[2022] KEHC 16295 (KLR)

In re Estate of Charles Kyule Mbingia alias Kyule Mbingia Kathuku (Deceased) (Succession Cause 560 of 2015) [2022] KEHC 16295 (KLR) (8 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16295 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 560 of 2015

MW Muigai, J

December 8, 2022

IN THE MATTER OF THE ESTATE OF CHARLES KYULE MBINGIA ALIAS KYULE MBINGIA KATHUKU

Between

Francis Kathuku Kyule

Administrator

and

Koki Kyule Mbingia

Protestor

Judgment

1. The deceased Charles Kyule Mbingia died on 3/4/2011.

2. The Petitioner Francis Kathuku Kyule filed Petition for Letters of administration intestate on 9/9/2015 and listed 6 children in total yet the Kiima Kimwe Chief’s letter dated 1/9/2015 lists beneficiaries as follows;1ST Housea.Koki Kyule Mbingia- widowb.David Mumoc.Daudi Kyuled.Florence Mwikali Mutua2nd Housea)Emma Mbaika Kyule -widowb)Daniel Kyulec)Francis Kathuku Kyuled)Catherine Ndunge

3. The grant was issued on 16/3/2016 to Francis Kathuku Kyule,

4. On 1/12/2016 Summons for Confirmation was filed by the Administrator and the beneficiaries signed consents that Muputi Kiima Kimwe/267 measuring 0. 16 Ha -1/2 share to Francis Kathuku Kyule.

5. The Certificate of Confirmation was issued on 29/3/2017.

6. On 28/11/2018, Summons for Rectification was filed to include properties of the deceased as follows;a.Iveti/Misakwani/851 &b.Muputi/Kiima-Kimwe/1322 and to be held by the Administrator Francis Kathuku Kyule.

7. Koki Kyule Mbingia filed Witness Statement on 10/6/2020 and deposed that she was married first to Charles Mbingi deceased herein under Kamba customary law and was settled on Iveti/Misakwani/851 with her 8 children.

8. The deceased later married Emma Mbaika Kyule, the Administrator’s mother and was settled on Muputi/Kiima-Kimwe/1322 with her 7 children.

9. Each of the wives/widows lived in their respective matrimonial homes and did not have squabbles during the deceased’s life.

10. The 1st wife/widow, Koki Kyule Mbingia proposed the mode of distribution is for each house to retain the land Parcel /property each house is settled on and transfer be made/done in the same way to the Protestor with regard to the 1st House and the Administrator to hold their portion for the 2nd House. Iveti/Misakwani/851 is her matrimonial home where she resides with her family and has interred some of the family members.

11. The Administrator, Francis Kathuku Kyule filed Witness statement on 17/12/ 2021deposed that as a family they agreed that the 2 properties registered in the names of the deceased Iveti/Misakwani/851 &

12. Muputi/Kiima-Kimwe/1322 to be included in the rectification of Confirmation of grant and registered in his name to hold in trust for all beneficiaries of the estate. The 1st wife-widow reneged on the family agreement and whereas the Administrator does not contest her decision to have property registered/held/transferred in her name, Iveti/Misakwani/851 is larger than Muputi/Kiima-Kimwe/1322 and should be shared equally.

13. On 19/7/ 2022, parties through their advocates on record agreed by Consent to forgo inter partes hearing and file and exchange written submissions.

Submissions 14. The Protestor based the protest on the fact and need for fair distribution of the estate of the deceased which constitutes Iveti/Misakwani/851 Muputi/Kiima-Kimwe/1322 & Muputi/Kiima/Kimwe/1267 in accordance with Section 40 of Law of Succession Act.

15. There is no cogent reason for the Administrator to hold in trust for the Protestor when all beneficiaries are alive and widows are alive and capable of representing the interests of the 1st House and 2nd House.

16. Since there are 2houses of the deceased’s family, the Protestor should be appointed as Co Administrator and to represent interests of her household. This will facilitate smooth and expeditious transmission of the estate properties.

17. The Protestor relied on the following cases that determine the issue of distribution of deceased estate;

18. Re Estate of Francis Mwangi Mbaria (deceased)eKLR.

19. Hannah Wairimu Karanja v Jane Wambui Karanja & Anor [2017]eKLR

20. The Petitioner filed submissions and reiterated that the Summons for rectification met the legal threshold and the 2 land parcels were/are registered in the names of the deceased and ought to be included in the confirmed grant and be held by the Administrator. The Protestor refused the arrangement and sought to be registered on the Land Parcel Iveti/Misakwani/851.

21. The Administrator/respondent then proposed that since Iveti/Misakwani/851 is larger than Muputi/Kiima-Kimwe/1322 by 0. 99 acres both land Parcels of land should be divided equally between the 2 houses.

22. The Protestor made a counter proposal that the Land Parcel Muputi/Kiima/Kimwe/1267 that is registered in the deceased’s name was allocated to the Administrator as sole beneficiary vide confirmed grant of 23/3/2017 be divided equally amongst the 2 houses.

23. The Administrator/Respondent contended that the Confirmed grant of 23/3/2017 has never been reviewed, set aside or appealed against and should remain intact.

24. The Administrator relied on Section 74 of LSA & Rules 43 & 73 of Probate & Administration Rules.

Determination 25. The Court has considered pleadings filed by parties, the Witness Statements and written Submissions and the issue before the Court is mainly fair and equitable distribution of the deceased’s estate.Distribution of the Deceased’s EstateSection 71 LSA provides for distribution of the deceased’s estate as follows;

26. 71. Confirmation of grants(1)After the expiration of a period of six months, or such shorter period as the court may direct under subsection (3), from the date of any grant of representation, the holder thereof shall apply to the court for confirmation of the grant in order to empower the distribution of any capital assets.(2)Subject to subsection (2A), the court to which application is made, or to which any dispute in respect thereof is referred, may—(a)if it is satisfied that the grant was rightly made to the applicant, and that he is administering, and will administer, the estate according to law, confirm the grant; or……………………………………………………Provided that, in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled; and when confirmed such grant shall specify all such persons and their respective shares.

27. This Court observed from the pleadings filed that there has been material non- disclosure of beneficiaries of the estate of the deceased; the Petition lists 6 children and 2 widows yet in the Protestor’s Witness Statement she alludes to her 8 children and 2nd house 7 children.

28. This Court also notes with concern that apart from listing the 2 wives/widows of the deceased neither of the beneficiaries have confirmed to belong to which house except for the Chief’s letter and they also do not confirm who belongs to 1st house or 2nd house.

29. This Court therefore relies on the Protestors Witness Statement and the Chief’s letter which outline the wives/widows and children of the deceased as outlined above.

30. With regard to the distribution of the estate, the Administrator filed Summons for Confirmation on 1/12/2016 and obtained written consents from beneficiaries of the deceased’s estate to have ½ of Muputi/Kiima/Kimwe/1267 transmitted to him. A supplementary Affidavit filed on 3/3/2017 confirmed that the Administrator, Francis Kathuku Kyule was to obtain beneficial interest of Muputi Kiima Kimwe/1267 measuring 0. 16 Ha to get ½ share.

31. But the Certificate of Confirmation of Grant issued on 23rd March 2017 and dated on 29th March 2017 indicated that the Land Parcel Muputi/Kiima Kimwe/1267 to be transferred and registered in the name of Francis Kathuku Kyule.

32. Section 76. LSA provides for Revocation or annulment of grant as follows;A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—a.that the proceedings to obtain the grant were defective in substance……………………………..b.…………………………………………………………..

33. The beneficiaries of the deceased’s estate consented to ½ Muputi Kiima Kimwe/1267 to be registered and transferred to the Administrator and they did not propose and determine who /where the other ½ of Muputi Kiima Kimwe/1267 would go to.

34. Therefore, on this Court’s own motion the confirmed grant of 29/3/2017 is revoked as the distribution is not as stated /deposed in the Summons for Confirmation Supporting affidavit Consents of Beneficiaries and Supplementary affidavit.

35. From the pleadings and submissions by parties it is clear that parties/beneficiaries are not in agreement on the mode pf distribution of the deceased’s estate.

36. In a nutshell the Administrator by an application for rectification of grant sought to include Iveti/Misakwani/851 and Muputi/Kiima-Kimwe/1322 registered in the deceased’s name in the confirmed grant to be transferred and registered in his name to hold in trust for all beneficiaries.

37. In the matter of the Estate of Hasalon Mwangi Kahero [2013]eKLR the Court held that;“The provisions in Section 74 and Rule 43 are extremely restricted. They permit rectification of grants in three clearly defined cases:-(a)errors in names and descriptions of persons or things;(b)errors as to time or place of death of the deceased;(c)in cases of a limited grant, the purpose for which such limited is made;

38. In effect the application for rectification was/is in fact a redistribution of assets that were left out to be included and distributed by transfer ad registration in the Administrator’s name.

39. On the other hand, the Protestor, 1st wife/widow of the deceased and her children reside on Iveti/Misakwani/851 where the deceased gave her the matrimonial home that she lives on with her family todate and therefore proposed that it should be registered and transferred in her name for her and children.

40. Where there is disagreement in mode of distribution by beneficiaries of deceased’s estate, the Court shall apply the legal provisions that speak to distribution deceased’s estate in the relevant circumstances and to ensure equitable fair and just mode of distribution.

41. In Caroline Njoki Muchirivs Jane Njeri MuchiriandanotherSuccession Cause 1293 of2009, this Court pointed out thus:“Section 35 of the Law of Succession Act Cap 160 states; ‘’the surviving spouse shall be entitled toThe personal and household effects of the deceased absolutely a life interest in the whole residue of the net intestate estateProvided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person.In the instant case the administrator, widow of the deceased is entitled to life interest over the deceased’s estate. Ideally, during their lifetime it is expected that both spouses depended on each other for social and economic support. Life interest is the legal protection bestowed on surviving spouses so as not to be ousted and property withdrawn from them or they are mistreated in any way after the demise of spouses.”

42. Therefore, both wives /widows of the deceased have a life interest over the estate of the deceased.

43. The Properties registered in the name of the deceased are;a.Iveti/Misakwani/851b.Muputi/Kiima-Kimwe/1322c.Muputi/Kiima/Kimwe/1267

44. Section 40 LSA provides;Where intestate was polygamous1. Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate 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……………………………………………………

43. In the case of Priscilla Ndumbi & Zipporah Mutiga –vs- Gerishon Gatobi Mbui, Meru Succession Cause No. 720 of 2013 where the Court held that;“The primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries. As of necessity, the estate property must be identified. Thus, where issues on the ownership of the property of the estate are raised in a succession cause, they must be resolved before such property is distributed. And that is the very reason why rule 41(3) of the Probate and Administration Rules was enacted so that claims which prima facie valid should be determined before confirmation.”

45. In the circumstances the Court shall exercise its mandate of administration and distribution of the deceased’s estate as follows;-

Disposition1. A new/fresh grant shall be issued in the names of the following as Administrators of the deceased’s estate under Section 66 LSA;a.Koki Kyule Mbingia – 1st wife/widowb.Daudi Kyule Mbingia-sonc.Emma Mbaika Kyule- 2nd wife- widowd.Francis Kathuku Kyule- son2. The wives/widows of the deceased shall have/enjoy life interest of their share of the estate of the deceased.3. The 1st wife/widow Koki Kyule Mbingia and her children shall have Iveti/Misakwani/851 transferred and registered in her name.4. The 2nd wife/widow Emma Mbaika Kyule and her children shall have Muputi/Kiima-Kimwe/1322transferred and registered in her name.5. ½ of Muputi/Kiima/Kimwe/1267 shall be transferred and registered in the names of Koki Kyule Mbingia – 1st wife/widow Daudi Kyule Mbingia-son to hold in trust for the children of the 1st house.6. ½ of Muputi/Kiima/Kimwe/1267 shall be transferred and registered in the names of Emma Mbaika Kyule- 2nd wife- widow Francis Kathuku Kyule- son to hold in trust for the children of the 2nd house.7. No orders as to costs as it is a family matter.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 8TH DAY OF DECEMBER 2022 (VIRTUAL/PHYSICAL CONFERENCE).M.W. MUIGAIJUDGEIn the presence of:Mr. Ngolya - For the AdministratorMr. Kyalo - for the ProtestorPatrick - Court Assistant