[2022] KEHC 16294 (KLR)

In re Estate of James Mulela Mukuthi (Deceased) (Succession Cause 898 of 2010) [2022] KEHC 16294 (KLR) (8 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16294 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 898 of 2010

MW Muigai, J

December 8, 2022

Between

Onesmus Musyimi Mulela

1st Administrator

Nicholas Muema Mulela

2nd Administrator

and

Elizabeth Munyiva Mukuthi

1st Objector

Emma Nzula Mukunzu

2nd Objector

Judgment

Background 1. The deceased James Mulela Mukuthi died on February 8, 2011.

2. The Petitioners/Administrators Onesmus Musyimi Mulela & Nicholas Muema Mulela filed on 18/2/2011, Petition for Letters of Administration intestate and listed beneficiaries as follows;a)Esther Ndunge Mulela- widowb)Samuel Kioko Mulelac)Nicholas Muema Mulelad)Onesmus Musyimi Mulelae)Christopher Muasya Mulelaf)Bernard Mutiku Mulelag)Marytina Ndunge Musilah)Regina Mbithe Mutua

3. The Petitioners listed various assets that comprised of the deceased’s estate.

4. On 15/9/2010, Elizabeth Munyiva Mukuthi, Mukuthi Ndolo Elijah Ndolo & Douglas Ndolo filed Petition for letters of administration of the estate of the deceased and listed the beneficiaries as follows;a)Mrs Kimotho Mulela (Citees in Misc Succession Cause 335 of 2010)b)Samuel Kioko Mulelac)Muasya Mulelad)Muema Mulelae)Martina Masilaf)Regina Mutuag)Mutuku Mulelah)Musyimi MulelaCitorsa.Elizabeth Munyiva Mukuthib.Mukuthi Ndoloc.Elijah Ndolod.Douglas Ndolo

5. After gazettement of the petition on 4/3/2011, by Elizabeth Munyiva Mukuthi, Mukuthi Ndolo Elijah Ndolo & Douglas Ndolo daughters and sons of the deceased respectively who died at Kenyatta National Hospital in 1995, on 18/5/2011, the grant of letters of administration was/were granted/issued to the above -named daughters and sons of the deceased in the Kenya Gazette and not as contained in the filed Petition.

6. Applicants, Onesmus Musyimi Mulela & Nicholas Muema Mulela sons of the deceased filed revocation/annulment of grant on 11/7/2011 and deposed that the petitioners 15/9/2010 who filed the Petition are/were not beneficiaries of the estate of the deceased. As lawful beneficiaries they filed Succession Cause 141/2011. The applicants further deposed that the Petitioners intended to enrich themselves unjustly and were using the grant to threaten the objectors/applicants with eviction and demanding the property Mavoko Town Blok 3/434.

7. On 16/12/2011, the applicants, Elizabeth Munyiva Mukuthi, Mukuthi Ndolo Elijah Ndolo & Douglas Ndolo filed Summons for Confirmation and listed beneficiaries of the estate of the deceased as follows;a)Monica Nzula Muemab)Josephine Mwikali Mbithic)Nicholas Ndambuki Ndolod)Johan Mukuthi Ndoloe)Florence Mwololo Nguif)Edward George Ndolog)Grace Mutinda Mbithih)Reuben Mutiso Ndoloi)Rebecca Nduku Musyokaj)Wambua Ndoloand distributed the property Mitaboni Adjudication section 2606 measuring 142 acres as follows;a)71 acres – Elizabeth Munyiva Mukuthib)71 acres- Mrs Kimotho Mulela

8. Another Confirmation of Grant was issued to Onesmus Musyimi Mulela & Nicholas Muema Mulela on 19/ 11/2013Whereby distribution of the estate of the deceased was as follows;1)Mitaboni Adjudication section 2606-140 acresa.Onesmus Musyimi Mulela & Nicholas Muema Mulela-70acresb.Elizabeth Munyiva Ndolo-70acres2)Matungulu Farming Co.Ltd Plot 1513)Mavoko Town Block 3/20114)Kikule Plot No 45)Hill Plot No 226)Water Plot No 3767)Komarock Market Plot No4 Properties 2-7 outlined above to be shared equally between Onesmus Musyimi Mulela & Nicholas Muema Mulela.8)Mavoko Town block 3/434- David Kyalo Kilonzo9)Mavoko Town Block 3/2009- Suhayl Ali Said10)Mitaboni Market Plot No 57- Joseph Mutisya Kilonzo11)Mavoko Town Block 3/2010-Stephen Kilonzo Mengo

9. The same confirmation grant was further granted on 21/11/2018 on application filed on 5/6/2020 that the 2nd Administrator, Nicholas Muema Mulela refused to sign documents for beneficiaries. The Court granted the confirmed grant on the same terms and the Deputy Registrar was to execute the transfer documents.

Summons for Revocation /Annulment of Grant 10. The Summons for revocation application was filed by Emma Nzula Mukunzu daughter of the deceased who listed the beneficiaries of the deceased’s estate that were left out.a)Emma Nzulab)Kalee Joshuac)SyekonkoMatenged)Teresia Wayua Ndoloe)Ann Mbithe Ngilaf)Rose Mbaika Kakovug)Florence Wanzuu Manza

Responses &testimonies 11. The 2nd administrator, Nicholas Muema Mulela, vide replying affidavit of 3/8/2020 conceded the protestors were daughters of the deceased and proposed that instead of revoking the confirmed to file a fresh redistribution of the estate with consents of beneficiaries.

12. Nicholas Muema Mulela testified and relied on affidavit filed on 11/11/2020 and witness statement and contended that Elizabeth Munyiva is widow to their late father’s brother Stephen Ndolo Mukuthi and she can be given ½ of Mitaboni property as the land was in the name of his late father but was in trust for both brothers. He confirmed he did not challenge the Succession Proceedings of Stephen Ndolo Mukuthi but he approached the elders. The deceased James Mulela Mukuthi is registered as owner of Mitaboni Adjudication Section 2606 and Stephen Ndolo Mukuthi is registered owner of KwaKathoka area in Makueni. So they may give ½ of Mitaboni and also get ½ from Makueni land.

13. He said the protestor Emma Nzula is daughter to the deceased and their sister and is entitled to benefit from their father’s estate but she was allocated 5 acres to build on when she came back home from her marriage. They are 8 sons and 3 daughters as children of the deceased.

14. The 1st administrator, Onesmus Musyimi Mulela vide replying affidavit filed on 4/8/2020 deposed that prior to the deceased’s demise on 26/12/1990, he executed a document detailing how he wished his properties to devolve upon his death and annexed the document written in Kikamba and translated in English. The import of the Agreement was/is that the assets of his estate would be divided equally among the 2 houses and not according to the number of beneficiaries in each house.

15. The 1st Administrator deposed that grant issued and confirmed on November 19, 2013 was according to the wishes of the deceased that both Administrators each representing each house would hold ½ of each of the assets on behalf of the respective houses.

16. Prior to his death, the deceased gifted the Objector/Protestor Emma Nzula 5 acres to build her home and not sell, instead she sold the 5acres and used the proceeds to buy land from Koma.

17. Elizabeth Munyiva Mukuthi widow of Stephen Ndolo Mukuthi, brother to the Deceased, James Mulela Mukuthi. vide replying affidavit of 6/11/2020 deposed that as per the Agreement annexed and marked EMM1 bequeathed his brother ½ of Mitaboni Adjudication Section 2606 which was/is 71 acres and ancestral land. The deponent opposed the claim that the land Parcel in KwaKathoka area in Makueni was also subject to division between the 2 families based on the claim that the said parcel was obtained by their grandfather and the deceased son, Stephen Ndolo Mukuthi.

18. Elizabeth Munyiva Mukuthi testified on 20/5/2021 and relied on her Witness Statement of 24/3/2021where she reiterated that James Mulela Mukuthi, deceased herein was registered as trustee of 71 acres of Mitaboni Adjudication Section 2606 for the family of Stephen Ndolo Mukuthi. On 10/6/1997 vide the Agreement by the deceased and her late husband among other elders and family members, 71 acres was agreed to in writing for Stephen Ndolo Mukuthi.

19. John Bosco Munyao testified that James Mulela Mukuthi and Stephen Ndolo Mukuthi and his grandfather were allocated land in Koma/Matungulu location now it is referred to as Mitaboni. The land occupied by Elizabeth Munyiva Mukuthi in Makueni/Kikumani belongs to family of Stephen Ndolo Mukuthi and Elizabeth Munyiva Mukuthi. The land in Makueni was Game Reserve and was adjudicated and allocated to police Officers who fought in the 1945 war. Gregory Mulli Musyoki former Senior Chief of Makueni testified that the land in Makueni belonged to Stephen Ndolo Mukuthi.

20. Samuel Kioko Mulela testified and relied on filed affidavit on 2/12/2020 and deposed that he is the eldest son of the deceased and asserted that their late father James Mulela Mukuthi did not write /leave a Will and he died intestate. He listed each child of the deceased from the 2 houses of the deceased. On distribution of the estate, he deposed that the proposed distribution by the 2nd Administrator to apply, the family of the deceased’s brother should get ½ of Mitaboni Adjudication Section 2606 if they also apportion KwaKathoka area in Makueni in ½ to their family. He posited that both parcels of land were purchased through funds from their paternal grandmother. He also stated in cross examination that he was not at the meeting when the Agreement of December 26, 1990 was written and signed. He also asserted that the land at Makueni which is for the deceased’s brother Stephen Ndolo, the deceased had a share in that land as he sent the worker by the name of Kalanza to work on the land on their behalf. Therefore, he took the view that if he was to surrender ½ of Mitaboni land, then the Stephen Ndolo family should surrender ½ of Makueni.

21. The Protestor, Emma Nzula Mukinzu who stated that she relied on her Witness Statement of November 19, 2020and she affirmed she is daughter to the deceased James Mulela Mukuthe. The deceased had 2 families; the widow Priscilla Nthangu Mulela and 8 children and 2nd widow Esther Ndunge Mulela and 6 children. The deceased did not leave a Will. The protestor agreed that she was bequeathed by the father, the deceased 5 acres and that cannot be the basis to be left out of the distribution of the deceased’s estate. The Protestor proposed that the family of Stephen Ndolo Mukuthi late brother of the deceased James Mulela Mukuthe to get ½ of Mitaboni Adjudication Section 2606 if they also apportion KwaKathoka area in Makueni in ½ to their family. She supported the distribution as proposed by the 2nd Administrator that Mitaboni is distributed ½ to Deceased’s family and ½ to Stephen Ndolo family and the rest of the properties held jointly by Administrators to be distributed to all beneficiaries and not between 2 houses as earlier proposed.

22. Mary Mbaika Kakovu,Bibiana Mbithe Ngala & Florence Wanzau Patrick filed 1st petitioner’s Witness statement of 8/5/2021 and they deposed that they are deceased’s daughters and their father had 2 wives. The deponents stated that it was agreed by the beneficiaries and a meeting of minds that the deceased’s estate would be distributed amongst 2 houses and not individual beneficiaries of both houses. The confirmed grant of November 19, 2013 was according to the wishes of the deceased and there were no objections or protests.

23. On the distribution of Mitaboni and Makueni land, Mary Mbaika Kakovu stated that land Parcel Kwa Kathoka Kikuumini Location Makueni was bought through funds by their paternal grandmother Kavete Mukuthi and the land was for children of James Mulela Mukuthi and Stephen Ndolo Families. Their grandmother is buried in Makueni land.So ½ share Mitaboni will be granted to Stephen Ndolo’s family if ½ of Makueni is also granted to James Mulela family.As regards the Protestor, Emma Nzula Mukunzu she was gifted 5 acres by their father, the deceased to build her home and she sold the same contrary to their father’s wishes.

Determination 24. The parties filed detailed written submissions through their respective advocates on record. The court considered pleadings oral and documentary evidence on record and submissions. The issues that emerge for analysis and determination are as follows;a.Who are beneficiaries of the deceased’s estate?b.What properties comprise of the deceased’s estate and are available for distribution?c.Did the deceased leave a Will for distribution of the deceased’s estate?d.Should the confirmed grant of November 19, 2013be revoked/annulled and/or proposed mode of distribution by 2nd administrator and 2nd protestor be adopted as redistribution of the estate of the deceased or distribution of the deceased’s estate/

a. Who are beneficiaries of the deceased’s estate? 25. Beneficiaries include but are not limited to surviving spouse(s) children of the deceased, extended family members that the deceased took care of or in the absence of spouse and/or children and dependents of the deceased.

26. In the instant case as outlined above parties filed Petitions for Letters of administration on the one hand the 2 administrators without the other beneficiaries and without their written consents and on the other hand, the family of Stephen Ndolo as beneficiaries of the deceased ‘s estate for ½ of Mitaboni land. Both petitions failed to disclose the beneficiaries of the deceased’s estate as prescribed by section 51 of Law of Succession Act(LSA).51. Application for grant(1)Every application for a grant of representation shall be made in such form as may be prescribed, signed by the applicant and witnessed in the prescribed manner.(2)Every application shall include information as to—(a)the full names of the deceased;(b)the date and place of his death;(c)his last known place of residence;(d)the relationship (if any) of the applicant to the deceased; (e) whether or not the deceased left a valid will;(f)the present addresses of any executors appointed by any such valid will;(g)in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased;(h)a full inventory of all the assets and liabilities of the deceased; and(i)such other matters as may be prescribed.

26. The Petitioners of grant of letters of administration intestate or with Will annexed under section 66 of LSAalso provides beneficiaries include;(a)surviving spouse or spouses, with or without association of other beneficiaries;(b)other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;

28. The Constitution of Kenya 2010 provides for non- discrimination of any person on any basis gender color marriage as espoused by article 27 (4) of the Constitution.Article 40 of the Constitution provides for each person’s right to own/hold property.Art 2 (4) of Constitution provides; Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.

29. From the above law and facts, beneficiaries of the deceased are family of the deceased ranked in terms of consanguinity irrespective of their station/status in life.Each of family members that have/had an interest in the deceased’s estate outlined beneficiaries of the deceased selectively; some included only the male children of the deceased, others they outlined one house and left the other, others excluded children of the deceased who are deceased but left children and others the family of the deceased’s brother that lays claim to ½ of the Asset Land Parcel Mitaboni Adjudication 2606.

30. Therefore, this court finds the agreed/ disclosed list of beneficiaries of the deceased’s estate after reading through the various pleadings filed by parties are;1st Housea.Priscilla Nthangu Mulela – 1st wife deceasedb.Martha Kalee Joshua- deceased survived by childrenc.Samuel Kioko Mulelad.Syekonyo Matengee.Dominic Masila Mulela-deceased survived by childrenf.Teresia Wayua Ndolog.Emma Nzula Mukunzuh.Bernard Mutuku Mulelai.Nicholas Muema Mulelaj.John Mutua Mulela -deceased survived by children2nd Housea.Esther Ndunge Mulela- widowb.Waeni Matasi- deceased survived by childrenc.Bibiana Mbithe Ngilad.Mary Mbaika Kakovue.Florence Wanzau Manzaf.Onesmus Musyimi Mulelag.Christopher Muasya Mulelah.Samuel Kioko Mulela

31. It is not clear to this court who Marytina Ndunge Musila and Regina Mbithe Mutua in relation to the deceased and are omitted until/unless they prove their claim or connection to the deceased.

b. What properties comprise of the deceased’s estate and are available for distribution? 32. The assets that comprise of the estate of the deceased are/were outlined in the various petitions and were to be distributed according to the Confirmed grant of November 19, 2013. The main property in contention by the family of the deceased’s brother Stephen Ndolo through his widow Elizabeth Munyiva Ndolo is that1. Mitaboni Adjudication Section 2606-140 acres Was to be divided into 2 as the deceased herein although solely registered as owner of the Land Parcel, he held in trust of his brother Stephen Kioko to have ½ of the land Parcel. This is buttressed by an Agreement ; copy annexed and this Court noted that the original was not delivered or shown to thecourt at the close of proceedings; which was translated and read in part;Today, June 10, 1997we the people of James Mulela Mukuthi have given Stephen Nolo Mukuthu His Land Parcel which he was asking James Mulela Mukuthi which is 71 acres half of James Mulela Mukuthi’s land parcel at Komarock and finally Stephen Ndolo Mukuthi has given the people of James Mulela Mukuthi the mandate to ask him about the land parcel at Makueni….

33. Clearly, from the above agreement by elders family members of the family of James Mulela Mukuthi and the family of Stephen Ndolo signed;½ Mitaboni Adjudication Section 2606 -71 acres is available for distribution for/to the family of James Mulela Mukuthi the deceased herein.In the same vein, the Agreement infers that the family of James Mulela Mukuthi asked Stephen Ndolo Mukuthu about the land in Makueni. Therefore, the ½ Mitaboni Adjudication Section 2606-&1 acres is held pending resolution of the land in Makueni. The ½ Mitaboni Adjudication Section 2606 is not available for distribution for/to the deceased’s family but is held in trust for the family of Stephen Ndolo pending resolution of Land Parcel in Mitaboni.

c. Did the deceased leave a Will for distribution of the deceased’s estate? 34. Sections 5-13 of Law of Succession Actprescribe content, process and effect of a valid will.A written Will is valid if;a)It is in writingb)If the testator signs the Willc)If the signing of the Will is witnessed/ in the presence of 2 witnesses.d)If Testator is of sound mind without mental/physical illness or drunk

35. In the instant case, the Agreement of December 26, 1990 is written and signed and stated to be by deceased and witnessed by witnesses. However, the claim is contested by some beneficiaries, there was no Will by Deceased. Secondly, the original Will was not produced in Court. Thirdly, the Will was disclosed after a long time considering the deceased died in 1995, the Petition filed was for letters of administration intestate filed in 2011 and no disclosure of a Will of the deceased was made until 2021 by one of the Administrators who filed the Petition in 2011 and did not seek letters of administration with Will annexed.

36. For the above outlined facts, this court finds that the deceased left no Will and his estate is intestate estate to be administered and distributed through grant of letters of administration.

d) Should the confirmed grant of November 19, 2013 be revoked/annulled and/or proposed mode of distribution by 2nd Administrator and 2nd Protestor be adopted as redistribution of the estate of the deceased or distribution of the deceased’s estate. 37. The grounds for revocation/annulment of grant are outlined by section 76 of LSA.Hon L Achode L J in Betty Sation KisosovPriscilla Jeruto Kisoso, Succession Cause No 2119 of 2010, rendered herself as follows:(24)On the issue of confirmation of grant, the circumstances that can lead to the revocation of grant have been set out in section 76 Law of Succession. For a grant to be revoked either on the application of an interested party or on the court’s own motion there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of false statement, or by concealment of something material to the case, or that the grant was obtained by means of untrue allegations of facts essential in point of law.(25)A grant may also be revoked if the person named in the grant has failed to apply for confirmation or to proceed diligently with the administration of the Estate. See - Matheka and anor v Matheka[2005] 1 KLR pg 456. It may also be revoked if it can be shown to the Court that the person to whom the grant has been issued has failed to produce to thecourt such inventory or account of administration as may be required. (Emphasis added)

38. In the instant case, the petition filed for letters of administration did not disclose ALL beneficiaries of the deceased’s estate contrary to section 51 LSA. Secondly, the consents from the beneficiaries were not obtained in filing the Petition and/or appointment of Administrators contrary to Rule 26 of Probate & Administration Rules. Clearly there non- disclosure of material facts. To the confirmed grant of November 19, 2013, the written consents from all beneficiaries were not obtained which in light of the protests renders the confirmed grant contrary to section 71 LSA.

39. There is contest by 1st protestor Emma Nzula Mukunzu that she was omitted as one of the beneficiaries of the deceased’s estate. However, she conceded that she was bequeathed during the deceased’s lifetime 5 acres and she sold and bought land elsewhere and settled. The 5 acres constitutes and inter vivos gift and by virtue of section 42 LSA it will be taken into account while apportioning land to other beneficiaries of the estate.

40. Gitari J in Micheni Aphaxard Nyaga & 2 others v Robert Njue & 2 others [2021] eKLR stated;“The characteristics of the gifts inter vivos are that they are made and settled during the lifetime of the deceased and have been identified, awarded and settled for the person to whom it has been given. It is a gift made to a beneficiary when the deceased was alive and is considered when distributing the net intestate estate so that person who received it may be considered as having received his share and may reduce or diminish any entitlement to the net intestate estate. The gift which is transferred and settled for the beneficiary during the life-time of the deceased, will not form part of his estate but it will be taken into account in determining the share of the net intestate estate finally accruing to that beneficiary..”

41. The beneficiaries of the estate contest whether, the deceased’s estate should be divided amongst the 2 houses as per section 40 of LSA which provides for distribution in a polygamous family or distribution as per section 38 of LSA. It is not confirmed if either of the widows is alive; if so she will enjoy life interest in the property bequeathed to her house if not distribution shall be as required by section 38 LSA. The petition failed to disclose some beneficiaries and hence the protest that the daughters of the deceased were omitted in the list of beneficiaries.

42. In the case of Peter Karumbi Keingati & 4 others v Dr Ann Nyokabi Nguthi & 3 others CA 235 of 2014 (2014) eKLR Mwilu, Kiage & M’Inoti JJA stated as follows:'As regards to the argument by the applicants that married daughters ought not to inherit their parent's property because to do so would amount to discrimination to the sons on account of the fact that the married daughters would also inherit property from their parent's in-laws, this court takes the view that the argument as advanced is disingenuous. This is because if a married daughter would benefit by inheriting property from her parents, her husband too would benefit from such inheritance. In a similar fashion, sons who are married, would benefit from property that their wives would have inherited from their parents. In the circumstances therefore, there would be no discrimination. In any event, the decision by a daughter or a son to get married has no bearing at all to whether or not such son or daughter is entitled to inherit the property that comprise the estate of their deceased parents. The issues that courts would grapple with during distribution are the issues anticipated by section 28 of the Law of Succession Act. This court is of the view that the time has come for the ghost of retrogressive customary practices that discriminate against women, which have a tendency of once in a while rearing its ugly head to be forever buried. The ghost has long cast its shadow in our legal system despite of numerous court decisions that have declared such customs to be backward and repugnant to justice and morality. With the promulgation of the Constitution 2010, particularly article 27 that prohibits discrimination of persons on the basis of their sex, marital status or social status, among others, the time has now come for those discriminative cultural practices against women be buried in history.'

Disposition1. The grant and confirmed grant of November 19, 2013 is hereby revoked under section 76 LSA.2. A fresh/new grant is issued toa.Emma Nzula Mukunzub.Nicholas Muema Mulelac.Mary Mbaika Kakovud.Onesmus Musyimi MulelaDistribution of deceased’s Estate3. Mitaboni Adjudication Section 2606-140 acresa)½ Mitaboni shall be distributed to ALL beneficiaries of the deceased’s estate in the 2 houses.b)½ Mitaboni shall be held in trust for Stephen Ndolo family pending resolution of the Land Parcel in Makueni.4. Matungulu Farming Co Ltd Plot 1515. Mavoko Town Block 3/20116)Kikule Plot No 47)Hill Plot No 228)Water Plot No 3769)Komarock Market Plot No4outlined above to be shared among the beneficiaries outlined of the 2 houses10)Mavoko Town block 3/434- David Kyalo Kilonzo11)Mavoko Town Block 3/2009- Suhayl Ali Said12)Mitaboni Market Plot No 57- Joseph Mutisya Kilonzo13)Mavoko Town Block 3/2010-Stephen Kilonzo Mengo14)The 1st Protestor’s share Emma Nzula Mukunzu who obtained a gift of 5 acres shall be taken into account in the distribution of the estate.15)The permanent structures and developments shall not be demolished.16)Once agreed on the beneficial interests and/or written consents obtained the grant will be confirmed.17)No orders as to costs it is a family matter.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 8TH DAY OF DECEMBER, 2022 (VIRTUAL/PHYSICAL CONFERENCE).M.W. MUIGAIJUDGEIN THE PRESENCE OF:Mr. Musyimi -For the 1stadministratorsMr. Nthiwa for the 2nd AdministratorMrs Nzau - for the 1st ObjectorMr. B. M. Mungata - for the 2nd ObjectorPatrick - Court Assistant