[2020] KEHC 5587 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

SUCCESSION CAUSE NO. 2237 OF 1997

IN THE MATTER OF THE ESTATE OF DANCUN KARIUKI KINYANJUI (DECEASED)

JOHN MBUGUA KARIUKI............................................1ST ADMINISTRATOR

BETH WAMBUI KARIUKI.............................................2ND ADMINISTRATOR

VERSUS

PETER KIIRU KARIUKI..................................................................PROTESTOR

JUDGMENT

1. John Mbugua Kariuki and Beth Wambui Kariuki are the surviving personal representatives of the estate of Dancun Kariuki Kinyanjui who died on 8th September, 1997. A Grant of representation intestate was issued to Prisca Maiga Kariuki, John Mbugua Kariuki and Beth Wambui Kariuki on 10th March, 2008. However, Prisca Maiga Kariuki died on 12th January, 2010.

2. The administrators took out summons for confirmation of grant dated 13th July, 2015. In their affidavit in support of the summons sworn on the same day, they deponed that the deceased died intestate and was survived by Peter Kiiru Kariuki, Beth Wambui Kariuki, John Mbugua Kariuki, Paul Kihumba Kariuki, Margaret Wangari Kariuki, Ann Wangui Kariuki and Emily Marura Kinyanjui (wife to Samuel Kinyanjui Kariuki-deceased).

3. In response to the summons for confirmation, the Peter Kiiru Kariuki filed an affidavit of protest dated 29th October, 2015. He averred that he had the authority of Emily Marura Kinyanjui and Ann Wangui Kariuki his co-beneficiaries to swear the affidavit. He stated that the administrators had proposed distribution of the estate contrary to the agreed terms of the family meeting held on 12th July 2014, 13th July 2014 and 4th August 2014. He further averred that the proposal by the administrators was biased and not reflective of the consensus reached during the joint family meeting. He proposed that where every beneficiary had a common interest a trust should be formed in favour of all beneficiaries.

4. The proposals of the mode of distribution made by the parties were as follows:

PROPERTY ADMINISTRATOR’S

PROPOSAL SHARE OBJECTOR’S

PROPOSAL SHARE

L.R KIAMBAA/THBIGUA

/357

8 Acres Peter Kiiru Kariuki

Beth Wambui Kariuki

John Mbugua Kariuki

Paul Kihumba Kariuki

Margaret Wangari Kariuki

Ann Wangui Kariuki

Emily Marura Kinyanjui 1. 104

1. 104

1. 376

1. 104

1. 104

1. 104

1. 104

acres Family trust Equal shares

L.R Kiambaa/Thimbigua/1549

Containing main homestead John Mbugua Kariuki Absolute Family Trust Equally

L.R Loitoktok/Emperon/1369

20 Acres Beth Wambui Kariuki

Margaret Wangui Kariuki Equally

L.R Ereri Company Limited Shares John Mbugua Kariuki

Paul Kihumba Kariuki

Peter Kiiru Kariuki

Ann Wangui Kariuki

Emily Marura Kinyanjui Longonot

Longonot

Nanyuki

Nanyuki

Nanyuki Distributed equally among all beneficiaries

Plot No. 209/3271/23

Pangani

Bangalow 8 double rooms John Mbugua Kariuki absolute Ann Wangui Kariuki Absolute

Plot No. 15 Njiku B.

New Crystal diary John Mbugua Kariuki absolute

Plot No. 32 Banana Ann Wangui Kariuki absolute Ann Wangui Kariuki absolute

Plot No. 116 Ngei II Huruma

5 storey building at Safaricom mart Paul Kihumba Kariuki absolute Paul Kihumba Kariuki

John Mbugua Kariuki Equally

Plot No. 162 Ngei II Huruma

5 storey building Peter Kiiru Kariuki

Ann Wangui Kariuki

Peter Kiiru Kariuki

Emily Marura Kinyanjui Equally

L.R 209/276 Kariobangi Light Industries

4 storey Beth Wambui Kariuki

Margaret Wangari Kariuki Equally Family Trust Equally

Kariobangi Light Industries (B)

Beth Wambui Kariuki

Margaret Wangari Kariuki Equally

Plot No. 6/Kiambaa/Muchatha shopping centre Ann Wangui Kariuki Absolute Plot does not exist

Plot No. 100 Mai Mahiu Peter Kiiru Kariuki Absolute John Mbugua Kariuki Absolute

L.R No. 74 Thika Municipality Paul Kihumba Kariuki Absolute Paul Kihumba Kariuku Absolute

Plot No. 16 Njiru B Beth Wambui Kariuki Absolute Family trust Absolute

Plot No. Kiambaa/Karuri/T578 John Mbugua Kariuki

Paul Kihumba Kariuki Equally Emily Marura Kinyanjui Absolute

Plot No. Kiambaa/Karuri/T61 Beth Wambui Kariuki

Margaret Wangari Kariuki Equally Beth Wambui Kariuki

Margaret Wangari Kariuki Equally

Plot No. 158 Lucky Summer Margaret WangariKariuki Absolute Margaret Wangari Kariuki

Beth Wambui Kariuki Equally

Plot No. Kiambaa/Muchatha/T.381/6 Peter Kiiru Kariuki Absolute Ann Wangui Kariuki Absolute

Plot No. Kiambaa/Muchatha/T.160 Emily Marura Kinyanjui Absolute Peter Kiiru Kariuki Absolute

48 Cows on L.R No Kiambaa/Thimbigua/357

68 cows Peter Kiiru Kariuki

John Mbugua Kariuki

Paul Kihumba Kariuki

Emily Marura Kinyanjui In Equal shares 68 cows distributed among the

sons of the deceased Equally

The Sheep(5) Beth Wambui Kariuki Absolute Beth Wambui Kariuki Absolute

Cereals shop at Nyamakima Beth Wambui Kariuki Absolute All beneficiaries of the estate Equally

Money in National Bank A/c 010240000501200 Beth Wambui Kariuki

All beneficiaries of the estate Equally

Money in Standard chartered Bank of Kenya A/c No. 11520146366-010 All beneficiaries Equally All beneficiaries of the estate Equally

Shares in Kenya Commercial Bank

49,796 shares Beth Wambui Kariuki

Margaret Wangari Kariuki

Ann Wangui Kariuki Equal Shares All beneficiaries of the estate Equally

Shares in National Bank of Kenya

3, 157 shares Beth Wambui Kariuki

Margaret Wangari Kariuki

Ann Wangui Kariuki Equal Shares All beneficiaries of the estate. Equally

Shares in Barclays Bank of Kenya

28,400 shares Beth Wambui Kariuki

Margaret Wangari Kariuki

Ann Wangui Kariuki Equally Shares All beneficiaries of the estate Equally

L.R Ereri Company Limited Shares

All beneficiaries of the estate Equally

KBL 846L Ford Tractor

Family Trust

KAZ 897T Toyota Van

Ann Wangui Kariuki Absolute

KAU 846H Toyota Van

Emily Marura Kinyanjui

Peter Kiiru Kariuki Equally

KBS 325Q Mitsubishi Van

John Mbugua Kariuki

Paul Kihumba Kariuki Equally

KBJ 973T Toyota Double Cabin

Beth Wambui Kariuki

Margaret Wangari Kariuki Equally

KAY 905Q Mitsubishi Lorry

Emily Marura Kinyanjui

Peter KiiruKariuki Equally

KVZ Isuzu Lorry

John Mbugua Kariuki

Paul Kihumba Kariuki Equally

5. The matter proceeded by way of viva voce evidence. The protestor testified and called one witness in support of his proposal being the registered valuer from Seven Degrees North Limited. The 1st administrator, Paul Kihumba Kariuki and a registered valuer from Upcountry Valuers testified in support of the administrators’ proposal. The report of upcountry appeared more reliable because they indicated dates of inspection of the properties.

6. In the distribution of an intestate estate, there are three factors for consideration, namely: the persons who have survived the deceased, the assets available for distribution and the manner in which the assets are to be distributed amongst the survivors. In the context of this cause, there is no dispute as to the persons who survived the deceased, and there is a general consensus on most assets available for distribution. The main area of conflict is how the estate ought to be distributed.

7. From the proposals put forth by the parties on the mode of distribution, it is important to assert that for as long as the beneficiaries of the deceased are not in agreement it is left to the court to apply the laid down law and principles to arrive at what the court would consider to be fair and just in the circumstances of the case. From the proposals put forth by the administrators, there is a general lack of consensus from all the parties. Consents obtained from John Mbugua, Beth Wambui and Paul Kahumbu.

8. Having carefully considered the pleadings, oral evidence and the submissions of the parties in this matter, the primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries. Due to the size of the estate, I will analyse each property separately. Two valuers from Seven Degrees North Limited and Upcountry Valuers prepared and filed valuation reports on the estate of the deceased. These reports have been very useful in assisting the Court toget an actual picture of the assets of the estate of the deceased.

9. L.R Kiambaa/Thimbigua/357 is a property on which the three homesteads of the deceased Dancun Kariuki Kinyanjui, the late Samuel Kinyanjui and Paul Kihumba are located. The property also contains a cowshed, borehole, servant quarters and it fronts a river. The rest of the property is used for as farm land. Seven degrees north reported that this property is valued at Kshs. 140 million while upcountry valuers valued the property at Kshs. 104,250,000.

10. The administrators proposed that this property be distributed to all beneficiaries with each getting 1. 104 acres while John Mbugua Kariuki was to receive 1. 37 acres. The protestor on the other hand proposed that a family trust be created for all the beneficiaries to have a share of this property. Considering the various developments made by some of the beneficiaries on the property and the proposal by the administrators providing for distribution of this property to all beneficiaries, I am in agreement with the mode of distribution of L.R Kiambaa/Thibigua/357 as proposed by the administrators.

11. Kiambaa/Thimbigua/1549 was valued at 42 million by Seven Degrees North. They stated that the property consists of James Mbugua’s homestead, a cowshed, a biogas digester and agricultural land. In addition they measured the property at approximately 1. 48 acres. Upcountry valuers valued the property at Kshs. 24,200,000 with an area of 1. 5 acres. They confirmed the presence of John Mbugua’s homestead, servants quarters and several cowsheds for the family.

12. The administrators proposed that the property be distributed to John Mbugua absolutely while it was the protestor’s proposal that a trust be created for the benefit of the family. From the evidence, of the reports by the valuers, the biogas digester serves John Mbugua’s house, the servants’ quarters and the yoghurt factory that’s on a different parcel of land. Considering the presence of John Mbugua’s homestead situated on the property, the presence of the cowsheds for the family and the biogas digester, I hereby distribute this property to John Mbugua who shall retain his homestead and his cowshed while the remaining cowsheds and biogas digester to be jointly owned by all the other beneficiaries.

13. Plot No. 15 Njiku B houses the milk factory. Seven Degrees North reported that this property measures approximately 0. 115 acres with a three storey milk factory building erected thereon. They valued the property at Kshs. 25 million. Upcountry valuers valued this property at 20 million. The administrators proposed that this property by distributed to John Mbugua. The protestor strongly opposed this proposal stating that the factory belonged to the estate having been constructed using estate funds. Further, that it was fed by biogas from the estate and was using milk from the estate. He asserted that the 1st administrator who runs the factory had never paid rent nor had the estate benefited from proceeds from the factory.

14. John Mbugua disputed these allegations stating that only the building belonged to the estate while New Crystal Dairy was a different entity for which he is the proprietor. He produced a certificate of registration dated 18th March, 2005 and averred that he bought the three machines which made the factory operational. He admitted that he has never paid rent to the estate for use of the building but asserted that all the other beneficiaries were also using estate property without paying any rent therefor. In his testimony, Paul Kihumba supported the 1st administrator’s position on the ownership of the factory.

15. Having taken all this evidence into consideration, it is trite law that he who alleges must prove. The allegations that the factory belonged to the estate were not proven by the protestor. New Crystal dairy is a different entity from the estate owned and run by John Mbugua. There is no evidence that it is estate property available for distribution. However, the building where the factory is housed is estate property as such it should be distributed to beneficiaries of the estate. Consequently, I hereby distribute this property to all beneficiaries of the estate of the deceased equally. It is noted that James Mbugua Kariuki has not paid rent for the use of the building for the years he has used it but it was not disputed that the other beneficiaries are also in occupation of other properties of the estate. James Mbugua Kariuki shall therefore pay rent for the use of the building from the date of this ruling.

16. Plot No. 16 Njiku B is an undeveloped and unoccupied property next to New Crystal factory measuring approximately 0. 05 acres. Seven degrees North and Upcountry Valuers both valued this property at Kshs. 2 million. The administrators’ proposed that this property be distributed to Beth Wambui Kariuki, whereas the protestor proposed that this property be put under a family trust for the benefit of all beneficiaries. I see no reason to change the proposal made by the administrators. I hereby distribute Plot No. 16 Njiku B absolutely to Beth Wambui Kariuki.

17. Kiambaa/Karuri/T.61 is unoccupied and vacant. Seven Degrees North reported that the property measures approximately 0. 24 acres and is suitable for commercial developments. They valued the property at Kshs. 16 million. Upcountry valuers valued this property at 8 million. Both the administrators and the protestor were in agreement on the proposed mode of distribution of this property. I hereby affirm their proposal and distribute Karuri/Kiambaa/T.61 wholly to Beth Wambui Kariuki.

18. Kiambaa/Karuri/T.578 was also vacant property measuring approximately 0. 24 acres. The valuation was Kshs. 24 million and Kshs. 12 million from Seven Degrees North and Upcountry Valuers respectively. The administrators’ proposed that this property be equally distributed between John Mbugua and Paul Kihumba. The protestor proposed that the property be distributed to Emily Marura. I hereby distribute Kiambaa/Karuri/T.578 equally between John Mbugua, Paul Kihumba and Emily Marura.

19. L.R Banana Township/32 contains a business block with three rental shops. Seven Degrees North valued that property at Kshs. 2 million while Upcountry Valuers explained that the property is approximately 0. 0106 in acreage, has a single storey commercial building occupied by three tenants each paying a monthly rent of Kshs. 10,000 and valued it at Kshs. 3,500,000. There being consensus between the parties on the distribution of this property I hereby allocate L.R Banana Township/32 to Ann Wangui Kariuki absolutely.

20. Kiambaa/Muchatha/T.160 is vacant property valued at Kshs. 25 million and is approximately 0. 25 acres. The administrators proposed that this property be wholly allocated to Emily Marura Kinyanjui while the protestor proposed that this property be distributed to himself. Considering previous allocations I hereby distribute Kiambaa/Muchatha/T.160 absolutely to Peter Kiiru Kariuki.

21. Kiambaa/Muchatha/T.381/6is property in vacant possession measuring approximately 0. 07 acres which Seven Degree North valued at Kshs. 12 million, whereas Upcountry Valuers placed a value of Kshs. 6 million on it. It was the administrators’ proposal that the property be distributed to Peter Kiiru Kariuki. The protestor proposed that this property be wholly distributed to Ann Wangui Kariuki. Taking into consideration allocations made to the other beneficiaries, I hereby distribute Kiambaa/Muchatha/T.381/6 to Ann Wangui Kariuki absolutely as proposed by the protester.

22. Plot No. 74 Thika Municipalityis in vacant possession and was valued at Kshs. 20 million by Seven Degrees North who stated its acreage to be approximately 0. 25 acres. Upcountry Valuers on the other hand valued it at Kshs. 6 million by and stated its acreage to be 0. 1 acres. There being consensus between the administrators and the Protestor on the distribution of this property to Paul Kihumba Kariuki, I hereby distribute Plot No. 74 Thika Municipality wholly to Paul Kihumba Kariuki.

23. L.R 209/276 Kariobangi Light Industries contains a block of single rooms rented by tenants paying a monthly rent of Kshs. 3200 per month. Seven Degrees North valued the property at Kshs. 30 million and estimated that it raises an annual rent income of Kshs. 2,073,600. Upcountry valuers on their part valued the property at Kshs. 27 million. The Administrators proposed that the property be distributed equally between Beth Wambui and Margaret Wangari while the protestor proposed that this property be placed under a family trust and the rental income would be used for the maintenance of the family home and cemetery. I hereby adopt the proposal by the administrators on the distribution of L.R No. 209/276 Kariobangi Light Industries to Beth Wambui and Margaret Wangari.

24. The protestor in his proposal claimed that Plot No. 276B Kariobangi Light Industries belonged to the estate and should be distributed to the beneficiaries. The administrators claimed that this property belonged to Beth Wambui and had never been estate property. Form P & A 5 dated 2nd October, 1997 lists the full inventory of assets and liabilities of the deceased. Plot No. 276 B Kariobangi Light Industries was not listed as an asset of the estate of the deceased. Furthermore, the protestor has not produced any additional evidence to back his allegations to this effect. Therefore, this Court cannot proceed to distribute property not available for distribution.

25. Plot No. 162 Huruma Ngei II estate is a block of rental units measuring approximately 0. 03 acres. Seven Degrees North and Upcountry valuers both valued this property at Kshs. 27 million and indicated that it had an annual rental income of 1. 9 million. The administrators proposed that the property be allocated to Peter Kiiru and Ann Wangui, whereas the protestor proposed that this propery be allocated to Emily Marura and himself. It was the 1st administrator’s testimony that the protestor was already receiving rental income from this property. This was not disputed by the protestor. Having considered the evidence on record, I hereby distribute Plot No. 162 Huruma NgeI II equally between Peter Kiiru and Ann Wangui.

26. Plot No. 116 Huruma Ngei II measuring approximately 0. 03 acres was valued at kshs. 22 million. The annual rental income is said to be Kshs. 1. 7 million. The administrators proposed that this property be distributed to Paul Kahumba while the protestor proposed that this property be distributed to Paul Kahumba and John Mbugua. Having considered previous allocations on rental property I hereby distribute Plot No. 116 Huruma Ngei II equally between Paul Kahumba and Emily Marura.

27. L.R 209/327/23 Pangani are rental units raising an annual rental income of Kshs. 860,000. Seven Degrees North valued this property at Kshs. 85 million while Upcountry valuers valued the property at Kshs. 65 miillion. The protestor proposed that this property be allocated to Ann Wangui while the administrators proposed that the property be wholly allocated to John Mbugua. Considering previous allocations made, the value of this property and the rental income it brings in, I am in agreement with the administrator’s proposal and hereby distribute L.R 209/327/23 Pangani to John Mbugua absolutely.

28. Plot No. 100 Mai Mahiu measuring approximately 0. 125 acres consists of a single commercial shop fronting the access road. Seven Degrees North reported that this property has a pending dispute with the County Government of Nakuru over title to the property. This was confirmed by both the 1st administrator and the protestor. The administrators proposed that the property be distributed to Peter Kiiru Kariuki while the protestor proposed distribution to John Mbugua. However, due to the pending dispute, I cannot make a determination on the distribution of this property.

29. Longonot/Kijabe Block 1/293-Ereri, Nanyuki/Marura Block 5/40- Ereri and Loitoktok/Emperon 1369 are three properties measuring approximately 50 acres, 80 acres and 20 acres respectively. All are in vacant possession. Having considered the size of these properties, each property will be equally distributed among all the beneficiaries of the estate of the deceased.

30. Plot No. 158 Lucky Summer is located in Nairobi County. However, Seven Degrees North reported that they were unable to locate the property for valuation and assessment. Upcountry valuers did not provide a report on this property. The 1st administrator confirmed that he too could not locate the property. Considering the derth of evidence available, this Court is unable to make a determination on Plot No. 158 Lucky Summer whose existence is in doubt.

31. I am in agreement with the proposal of the administrators on the distribution of the cereals shop to Beth Wambui. All farm animals being cattle and sheep, the money in various bank accounts and the shares in various companies are distributed equally among all beneficiaries of the estate of the deceased.

32. The protestor alleged that the 1st administrator purchased several motor vehicles using funds from the estate of the deceased. He proposed that these motor vehicles were therefore estate property available for distribution to the rightful beneficiaries. He alleged that the salary of Kshs. 60,000 was inadequate for him to amass as much wealth as he had. He contemplated that the only logical explanation was that he was enriching himself from the estate. No evidence was adduced that these motor vehicles were irregularly acquired using funds from the estate. The motor vehicles listed in the Protestor’s proposal are therefore not estate property available for distribution.

33. I note that this estate has not been distributed for the last 23 years and because of the acrimony between the two divides it is not possible for all the beneficiaries to hold the properties in trust as suggested by the Protestor. The disparities in the valuation reports filed hereto did not help matters. This is bearing in mind that Upcountry Valuers were the only ones who visited the site of the property as indicated in their reports.

34. In the premise therefore, I allow the application for confirmation of grant filed via summons dated 13th July 2015, and order as follows:

a) The Grant of letters of Administration Intestate made to John Mbugua Kariuki and Beth Wambui Kariuki on 10th March, 2008 be and is hereby confirmed in the following terms;

No PROPERTY DISTRIBUTION SHARE

1. L.R Kiambaa/Thimbigua

/357 Peter Kiiru Kariuki

Beth Wambui Kariuki

John Mbugua Kariuki

Paul Kihumba Kariuki

Margaret Wangari Kariuki

Ann Wangui Kariuki

Emily Marura Kinyanjui 1. 104 acres

1. 104 acres

1. 376 acres

1. 104 acres

1. 104 acres

1. 104 acres

1. 104 acres

2. L.R Kiambaa/Thimbigua/1549 John Mbugua Kariuki

Remaining cowsheds and biogas digester to be jointly owned by all beneficiaries. Homestead

Original

Cowshed

3. L.R Loitoktok/Emperon/1369 All Beneficiaries Equally

4. L.R Ereri Company Limited Shares All Beneficiaries Equally

5. Plot No. 209/3271/23

Pangani John Mbugua Kariuki Absolute

6. Plot No. 15 Njiku B.

New Crystal diary All beneficiaries Equally

7. Plot No. 32 Banana Ann Wangui Kariuki Absolute 8. Plot No. 116 Ngei II Huruma Paul Kahumba Kariuki

Emily Marura Kinyanjui Equally

9. Plot No. 162 Ngei II Huruma Peter Kiiru Kariuki

Ann Wangari Kariuki Equally

10. L.R 209/276 Kariobangi Light Industries Beth Wambui Kariuki

Margaret Wangari Kariuki Equally

11. L.R No. 74 Thika Municipality Paul Kihumba Kariuki Absolute

12. Plot No. 16 Njiru B Beth Wambui Kariuki Absolute

13. Plot No. Kiambaa/Karuri/T578 John Mbugua Kariuki

Paul Kihumba Kariuki

Emily Marura Kinyanjui Equally

14. Plot No. Kiambaa/Karuri/T61 Beth Wambui Kariuki Absolute

15. Plot No. Kiambaa/Muchatha/T.381/6 Ann Wangui Kariuki Absolute

16. Plot No. Kiambaa/Muchatha/T.160 Peter Kiiru Kariuki Absolute

17. Cows and Sheep Peter Kiiru Kariuki

John Mbugua Kariuki

Paul Kihumba Kariuki

Emily Marura Kinyanjui

Beth Wambui Kariuki Equally

18. Cereals shop at Nyamakima Beth Wambui Kariuki Absolute

19. Money in National Bank A/c 010240000501200 All beneficiaries of the estate Equally

20. Money in Standard chartered Bank of Kenya A/c No. 11520146366-010 All beneficiaries of the estate Equally

21. Shares in Kenya Commercial Bank 49,796 shares All beneficiaries of the estate Equally

22. Shares in National Bank of Kenya 3, 157 shares All beneficiaries of the estate Equally

23. Shares in Barclays Bank of Kenya 28,400 shares All beneficiaries of the estate Equally

b) There shall be no orders as to costs.

It is so ordered.

DATED SIGNED AND DELIVERED IN VIRTUAL COURT THIS 27TH DAY OF MAY, 2020.

.......................

L. A. ACHODE

HIGH COURT JUDGE