[2025] KEHC 173 (KLR)

In re Estate of Francis Mwangi Kariuki (Deceased) (Succession Cause 230 of 2013) [2025] KEHC 173 (KLR) (16 January 2025) (Ruling)

Neutral citation: [2025] KEHC 173 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause 230 of 2013

HM Nyaga, J

January 16, 2025

IN THE MATTER OF ESTATE OF FRANCIS MWANGI KARIUKI (DECEASED)

In the matter of

Josephine Muthomi Mwangi

1st Administrator

John Macharia Mwangi

2nd Administrator

Ruling

1. The deceased herein died on 18th April 2008.

2. Vide a petition filed in court on 16th April 2013, Josephine Muthomi Mwangi and John Macharia Mwangi sought letters of administration intestate. They describe themselves as the widow and the son to the deceased respectively.

3. Subsequently, a grant of letter of administration intestate was issued on 16th July 2013.

4. The court record shows that the two administrators did not move to have the grant confirmed and after a notice to them, the grant was revoked by the court on 5th October 2018. This prompted the application dated 25th February 2022, which sought to set aside the order of revocation of the grant. The same was allowed on 4th August 2022 and the Administrator were directed to have the grant confirmed.

5. Thereafter the Administrator filed summons for confirmation of the grant dated 19th August 2022. In the affidavit in support of the application, the administrators set out their proposed mode of distribution of the estate as follows:-a.Parcel No. Nakuru/Kirengero SS/75 to be distributed to John Macharia Mwangi wholly.b.Parcel No. Kericho/Morau/146 to be distributed to Margaret Muthoni Nguri whollyc.Parcel No. Kericho/Lelu Block 3 (Morau) 200 to be distributed to Isaac Rotich wholly.

6. Godfrey Kananu Mwangi, a son to the deceased filed an affidavit of protest against the proposed confirmation of the grant. He averred that he was not informed of the intended confirmation and so he did not consent to it. He further avers that the proposed made of distribution was not equal nor equitable. He proposed that the estate be distributed as follows:a.Parcel Nakuru Kirengero SS/75 to be distributed to Kibui Mwangi and Josephine Muthoni in equal shares.b.Parcel No. Kericho/Morau/146 be distributed to Kibui Mwangi and Josephine Muthoni in equal shares.c.Parcel Kericho/Lelu Block 3 (Morau) 200 to be distributed to Isaac Rotich wholly.

7. Directions were given that the protest and the summons for confirmation were to proceed by way of viva voce evidence.

8. At the hearing, the protestor asserted that in respect to parcel No. Kericho/Morau/146, the same was his land, having bought it in 1980. That his late father requested him to cede that land in exchange for land at Kiambu, which he accepted. Thus, he stated, he has no claim over parcel No. 146.

9. In respect to parcel No. 200, the protestor averred that their late father had wanted to divide it between him and Macharia who is from the 2nd house.

10. In respect to Kerengere SS/75 the protestor state that he was to get 1 ½ acres while Macharia was to get the remainder.

11. The protestor further averred that his sister Jacinta Wanjiru was excluded and thus seek that she gets a share of the estate.

12. The Protestor admitted that he was aware that parcel No. 200 was sold to one Isaac Rotich for Kshs. 3 Million and that he received Kshs. 14, 000/- from that amount. He thus demands a further sum of Kshs. 1, 360,000/- as his rightful entitlement from the sale.

13. The protestor denied that he “grabbed” one acre of land belonging to the deceased in Kiambu.

14. The said Jacinta Wanjiru Mwangi testified that she is the only daughter from the 1st house. She stated that she never consented to the sale of land to Isaac Rotich. That she has not gotten anything from her father’s estate, thus she is entitled to a share thereof.

15. The Administrator did not testify. Instead they chose to rely on the affidavit in support of the summons for confirmation of the grant and the supplementary affidavit, by Lucia Wanjiru Njuguna.

16. In her affidavit, Lucia stated that the deceased gave Godfrey 2 acres of land in Kiambu. That the deceased had summoned all his children and had declared that all his daughters would share the land at Kericho/Lelu/200. That the deceased gave John Macharia Mwangi the land at Kirengero so as to take care of her mother during her lifetime. That the deceased gave parcel land No. Keriah/Morau/148 to Stephen Nguri Mwangi who is now deceased but who left a widow and 5 children.

17. In regard to Isaac Rotich, Lucia avers that he is just a proposed purchaser of the land at Keriah/Lelu/200.

18. At the close of the hearing parties were directed to file submissions. Only the administrators filed theirs.

19. It was submitted that the Protestor had in paragraph 10 (c) of his affidavit agreed with the proposed mode of distribution but backtracked on it on cross examination in court. It was also pointed out that the protestor had admitted to receiving some money from Isaac Rotich tendering his protest ingenious.

20. It was further submitted, that since the deceased was polygamous then Section 40 of the Law of Succession Act ought to apply.

21. Having stated the above, I consider that the only issue for determination is how to distribute the estate.

22. There is no dispute as to the 3 properties that form the estate herein. The deceased had 2 families/houses. The 1st house had 2 children while the second house had 9 children.

23. In her affidavit, Lucia also mentioned one Grace Nyakio Wainaina but did not expound on her status in the family.

24. It is also evident that some of the children from the 2nd house are deceased. Save for Stephen Ngwi, no more information was given on the other deceased’s children.

25. The Protestor had sought that the property be divided equally between the two houses, while the Administrators sought the application of section 40 of the Act.

26. The deceased was polygamous. Thus section 40 of the Act is applicable. It provides as follows:-Where intestate was polygamous‘(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. ’

27. Since the 1st house had only 2 children as against the 9 in the 2nd house, what the protestor proposes is an attempt to get a bigger piece of the cake, to the detriment of his siblings, and especially those from the 2nd house.

28. Where the number of children/dependants in each house are not similar or identical, then the court as to apply a formula under the Act, which is appropriate for such families.

29. From the evidence tendered and the documents filed in court. parcel No. Kericho/ Morau/146 belonged to the deceased. In his affidavit of protest, the protestor proposed that the same be shared between his mother Kibui and the 2nd widow, Josephine. In his evidence in court, he conceded that the 2nd house was given that parcel of land after he ceded it to the deceased in exchange for the land in Kiambu, hence he had no claim over it.

30. Given this evidence in court. I take that what the protestor stated was that the 2nd family had been settled in Parcel No. 146. It is my view that the same ought to be maintained.

31. Therefore, as regards parcel No. Kericho/Morau 146, I order that the same shall be held, by the 2nd widow on behalf of her children. They can then agree on how to share it out amongst themselves equally or otherwise as they may have agreed already.

32. As regards, parcel Kirengere/ SS 75, the evidence seems to suggest that this is where the deceased lived. The Administrators had proposed that the entire land goes to John Macharia a son from the 2nd house. That proposal was consented to by the children of the 2nd house with a few exception, and on account of death. The Protestors and his sister did not consent to the proposal, and have suggested that the same be divided equally between the 2 houses.

33. In view of the uneven of the children in the 2 houses. I find that the protestors’ proposal to be unfair, since it will mean him and his sister taking almost a half of the land to themselves whilst leaving the 9 children of the 2nd house to share the other half of the land.

34. I also find the administrators’ proposal unfair as it will mean one beneficiary taking a whole share to the exclusion of other beneficiaries.

35. In regard to this particular property, I find that the surviving widow and each child of the deceased is entitled to an equal share thereof. It is so ordered.

36. As regards parcel No. Morau/200, there is evidence to suggest that the same has already been sold to Isaac Rotich. The said parcel was a subdivision of title No. Kericho/Lelu Block 3 (Morau) 83. The subdivision done on 26. 4.1996 created parcel No. 200 and 201 as per the search certificate filed herein. The parties did not address me on land parcel No. 201 so I shall not dwell on it.

37. Now the purported sale to Isaac Rotich is by law null and void by virtue of section 82 of the law of succession Act, which provides as follows:-“82. Powers of personal representativesPersonal representatives shall, subject only to any limitation imposed by their grant, have the following powers—(a) to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative;

(b) to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best: Provided that—(i) any purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased; and

(ii) no immovable property shall be sold before confirmation of the grant; (c) to assent, at any time after confirmation of the grant, to the vesting of a specific legacy in the legatee thereof;

(d) to appropriate, at any time after confirmation of the grant, any of the assets vested in them in the actual condition or state of investment thereof at the time of appropriation in or towards satisfaction of any legacy bequeathed by the deceased or any other interest or share in his estate, whether or not the subject of a continuing trust, as to them may seem just and reasonable to them according to the respective rights of the persons interested in the estate of the deceased, and for that purpose to ascertain and fix (with the assistance of a duly qualified valuer, where necessary) the value of the respective assets and liabilities of such estate, and to make any transfer which may be requisite for giving effect to such appropriation: Provided that, except so far as otherwise expressly provided by any will—(i) no appropriation shall be made so as to affect adversely any specific legacy;

(ii) no appropriation shall be made for the benefit of a person absolutely and beneficially entitled in possession without his consent, nor for the purpose of a continuing trust without the consent of either the trustees thereof (not being the personal representatives themselves) or the person for the time being entitled to the income thereof, unless the person whose consent is so required is a minor or of unsound mind, in which case consent on his behalf by his parent or guardian (if any) or by the manager of his estate (if any) or by the court shall be required.”

(a) to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative;

(b) to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best:

(i) any purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased; and

(ii) no immovable property shall be sold before confirmation of the grant;

(c) to assent, at any time after confirmation of the grant, to the vesting of a specific legacy in the legatee thereof;

(d) to appropriate, at any time after confirmation of the grant, any of the assets vested in them in the actual condition or state of investment thereof at the time of appropriation in or towards satisfaction of any legacy bequeathed by the deceased or any other interest or share in his estate, whether or not the subject of a continuing trust, as to them may seem just and reasonable to them according to the respective rights of the persons interested in the estate of the deceased, and for that purpose to ascertain and fix (with the assistance of a duly qualified valuer, where necessary) the value of the respective assets and liabilities of such estate, and to make any transfer which may be requisite for giving effect to such appropriation:

(i) no appropriation shall be made so as to affect adversely any specific legacy;

(ii) no appropriation shall be made for the benefit of a person absolutely and beneficially entitled in possession without his consent, nor for the purpose of a continuing trust without the consent of either the trustees thereof (not being the personal representatives themselves) or the person for the time being entitled to the income thereof, unless the person whose consent is so required is a minor or of unsound mind, in which case consent on his behalf by his parent or guardian (if any) or by the manager of his estate (if any) or by the court shall be required.”

38. In Re-Estate of Barasa karenje Marya (Deceased (2020) eKLR. Justice W. Musyoka held as follows in matters of sale of land belonging to a deceased person:“The alleged sale of land happened, not during the deceased’s lifetime, and did not involve the deceased, but after his death, involving one of his surviving sons, David Wafula Kanenje, before he had obtained representation to enable him administer the estate. That would mean, by dint of section 79 of the Law of Succession Act, that the assets of the estate had not yet vested in David Wafula Kanenje. He, therefore, had no power, by dint of section 82 of the Law of Succession Act, to sell the property. He could not enter into any binding contract, with anybody, over any of the assets that made up the estate of the deceased. That being the case, it meant that, by dint of section 45 of the Law of Succession Act, any transaction between him and any other person, amounted to intermeddling with the estate of the deceased, and those involved, therefore, would be deemed to have engaged in criminal activity, and should have been prosecuted. The said sales contravened section 45 and 82 of the Law of Succession Act, and there is no possibility that the applicants could have acquired any valid title from the said sales, for the person who purported to sell the property to them had no title to it. He had nothing to sell, and the applicants bought nothing from him.”

39. Therefore, in as much as the beneficiaries of some of them agreed to sell the land and some received the funds, that sale is not lawful. It is null and void. The court cannot sanction such a transaction which is expressly prohibited by statute.

40. Having stated the above, I find that the said property ought to be distributed between all the children and surviving widow of the deceased equally. Should they now decide to go ahead with the sale of that land then the proceeds shall be shared equally as above.

41. In conclusion the court distributes the estate as follows:-a.Land Parcel No. Kericho/Morau 146 to be held by the 2nd widow on her own behalf and on behalf of her children from the 2nd house.b.Land parcel No. Kirengera/SS 75 to shared equally between the surviving widow and the children from both houses equally with the widow considered as a unit.c.Land parcel No. Kericho Morau Block 3/200 to be shared equally between the surviving widow and all the children of the deceased equally with the surviving widow considered as a unit.d.The distribution to be completed in the next 180 days.

42. Being a family matter. I see no point in burdening any party with costs. I order that each party shall bear its own costs.

SIGNED AND DELIVERED (VIRTUALLY) AT MERU THIS 16TH DAY OF JANUARY, 2025. H. M. NYAGA,JUDGE.