[2024] KEHC 2426 (KLR)

In re Estate of Gichuki Kenda (Deceased) (Succession Cause E139 of 2021) [2024] KEHC 2426 (KLR) (7 March 2024) (Ruling)

Neutral citation: [2024] KEHC 2426 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause E139 of 2021

SM Mohochi, J

March 7, 2024

Between

Margaret Wambui Gichuki

Applicant

and

Felix Kenda Gichuki

1st Beneficiary

Justice Kuru Kenda

2nd Beneficiary

Ruling

1. Gichuki Kenda of Gilgil, died on the 25th December 2020 at the Evans Sunrise Hospital Nakuru without having written a will. He left behind a surviving spouse-widow Margaret Wambui Gichuki and five (5) adult children/beneficiaries.

2. A grant of letters of Administration intestate was made and issued to Margaret Wambui Gichuki dated 22nd April 2022 and when due for confirmation a protest by Felix Gichuki Kenda the 1st born son Margaret Wambui Gichuki.

3. The Protest is on the proposed mode of distribution of the estate of the deceased, the Administrator proposing to hold the same in trust while the protestor demanding his share immediately arguing he is almost 50years now.

4. Before me is the Summons for Confirmation of the Grant of letters of administration intestate made to Margaret Wamboi Gichukion the 25th April 2022 whereby the personal representative and surviving spouse to the deceased proposes that, all assets be transmitted to her absolutely.

5. The Summons for confirmation of grant is opposed by the Protestor Felix Gichuki Kenda vide his sworn affidavit of protest dated 8th May 2023.

6. The Court had directed that the Summons for confirmation of grant and the protest shall be heard concurrently by way of viva voce evidence.

7. The hearing on the 18th September 2023, Felix Gichuki Kenda testified and was cross examined and Margaret Wamboi Gichukitestified and was cross examined, and upon closed by the respective parties, the Court directed them to file written submissions relating to proposed modes for distribution of the deceased estate or opposition to such mode(s) as proposed.

Protestors Case 8. Felix Gichuki Kenda introduced himself as the Protestor in the matter, a first-born son of the deceased and a resident of Nairobi County. He also testified that he works for gain as a small-scale trader.

9. The witness adopted his affidavit of protest dated 9th May, 2023 as his evidence-in chief. He thus testified that his father upon his demise, left behind, his mother and five children. He proposed that the assets left behind by the deceased be distributed among the six (6) beneficiaries.

10. Felix Gichuki Kenda testified that he is currently not living in any of the deceased properties but lived on a parcel of land prior to the demise of his father. He stated that he is Forty-Seven (47) years old.

11. Felix Gichuki Kenda testified that he has only prayed for four (4) plots, his brother, Justice Kuru Kenda to get five (5) plots, his mother to get six (6) plots and the motor vehicle, his sisters, Catherine Wambui Kenda, Ruth Wanjiku Kenda, and Mary Wanjiru Kenda to get five (5) plots each and further prayed that the unallocated plots in paragraph 8 be distributed equally among all beneficiaries.

12. The witness further testified that, his father died on 5th December, 2020 and that he has never benefitted from the estate since his demise. He stated that his mother collects rent on L.R. No. 1317/107 and all other rentals that his father used to collect including a school which is developed with classes, dormitories and other developments.

13. The witness testified that he wants equality and that his proposed mode of distribution supports that seeing that his proposal proposes allocating himself less plots than the other beneficiaries, that he is thus not selfish.

14. He confirmed that, among his proposed shares, LR. No 1317/107 is the only one that is developed. It was his evidence that the un-surveyed commercial plot (the matrimonial home) has no title deed and proposes that the same goes to his mother.

15. He further testified that they buried their father on GILGIL/GILGIL BLOCK 1/5613. He stated that under Kikuyu Customary Law, the eldest son is supposed to inherit where the father was buried.

16. The witness stated that, he is not selfish as alleged. He testified that there have been no developments in the estate after his father's demise. He also testified that his mother sold a motor vehicle and she is not accountable to anyone. He further testified that his mother neither wants to see him nor give him anything.

17. The witness testified that he does not have a problem with the other beneficiaries distributing their shares as they deem fit.

18. The witness testified that the Mambrui/Malindi Plot has squatters and that he is the only one who has visited the same and knows its status. He also testified that Kajiado/Kitengela/15860 has an ongoing case with a land buying company and National Land Commission while Nakuru Municipality Block 4/420 has someone in illegal occupation and would want to have him evicted through legal means.

19. The witness stated that, the administrator has repeated a plot three (3) times in her pleadings. That he tried to see whether they can agree but his mother refused saying he is not his husband. The witness averred that he is not seeing any help or support by his mother being the sole beneficiary.

20. Felix Gichuki Kenda prayed to be given his share as proposed in his affidavit of protest seeing that he is approaching the age of fifty (50) and that his share is below a sixth (V) of the estate.

21. Upon Cross-Examination by Mrs. Mukira, the witness confirmed that he signed the affidavit of protest that he is relying on dated 8th May, 2023. Upon reference to paragraph 3 of his affidavit he stated that the assets left out by the Administrator in her supporting affidavit are: -a.Motor Vehicle Toyota RAV 4 KBF 797S which he has did not prove belonged to the deceased and a plot in Kekopey, which plot number was not particularized, he claimed that sub-divisions were made from the mother-title culminating to sixteen (16) plots but one plots has been omitted. He alleged that, he could point out the missing plot since the documents are with the survey, when asked not to give him. He alleged to have a map but failed to exhibit the same as his evidence.b.A lease agreement for LR.No. 1317/107. The witness claimed that he was given the lease agreement by his father when he was still alive, he confirmed that, he has not specified the assets that he alleges were omitted by the Administrator in his affidavit. He testified that whereas he has the evidence, he failed to avail them in court.c.Mambru/Malindi Plot that he is in possession of a copy of the allotment letter, while the Administrator has the original copy. He confirmed that he did not exhibit the same in his affidavit. He also confirmed that the same is listed as No. 29 in the P&A 5 but in the proposed mode of distribution it has been left out. However, when referred to summons for confirmation of grant at same has not its supporting affidavit item No. 29, he confirmed at Paragraph 6 of been left out as alleged.d.Shares of Good Shepherd Academy.

22. It was Felix Gichuki’s evidence that, he does not know whether Plot No. Gilgiltownship Block 3/107 and LR. No. 1317/107 are one and the same. He testified that he only knows the latter. He confirmed that the said plot is captured in the P&A 5, item No. 2. He clarified that his evidence was not that the title number was omitted but the lease agreement.

23. Felix Gichuki confirmed that they are five (5) siblings and he is the only one among them who is protesting. He also confirmed that when filing the petition, he was involved and all the family members including him signed the consent P&A3. He equally confirmed that in his affidavit of protest no family member has signed any authority or consent.

24. Felix Gichuki stated that, he is aware of how distribution of property is done where a spouse and children are left behind. That the estate is supposed to be shared equally. He however, testified that he does not know that, the law allows the surviving spouse to keep all the deceased assets and that she is entitled to a life interest of the whole residue of the estate.

25. He confirmed that he had not specified the assets where rent is being collected and confirmed that, collecting rent is one of the key duties of the Administrator. He maintained that, the Petitioner has not accounted for the rent and ought to distribute the proceeds equally. He however confirmed that, he has not prayed for accountability of the income collected in the estate by the administrator in his affidavit.

26. Felix Gichuki stated that he is forty-seven (47) years with an obligation to his nuclear family and that the same is not dependent to his father's estate, that prior to his father's demise he used to give the deceased money in fact he claimed to have given him all his savings, however he testified that, his father was a lecturer and a businessman and that, he was not lending money to his father but was rather investing in him. However, he had no evidence to that effect.

27. He stated that he is of sound mind and has never had a problem with drugs and substance abuse. It was his testimony that he has never been rehabilitated. upon reference to the alleged affidavit of protest by Justice Kuru Kenda, he testified that he saw his brother sign at his advocate's office and proceeded to file the same. He claimed that he did not concern himself much since his brother has his own advocate. He pointed out that he has not read his brother's reply.

28. The witness confirmed that the Administrator is his mother though he has not lived with her. He stated that it is not true that he has been disturbing her. He denied failure to co-operate with the rest of the family members.

29. On Re-examination the witness confirmed that he signed the consent for filing of the petition. He clarified that the signing of the petition was not intended for her to distribute everything to herself.

30. He stated that, his mother has not denied collecting rent. He clarified that his right to inherit is not affected by the position of the other siblings.

31. The witness stated that his mother has not said how she will use the assets upon confirmation. That she has not indicated in her affidavit how he is going to benefit from the estate or where she is going to settle him and that, she did not raise issues of him suffering from drug and substance abuse in her affidavit.

32. The witness reiterated that he the lease agreement was for LR. No. 1317/107 and that the said plot is not the same as Gilgil/Township block 3/107.

Applicants Case 33. Margaret Wambui Gichuki, a resident of Gilgil town within Nakuru County testified that, she is currently not working, she confirmed filing the summons for confirmation of grant and at paragraph 6 of the said summons, she listed her proposed mode of distribution and has equally prepared a consent which was signed by all her children(beneficiaries) save for Felix Gichuki, the protestor.

34. It was her evidence that when she petitioned for letters of administration, she involved all her children including the Protestor herein and they were all in agreement. She testified that she has listed all the deceased assets in her affidavit. She confirmed that the deceased was her husband.

35. The witness testified that it is not true that she left out some assets as alleged by the Protestor to wit; the Kitengela and Malindi properties. That, the same appears as the 1st and the 29th items respectively on her list of assets. She also testified that she is familiar with the LR. No. 1317/107 however, the same was disposed of by the deceased during his lifetime. She further testified that the Protestor has not presented any evidence showing the property still belongs to the deceased.

36. The witness stated that, on the issue of rent collection, the Protestor has not specified which assets she is collecting rent from. She averred that she and the other Beneficiaries are not agreeable to the Protestor's mode of distribution. She however testified that all the Beneficiaries Save for the Protestor, are agreeable to her mode of distribution.

37. She testified that her proposed mode of distribution was agreed upon by the entire family and she does not know why the Protestor refused to sign despite being present. She also testified that it is not true that she told the Protestor not to set foot in her home.

38. The witness testified that she is unable to develop the estate since the grant has not been confirmed. That they agreed to work together and share what they have after the grant was confirmed. She further testified that she has no objection if any of her children develop the plots that have been given to them. It was her prayer that the grant be confirmed in accordance with her mode of distribution.

39. Upon Cross-Examination by Mr. Kamunye, she testified that she is sixty-eight (68) years old. She reiterated that she is not working. She confirmed that she collects rent from the school and the hospital.

40. She stated that after the grant has been confirmed, she will sit with all her children in presence of her sister and her brother in law and distribute the estate the correct way upon agreement, she also testified that all her children will get a fair share of the deceased assets after the grant has been confirmed.

41. She reiterated that she sat with her children, her sister and her brother in law and agreed on distribution but the Protestor refused to attend. She pointed out that the Protestor does not talk to her. She stated that she does not have any dispute with her children.

42. She reiterated that, she intends to transfer the assets to all her children after the grant has been confirmed to enable them develop. She stated that all her children agreed to her mode of distribution and signed the consent however the same was not witnessed by a third party.

43. The witness stated that other than Justice Kuru Kenda who was present in court, the rest of her children were absent with some being abroad, and that she has made some developments on the properties like mending fences at the matrimonial home. However, she confirmed that she has not built any houses. She also confirmed that developed properties include; her home, the school which rests on thirteen (13) plots and the clinic. She stated that she cannot remember the titled numbers. She equally stated that she was not sure whether the clinic is on LR.1317/107. She however stated that she has included them in her Summons.

44. The witness confirmed that her husband was buried in Kikopey Plot No. 5613. She was referred to her affidavit at paragraph 5 where she confirmed that the six (6) persons listed therein are dependants of the deceased. She was equally referred to Paragraph 6 where she also confirmed that the estate be distributed among all the Beneficiaries.

45. She stated that she does not know about the RAV 4 motor vehicle alleged by the Protestor. She reiterated that she does not have any problem with her children building houses on the properties. She also stated that she gave the Protestor a plot at a tarmac road and told him to develop together with the one at Kikopey.

46. The witness stated that the court should not distribute the estate directly to the Beneficiaries since they do not have any dispute. She stated that she is not aware where the rent for the developed plots go. She equally stated that the school was operational shortly after the demise of the deceased but was presently not running.

47. That the assets should be left as they were not to be interfered with by the court as the same is for her and her children.

48. On Re-Examination, she confirmed that rent was being collected from the School and the Hospital. She however clarified that the school closed down in 2021 for lack of students.

49. She reiterated that she will distribute the estate after the grant has been confirmed since they had sat down together as a family and discussed on the distribution. She clarified that the witnesses who were present at the meeting did not sign the consent since they are not Beneficiaries.

50. The witness stated that the matrimonial property does not have a title deed like most of the plots left behind by the deceased. She clarified that the school is built in 13 plots. She also clarified that the hospital is not located in LR. No.1317/107.

51. She stated that the Protestor has not tendered any evidence before court to show that the motor vehicle RAV4 belonged to the deceased. And that, she does not have a problem with her children developing any or the properties. She equally confirmed that she gave her son, the Protestor herein, a plot near a tarmac road in Gilgil town, but he has not developed it.

52. The witness stated that her mode of distribution is in line with the law and that she is opposed to any other mode of distribution. She testified that as an Administrator she is liable to account and if the court demands for accounts she will oblige. She clarified that she hangouts no bad blood with the Protestor herein save for his character as he is addicted to drugs and substance abuse.

53. She stated that she is willing to sit down with the Protestor as a family and agree on distribution. She reiterated that the Protestor was not only consulted on the issue of distribution but was also present during the aforementioned meetings.

54. That she reiterated the family's agreement at paragraph 6 of her affidavit in support of the summons for confirmation of grant, and that the Protestor had signed the first consent but refused to sign the second one for reasons best known to him. She nonetheless confirmed that she has listed all her children as Beneficiaries.

55. Upon courts enquiry on the ages of her children, the Protestor stated as hereunder-a.Catherine Wambui Kenda - 47 years (twin) and lives in USb.Felix Kenda Gichuki the protestor 47 years (twin lives in Nairobi)c.Justice Kuru Kenda- 44 years (lives in Gilgil)d.Ruth Wanjiku Kenda- born in 1985(lives in South Africa)e.Mary Wanjiru Gichuhi- born in 1988 (lives in Nairobi

56. Justice Kuru Kenda was the petitioner’s witness as PW2, a resident of Gilgil town, Nakuru County and a driver by profession. He also testified that he swore an affidavit on 11th July, 2023 and prayed that the same be adopted as his evidence-in-chief.

57. He testified that, at the inception of these proceedings, he voluntarily gave his consent for the grant to be confirmed to the Petitioner herein, that he neither had knowledge of the affidavit of protest dated 5th May, 2023, purportedly sworn by himself, nor did he sign it.

58. He also testified that he did not appear before any Advocate to protest in these proceedings. He further testified that he is neither a resident of Nairobi nor did he visit any Nairobi office at any given time for the said protest. He stated that he did not pay the filing fees for the said affidavit and prayed that the same be expunged from the record.

59. The witness testified that he lodged a complaint on the matter at Gilgil Police Station and was issued with an OB NO.55/09/05/2023. The OB extract was Produced as PEX1. He confirmed that other than Felix Kenda Gichuki all the other family members are agreeable to the proposed mode of distribution, an agreement that was born of a family meeting.

60. The witness testified that, he is not agreeable with his brother's proposed mode of distribution. He confirmed that his mother pointed out that she does not have any problem with him and his siblings building on the properties. He equally confirmed that Felix Gichuki has been given a plot along Moi Barracks road Unsurvey Commercial Plot N0. 56-Gilgil Township, which he has failed to develop.

61. The witness confirmed that he agrees with his mother's proposed mode of distribution. That he is satisfied with her decision and supports her truly and honestly. He stated that the initial stages all the family members were together and agreed. He also stated that he does not recall parcel no LR 1317/107.

62. Upon cross- examination by Mr. Kamunye, Justice Kuru reiterated that he is forty-four (44) years old, that, he has a family with three (3) children and would wish to own some of the deceased's assets as well as develop the same. He confirmed that he would not have a problem with the court distributing the same to him. I that his father was buried in Kikopey.

63. The witness stated that he would not have a problem if Felix Gichuki got LR. Kikopey 5613. He equally stated that he would not have a problem with him getting three (3) other plots. He further stated that he would not mind getting his share as proposed by Felix Gichuki.

64. On the issue of the Motor vehicle KBF 797S RAV 4, he stated that the deceased left a huge debt and was thus disposed to clear the said debts.

65. On the issue of rent collected from the hospital, the witness stated that he has no idea of what transpires there but he is aware that rent is being collected. He however stated that he has no interest in the same. He equally stated that his father (deceased), prior to his demise, had given the said property to his mother to collect rent so that she can get some money for domestic use. That, it was a mutual agreement between his parents and he is not privy to the details.

66. He equally confirmed that the premises where the hospital is situated is being run by his mother however the said hospital is not a family business and thus he does not know who runs the same. He clarified that his mother is in the premises in her capacity as an administrator only. He stated that he is not aware of any recent activities of the said property as he has been in Nairobi for the past few months and would not know what has transpired.

67. The witness confirmed that he does not have the actual details of the property given to Felix Gichuki by their mother. He also confirmed that he does not know if a transfer was signed in respect to the said property as he was not around much. He further confirmed that to date, his father is still the registered owner. He stated that he is not acquainted with the legal procedure of transferring deceased assets but he is aware that Felix has been allocated a piece of land by their mother.

68. Justice Kuru Kenda stated that, if he is allocated a plot he would love to develop it. He confirmed that it would be easier to develop if the same was in his name and not in his mother's name. On the three (3) properties with disputes, he confirmed that: -a.Nakuru Municipality/ Block 4/320 is being occupied by a third party;b.The Kitengela land is being claimed by the government; andc.The Mambrui property in Malindi has challenges with squatters.

69. He also confirmed that most of the properties listed in this matter, have no title deeds and they need to be processed.

70. Justice Kuru confirmed that it would be fair if the developed properties were to be distributed to the family that is in Kenya and that the sooner the distribution is done, the better. He however pointed out that respect is paramount and he does not see the importance of being given a property without blessings since it is not from his own Sweat but rather from the sweat of their parents.

71. The witness reiterated that distribution of the deceased assets should be done through their mother as proposed. He stated that he is employed at Club Boss in Gilgil as a technician though he is professionally a driver. He confirmed that he would want his family to be united.

72. On re-examination Justice kuru reiterated that he would want the distribution to go the family way as consented by all. He stated that his reasons are being guided by respect and family virtues and as a Christian it is not right to be fighting with his mother. He further stated that he has only one parent left and he will choose her way.

73. Justice kuru reiterated that he is not cognizant of the dealings of Samaritan Hope Hospital and he has no idea if a transfer form was signed in favour of Felix for the plot that his mother gave him. He confirmed that Felix if currently is not utilizing the said property, but he pointed out that he is entitled to it.

74. He confirmed that there are three (3) assets that have disputes, to wit,a.Nakuru Municipality/ Block 4/320 that is being occupied by a third party;b.the Kitengela land that is being claimed by the government; andc.the Mambrui property in Malindi that has challenges with squatters.

75. He confirmed that he is apprised of the said disputes. He however pointed out that his mother is the one with the legal capacity to deal with the said disputes since she is the Administrator. He also confirmed that she has been trying to make follow-ups and has no problem with the developed properties being distributed to the family in Kenya but on condition there is a family consensus. He supported the confirmation of grant on the basis of his signed consent.

Analysis and Disposition 76. The deceased having died intestate, it therefore means that his estate and distribution thereof is subject to the rules of intestacy. Generally, the law contemplates that a person can either distribute his estate by way of a will or in absence of a will, the estate is subjected to the rules of intestacy. From the reading of Sections 35, 36, 38 and 40 of the Act, the legislature contemplated the rules to apply where the deceased has passed on and left behind survivors.

77. Section 35 of the Law of Succession provides that; -.Where intestate has left one surviving spouse and child or children,1. Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to—a.The personal and household effects of the deceased absolutely; andb.a life interest in the whole residue of the net intestate estate:

78. Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person.2. A surviving spouse shall, during the continuation of the life interest provided by subsection (1), have a power of appointment of all or any part of the capital of the net intestate estate by way of gift taking immediate effect among the surviving child or children, but that power shall not be exercised by will nor in such manner as to take effect at any future date.3. Where any child considers that the power of appointment under sub-section (2) has been unreasonably exercised or withheld, he or, if a minor, his representative may apply to the court for the appointment of his share, with or without variation of any appointment already made.4. Where an application is made under subsection (3), the court shall have power to award the applicant a share of the capital of the net intestate estate with or without variation of any appointment already made, and in determining whether an order shall be made, and if so, what order, shall have regard to—a.the nature and amount of the deceased’s property;b.any past, present or future capital or income from any source of the applicant and of the surviving spouse;c.the existing and future means and needs of the applicant and the surviving spouse;d.whether the deceased had made any advancement or other gift to the applicant during his lifetime or by will;e.the conduct of the applicant in relation to the deceased and to the surviving spouse;f.the situation and circumstances of any other person who has any vested or contingent interest in the net intestate estate of the deceased or as a beneficiary under his will (if any); andg.the general circumstances of the case including the surviving spouse’s reasons for withholding or exercising the power in the manner in which he or she did, and any other application made under this section.5. Subject to the provisions of sections 41 and 42 and subject to any appointment or award made under this section, the whole residue of the net intestate estate shall on the death, or, in the case of a widow, re-marriage, of the surviving spouse, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.

78. In the case at hand, it is not disputed that the Protestor was a son to the deceased and that the Petitioner survived her husband together with five children, would it therefore mean that she is entitled to the life interest in the whole residue of the net intestate estate due to her deceased husband? In Tau Kakungi v Margrethe Thorning Katungi & Another [2014] eKLR, Musyoka J. was of the view that the purpose of Section 35 of the Act was to prevent a spouse of the deceased from being impoverished after the demise of the other by distributing the entire estate to the children. The court stated: -“The effect of section 35 (1) is that the children of the deceased are not entitled to access the net intestate estate so long as there is a surviving spouse. The children’s right to the property crystallizes upon the determination of the life interest following the death of the life interest holder or her remarriage. Prior to that, the widow would be entitled to exclusive right over the net estate…The device is designed to safeguard the position of the surviving spouse. The ultimate destination of the net intestate estate where there are surviving children is the children. It is the children who are entitled of right to the property of their deceased parent. However, if the property passes directly to the children, in cases where there is a surviving spouse, he or she is likely to be exposed to destitution. This would particularly be the case where the surviving spouse was wholly dependent on the departed spouse. She would be left without any means of sustenance.”…

79. It is emerging from Section 35 of Law of Succession Act and case law, that the estate of a deceased person in which the surviving spouse has a life interest is not available for distribution unless that parent bequeaths them whatever he or she pleases to them.

80. The discretion to confirm grants is provided for under Section 71 of the Law of Succession Act. The court confirms the administrators of the estate, if they were properly appointed and had properly administered the estate and would properly administer the estate thereafter. The court also confirms the distribution proposed, or orders distribution in accordance with the law.

81. This court will hasten to add that the Protestor’s right to inherit in an intestate estate can only be realized upon judicial pronouncement and in this instance the protestor must acknowledge that Margaret Wambui Gichuki holds the key to his inheritance. Justice kuru Kenda is acknowledged as one of the five beneficiaries.

82. The Affidavit of protest sworn by Justice kuru Kenda dated 8th May 2023 is hereby expunged from the court record having been recanted and its filing remains a mystery.

83. This court thus finds the Affidavit of protest dated 12th May 2023 to be without basis and accordingly dismiss the same.

84. I find favor, in the summons for confirmation of grant of letters of administration intestate dated 28th October 2022 and allow the same on the following terms;a.That the grant of letters of administration intestate Made to Margaret Wambui Gichuki on the 22nd April 2022 is hereby confirmed.b.The Estate of the deceased shall be distributed as is proposed in the Affidavit in support at paragraph six (6), within six (6) months of this judgment.

85. This being a family matter there shall be no Order as to costs.

It is so ordered

DATED, SIGNED AND DELIVERED AT NAKURU ON THIS DAY OF 7THDAY OF MARCH, 2024. S. MOHOCHIJUDGE