[2022] KEHC 26994 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 478 OF 2012

(CONSOLIDATED WITH SUCCESSION CAUSE NO. 1912 OF 2012)

IN THE MATTER OF THE ESTATE OF FRANCIS MBUGUA MWIHIA (DECEASED)

WANGUI KATHLEEN MWIHIA...................................................1ST EXECUTOR/APPLICANT

SAMWEL NJONJO KAGIRI........................................................2ND EXECUTOR/APPLICANT

VERSUS

LUCY WANJIRU........................................................................................................RESPONDENT

JUDGMENT

1. The deceased Francis Mbugua Mwihia died on 16th October 2011. He left a written Will dated 12th June 1974 in which he appointed his wife Wangui Kathleen Mwihia (1st applicant) and brothers Samuel Njonjo Kagiri (2nd applicant) and Edward Kiiru Kagiri as executors. The applicants petitioned this court and on 21st March 2013 were issued with a grant.

2. The deceased and the 1st applicant got five children who are the following:-

(a) Anne Mumbi Mwihia;

(b) Martha Njoki Mwihia;

(c) Robert Kagiri Mwihia;

(d) Patricia Wambui Mwihia; and

(e) David Njuguna Mwihia.

3. It is now not disputed that the deceased had a relationship with the respondent Lucy Wanjiru as a result of which the two following children were born:-

(a) Brian Githambo; and

(b) Terry Eunice Muringi.

4. The applicants filed the instant application dated 12th October 2015 seeking that the grant of probate issued to them be confirmed in accordance with the Will. The other prayer was that the legal fees expended by the executors be recovered from the net estate of the deceased before the estate is distributed.

5. The respondent opposed the application. She did this on behalf of her children with the deceased. Her case was that her children had not been provided for in the Will. She stated that the deceased was survived by seven children, and not five as indicated in the application. She stated that, while the deceased had in his Will provided 60% in equal shares for all his children, the application had limited that provision to only the 1st applicant’s children. Her other concern was that A/C No. xxxxxxxxxxxx at Equity Bank, Community Branch, and A/C No. xxxxxxxxxxxx at National Bank had been omitted from the schedule of assets. She complained that, although Brian Githambo had been provided Kshs.1,000,000/= in the Will and Terry Eunice Muringi provided Kshs.1,500,000/=, this was on the basis that they were dependants. Yet, they were the children of the deceased. Lastly, she complained that LR No. 12144/28 (I.R. 103769) Muiri Road, Karen Area, Nairobi and Loc. 1/Rwegethia/599 in Muranga had been undervalued by the applicants. The properties were later valued by Gimco Limited on 22nd July 2019 and found to be worth Kshs.56,000,000/= and Kshs.12,000,000/= respectively.

6. The applicants were represented by Mrs Judy Thongori (SC) and the respondent by Mr Mukele. Each filed written submissions which I have read and considered.

7. At the time when the deceased died he was living on LR No. 12144/28 (I.R. 103769), Muiri Road in Karen. In paragraph 3 of the Will, the deceased asked that the property should not be sold during the life of the 1st applicant, unless she provided her consent in writing. She would continue to live here as long as she desired. On sale, 60% of the net proceeds would go to the children in equal shares. He did not name the children, but it is now admitted that he left seven children. These are the five children of the 1st applicant and the two children of the respondent. They will all benefit equally from the 60% of the net proceeds when the house is ultimately sold. It is expected that valuation will be done at the time of the said sale.

8. The executors will distribute the rest of the estate on the basis that the deceased had seven children, not five as indicated in the application for confirmation.

9. The respondent made reference to two specific bank accounts, one at Equity Bank and one at National Bank. It was upon the executors to collect and gather the estate left by the deceased. The information given is specific. It is expected that, under section 83(g)of theLaw of Succession Act (Cap. 160), the executors will account to the court and the beneficiaries regarding the proceeds of this account.

10. Section 5(1) of the Act provides that:-

“(1) Subject to the provisions of this Part and Part III, every person who is of sound mind and not a minor may dispose of all or any of his free property by will, and may thereby make any disposition by reference to any secular or religious law that he chooses.”

11. I accept that the powers of the executors to distribute the estate of the deceased flow from the Will and must reflect the wishes of the deceased. Except for the clarification in the forgoing, the deceased’s Will was not contested. I consequently allow the application. The confirmation of the grant of probate will be in accordance with the Will of the deceased made on 12th June 1974.

DATED AND SIGNED THIS …………………. DAY OF MARCH 2022

A.O. MUCHELULE

JUDGE

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 28TH DAY OF MARCH 2022

A.O. MUCHELULE

JUDGE