinced that the estate owes Elias Mbwana kshs736,609 as claimed and that the exgratia amount at TSC should be utilized to pay the debt. Should there be any balance, the same shall be given to Martha Lewa.

61. Concerning pension, Lucy claimed that the same should be shared equally with Martha getting less the amount already benefited from Mwalimu Sacco. Equally, Martha stated in her cross examination that pension be shared equally amongst the 12 beneficiaries.

62. Ordinarily, pension is not treated as part of the property capable of distribution during the life time of the deceased. See Benson Mulima Muriungi Vs C.E.O Kenya Police Sacco and another (2016) e KLR where estate was defined as free property of the deceased.

63. Distribution is of pension is subject to the pension’s Act. See G.A. A.M and another Vs M.O.A.O ( 2016) e KLR where the court found that;

“From the above analysis, it emerges that pension and gratuity cannot be said to be the property of the deceased person so as to form part of his estate. They are dealt with strictly in accordance with the pension Act and regulations, being a charge on the consolidated fund. Not being an estate in terms of the Law of Succession Act, an account under Section 83 is not feasible”

64. Similar position was held in the case of Jimmy R Kavilu and 16 others Vs Stanbic Bank Kenya Ltd and 7 others ( 2019) e KLR where the court held that it had no jurisdiction to determine matters concerning pensions schemes and trustees thereof unless brought under the Judicial review court contesting the decision of the retirement benefits tribunal. However, the position would have been different if the funds would have been released to the deceased’s account by the pensions department.

65. In view of the existence of a special procedure under the retirement benefits Act, this court cannot arrogate itself powers donated to the retirement benefits authority. Accordingly, it is my holding that the pension at TSC be determined and distributed under the pensions Act.

66. I am now remaining with two disputed properties i.e house without land in Kisauni with 9 rooms which Lucy claims was jointly acquired with the deceased and herself before Martha got married. The other property is land in Tsalu. What should be the mode of distribution of this property. Lucy stated that this property was distributed to the sons (Alex, Amani and Ziro) and herself. She proposed the same to be sold and proceeds shared out to the four equally.

67. Further, Lucy proposed sale of Tsalu property and the proceeds shared to all 12 beneficiaries. which law should govern distribution of the two remaining properties?

68. Having agreed that the deceased’s estate was a polygamous one with the deceased having married three wives, the applicable law for distribution of this estate is Section 40 of the Law of Succession. Section 40(1) provides that;

“where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue net intestate of the estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children”

69. In the instant case, there are two surviving widows and 10 children making a total of 12 units. There is no dispute that all the beneficiaries whether daughters or sons are entitled to a share of the estate. It therefore follows that the two properties have to be shared equally between the 12 beneficiaries after taking into account the amount already benefitted by Martha from Mwalimu Sacco and Lucy’s contribution before Martha got married. This is to ensure equity and fairness in distribution of the estate as provided in Rono Vs Rono (supra).

70. However, with the Kisauni property which is a house without land with 9 rooms, Lucy claimed that it was acquired and developed with her joint effort and the deceased before Martha was marred. This fact was not challenged. In the circumstances, the property is deemed to have been acquired during the subsistence of marriage between the deceased and Lucy. Therefore, Lucy is entitled to half share first (50%) as her contribution and the balance which is 50% of that property constituting the estate which is sharable to the twelve beneficiaries in equal share. If the property is not capable of distribution, it can be sold out at the market value and 50% of the proceeds given to Lucy Pashu and the remaining 50% shared equally amongst the 12 beneficiaries with Martha getting less the amount already benefited from the Mwalimu Sacco i.e Kshs1,216,371.

71. In the case of Esther Wanjiku Kiarie Vs Mary Wanjiru Githatu( 2016) e KLRthe court ordered that the first widow was entitled to the 1st half of the properties acquired prior to 1984 when the deceased contracted subsequent marriage. Kimondo J in that case had this to say;

“…I apply the maximum that equity is equality. It must follow that the objector is entitled to half of the property acquired prior to 1984… and all the properties acquired by the deceased thereafter shall constitute the free estate of the deceased to be divided under the Law of succession Act’’

72. The court of appeal concurred with Kimondo J’s holding in the case of Esther Wanjiku Githau Vs Mary Njeri Githru ( 2019) e KLR by holding that;

“…we come to the conclusion that in addition to the properties acquired by the deceased between 1985 to his death, it is only half of the properties acquired by the deceased between 1968 and 1984 that is available for distribution. Thus, we are in agreement with the finding of the learned Judge that only half of the immovable properties acquired by the deceased prior to 1984 and all the properties acquired by the deceased thereafter shall constitute the free estate of the deceased to be divided in accordance with the Law of Succession Act.”

73. As regards Tsalu plot, I agree with Mr Gikandi that the same can be sold and proceeds shared out equally among the twelve beneficiaries. In view of the above findings, the inevitable conclusion is that the grant herein is fully confirmed and estate distributed as follows;

a. House without land in Mnarani to be given to Martha as per the consent of 8th November, 2016.

b. House without land in Mtwapa given to Lucy as per the consent of 8th November, 2016.

c. House without land in Chonyi to be shared between 12 beneficiaries in equal shares as per the consent order of 8th November, 2018.

d. House without land in Kisauni be sold and 50% of the proceeds given to Lucy Pashu and the remainder (50%) be shared equally amongst the 12 beneficiaries Lucy Pashu included with Martha getting less the amount already benefitted from Mwalimu Sacco.

e. Exgratia payment from TSC be paid to Elias Mbwana (creditor) at the sum of 736,609 and in case of any balance same be given to Martha as part of her contribution.

f. Pension at TSC to be managed and distributed in accordance with the law provided under the Retirement and Benefits Act and the pension scheme for teachers.

g. Parcel of land in Tsalu be sold and proceeds be shared out between the twelve beneficiaries with Martha getting less the amount already benefited from Mwalimu Sacco shares.

h. There is no proof of the existence of land in Malindi, Mnarani Kilifi and Mtwapa. In case of discovery of ownership documents that they belonged to the deceased, the court shall be moved appropriately to have them included as part of the estate hence certificate of confirmation of grant reviewed or amended to include them.

i. There being no proof of funds in standard charted bank, the same shall not be available for distribution.

j. Plot at Mavueni does not form part of the estate as it was Martha’s property.

k. As regards costs, this is a family matter to which each party shall bear own costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 18TH DAY OF MARCH, 2022.

J. N. ONYIEGO

JUDGE