[2020] KEHC 9419 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 2859 OF 2012

IN THE MATTER OF THE ESTATE OF DANIEL KAGO MACHARIA ALIAS DANIEL KAGO ALIAS DANIEL MUKORE ALIAS DANIEL KAGO MUKORE (DECEASED)

GLADYS WAMBUI KAGO.......................................1ST APPLICANT

ESTHER WANJIKU KAGO.....................................2ND APPLICANT

VERSES

MERCY NDUTA KAGO................................................RESPONDENT

JUDGMENT

1. The deceased Daniel Kago Macharia alias Daniel Kago alias Daniel Mukore alias Daniel Kago Mukore died intestate on 27th September 2012. His estate comprised the following properties:-

(a) Githunguri/Kanjai/1805 (0. 101 Ha);

(b) Githunguri/Kanjai/1806 (0. 101 Ha);

(c) Githunguri/Kanjai/1808 (0. 101 Ha);

(d) Githunguri/Kanjai/1809 (0. 101 Ha);

(e) Githunguri/Kanjai/1811 (2. 670 Ha);

(f) Githunguri/Kanjai/1208 (0. 25 Acres);

(g) Githunguri/Kanjai/1211 (0. 08 Ha);

(h) Githunguri/Kanjai/1212 (0. 215 Acres);

(i) Githunguri/Kanjai/1213;

(j) Githunguri/Kanjai/1439 (0. 29 Ha);

(k) Lorry KBJ 460J;

(l) Saloon KBK 578V;

(m) Equity Bank Account; and

(n) Githunguri Dairy Co-op Society Ltd Shares.

2. The deceased left four houses as follows:-

(a) Esther Wanjiku Kago (1st widow/2nd applicant);

Hannah Wangui Kago (daughter);

Joseph Macharia Kago (son);

(b) Gladys Wambui Kago (2nd widow/ 1st applicant);

Benson Ngugi Nduati (son);

David Thandi Kago (son);

Andrew Macharia Kago (son);

Susan Wanjiru Kago (daughter);

(c) Jesinta Njoki Mwaura (3rd widow (deceased))

Blaise Muchina Kago (son);

Valentine Kanini Kago (daughter);

Anne Marie Wangui Kago (daughter);

Joseph Macharia Kago (son) (deceased);

(d) Mercy Nduta Kago (4th widow/respondent);

Nancy Wanjeri (daughter);

Joseph Gitau (son); and

Geoffrey Gathongo (son).

3. On 27th November 2012 the applicants petitioned the court for the grant of letters of administration intestate. The grant was issued to them jointly on 6th August 2013. Following an application for revocation by the respondent, a consent was reached in which she was made a co-administrator of the estate. A fresh grant was issued with three administrators (the applicants and the respondent). The parties agreed to have the court distribute the estate of the deceased, based on their own affidavits and written submissions by their counsel. The applicants were represented by Mr. Ng’ang’a and the respondent by Mr. Etole.

4. The applicants proposed that each of the parcels Githunguri/Kanjai/1811, 1208, 1211, 1212, 1213 and 1439, vehicles KBJ 460J and KBK 578V; and proceeds of Equity Bank and shares at Githunguri Dairy Cooperative Society Ltd be equally shared to the four houses. They further proposed that Githunguri/Kanjai/1805 goes to the 2nd applicant; Githunguri/Kanjai/1806 goes to Blaise Muchina Kago (representing the house of the late Jecinta Njoki Mwaura); Githunguri/Kanjai/1808 goes to the respondent; and Githunguri/Kanjai/1809 goes to the 1st applicant.

5. On her part, the respondent proposed she shares Githunguri/Kanjai/1811 equally with the applicants; she gets Githunguri/Kanjai/1213 absolutely because they comprise her matrimonial home; and then she gets Githunguri/Kanjai/1439 absolutely because on it are shops she developed with the deceased. She stated that she contributed to the acquisition and development of the family wealth. The respondent was the fourth (last) wife of the deceased.

6. It is common ground that it was the deceased who subdivided his land into the various portions, the majority of them being more or less equal in size. He knew he had a large family. The parcels were certainly intended to be passed over to members of his family.

7. Githunguri/Kanjai/1811 is 2. 670 Ha, and is the largest in size of parcels of land of the deceased. Then there is Githunguri/Kanjai/1439 on which were developed shops which the respondent has always operated and got rent from since the death of the deceased.

8. Lastly, there was no evidence tendered regarding when any of the deceased’s properties was bought, in relation to when each of the widows was married, or was staying with him. It should be borne in mind that this is a succession cause, and not a matrimonial property dispute. If the respondent sought to prove that most of the estate was acquired after she, as last wife, was married to the deceased she needed to call that evidence.

9. Under section 40 of the Law of Succession Act (Cap 160) the deceased died intestate and married four times, and each marriage had children. The section provides that:-

“40(1)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.

(2) The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38. ”

10. Ideally, what the applicants and the respondent are each entitled to the deceased’s personal and household effects. In respect of the net intestate estate, the same should 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. The children are 12, and the surviving wives are the two applicants and the respondent. The total would be 15 units.

11. Even then, the court has a wide discretion in sharing the estate of the deceased to the beneficiaries. It has to consider the particular circumstances of the case, even as it seeks to be equal, fair and equitable (Rono –v- Rono & another [2005] IKLR 538; Rael Vulekani Musi –v- Rachel Edagaya Akola [2016]eKLR). Where property is agreed acquired and developed in the course of a marriage, a marriage that results into children, and because contribution to the acquisition and development of the marriage may be direct or indirect, there will be a presumption of contribution on the part of either spouse. This is the reason why strict application of section 40(1) of the Act, although fair to the children, may be unfair to the widows (In Re the Estate of the late George Cheriro Chepkosiom (Deceased) [2017]eKLR). Women should not be let to feel that, it is better for them to divorce and seek the determination of matrimonial property than to wait in a marriage until they become widows to be equated, during succession, to their children. Section 40, as far as widows are concerned, is an affront to Article 45 of the Constitution that recognizes and protects the family, and guarantees parties to a marriage equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.

12. Bearing the above in mind, I order that the applicants and the respondent shall equally share Githunguri/Kanjai/1439 and the shops thereon. If, for any reason, the joint registration becomes untenable, they will sell the property and equally share the proceeds. Until that is done, all rent from the shops will be shared equally.

13. The other valuable property in the estate is Githunguri/Kanjai/1811. This will be shared equally among all the children of the deceased as named above.

14. Hannah Wangui and Joseph Macharia (both from the house of the 2nd applicant) shall equally share Githunguri/Kanjai/1805 and 1806; Benson Ngugi Nduati, Andrew Macharia and David Thandi (from the house of the 1st applicant) shall equally get Githunguri/Kanjai/1808 and 1809; Valentine Kanini, Joseph Macharia, Blaise Muchina and Anne Marie Wangui (from the house of Jesinta Njoki Mwaura) shall equally share Githunguri/Kanjai/1208 and 1211; and Nancy Wanjeri, Joseph Gitau and Geoffrey Gathogo (from the respondent’s house) shall equally share Githunguri/Kanjai/1212 and 1213.

15. Vehicles KBJ 460J and KBK 578V shall be sold. The proceeds, together with the proceeds at Equity Bank Account and the shares at Githunguri Dairy Cooperative Society, shall be equally shared among all the beneficiaries of the estate of the deceased.

DATED and SIGNED at NAIROBI this 27TH day of FEBRUARY, 2020.

A.O. MUCHELULE

JUDGE

DATED and DELIVERED at NAIROBI this 2ND MARCH, 2020.

A.N. ONGERI

JUDGE