[2021] KEHC 5162 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

SUCCESSION CAUSE NO. 1923 OF 2009

IN THE MATTER OF THE MATTER OF THE ESTATE OF GEORGE NJUNGE KIMINGI alias GEORGE EVERLYN NJUNGE (DECEASED)

MARY WANGUI NJUNGE..........................PETITIONER

VERSUS

JOSEPH NJENGA NJUNGE......................PROTESTOR

JUDGMENT

1. Mary Wangui Njunge and Joseph Njenga Njunge are personal representatives of the estate of George Njunge Kimingi alias George Everlyn Njunge who died on 2nd March, 2004. A Grant of representation intestate was issued to them on 26th March, 2012. Vide summons for confirmation of grant dated 7th June 2012, the Petitioner sought confirmation of the grant issued to them. She also filed an affidavit in support of the summons dated 7th June 2012 and proposed distribution of the estate of the deceased in the following terms:

PROPERTY PROPOSED DISTRIBUTION SHARE

L.R NO. NDUMBERI/RIABAI/1844 Mary Wangui Njunge to hold in trust for Margaret Wambui Njunge and Elizabeth Wahu Njunge Whole

L.R NO. NDUMBERI/RIABAI/1845 Jane Wanjiku Njunge

Esther Nyambura Njunge Equal

L.R NO. NDUMBERI/RIABAI.1846 Mary Wangui Njunge Whole

L.R NO. NDUMBERI/RIABAI/1847 Robert Njenga Njunge

Paul Njuguna Njunge Equal

L.R NO. NDUMBERI/RIABAI/1848 Joseph Njenga Njunge

Peter Ndungu Njunge Equal

L.R NO. NDUMBERI/RIABAI/1849 Peter Ndungu Mbugua Whole

L.R NO. NDUMBERI/RIABAI/1850 Peter Ndungu Mbugua Whole

2. The sum of the Petitioner’s case is that, before his demise the deceased sub divided his property and distributed the matrimonial property on L.R No. Ndumberi/Riabai/1846 to her. Further that the deceased sold the properties known as Ndumberi/Riabai/1849 and 1850 to Peter Ndungu Mbugua thus his inclusion in the list of beneficiaries. She contended that upon executing the agreement, the purchaser took possession of the properties. However, upon his demise, the balance of the purchase price amounting to Kshs 200,000/= was paid to her.

3. The Petitioner claimed that this did not prejudice any of the beneficiaries of the estate of the deceased as they had equally benefited during the lifetime of the deceased. She contended that this was through the good education they got and the business ventures sponsored by deceased through the sale of various properties. She urged the court to adopt her proposal to safeguard the interests of all beneficiaries of the estate of the deceased.

4. The Protestor filed an affidavit of protest dated 17th April, 2013 and a further affidavit dated 9th June 2014. It was his case that he together with his siblings namely Peter Ndung’u Njunge, Caroline Nyambura and Beatrice Wangui all children of the deceased were not consulted by the Petitioner before making the proposal for distribution of the estate. That before his demise, the deceased had subdivided his property into seven (7) plots which were not of the same size. He contended that the Petitioner’s proposal had favoured her own children and discriminated against those of the deceased’s first wife.

5. The Protestor further claimed that two of his siblings (Caroline Nyambura and Beatrice Wangui) had been entirely left out in the proposal and yet they were beneficiaries of the estate of the deceased. He averred that Peter Ndungu Mbugua was a stranger to them and yet had been considered in the Petitioner’s proposal and awarded two plots from the deceased’s estate. He disputed the presence of a sale agreement executed by the deceased as a forgery. He also denied claims that he personally benefitted from the deceased before his demise through the sale of various properties and should therefore receive a lesser share than his step brothers and sisters.

6. Caroline Nyambura Njunge and Beatrice Wambui Njunge jointly filed an affidavit of protest dated 25th February, 2015. They stated that they were children of the deceased and therefore entitled to a fair share of his estate. They contended that the proposed distribution by the Petitioner was unfair and did not take into consideration the value and accessibility of the properties in issue. Further, that the alleged sale of L.R No. Ndumberi/Riabai/1849 and 1850 to Peter Ndungu Mbugua was illegal taking into account that the consideration was not at market value and the amount was paid to the Petitioner. They urged the Court to amalgamate all the parcels and redistribute them fairly to the beneficiaries of the estate of the deceased.

7. Peter Ndungu Mbugua in an affidavit dated 1st September, 2014 deposed that he worked with the deceased at the Ministry of Transport and Communication in the Directorate of Civil Aviation in the 1970s and later became neighbours. He stated that in September 1999, the deceased approached him to purchase the property known as L.R No. Ndumberi/Riabai/1851 since he needed money to start a business venture with the Protestor herein. He averred that they entered into an agreement. Further, that he paid the purchase price and the property was transferred to him.

8. He went on to state that in 2002, the deceased sold him two other parcels namely L.R. No Ndumberi/Riabai/1849 and 1850 for a consideration of Kshs. 750,000/=. That the sale agreement was executed on 18th March, 2002 and a down payment of Kshs. 550,000/= was made to the deceased. He asserted that all these transactions took place in the presence of deceased’s wife the Petitioner herein and his wife Philomena Wanjiru Ndungu.

9. Peter Ndung’u Mbugua further averred that upon the payment of Kshs. 550,000/=, he took immediate possession of the two parcels. He however claimed that the deceased passed on before they could complete the transfer of the two titles to his name. He contended that when the deceased passed on, the Petitioner had financial difficulties and he therefore found it reasonable to pay the balance of the purchase price amounting to Kshs. 200,000/= pending transfer. The receipt of the balance was acknowledged by the Petitioner. He affirmed that he had no intention of defrauding the family of the deceased and prayed that the two parcels be distributed to him.

10. In his affidavit dated 17th May, 2018 Bishop Peter Phillips Ndungu described himself as the brother of the deceased. He stated that the deceased and his first wife separated in 1974 and at the time had four children between them. That later on, the deceased married Mary Wangui the Petitioner who came in the marriage with one daughter. Subsequently, the Petitioner and the deceased had five other children together. The deponent stated that in their rural home in Rironi Location, Kiroe Sub Location, Limuru Sub County, Kiambu County they have 4 acres of ancestral land. He proposed that since the deceased was entitled to a share of that property, his beneficiaries should get a share in his absence.

11. The matter proceeded by way of viva voce evidence. The Petitioner called three witnesses in support of her proposal being, a registered valuer from Kenstate Valuers Limited, a document examiner from the Criminal Investigation Department and a man who claimed to have purchased two plots from the deceased. The Protestor called two witnesses who also included a document examiner and the deceased’s brother.

12. In her testimony the Petitioner reiterated the contents of her affidavits and further stated that she is the widow of the deceased having been married in 1982. She stated that their union was blessed with six (6), children, five (5) of whom were biologically the deceased’s and the sixth of whom he had taken full parental responsibility as his own. They were Jane Wanjiku (1980), Robert Njenga (1983), Esther Nyambura (1984), Margaret Wambui (1988), Paul Njuguna (1986) and Elizabeth Wahu (1994). She testified that the deceased already had two other children namely Joseph Njenga and Peter Ndungu Njunge before their marriage. That, at the time, these two children were residing with their mother whose whereabouts were unknown up until the deceased’s funeral which she attended. She denied any knowledge of two other children of the deceased namely Caroline Nyambura Njunge and Beatrice Wambui Njunge whom she only met during the during the deceased’s funeral. However on cross-examination, she identified them as children of the deceased.

13. It was her testimony that before his demise, the deceased subdivided his property into eight (8) plots. That her proposal was in conformity with the wishes of the deceased. Further, that she had contributed towards the development of the matrimonial home situate on Plot No. 1846 considering that at the time of his demise, the house was incomplete. She also disputed claims that the sale agreement was fraudulent asserting that the same was executed by the deceased in her presence.

14. PW2was Alex Mwongera, a document examiner based at Criminal Investigation Department Headquarters at Nairobi. He stated that he was a qualified document examiner having undertaken his training at the CID Headquarters Forensics Lab and also at the National Ribat University in Khartoum. He produced a report Ref: CID/ORG/8/3/1/766. It was his opinion that after a comparison of the signatures presented and those on the alleged sale agreement, he came to the conclusion that the signatures were made by the same author.

15. PW3 was Geoffrey Waburi a registered valuer working with Kenset Valuers Limited. He produced several reports on the valuations conducted of the estate of the deceased which will be discussed later on in this Judgment.

16. Peter Ndungu Mbugua testified as PW4. He reiterated the contents of his affidavit asserting that he is the owner of plots no. 1849 and 1850 which he purchased for valuable consideration from the deceased and took immediate possession thereof. He asserted that his ownership has never been challenged up to now. He further testified that he had purchased plot no. 1851 from the deceased and the transfer had already been concluded before the deceased’s demise in 2004 and stated that he had no intention of defrauding the family of the deceased having been a good neighbour to him.

17. In his testimony, the Protestor reiterated the contents of his affidavits and stated that his mother was the 1st wife to the deceased with whom they had separated before his death. He averred that the deceased had four children with his mother, but the Petitioner had completely left out his sisters from the list of beneficiaries. Further, that the property was unevenly distributed considering that the parcels of land were not of similar value and the proposal favoured the Petitioner and her children to the detriment of other beneficiaries.

18. The protestor denied claims by the Petitioner that he benefited from the sale of properties owned by the deceased during his lifetime. He asserted that he was never involved and did not consent to any sale of property by the deceased. He insisted that the deceased was financially stable and was able to meet his parental responsibilities through his earnings including educating him.

19. The Protestor stated that he had no knowledge of the alleged sale of the two parcels of land no. 1849 and 1850 to Peter Ndungu Mbugua and asserted that the agreements produced in evidence were forgeries. He claimed that the purported sale transaction took place after the demise of the deceased and without involving other beneficiaries of the estate. His proposal was that all the parcels of land be consolidated and be distributed equally to the rightful beneficiaries.

20. Bishop Peter Phillips Ndungu testified for the Protestor and reiterated the contents of his affidavit. He also stated that the heirs of the deceased were entitled to a share of his father’s estate which would have gone to the deceased.

21. Emmanuel Kenga from the Criminal Investigation Department testified for the Respondent/Petitioner. He stated that he was a trained document examiner having acquired his training from Jerusalem in Israel, France and in Moshi Tanzania. He averred that he was giving testimony on behalf of Mr. Mweu who had examined the document and filed a report dated 24th June, 2016. He stated that Mr. Mweu was unavailable due to illness. It was his expert opinion that there was divergences in the disputed signatures indicating that they were written by a different hand.

22. Parties filed written submissions in support of their respective cases. In her submissions, the Petitioner submitted that Caroline Nyambura and Beatrice Wangui had not proved their parentage and there were disparities in their ages having been born 6 months apart according to their Passports.

23. On whether, Peter Ndungu Mbugua is a beneficiary of the estate, it was submitted that he has been in possession of the properties in issue since purchase and neither the respondent nor the other beneficiaries had ever raised any claim against him. Further, his testimony was corroborated by the Applicant and the supporting documentary evidence. It was further submitted that the protestors’ report of the signatures was inconclusive since the alleged maker was not present to defend his analysis. The Petitioner citedCivil Appeal No. 166 of 2012 before the Court of Appeal at Nyeri which discussed the burden of proof restating the legal adage that he who alleges must prove.

24. The Petitioner further submitted that the Court should consider the ages of her children when the deceased died, some of whom were minors. On the other hand, she stated that the protestor and his siblings were adults at the time of their father’s death and had greatly benefited from him through education and business ventures financed by the deceased. In her view, it was only fair that her children also receive the same benefits as those received by the step siblings when the deceased was alive. To buttress her argument she cited the case of Mary Rono vs Jane Rono & William Rono [2005] eKLR. In the said decision, the Court differentiated between children who were already working and those who required school fees and stated that provision of equal inheritance would work as an injustice.

25. On his part, the Protestor submitted that two of his two sisters were irregularly left out of the list of beneficiaries submitted by the Petitioner. He asserted that this position was affirmed by the Applicant/Petitioner who admitted the said omission in her testimony in Court. To buttress the need to include all beneficiaries in distribution of the estate property he cited the case of Al-Amin Abdulrehman Hatimy v Mohamed Abdulrehman Mohamed & Another [2013] eKLR, where the Court held that the law of Succession Act by virtue of Rule 26 requires any application for issue of a grant to be accompanied by a consent duly signed by all persons entitled in the share of the said estate.

26. On whether estate property had been proposed to be distributed to non –beneficiaries, the respondent submitted that it was the opinion of the expert that the signatures on the purported agreements did not match that of the deceased. Further, that there was no conclusive evidence from the Petitioner’s side to rebut the adduced evidence. He urged the Court to find that the alleged sale agreements was fraudulent and the said individual who allegedly purchased property be removed from the list of beneficiaries of the estate of the deceased. He cited the case of Kenya Ports Authority vs Modern Holdings [EA] Limited [2017] eKLR, before the Court of Appeal. In that case, the Court made a finding that in the event of conflicting expert evidence, it is the duty of the Court to consider the evidence and form its own opinion.

27. The Protestor further submitted that the proposed mode of distribution was not fair or in accordance with the laws of succession in Kenya. He argued that there should be equal distribution as outlined under Section 40 of the Law of Succession Act. He urged the court to include all beneficiaries of the estate of the deceased. In addition, he contended that it was not practical to share out the sub divided parcels as they are and proposed a consolidation of all parcels to be shared to all beneficiaries equally.

28. Having carefully considered the pleadings, oral evidence and the submissions of the parties in this matter, it is the primary duty of the Probate Court to distribute the estate of the deceased to the rightful beneficiaries. In order to distribute the said estate, the Court must determine what properties are available for distribution, to whom they should be distributed and in what portions.

29. From the record, the Petitioner indicated that the deceased was survived by two children from the first wife, herself and her six children. Although she disputed the existence of two children from the first marriage of the deceased, during her cross-examination, she acknowledged their existence and admitted that they were children of the deceased. It was also not contested that the deceased had five children with her and took up parental responsibility of the Petitioner’s child as his own. Although the Respondent disputed the parentage of Margaret Wambui and Elizabeth Wahu Njunge, the Petitioner produced birth certificates which indicated the deceased as their father.

30. From the foregoing analysis therefore, the heirs of the deceased are as follows:

i. Joseph Njenga Njunge – Son

ii. Peter Ndung’u Njunge – Son

iii. Caroline Nyambura – daughter

iv. Beatrice Wangui – daughter

v. Mary Wangui Njunge – wife

vi. Jane Wanjiku - daughter

vii. Robert Njenga - son

viii. Esther Nyambura - daughter

ix. Margaret Wambui - daughter

x. Paul Njuguna - son

xi. Elizabeth Wahu Njunge – daughter

31. The second issue for determination is what properties of the deceased are available for distribution to his heirs. In her summons for confirmation of grant, the Petitioner indicated that the properties available for distribution to the beneficiaries of the deceased were L.R No. Ndumberi/Riabai/1844, 1845, 1846, 1847 and 1848. This was not disputed by the Protestor. She averred that L.R No. Ndumberi/Riabai/1849 and 1859 had been sold to Peter Ndungu Mbugua by the deceased during his lifetime. The sale of these two properties was challenged by the protestor. The Protestor accused the Petitioner of forgery of the sale agreement asserting that he was not aware of the sale of Plot No. 1849 and 1850 during the deceased’s lifetime.

32. Section 109 of the Evidence Act, Cap 80, Laws of Kenya, places the burden of proof on the Protestor to prove the forgery. The section provides that: -

“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie in a particular person.”

33. The Protestor relied on the report of a document examiner to assert his claim of forgery. It was the evidence of the document examiner that the known signature of the deceased and the signatures of the document produced as the sale agreement for the purchase of L.R No. Ndumberi/Riabai.1849 and 1850 showed divergence and were written by different hands. Conversely, the document examiner for the Petitioner made a finding that the known signatures of the deceased were similar to the one identified in the said sale agreement produced in evidence. It was his finding that the signatures were made by the same hand.

34. In Rael Mwonjia Gichunge & Another vs. Faud Mohammed Abdulla [2014] eKLR, the Court of Appeal, when faced with two contradicting expert opinions, held that:

‘The contradictions in the two expert reports raised an issue of burden of proof. If the two contradictory handwriting expert reports are to be given zero evidential weight and cancel each other, what is left is to determine who has the burden to prove that the sale agreement is a forgery. The legal adage is he who alleges must prove. The appellants allege that the sale agreement is a forgery. We are satisfied that on a balance of probability, the appellants did not discharge this legal burden.’

35. Courts are guided by several principles when relying on evidence of handwriting experts. The Court considered this issue in Christopher Ndaru Kagina vs. Esther Mbandi Kagina & Another [2016] eKLR which I have quoted extensively thus:

‘The fundamental characteristic of expert evidence is that it is opinion evidence. To be practically of assistance to a court, however, expert evidence must also provide as much detail as is necessary to allow the court to determine whether the expert’s opinions are well founded.

While the test for admissibility of expert evidence differs from jurisdiction to jurisdiction, judges in all jurisdictions face the common responsibility of weighing expert evidence and determining its probative value. This is no easy task. Expert opinions are admissible to furnish courts with information which is likely to be outside their experience and knowledge. The evidence of experts has proliferated in modern litigation and is often determinative of one or more central issues in a case. Expert testimony, like all other evidence, must be given only appropriate weight. It must be as influential in the overall decision-making process as it deserves; no more, no less. To my mind, the weight to be given to expert evidence will derive from how that evidence is assessed in the context of all other evidence and the circumstances of the case including the real likelihood of the expert witness having been compromised or the real possibility of such witnesses using their expertise to mislead the court by placing undue advantage to the party in whose favour they offer the evidence. The court must be alert to such realities and act with caution while analyzing such evidence. It is important to bear in mind the criteria a court should use to weigh the probative value of expert evidence. This is because, while expert evidence is important evidence, it is nevertheless merely part of the evidence which a court has to take into account. Four consequences flow from this as reiterated by this court in the case of Stephen Wang'ondu Vs The Ark Limited.

Firstly, expert evidence does not “trump all other evidence.” It is axiomatic that judges are entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula, against which actions are then to be rigidly judged with a mathematical precision. Secondly, a judge must not consider expert evidence in a vacuum. It should not therefore be “artificially separated” from the rest of the evidence. To do so is a structural failing. A court’s findings will often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa. For example, expert evidence can provide a framework for the consideration of other evidence. Thirdly, where there is conflicting expert opinion, a judge should test it against the background of all the other evidence in the case which they accept in order to decide which expert evidence is to be preferred. Fourthly, a judge should consider all the evidence in the case, including that of the experts, before making any findings of fact, even provisional one.’

36. With that decision in mind, the Protestor did not offer any other evidence to prove the alleged fraud and the witness who produced the report was not the maker thereof. The Petitioner on the other hand called one witness who gave evidence corroborating her evidence that the agreements were executed by the deceased. Peter Ndungu Mbugua gave the Court cogent evidence that he executed the agreement together with the deceased in the presence of their wives, and has been in quiet possession of the said plots from the time of purchase. From the above analysis, I find that the Protestor has not proved forgery or debunked the evidence of the Petitioner and her witness that said the deceased sold the two parcels of land during his lifetime.

37. The third issue for determination is how the properties should be distributed to the beneficiaries. Having found that L.R No. Ndumberi/Riabai/1849 and 1850 were sold by the deceased, the same should be distributed to the Peter Ndungu Mbugua.

38. On the direction of the Court, parties were urged to conduct separate valuations of the estate of the deceased to assist the Court in the process of distribution. The Petitioner sought the services of Kenstate Valuers Limited who filed a report on the valuation of the deceased’s estate. The said report was produced as evidence by the valuer during the hearing of the suit. On his part, the Respondent/Protestor consulted Waco Consultants to conduct a valuation of the deceased’s estate. However, their report was never produced as evidence during the hearing of the case. Consequently, this Court has only the report of Kenstate Valuers Limited in evidence in the suit.

39. L.R No. Ndumberi/Riabai/1844 is a vacant property in the outskirts of Kiambu town in Kiambu County measuring approximately 0. 195 acres. At the time of inspection it had no structural improvements. It was the Valuer’s finding that the property is situated in an area where there is good and sustainable demand for vacant plots. Kenstate Valuers Limited valued the property at Kshs.7, 000,000/=. The Petitioner proposed that the property be distributed to her to hold in trust for Margaret Wambui Njunge and Elizabeth Wahu Njunge who were minors at the time the Summons for confirmation of grant was filed.

40. Similarly, L.R No. Ndumberi/Riabai/1845 is a vacant property in the outskirts of Kiambu town in Kiambu County measuring approximately 0. 068 acres. At the time of inspection it had a partially demolished semi-permanent house. It was their finding that the property is situated in an area where there is good and sustainable demand for vacant plots. Kenstate Valuers Limited valued the property at Kshs. 6,500,000/=. The Petitioner proposed that the property be equally distributed to Jane Wanjiku Njunge and Esther Nyambura Njunge.

41. L.R No. Ndumberi/Riabai/1846 is a property with the matrimonial home of the deceased and the Petitioner. It measures approximately 0. 429 acres with a three bedroom incomplete bungalow. At the time of inspection, the house was occupied by the Petitioner. The valuation of the land on which the house stands was Kshs. 12,000,000/= with the developments thereon valued at Kshs. 1,500,000/=. The Petitioner proposed that this property should be distributed to her having been her matrimonial home with the deceased and in consideration of the improvements that she had made thereon.

42. L.R No. Ndumberi/Riabai/1847 is a vacant plot measuring approximately 0. 264 acres. Kenstate Valuers Limited valued it at Kshs. 6,500,000/=. The Petitioner proposed that the property be equally distributed to Robert Njenga Njunge and Paul Njuguna Njunge. L.R No. Ndumberi/Riabai/1848, the adjoining plot measures approximately 0. 202 acres was valued at Kshs. 6,000,000/=. The Petitioner proposed that the property be equally distributed to Joseph Njenga Njunge and Peter Ndungu Njunge. Both parcels of land are vacant.

43. Taking into consideration the value of the plots that are to be distributed to the beneficiaries of the estate of the deceased, it is noteworthy that they all have different values. The Protestor urged the Court to consolidate the portions and distribute afresh to all beneficiaries of the estate. Court of Appeal in the case of Stephen Gitonga M’murithi vs. Faith Ngiramurithi [2015]eKLR stated that: -

“Section 38 enshrines the principle of equal distribution of the net intestate estate to the surviving children of the deceased irrespective of gender and whether married and comfortable in their marriage or unmarried…’’

44. In addition, the High Court in the case of In Re Estate of John Musambayi Katumanga – (Deceased) [2014]eKLR that:

“The spirit of Part V, especially Sections 35, 38 and 40, is equal distribution, of the intestate estate amongst the children of the deceased. There have been debates on whether the distribution should be equal or equitable. My reading of these provisions is that they envisage equal distribution for the word used in Sections 35(5)and38 is “equally” as opposed to “equitably”. This is the plain language of the provisions. The provisions are in mandatory terms – the property “shall … be equally divided among the surviving children.” Equal distribution is envisaged regardless of the ages, gender and financial status of the children.”

45. Being guided by the foregoing, I am of the view that the application of Section 40 of the Act will result in equal distribution of the estate among all the children of the deceased. Considering that the Petitioner did not include some of the deceased’s children in her proposed mode of distribution, the grant cannot be confirmed in the proposed terms. This Court having made a finding on the beneficiaries of the estate, gives the parties another opportunity to come up with an appropriate mode of distribution that is just and fair to all beneficiaries.

46. In the premise therefore, I direct the Petitioner and the Protestor to file their proposed modes of distribution applying the valuations of Kenstate Valuers Limited and including all the eleven (11) beneficiaries of the estate of the deceased within 45 days from the date hereof.

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 23RD DAY OF JUNE, 2021.

…………………….

L. A. ACHODE

HIGH COURT JUDGE

In the presence of …………………………………………Advocate for the Petitioner

In the presence of …………………………………………Advocate for the Protestor