[2022] KEHC 15791 (KLR)

In re Estate of Elijah Njenga Ng'ang'a (Deceased) (Succession Cause 56 of 2017) [2022] KEHC 15791 (KLR) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15791 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Succession Cause 56 of 2017

CM Kariuki, J

December 1, 2022

IN THE MATTER OF THE ESTATE OF ELIJAH NJENGA NG’ANG’A - (DECEASED)

Between

Philomena Waithera Njenga

Petitioner

and

David Kariuki Njenga

Objector

Judgment

1. The petitioner herein is a daughter of Grace Njeri Njenga (deceased), who petitioned for letters of administration intestate concerning the estate of Elijah Njenga Ng’ang’a (deceased) on July 9, 2012. Upon her death, the petitioner applied substitution wherein the court, on July 20, 2018, directed that both the petitioner and the objector be appointed as administrators and proceed to take out letters of administration concerning the estate.

2. The petitioner then filed an application seeking orders that the court stays the said order, set aside, and review the same. The court granted orders directing that Philomena Waithera Njenga be substituted as the petitioner.

3. The objector vide objection dated July 15, 2014 objected to the making of a grant because he was the deceased son and the deceased had two wives, claims that the petitioner denied hence the instant cause.

4. The matter proceeded by way of viva voce evidence.

5. Petitioner’s submissions

6. The petitioner submitted that the objector had not produced sufficient evidence to prove that he was a dependant of the deceased. Reliance was placed on section 29 of the Law of Succession Act.

7. The petitioner denied the objector’s claims that the deceased had two wives before his death, ie, Eunice Nyokabi Kabiru (deceased) from the first house and Grace Njeri Njenga (deceased) from the second house and that the deceased married his mother in 1964 and that they had six children.

8. It was stated that the objector could not prove the issue of marriage and that only his mother and an independent witness could prove marriage, as the objector was born in 1976 and not 1964.

9. The objector did not participate in the deceased’s funeral arrangement. When the Petitioner’s late mother petitioned for the deceased estate, she was issued a copy of the Chief’s letter dated February 13, 2014, and in the said letter, there was no mention of the deceased having two wives or that the objector is his son.

10. The petitioner stated that the birth certificate was produced. Still, the objector was registered on 13/2/201two, two years after the deceased’s death, and the information contained in the certificate is made on misrepresentation of facts presented by the objector. Unfortunately, the Registrar of Births relied on the same and proceeded to issue him with the said birth certificate.

11. It was asserted that the only person who would have processed the said certificate was the objector’s mother, who would have provided the registrar of births with accurate information about the objector’s father. Since March 1976, the objector never bothered to process the certificate but only processed it after the deceased’s death to frustrate the petitioner and the rightful beneficiaries in their right to inherit the deceased’s estate.

12. Further, it was contended that the objector did not produce independent evidence or DNA report to show that the deceased was indeed his father.

13. The petitioner argued that according to DW2- Area Chief, upon the DO Kipipiri hearing the parties, there was no evidence by the objector to support his claim; hence the DO directed the area Chief to issue the petitioner with a letter for presentation in court for purposes of applying for letters of administration. The Chief’s letter was issued before the objector obtained his birth certificate.

14. Reliance was placed onIn re Estate of Patrick Mwangi Wathiga- Deceased[2015] eKLR, In re Estate of the Deceased of Saitoti Kidiis [2020] eKLR, In re Estate of George Musau Matheka (Deceased) [2010] eKLR.

15. Lastly, the petitioner asserted that it is only fair and just that the court dismisses the petitioner’s application for appointment as an administrator and that the petitioner be allowed to take letters of administration for the deceased estate.

16. Objector/ applicant’s submissions

17. On whether the applicant is a son of the deceased, the objector asserted that he produced a copy of a Chief’s letter dated February 18, 2022, which acknowledged that the deceased had two families and that he was the deceased’s son. Reliance was placed on the case of In re Estate Shem Kitanga (deceased)[2018] eKLR.

18. It was stated that the objector’s mother also testified, confirming that she was married to the deceased and they had six children whose names were omitted from this succession cause. She stated that she left with her children to stay in another place after the separation.

19. Further, the Registrar of Births stated that the birth certificate produced by the objector was authentic and it passed the requirements needed for late registration and further told the court that it was not challenged. That the objector’s testimony was supported by Joseph Mwangi Gichuhi, who stated that he was the deceased’s friend, that he knew that he had two families and that the objector was a true son of the deceased.

20. It was argued that there was sufficient evidence on record to establish that the objector was the deceased’s son for purposes of succession as per section 3 (2) of the Law of Succession Act.

21. Further reliance was placed on section 29 of the Law of Succession Act, with the objector stating that he and his family fall under category (a) of the dependants under the Law of Succession. Reliance was also placed on In re Estate of the Late Annelies Anna Graff[2019] eKLR.

22. In conclusion, the objector asserted that since two houses survived the deceased, it is fair that the court appoints two administrators-one from each house.

Issues, Analysis, and Determination 23. Having considered the application herein, the affidavits of the parties and their submissions, including the authorities cited and the applicable law, the court finds that the issues that arise are: -a.Whether the objector is the deceased son and, therefore, a beneficiary of the deceased’s estate.b.Whether the objector should be appointed a co-administrator of the deceased estate.

24. Section 107 of the Evidence Act places the burden of proof upon the party that alleges. The standard of proof is on a balance of probabilities. Accordingly, the objector having alleged that he is the deceased’s son; the burden lies on him to prove on a balance of probability that the deceased was his father as was held inDT Dobbie & Co Ltd (K) v Wanyonyi Chebukati[2014] eKLR where the court cited the decision of Lord Denning in Miller v Master of Pensions [1947] in stating as follows: -Where the court held, “the degree is well settled. It must carry a reasonable degree of probability but not as high as required in a criminal case. If the evidence is such that the tribunal can say: We think it is more probable than not, the burden is discharged, but if the probabilities are equal, it is not. Thus, proof on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally unconvincing, the party bearing the burden of proof will lose because the required standard will not have been attained.”

25. It is the objector’s case that the deceased was his father and that two houses survived him. He stated that his mother and the deceased were married sometime in 1964, and they had six children before they separated and his mother left with the children. He stated that he was married in 1976 and that when he was small, his parents lived together.

26. In support, he produced a chief’s letter dated February 18, 2013 as P Exhibit 1, his identity card as P Exhibit 2, and a birth certificate as P Exhibit 3. The latter indicates that the deceased was the objector’s father. The birth certificate was issued on February 13, 2014 under late registration.

27. PW3, the Registrar of Births and Deaths in Nyandarua South, explained that the late registration birth certificate issued to the objector met all the requirements. He confirmed that the objector produced all the supporting documents required for late registration, including his and the mother’s identity card, the deceased’s death certificate, his baptismal card and leaving certificate, and a copy of a witness’ ID named Joseph Njuguna’s identity card which indicated that he was a neighbor.

28. That the objector stated that his testimony was supported by Joseph Mwangi Gichuhi, who said that he was the deceased’s friend and he knew that he has two families and that the objector was a true son of the deceased (however, I did not trace his testimony on the record).

29. On the other hand, the petitioner, DW1, testified that he was the deceased’ daughter, and she only came to learn about the objector after her father’s death. The objector came demanding to be put on the funeral committee, but her mother refused because he was a stranger.

30. She stated that after the funeral, they were summoned to the Chief’s Camp, where they disagreed with the objector and were referred to the DC. They were given copies of letters to refer them to the DO dated February 18, 2013, which is PExh 1. The letter had two families’ names according to what each side had provided the Chief. The DO heard their case, and the objector was directed to prove that he was the deceased’s son, but he never produced any evidence. The DO then gave the petitioner a letter to take to the Chief, after which he wrote the letter dated February 13, 2014 for them to take to court.

31. It was DW1’s testimony that the deceased was 78 when he died, and he never told them that he had another family. He used to work in Nairobi and come home over the weekend, but when he retired, he lived at home.

32. Further, DW2 Chief Makumbi testified that the objector came to their office demanding to be included in the deceased’s estate. He called both parties and did a letter referring them to the DC dated November 5, 2012, according to the information that both sides gave him regarding their families. Both parties were issued with this letter. On February 18, 2103, the objector returned to their office claiming he had misplaced the letter and did a replacement letter. That the purpose of the letter was for the DC to hear the dispute between the parties before he wrote a letter to be issued to court.

33. The Chief stated that the DO asked the Objector to prove paternity as the deceased had been separated from their mother for 30 years, but no proof was given. The objector was then given 21 days to present evidence of paternity, and on the day, they were supposed to return to the DO’s office to confirm the same, the Objector failed to appear, so he was directed to issue the letter dated February 13, 2014 for the petitioner to lodge a P & A matter.

34. The Objector mainly relied on the Chief’s letter dated February 18, 2013, marked P Exhibit 1, and his birth certificate, ie, P Exhibit 3, to support his case.

35. DW1 narrated to the court how the letter dated February 18, 2013 came to be. From his testimony, I am not sure why the objector relies on the same as part of his evidence that he is the deceased’s son. The letter appears to be a referral letter from the Chief to the DC indicating information about both families and their dispute for the DC to resolve the same. The letter does not definitively show that the objector is the deceased’s son and, therefore, a dependant on the estate. In any case, the letter was issued to both parties on November 5, 2012, and the letter dated February 18, 2013 was a replacement letter for the same after the Objector alleged that he had misplaced the initial letter.

36. In my view, the document that appears to hold more evidentiary weight for the objector’s case is the birth certificate that he produced. However, the contents of the same must be interrogated thoroughly by this court. From the record, the birth certificate was issued on February 13, 2014, which is two years after the deceased’s death under the late registration process. PW3, the Registrar of Births and Deaths in Nyandarua South, explained that the late registration birth certificate was issued to the objector, that he met all the requirements, and that the birth certificate was authentic.

37. In Kenya, late birth registration refers to all births which are not registered within six months from the date of birth of such a child. In support of late birth registration for a child, many of the following documents, which are provided in form GP 138 A, must be produced that is: -a.Municipal notification of birth.b.Certificate of doctor or midwife who attended the birth.c.Child immunization clinic card.d.School leaving certificate.e.Baptismal certificate.f.Identity card or passport.g.Letter from employer indicating date of birth.

38. Consequently, the question that lingers in my mind is whether the Birth Certificate adduced by the Objector is conclusive evidence of paternity. In N E O v H W K [2018] eKLR, the court observed that a Birth Certificate is proof of paternity but not the only final proof.

39. It is noteworthy that the Objector was born in 1976, but the Birth Certificate was issued in 2014 after the deceased’s death when he wanted to claim a share of the deceased’s estate. In my view, the Birth Certificate was procured to assist the Objector in laying a claim to the deceased’s estate and may not reflect the truth. I am not convinced that the documents provided by the Objector in acquiring the said Birth Certificate prove in any way that the deceased was his father. There is also a mention of a witness who was a neighbor, but he was not called to court to adduce evidence in support of the Objector’s case.

40. In the Estate of Stanley Kori Kiongo Alias Kori Kiongo (Deceased) [2016] eKLR, the court stated that: -“More important to note is the fact that the protestors carefully avoided calling their father, a son to the deceased, as a witness, and a very key witness, in this case, claiming that he was ailing though no evidence was tendered to support this fact. The omission to call such a crucial person cannot be ignored in considering the core dispute. The Petitioners’ case is that all the children of the deceased had agreed to the distribution, including the protestors’ father, whom the protestors carefully avoided producing in court, claiming that he was old and ailing. I note that no medical or tangible evidence supports his inability to appear before the court; hence the court was denied the opportunity to verify this fact. This inevitably leaves it open to the court to conclude that the evidence of the protestors’ father would have been adverse to their case, hence the reason why they carefully omitted to call him.”

41. The Objector was asked to provide any proof that he was the deceased’s son at the DO’s office in 2013, but he didn’t provide any, then he showed up with the Birth Certificate dated February 13, 2014. None of the Objector’s relatives or the deceased’s relatives came up to confirm that the Objector and his five siblings are the deceased’s children. Also, the Objector did not adduce any evidence to show that the deceased was indeed in their lives and contributed to raising them and their welfare or upkeep, mostly financially as dependants. Curiously, the Objector and his siblings never even reached out to the deceased and his new family despite knowledge of his existence and only showed up during his burial arrangements.

42. There is no evidence to prove that the child’s parents were married or had a relationship or that the deceased ever lived with or acknowledged the Objector and his siblings. DW1 did indicate that he was aware that the Objector’s mother was once married to the deceased, but they separated. Still, he had no evidence to prove the same and, more so, could not account for whether the deceased had had children with the Objector’s mother.

43. It is not foreign for people to come up after the death of a person to claim that they are either a son or daughter of the deceased for purposes of claiming a stake in the deceased’s estate. In my view, the production of the birth certificate alone is not proof that that child is the deceased’s. Sentiments echoed inIn re Estate of Patrick Mwangi Wathiga- Deceased [2015] eKLR as relied on by the Petitioner.

44. In the matter of the Estate of Patrick Mwangi Wathiga [supra], the Objector, in that case, showed up after the deceased’s death and bore the burden of proving that he was a child of the deceased hence a beneficiary of the deceased’s estate. The judge observed:“I am clear in my mind that the burden of proof lies on the Objector to prove paternity or his claim to be a beneficiary of the deceased’s estate……… The case becomes even more difficult where no medical evidence is adduced to prove paternity….”

45. In totality, I am not convinced that the Objector has discharged the burden placed on him. I find that the Objector has not proved on a balance of probabilities that he is a child of the deceased; thus, the court makes the following orders.i.The instant objection dated July 5, 2014 is dismissed with no orders as to costs.ii.The grants to issue to be petitioner.iii.The application to confirm grant be filed within 30 days.iv.Mention on January 26, 2023 for further directions.

DATED, SIGNED, AND DELIVERED AT NYAHURURU ON THIS 1ST DAY OF DECEMBER 2022. ………………………………..CHARLES KARIUKIJUDGE