[2023] KEHC 25866 (KLR)

In re Estate of James Kamunya alias Kamunya Kang’ethe (Deceased) (Succession Cause 967 of 2013) [2023] KEHC 25866 (KLR) (29 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25866 (KLR)

Republic of Kenya

In the High Court at Murang'a

Succession Cause 967 of 2013

J Wakiaga, J

November 29, 2023

Between

Wangari Kamunya

Petitioner

and

Benson Murathi Kamunya

Protestor

Judgment

1. The Petitioner was granted letters of administration on the 18th March 2014. By an application dated 13th October 2014, the same applied for confirmation of grant in which she proposed distribution of the estate to the beneficiaries as herein under;a.LOC.11/Muchungucha/370 to be shared among Loise Wanjiru Kamunya, Agnes Wanjiku Kamunya and Jane Wambui Kamunya.b.LOC.11/Gaitegi/84 to be shared among Hannah Njeri Kamunya 2. 6 acres, Wangari Kamunya 2. 6 Acres, and Benson Murathi Kamunya and Rosemary Wanjirukamunya to share 2. 6 acresc.½ of LOC.7/Gakoigo/1594 to be registered under the name of Wangari Kamunya.

2. By a protest filed on 9th September 2016, the Protestor stated that he was filing the protest on his behalf and that of Rosemary Wanjiru Kamunya and Agnes Wanjiku Kamunya children of the deceased who had two wives namely Sarah Wambere Kamunya (deceased) and Wangari Kamunya the Petitioner who is their step mother.

3. It was deposed that the deceased left the following dependants;a.Wangari Kamunya – wifeb.Loice Wanjiru Kamunya – married daughterc.Jane Wambui Kamunya- married daughterd.Hannah Njeri Kamunya- married daughtere.Benson Murathi Kamunya – sonf.Rosemary Wanjiku Kamunya – married daughterg.Agnes Wanjiku Kamunya- unmarried daughter

4. It was contended that the Petitioner’s mode of distribution was not justifiable as it was not equitable. He therefore proposed mode of distribution as follows;a.Loc 11/Muchungucha/3701. Wangari Kamunya – 0. 725 hectares2. Benson Murathi KamunyaRosemary Wanjiru KamunyaAgnes Wanjiku Kamunya-------0. 725 hectares Jointlyb.Loc 11/Gaitega/841. Wangari Kimunya …….1. 595 hectares2. Benson Murathi KamunyaRosemary Wanjiru KamunyaAgnes Wanjiku Kamunya………1. 594 hectares jointly.c.1/2 Share of Loc 7/gakoigo/15951. Wangari Kamunya………0. 2025 Hectares2. Benson Murathi KamunyaRosemary Wanjiru KamunyaAgnes Wanjiku Kamunya….0. 2025 hectares jointly.

5. On 8th March 2022 the Protestor filed a further affidavit of protest in which he deposed that the estate of the deceased should be shared in the ratio of 4:3 between the two houses of the deceased bearing in mind that house 1 had four units and house 2 three units as per section 40(1) of Law of Succession Act.

6. It was therefore proposed that the estate be shared as follows:a)Land Parcel No. Loc.11/Muchungucha/370 measuring 3. 625 be registered as follows:i.2. 07 Acres be registered in name of Wangari Kamunya to hold in trust for herself for her three children namely Loise Wanjiru Kamunya, Jane Wambui Kamunya and Hannah Njeri Kamunya (equivalent to 4/7 of the total acreage).ii.1. 55 acres be registered in the name of Benson Murathi Kamunya to hold in trust for himself and his two siblings namely Rosemary Wanjiru Kamunya and Agnes Wanjiku Kamunya (equivalent to 3/7 of the total acreage.b)Land parcel No. Loc.11/Gaitega/84 measuring 7. 975 be registered as follows:i.4. 55 acres be registered in the name of Wangari Kamunya to hold in trust for herself and her three children as in (a) (1) above (equivalent of 4/7 of the total acreage)ii3. 41 acres be registered in the name of Benson Murathi Kamunya to hold in trust for himself and in trust for his siblings as in(a) (ii) above (equivalent of 3/7 of the total of the total acreage)c)Land parcel No. Loc.7/Gakoigo/1594 measuring 2. 025 acres be registered as follows:(i)1. 15 acres be registered in the name of Wangari Kamunya to hold in trust for herself and in trust for her three children (equivalent of 4/7 of the total acreage).(ii)0. 86 acres be registered in the name of Benson Murathi to hold in trust of his two siblings (equivalent of 3/7 of the total acreage).

7. The parties filed witness statements in compliance with the Court’s direction on 1/3/2022 as amended on 14th November 2022 and the cause proceeded for hearing in which the following evidenced was tendered; PW1 Benson Murathi Kamunya testified that the first wife of the deceased had three children as well as the second wife making a total of six children and since the Petitioner was still alive, she should be considered as a unit for the purposes of division of the estate. In cross examination he stated that his sisters were not in Court but had filed consents on his proposed mode of distribution. He confirmed that the deceased was not his biological father and that he was not there when the deceased died, he only returned home in 1999.

8. He confirmed that the title deed for No 1594 was in the name of the deceased, he later on changed his mode of distribution to reflect the units and that there was no write up by the deceased on the mode of distribution.

9. RW1 Wangari Wa Kamunya stated the deceased married the mother of the Protester when he had been born and that they got two more children. At the time of his death the deceased had two properties in his name while the 3rd one he bequeathed to her and Lucy. It was her evidence that the deceased distributed his estate in his life time and at that time the Protestor was not around so only his sisters were given. When his mother was asked where he had gone to, the same said he had died and that his sisters knew of the wishes of their father and that is why they did not come to Court. It was her evidence that whereas the deceased did not give anything to the Protestor, they were willing to give him his mother’s side together with Wangari.

10. In cross examination, she stated that the Protestor was a step son of the deceased but she did not know whether the deceased accepted him as his child and that when the deceased fell ill he expressed his intention on distribution. It was her evidence that LOC 7/Gakoigo was registered in the name of the deceased, herself and Lucy Njoki and he was supposed to share it equally with Lucy Njoki. The Protestor returned home six months after the death of the deceased and now lives on the side of his mother and that she did not agree with the Protestor’s mode of distribution as the land should only be distributed amongst those who were on the ground.

11. Rw2 Jane Wairimu Mwangi stated that when the deceased became sick, he expressed his intention on how his estate should be divided, this was three years before his death but did not reduce it into writing and that the deceased intention was accepted by all save for the Protestor. RW3 Paul Njau Chomba confirmed that the deceased expressed his intentions in his presence but that it was not reduced into writing.

Submissions 11. On behalf of the Protestor it was submitted that by the time the deceased died all the disputed property forming part of his estate were free safe for Loc 7/Gakoigo/1594 in which he had only a half share and that they formed the net intestate estate and that since the deceased died intestate the Petitioner’s allegation that he said in his life time how his estate was to be distributed had no basis in law as the same did not meet the requirement of Oral Will. It was contended that the applicable law was Section 40 of the law of Succession and therefore the estate should be divided into the two houses as units as proposed by the Protestor who will hold the property in trust to his married sisters.

12. On behalf of the Petitioner it was submitted that the deceased had in his life time expressed his wish on the mode of distribution of his estate as confirmed by the evidence adduced during the trial and that not withstanding the wishes of the deceased, they had agreed to allocate the shares belonging to the Petitioner’s mother to the Petitioner. It was contended that the Protestors mode of distribution did not reflect the wishes of the deceased. The Protestor’s contention that he was to hold shares intrust for his sister, was not supported by evidence as none came to Court to claim their share therein.

13. It was finally as they always do, contended by the Petitioner that all the properties in dispute were acquired before the Protestor’s mother was married and therefore her contribution was considered by the deceased while making his wish. In support of the submissions reference was made to the following cases: In re Estate of the Late Siwanga Ngolitochi[2021] eKLR where the Court did not approve the proposed mode of distribution which was contrary to the wishes of the deceased and In re Estate of Kipkemoi Chepkwony Meto [2017] eKLR where the Court followed the wishes of the deceased.

Analysis and Determination. 14. From the proceedings herein, the only two issues for determination is whether the deceased in his life time expressed his wishes on the mode of distribution of his estate and if so should the Court honour the same and whether the Protestor has made up a case in support of the protest herein.

15. It is not in dispute that the deceased herein died intestate, that is to say without a Written Will. The Protestor on the other had did not dispute the fact that the deceased in his life time had expressed his wishes as supported by the evidence on record as to how his estate should be distributed. The issue therefore was not as submitted by the Protestor on whether the deceased left a Will but whether the estate in view of the express wishes of the deceased was still available for distribution as proposed by the Protestor.

16. There is evidence on record which was not controverted by the Protestor that he had left home during the lifetime of the deceased and that he only returned home six months after the death of the deceased and that at some stage there was information that the same had died. This Court has warned parties that when it comes to the estate of the deceased, parties should trend with caution, as now we know, which we did not, that the Protestor was not a biological child of the deceased and the same tendered no evidence that at the time of his demise the deceased was taking care of the same.

17. From the evidence tendered, I believe the Petitioner and her witnesses and find and hold that the deceased had in his life time distributed his estate and that it was upon the Petitioner to execute the said wishes lack of Written Will not withstanding. I would have found for the Protestor’s mode of distribution had his two sisters appeared in Court to claim as they are entitled to an interest in their father’s estate but having not done so, I draw an adverse inference that they confirm the express wishes of the deceased.

18. Supported by the two cases submitted by the Petitioner,In re Estate of Kipkemoi Chepkwany Meto(deceased) supra to the extent that the wishes of the deceased should not be interfered with and In re Estate of the Late Siwanyang Ngilotochi (deceased) Supra where the Court stated: “the proposed mode of distribution of the Petitioners respects the wishes of the deceased. I therefore approve it. The proposed mode of distribution of the Objector ignores the established wishes of the deceased and I therefore do not approve it.”

19. The Petitioner has been very generous to the Protestor in that despite having not been provided for by the deceased she has conceded to give him that which belonged to his mother to be shared with his sister.

20. I therefore dismiss the protest herein and order that the estate of the deceased herein be distributed as proposed by the Petitioner.

21. This being a family dispute each party shall bear their own cost.

22. And it is ordered.

DATED, SIGNED AND DELIVERED AT MURANGA THIS 29th DAY OF NOVEMBER 2023J. WAKIAGAJUDGEIn the presence of:Mr. Kirubi for ProtestorNo appearance by Mr. Ndungu for PetitionerPetitioner – PresentJackline – Court Assistant