[2018] KEHC 2431 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

MISC. SUCCESSION CAUSE NO. 8'B' OF 2015

IN THE MATTER OF THE ESTATE OF JEREMY M'NKANGA M'KURIUNGA- (DECEASED)

PATRICIA CIAMBURA NJUE..................................ADMINISTRATRIX

VERSUS

TABITHA MWARI...........................................................1ST PROTESTOR

LUCY GATAKAA............................................................2ND PROTESTOR

CATHERINE KARIMI...................................................3RD PROTESTOR

PRISCA KANINI.............................................................4TH PROTESTOR

JOYCE GATUNE............................................................5TH PROTESTOR

MOSES MUNENE...........................................................6TH PROTESTOR

J U D G M E N T

1. This cause relate to the estate of the late Jeremy M'Kanga M'Kuriunga (deceased) who died on 14th November, 2007 at Chuka District Hospital. The deceased died intestate was survived by the following dependants:-

(i) Patricia Ciambura Njue

(ii) Lucy Gatakaa

(iii) Moses Munene Kaura

(iv) Prisca Muthoni Benjamin

(v) Joyce Gatune Kaura

(vi) Michael Mbae Njue

(vii) Tabitha Mwari Njeru

(viii) James Mutegi Njue

(ix) Caroline Kagendo

(x) Morris Kibaara Kaura

(xi) Jane Gitonga Kaura

(xii) Doreen Kainyu Mugendi

2. The petitioners in this cause Patricia Ciambura Njue and Tabitha Mwari were appointed joint administratrixes vide a grant issued on 4th April 2016.

3. The first administritrix (Patricia Ciambura Njue) vide Summons for Confirmation of Grant dated 13th June, 2017 applied for confirmation of grant listing the following properties as comprising the estate for distribution:-

a) Karingani/Ndagani/4653

b) Karingani/Ndagani/5965

c) Karingani/Ndagani/5967

d) Karingani/Ndagani/4646

e) Karingani/Ndagani/5467

f) Karingani/Ndagani/4064

g) Karingani/Ndagani/4065

4. The 1st adminstratrix proposed to have the estate distributed as follows:-

(A) KARINGANI/NDAGANI/4653:-

(i) 1st house (Alice Mumo Kaura) - 0. 57 Ha

(ii) 2nd house (Patricia Ciambura Njue) - 0. 53 Ha

(iii) Balance of 0. 04 ha be reserved as graveyard

(B) KARINGANI/NDAGANI/5965

Rev. John Mbiiri - whole

(C) KARINGANI/NDAGANI/5967

(i) Patricia Ciambura Njue - 0. 10 Ha

(ii) James Mutegi - 0. 08 Ha

(iii) Morris Kibaara - 0. 04 Ha

(iv) Michael Mbae - 0. 04 Ha

(v) Dave Gitonga Kaura - 0. 04 Ha

(D) KARINGANI/NDAGANI/4646

Patricia Ciambura Njue and Tabitha Mwari to hold in trust for Kiruire & Mukunyaga Community Water Catchment Area.

(E)KARINGANI/NDAGANI/5467

Patricia Ciambura Njue - whole

(F)KARINGANI/NDAGANI/4064

Patricia Ciambura Njue to hold in trust of the children of the 2nd house.

(G) KARINGANI/NDAGANI/4065

Tabitha Mwari to hold in trust of children in the 1st house.

5. The 2nd administratrix and the 1st protestor along with Lucy Gatakaa (2nd protestor), Catherine Karimi (3rd protestor), Prisca Kanini (4th protestor) Joyce Gatune (6th protestor) and Moses Munene (6th protestor) filed protest to the above mode of distribution through an affidavit by Tabitha Mwari sworn on 28th September 2017. Their main bone of contention is that the proposed mode of distribution by the 1st administratix is skewed in favour of the 2nd house and does not reflect the wishes of the deceased.

6. The 2nd administrator has denied the claims of John Mbiiri on parcel No. Karingani/Ndagani/5965 stating that John Mbiiri is a stranger to the estate. In their view the dependants of the deceased are as follows:-

(i) 1st House:

a) Alice M. Kaura - (widow- deceased)

b) Lucy Catherine Kanyua - Daughter

c) Catherine Karimi Githinji - Daughter

d) Moses Muthomi - Son

e) Prisca Muthoni - Daughter

f) Joyce Gatune Kaura - Daughter

g) Michael Mbae Njue - Son

h) Tabitha Mwari Njeru - Daughter

(ii) 2nd House:

a) Patricia Ciambura Njue - widow

b) James Mutegi Kaburu - Son

c) Caroline Kagendo Micheni - Daughter

d) Morris Kibaara Jeremy - Son

e) Doreen Kainyu M'Rithaa - Daughter

f) David Gitonga - Son

7. The 2nd administratix has listed the following properties as comprising the estate:

a) Karingani/Ndagani/4964 - 7 acres

b) Karingani/Ndagani/4065 - 2 acres

c) Karingani/Ndagani/4646 - 0. 44 acres

d) Karingani/Ndagani/4649 - 2. 2. acres

e) Karingani/Ndagani/4653 - 2. 94 acres

f) Karingani/Ndagani/5467 - 2. 38 acres

g) Karingani/Ndagani/5966 - 0. 03 acres

h) Karingani/Ndagani /5967 - 0. 77 acres

i) Karingani/Ndagani/5965

j) Motor vehicle Registration No. KWP 529 Mazda

k) Shares in Barclays Bank. Cooperative Bank & Kenya Commercial Bank Ltd.

8. The protestors have proposed to have the estate distributed as follows:

(A) KARINGANI/NDAGANI/4646

Patricia Ciambura Njue & Michael Mbae.

(B) KARINGANI/NDAGANI/4064

Tabitha Mwari to hold in trust of children in the 1st house.

(C) KARINGANI/NDAGANI/4065

Tabitha Mwari to hold it in trust of all the children from the 1st house

(D) KARINGANI/NDAGANI/4649

Morris Kibaara

(E) Karingani/Ndagani/4653 Tabitha Mwari to hold in trust of all the children of the 1st house

(F) KARINGANI/NDAGANI/5467

Patriciah Ciambura Njue

(G) KARINGANI/NDAGANI/5966

KARINGANI/NDAGANI/5967

Protestors have proposed that the two properties be amalgated and divided into2 equal parts with each house getting an equal share.

(H) Motor vehicle registration No. KWP 529 - To be sold and proceeds shared equally between the 2 houses.

(I) Shares in Barclays Bank Cooperative Bank and KCB Bank Ltd to go to Patricia Ciamburia Njue.

9. The protestors have further contended that all the siblings from the 2nd house benefited from a share of the deceased's property and gave the following instances:

a) Parcel No.5467 which is claimed to have been given to the 1st administrator.

b) Parcel No. Karingani/Ndagani/5967.

i) James Mutegi - 0. 08 Ha

ii) Morris Kibaara - 0. 04 Ha

iii) Dave Gitonga - 0. 04 Ha

10. During the oral hearing of the protest herein, the first administratrix reiterated that the deceased in this cause had subdivided his properties and gifted all his children a share. He added that the following parcels remained:

(i) Karingani/Ndagani/4646.

A source of a river and therefore a public utility section.

(ii) Karingani/Ndagani/4653 which she claims was left for her and daughters and she proposed that the portion be divided into 2 equal portions for both 1st and 2nd house. She further added that the deceased had reserved 0. 10 acres for the grave side and produced a mutation form which she stated that the deceased had worked on before he died. The mutation form was tendered as P. Exhibit 1.

11. James Mutegi (DW2) a beneficiary of the estate by virtue of being one of the children of the deceased, testified that he is the first born in the 2nd house. He confirmed that his late father subdivided most of his properties transferred them to his children during his lifetime. According to him the deceased gifted the following properties to the following beneficiaries.

(i) Karingani/Ndagani/4646

A water Catchment Area

(ii) Parcel No.4647 - James Mutegi

(iii) Parcel No.4648 - Dave Gitonga Kaura

(iv) Parcel No.4649 - Maurice Kibaara Kaura

(iv) Parcel No.4650 - Given to the Community as a Tea Buying Centre.

(v) Parcel No.4651 - Michael Mbae Njue

(vi) Parcel No.4652 - Moses Munene Kaura

(vii) Parcel No.4653 - Left to deceased and his two wives. According to him 4653 was subdivided with 1. 5 acres going to 1st house and 1. 49 acres going to 2nd house. He also added that 0. 10 acre thereof was reserved as a graveside for the family. According to PW2, the deceased was not able to actualize the subdivision because of a caution/restriction placed by Moses Munene and Michael Mbae.

(viii) Muthambi/Karimba/779 - Tabitha Mwari

(ix) Portions of Karingani/Ndagani/993 :

(a) Lucy Moffat - Parcel No.1549

(b) Moses Munene - Parcel No.1550

12. James Kaburu further told this court that parcel No. 2123 was divided into 2 by deceased resulting to parcel Nos.

a) Karingani/Ndagani/4719- sold to Reverend John Mbiiri

b) Karingani/Ndagani/4720 which was further subdivided into Karingani/Ndagani/5963, 5964, 5965, 5966 and 5967.

According to him deceased dealt with the resultant parcels as follows:

a) Parcel No.5963 was sold to Muthoni Mutegi

b) Parcel No.5964 was gifted to Joyce Gatune

c) Parcel No.5965 was sold to Reverend Mbiiri John

d) Parcel No.5966 was retained by the deceased

e) Parcel No.5967 the parcel occupied by the1st administratrix

13. The witness (PW2) further testified that deceased had also subdivided his parcel No. Karingani/Ndagani/1004 resulting into 6 parcels namely Karingani/Ndagani/5462, 5463, 5464, 5465, 5466 and 5467 and dealt with the parcels as follows.

a) Karingani/Ndagani/5462 was gifted to Joyce Gatune

b) Parcel No.5463 sold to one Domiciano

c) Parcel No.5464 - Caroline Kagendo

d) Parcel No.5465 - Doreen Kainyu

e) Parcel No.5466 - Morris Kibaara

f) Parcel no.5467 - Jointly registered in deceased's name and Patricia Ciambura.

14. It was the evidence of James Mutegi (PW2) that his parcel No. Karingani/Muiru/1480 was not a gift from the deceased as he purchased it from the deceased in 1993 He told this court that he acquired the title through purchase and tendered title deed as evidence to back up his claims.. He further stated that he sold motor vehicle Registration No.KWP 527 Mazda at the instructions of the deceased and that the proceeds of sale were used to treat the deceased. According to him the only properties available for distribution in this cause are as follows:-

a) Karingani/Ndagani/4646 - A water Catchment Area

b) Land parcel No. Karingani/Ndagani/4653

c) Karingani/Ndagani/4064

d) Karingani/Ndagani/4065

e) Karingani/Ndagani/5964

f) Karingani/Ndagani/5965

d) Karingani/Ndagani/5966

(a) Karingani/Ndagani/4646-

He has proposed that the properties be distributed as follows:-

a) Karingani/Ndagani/4646- Water Catchment to be used as a public utility.

b) Karingani/Ndagani/4653

(i) Grave site - 0. 04 ha

(ii) 1st house - 0. 57 ha

(iii) 2nd house - 0. 53 ha

c) Karingani/Ndagani/4064- 0. 81 Ha to 2nd house

d) Karingani/Ndagani/4065 - 2. 75 Ha to 1st house

e) Karingani/ndagani/5467- Patricia Ciambura -by operation of law as joint owner.

f) Karingani/Ndagani/5965- Rev. John Mbiiri

g) Karingani/Ndagani/5964 - 1st house

h) Karingani/Ndagani/5965 - 2nd house

i) Karingani/Ndagani/5967- to be shared as follows:

(i) James Mutegi - 0. 08 Ha

(ii) Morris Kibaara - 0. 04 Ha

(iii) Michael Mbae - 0. 04 Ha

(iv) Dave Gitonga - 0. 04 Ha

(v) Patricia Ciambura - 0. 1 Ha

15. John Mutegi Mbiiri (DW3) on his part testified that he is a pastor at Nanyuki Methodist Church and that he knew the deceased as he was his tenant when he moved to Chuka in 1993. He further stated that sometime in 2004 the deceased started getting sick and approached to purchase a plot measuring 20 feet by 80 feet at agreed purchase price of Kshs.150,000/- which he agreed and entered into a written agreement which he tendered in evidence as P Exhibit 7. According to him he purchased parcel No. Karingani/Ndagani/5965 but he did not get a title owing to a restriction placed by two of the sons of the deceased. He testified that he paid total amount in consideration and went further to assist the widow with the finances needed to file this succession cause. He conceded under cross- examination that they did not go to the land Control Board with the deceased over the transaction because of the restriction placed on the parcel.

16. The protestors on their part adopted the oral evidence they had earlier given in this cause. Michael Mbae (PW1) told this court that the transfer of parcel No.4653 Joyce Gatune was reversed after they were summoned to appear before the Area District Commissioner. He also conceded that all the male children of the deceased were given portions of land by the deceased in his lifetime. According to him the remaining assets or properties that were not given out are Karingani/Ndagani/4646, 4653, 4649, 4665, 5965, 5966 and 5967. He proposed to have the estate distributed as follows: -

(i) Karingani/Ndagani/4646

A riparian land to be held in trust by one representative from 1st house and one from the 2nd house.

(ii) Karingani/Ndagani/4653 - To be divided equally between the 1st and 2nd house.

(iii) Parcel No.5467 - The property registered jointly between the deceased and 1st administrator. The 1st administratrix to have the portion.

(iv) 5966- 5967. He has suggested that the two plots be amalgated and divided equally between the 1st and 2nd house.

(v) Karingani/Ndagani/4064 - Tabitha Mwari to hold in trust for 1st house.

(vi) Karingani/Ndagani/4065 - Tabitha Mwari to hold in trust for the 1st house.

17. PW1 further testified that parcel No.5964 was gifted to Joyce Gatune and that parcels No.5965, 5966 and 5967 remained with the deceased. He resisted the suggestion to give Reverend John Mbiiri a share in the estate stating that he was not a party in the suit in Meru High Court which had been filed to remove the restrictions (caution) he had placed on 3 parcels namely; parcels Nos. 5965, 5966 and 5967. He conceded that parcel No.4649 should go to Morris Kibaara.

18. Tabitha Mwari (PW2) on her part supported Michael Mbae (PW2) in her testimony and his proposal on how the estate of the deceased should be distributed. She confirmed that the deceased had prior to his death distributed most of his properties to his children. She expressed her opposition to the claim made by Reverend John Mbiiri stating that she was not aware that he had purchased parcel No.5965. She also conceded that parcel No.4649 belongs to Morris Kibaara as he was given the plot by the deceased. According to her plot No.5967 is developed and should therefore be divided equally between the 2 houses (1st and 2nd house).

19. This court has considered both the petitioner's case and her witnesses on one hand and the protestors and their witnesses on the other. There is no dispute that the deceased in this cause died intestate leaving behind the following dependants:-

(i) Patricia Ciambura Njue - surviving widow

(ii) Lucy Gatakaa

(iii) Moses Munene Kaura

(iv) Catherine Karimi

(v) Joyce Gatune

(vi) Prisca Kanini

(vii) Tabitha Mwari

(viii) Michael Njue

(ix) James Mutegi

(x) Caroline Kagendo Micheni

(xi) Morris Kibaara Kaura

(xii) Doreen Kainyu Rithaa &

(xiii) Dave Gitonga Kaura

20. There is also no dispute that prior to his demise the deceased herein had subdivided his properties and had distributed most of the properties to most of his children and at the time of his demise only the following properties remained in his name namely:

a) Karingani/Ndagani/4064 - 7 acres

b) Karingani/Ndagani/4065 - 2 acres

c) Karingani/Ndagani/4646 - 0. 44 acres

d) Karingani/Ndagani/4649 - 2. 2 acres

e) Karingani/Ndagani/4653 - 2. 94 acres

f) Karingani/Ndagani/5467 - 2. 38 acres

g) Karingani/Ndagani/5966 - 0. 03 acres

h) Karingani/Ndagani/5967 - 0. 77 acres

i) Karingani/Ndagani/5965 - 0. 014 acres

21. Going by the oral evidence tendered in this court, it is clear that parcel No. 4646 measuring 0. 44 acres had been set aside by the deceased as a water Catchment Area and both the petitioner's side and the protestors are in consensus that the parcel should remain as such for the benefit of the community. That parcel of land therefore shall be held for the benefit of the community living near the property, I direct that Tabitha Mwari (from 1st house) and James Mutegi (from the 2nd house) shall hold the property (4646) being a water catchment area in trust for the community.

22. The parties in this cause are also in consensus that parcel No. Karingani/Ndagani/4649 should go to Morris Kibaara as that was what had been gifted to him by the deceased. In view of the fact that the gift is not contested and there is a general consensus on that fact, that parcel (4649) shall go to Morris Kibaara.

23. This court also finds from the evidence tendered that the following beneficiaries benefitted from gifts intervivos from the deceased before his demise.

a) Lucy Gatakaa Moffat - Karingani/Ndagani/1549 - 0. 04 Ha

b) Tabitha Mwari - Muthambi/Karimba/779 - 0. 04 Ha

c) Moses Munene Karua - Karingani/Ndagani/4651& 1550- 1. 86 Ha & 0. 04 ha respectively.

d) James Mutegi - Karingani/Ndagani/4647

e) Dave Gitonga - Karingani/Ndagani/4648

f) Joyce Gatune - Karingani/Ndagani/5964 - 0. 101 Ha

g) Caroline Kagendo - Karingani/Ndagani/5464

h) Doreen Kainyu - Karingani/Ndagani/5465

i) Morris Kibaara -Karingani/Ndagani/5466& 4649- 2. 2 acres

j) Patricia Ciambura - Karingani/Ndagani/5467- 2. 38 acres jointly registered with deceased and therefore at the demise of deceased the property automatically by operation of law becomes hers.

k) Michael Mbae - Karingani/Ndagani/4652 - 1. 02 Ha

24. Under Section 42 of Law of Succession Act previous benefit obtained by a beneficiary of the estate is taken into account when the question of distribution of the net estate is determined. From the list of the beneficiaries it is clear that only 2 children of the deceased namely; Catherine Karimi and Prisca Kanini did not get any share from the deceased during his lifetime though they have not raised any complaint in this cause. This court will however cater for the two as provided by the law but before I delve into who shall get what, is court will first address the claim made by Reverend John Mbiiru who has staked claim on parcel No. Karingani/Ndagani/5965. The Petitioner recognizes his claim but the protestors have termed the claim unjustified stating that he is a stranger.

25. I have carefully considered the evidence tendered by Rev. John Mbiiri (DW3) who testified that he purchased the plot (5965) measuring 20 ft by 80 ft (0. 014Ha) in 2004 from the deceased at an agreed consideration of Ksh.150,000/- He tendered an agreement between him and the deceased as P Exhibit 7. He further testified that the formal transfer of the plot was frustrated by the deceased's two sons who placed a caution on the plot. This court notes from the green card exhibited as JM KI (a) in the affidavit of James M.N. Kaburu sworn on 14th December 2017 that Moses Munene Kaura and Michael Mbae Njue placed actually caution on the plot perhaps upon learning that their late father had sold it to the pastor and intended to formerly transfer the plot to him. This court finds that the pastor's claim that he purchased parcel No. Karingani/Ndagani/5965 measuring 0. 014 ha from the deceased is well founded and proved on a balance of probabilities given the evidence placed before this court. This court therefore finds that parcel No. Karingani/Ndagani/5965 is not part of the estate and is not available for distribution among the dependants or children of the deceased. This court is pursuaded that due to the evident long and good relationship between the deceased and Reverend John Mbiiri, the transaction that led the latter acquiring a plot from the former was valid, legitimate and above board. The same must be respected and therefore that plot shall go to the Reverend John Mbiiri.

26. In view of the above observations the net estate of the deceased as defined under Section 3 of Law of Succession Act and the evidence presented in court are as follows:-

a) Karingani/Ndagani/4653 - 2. 94 acres

b) Karingani/Ndagani/5967 - 0. 77 acres

c) Karingani/Ndagani/4064 - 7 acres

d) Karingani/Ndagani/4065 - 2 acres

e) Karingani/Ndagani/5964 - 2. 38 acres and

f) Karingani/Ndagani/5966 -

The provisions of Section 40 of the Law of Succession Act provides that where a deceased was polygamous his spouse and children the net estate shall be divided equally among the surviving children adding a surviving spouse as an additional unit. It is given in this cause that the deceased was married to two wives namely; Alice Mumo Kaura and Patricia Ciambura Njue. The deceased therefore had 2 houses with 1st house (Alice Mumo Kaura deceased) having the following children namely:

(i) Lucy Gatakaa

(ii) Catherine Karimi

(iii) Joyce Gatune

(iv) Prisca Karimi

(v) Tabitha Mwari

(vi) Michael Njue

(vii) Moses Munene Kaura.

While the 2nd house (Patricia Ciambura Njue) having the following children namely:-

(i) James Mutegi

(ii) Caroline Kagendo Micheni

(iii) Morris Kibaara Kaura

(iv) Dave Gitonga Kaura

(v) Doreen Kainyu Kaura

A simple mathematics will reveal that there are 12 children or dependants in this cause and the surviving spouse who should be added as an additional unit. The law provides that the net estate should be divided equally among all the surviving children (12 children) with the spouse as an additional unit and to enjoy life interest in the estate. Of course as I have observed above, the deceased in this cause had given almost all the children save for the 2 named children a share of most of his properties.

27. Taking everything into consideration and guided by the law this court hereby confirms the grant issued on 4th April, 2016 as per the following mode of distribution:-

a) Karingani/Ndagani/4646

Morris Kibaara Kaura - whole

b) Karingani/Ndagani/5965

Reverend John Mbiiri - whole

c) Karingani/Ndagani/4065

Catherine Karimi - jointly

Prisca Kanini

d) Karingani/Ndagani/4653 to be distributed as follows:-

(i) Patricia Ciambura Njue to hold 0. 55 ha in trust for:

(i) James Mutegi

(ii) Caroline Kagendo Micheni

(iii) Morris Kibaara Kaura equal share

(iv) Dave Gitonga Kaura

(v) Doreen Kainyu Kaura

(ii) 0. 57 ha to be shared as follows:-

(i) Lucy Gatakaa

(ii) Catherine Karimi

(iii) Joyce Gatune

(iv) Prisca Karimi equal share

(v) Tabitha Mwari

(vi) Michael Njue

(vii) Moses Munene Kaura.

(e)Karingani/Ndagani/4064:

(i) Lucy Gatakaa

(ii) Catherine Karimi

(iii) Joyce Gatune

(iv) Prisca Karimi equal share

(v) Tabitha Mwari

(vi) Michael Njue

(vii) Moses Munene Kaura

(f) Karingani/Ndagani/5964

(i) Lucy Gatakaa

(ii) Catherine Karimi

(iii) Joyce Gatune

(iv) Prisca Karimi equal share

(v) Tabitha Mwari

(vi) Michael Njue

(vii) Moses Munene Kaura

(g) Karingani/Ndagani/5966

(i) James Mutegi

(ii) Caroline Kagendo Micheni

(iii) Morris Kibaara Kaura equal share

(iv) Dave Gitonga Kaura

(v) Doreen Kainyu Kaura

(h)Karingani/Ndagani/5967

Patricia Ciambura to hold it for her own benefit (life interest- to continue collecting rent for her upkeep due to her age) and in trust of all the children namely:

(i) James Mutegi

(ii) Caroline Kagendo Micheni

(iii) Morris Kibaara Kaura

(iv) Dave Gitonga Kaura

(v) Doreen Kainyu Kaura

(vi) Lucy Gatakaa equal share

(vii) Catherine Karimi

(viii) Joyce Gatune

(ix) Prisca Karimi

(x) Tabitha Mwari

(xi) Michael Njue

(xii) Moses Munene Kaura

(i) Shares in Barclays Bank Ltd, Cooperative Bank Ltd and Kenya Commercial Bank Ltd. All the parties are in agreement that those shares should go to the widow so Patricia Ciambura Njue will benefit from all the shares though details were not provided to this court.

This court makes no order as to costs as this is a family matter.

Dated, signed and delivered at Chuka this 12th day of November, 2018.

R.K. LIMO

JUDGE

12/11/2018

Judgment dated , signed and delivered in the open court in presence of Murithi for protestors and Kijaru for administratrix.

R.K. LIMO

JUDGE

12/11/2018