[2023] KEHC 25801 (KLR)

In re Estate of Jesse Kariuki Kibe alias Kariuki Kibe (Deceased) (Succession Cause 274 of 2014) [2023] KEHC 25801 (KLR) (29 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25801 (KLR)

Republic of Kenya

In the High Court at Nyeri

Succession Cause 274 of 2014

FN Muchemi, J

November 29, 2023

In the matter of the Estate of Jesse Kariuki Kibe alias Kariuki Kibe (Deceased)

Between

Alice Wanjira Mukanda

Applicant

and

Esther Wothaya Kariuki

Protestor

Judgment

1. The petitioner filed this Succession Cause on 19/03/2014 and was issued with letters of administration intestate on 10/06/2014. Confirmation of grant in the applicant’s favour as the sole beneficiary of the estate was done on 30/04/2015. The applicant filed Summons for Revocation of grant dated 14/02/2017 seeking for orders that the said grant be revoked on the ground that it was defective in nature and was obtained fraudulently. This was based on the fact that the applicant and her four (4) siblings were left out of the inheritance of the deceased estate being rightful beneficiaries.

2. The Summons for revocation was compromised by the parties with the confirmed grant being revoked and the applicant being retained as the administrator of the estate. She then filed the application for Confirmation of grant dated 10th June which was opposed through the Affidavit of Protest dated 19th June 2019.

The Protestor’s Case 3. PW1, the protestor stated that the deceased is her father and that he had two wives. Ann Wangui was the 1st wife and Eunice Kanuthu, the 2nd wife. The protestor further stated that before the deceased died, he had acquired the following parcels of land, LR Numbers Mweiga/block 1/1010, 858, 859 and 1170. The protestor testified that the petitioner sold LR Numbers Mweiga/block 1/859 and 1/1170 to Mary Nyambura Litimu purchase by the deceased and registered to the first house as a gift inter vivos. She further testified that LR Numbers Mweiga/block 1/1010 and 1/858, measuring 10 acres, were purchased during the lifetime of the deceased and registered in the name of Eunice Kanuthu, the 2nd wife. The protestor further stated that her mother was a squatter in Zaina forest in Nyeri County and was given land at Kabaru by the government that was settling squatters.

4. On cross examination, the protestor testified that she was aware that LR Numbers Mweiga/block 1/1858 and 1/1010 were bought from Mahiga Co-operative socirty. She further stated that the deceased and the 2nd wife used to rear pigs and they may have used the proceeds from pig farming to purchase the said parcels of land. She further added that at the time, the petitioner was still in school and thus could not have contributed any money towards the purchase of the parcels of land.

5. PW2 a daughter of the deceased testified that the deceased had two wives. The 1st wife was Anne Wambui Gatu had six children namely Esther Wthaya, Milka Njoki, Joseph Gakinya, Mariam Muthoni, Ndomi Nyawira and Eunice Wairimu. The witness further testified that the deceased’s 2nd wife Eunice Kanuthu had one child, Alice Wanjira.

6. PW2 further testified that the deceased had two parcels of land at Mahiga referred to as Mahiga A and Mahiga B. Mahiga Parcel No B was given to their mother but is still registered in deceased’s name and the other parcel was given to the 2nd wife Eunice Kanuthu. On cross examination, the witness testified that her mother was a squatter at Zaina Forest and she was then considered for land allocation at Ndabi Settlement scheme in 1992 among other lands.

The Petitioner’s Case 7. DW1, Joseph Ndung’u Gakinya testified that he worked as an Assistant Chief from 1976 – 1998 at Zaina Forest Station. He further testified that he knew the deceased since 1993 and the deceased had two wives. The 1st wife was Anna Wambui whom he married in 1959 and the 2nd wife was Eunice Kanuthu who married deceased in the 1960s. He further testified that the deceased had six children with the 1st wife and two children, Alice Wanjira and Joseph Ndirangu with the 2nd wife.

8. DW1 further testified that the deceased did not land at Zaina when he married his 1st wife. When he married his 2nd wife, he went to Ruring’u and stayed there with the 2nd family. The witness stated that he was instructed by the Provincial Administrator to give the names of the squatters at Zaina and Gakanga forests. The deceased told him to include the name of the 1st wife instead of his own. He further stated that the Mahiga land was bought by the deceased with the assistance of his 2nd wife and son in 1980 from Mahiga Co-operative Society. The witness further testified that at the time, the deceased had separated from his 1st wife, He then moved her from Ngoru together with her children and took her to Zaina Forest where they stayed until they were allocated the land at Kabaru. Furthermore, the Solio land parcels were for squatters and was allocated to three of the 1st wife’s children namely:- Wothaya, Gakinya and Nyawira, with each getting a parcel.

9. DW2, the applicant testified that the deceased is her father and her mother, Eunice Kanuthu was the 2nd wife. The deceased had two children with Eunice being herself and Joseph Ndirangu now deceased. The witness testified that the 2nd family lived at Ruringu at her maternal grandfather’s home. DW2 further stated that she assisted her parents in buying LR Numbers Mweiga/block 1/858 and 1/1010 from Mahiga Co-operative Society between 1974 and 1988 which was paid for in instalments. Upon completion of the payments, the family was issued with clearance certificates and title deeds registered in the name of the deceased in 1988. The petitioner stated that the deceased and her mother Eunice moved to LR No Mweiga/block 1/858 and settled there and she and her husband built a permanent home for her parents in 1989.

10. The petitioner further stated that at the time the deceased fell sick, he called DW1, a member of his clan and told him how he wished his estate would be distributed. He said that LR Numbers Mweiga/block 1/858 and 1/1010 would be inherited by herself.

11. On cross examination, the witness denied knowing one Mary Nyambura Timu but stated that entry No 4 for the copy of register for LR No 1170 indicated that one Mary Nyambura Timu bought the said parcel of land from Eunice Kanuthu. The petitioner further stated that LR No Mweiga/block 1/ 859 was registered in the name of her mother and it is not true that the said parcel was given to her mother for the 2nd family and that LR No Mweiga/block 1/ 858 was reserved for the 1st family. The witness further testified that her mother was the registered owner of LR No Mweiga/block 1/ 859 on 13/3/2014 and the deceased died in 2012 and thus could not have gifted her the said parcel as he was already deceased.

The Protestor’s Submissions 12. The protestor submits that since the deceased gave the petitioner’s mother a parcel of land as a gift inter vivos, the petitioner could not claim the remaining land as it ought to be distributed to the first family. The protestor further submits that through the green cards provided in respect of LR Nos Mweiga/block 1/859 and 1170 shows that the registered proprietor of the said parcels of land is the petitioner’s mother which indicate that the deceased gave the said parcels to her as gift inter vivos. As such, the protestor argues that the deceased had allocated the said properties to the 1st family but the petitioner’s mother sold them, two years after the deceased’s demise thus disinheriting them.

13. Furthermore, the protestor submits that the petitioner alleged that she and her brother contributed to the purchase of the suit properties but all the receipts and ballots indicated that the deceased bought the said parcels of land.

14. The protestor further submits that she has a parcel of land granted by the government in a settlement scheme but contends that that is not a consideration in the current succession proceedings. She argues that she benefited from the government directly as an individual, a fact which was confirmed by DW1.

15. The protestor states that the court ought to distribute the estate of the deceased by sharing the estate equally amongst the 7 surviving children of the deceased with the petitioner getting less as she and her mother had already taken benefit and sold their gift inter vivos.

The Petitioner’s Submissions. 16. The petitioner submits that the deceased had no proprietary interest in LR Numbers Mweiga/block 1/859 and 1/1170 as the green cards indicate that the properties were registered in the her mother’s name in the year 2014 with no indication of either properties ever being registered in the name of the deceased. Thus, the petitioner argues that they do not form part of the deceased’s free property capable of being distributed in these proceedings. Additionally, the petitioner submits that the green card in respect to LR No Mweiga/block 1/1170 does not form part of her mother’s free property as it was already disposed of during her lifetime.

17. Moreover, the petitioner argues that although the protestor claims that the two properties were given to her mother as a gift inter vivos, the protestor has not adduced any evidence that would demonstrate to the court that the decaesed’s intention was to have the two properties transferred to her mother as gift inter vivos. The petitioner relies on Section 42 of the Law of Succession Act and the case of the Estate of the late Gedion Manthi Nzioka (Deceased) [2015] eKLR.

18. The petitioner relies on Section 29(a) of the Law of Succession Act and submits that she is entitled to inherit from the deceased’s estate as she is a biological child of the deceased and hence a dependant. Furthermore, the petitioner submits that she, her mother and brother contributed to the purchase of LR Numbers Mweiga/Block 1/1010 and 1/858 and that they opted to have the properties registered solely in the deceased’s name and not jointly with her mother as during that time, it was not the norm for women to be registered as co-owners of land alongside their husbands. The petitioner further argues that her evidence is supported by documentary evidence and the testimony of the protestor who stated that the said parcels of land were purchased by the deceased and step mother through shares. The petitioner further submits that the evidence of DW1 supports her claim that the deceased told DW1 that the land at Mahiga had been purchased from the resources available by the 2nd wife and her children and the deceased intended for the petitioner to inherit the said parcels of land. Furthermore, DW1 testified that the children of the deceased’s 1st wife had been allocated land at Kabaru and Solio measuring 4. 5 acres.

19. The petitioner submits that it would be unjust to distribute the estate of the deceased equally between the two houses pursuant to Section 40 of the Law of Succession Act as she and her brother were never allocated any land in Solio or Kabaru. To support her contentions, the petitioner relies on the cases of Scolastica Ndululu Suva v Agnes Nthenya Suva [2019] eKLR and Douglas Njuguna Muigai v John Bosco Maina Kariuki &another (no citation given).

Issue for determination 20. The main issue for determination is whether the protest has merit.

The Law Whether the protestor has merit. 21. The law governing distribution of property in an intestate estate where the deceased was polygamous is Section 40(1) of the Law of Succession Act which provides:-Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.

22. The deceased herein died on 19th February 2012. During his lifetime, he had two wives namely Hannah Wambui and Eunice Kanuthu. The deceased had six children with the 1st wife; Esther Wothaya, Milka Njoki, Joseph Gakinya, Mariam Muthoni, Ndomi Nyawira and Eunice Wairimu. The deceased had two children with the 2nd wife namely Alice Wanjira Mukanda and Joseph Ndirangu Kariuki. Whilst it is not in contention that the deceased married two wives, the petitioner argues that the distribution of the deceased’s property ought not to be done under Section 40(1) of the Law of Succession as the deceased had already separated from the 1st wife and he had distributed parcels of land for them to live on.

23. From the evidence of all the parties, the deceased married the 1st wife and they lived in Ngoru up to 1960. He then moved to Nyeri town where he lived with the 2nd family. The protestors stated in their testimony that their mother lived alone as a squatter at Zaina forest and that she was later considered for land allocation at the settlement scheme. The protestors stated that the deceased used to visit them at Zaina and they in turn used to visit him at his home at Ruringu where he lived with their step mother in Nyeri town, a fact not denied by the petitioner. The petitioner only testified that she did not know where the 1st family lived. As such, it is my considered view that the deceased married two wives and was therefore polygamous.

24. The petitioner has listed in the summons for confirmation of grant dated 19th March 2014, the following properties as part of the deceased’s estate up for distribution:-a.LR. No Mweiga/block 1/858b.LR No Mweiga/block 1/1010

25. The protestor opposes the mode of distribution as per the said summons and argues that the deceased was the proprietor of other parcels of land LR Numbers Mweiga/block 1/859 and 1/1170 which he gifted the 2nd wife as gifts inter vivos, As such it is argued by the protestor that the court ought to take the said gifts into consideration in distributing the estate of the deceased by not allocating any properties to the petitioner. Upon perusal of the court record it is noted that the green cards for LR Numbers Mweiga/block 1/859 and 1/1170 show that the registered proprietors of the said parcels of land is Eunice Kanuthu Kariuki, the mother of the petitioner whose registration was entered on 13/3/2014. It is evident from the said green cards that nowhere does the deceased’s name appear as proprietor of the said parcels of land. In any event, the deceased died on 19th February 2012 and therefore there is no way he could have gifted the petitioner’s mother with the said parcels of land as he was already dead by the time of registration. Moreover, the protestor has not adduced any documentary evidence to show that the deceased owned the said parcels of land at any one time and later transferred them to Eunice Kanuthu. I am of the considered view that the protestor has failed to prove the allegation that the 2nd family of the deceased was given the two parcels as gifts during the deceased’s lifetime. The said parcels of land LR Mweiga/Block 1/859 and Mweiga Block 1/1170 do not form part of the deceased’s assets.

26. The petitioner has further argued that LR Numbers Mweiga/block 1/858 and 1/1010 ought not to be shared between the two households as the said parcels of land were purchased from Mahiga Co-operative by the deceased, assisted by her late mother, her late brother and herself. I have perused the annextures by the petitioner and noted that the ballots, receipts and the clearance certificate by Mahiga Farm Mweiga Ltd all bear the names of the deceased. The petitioner argues that the reason why they agreed to have the deceased as the registered proprietor was because at the material time, women could not be entered as joint proprietors of land with their husbands. The petitioner has not cited any law to that effect in the land regime. The petitioner called DW1 as her witness who testified that the deceased during his lifetime and sickly, told him that his properties ought to be allocated to the petitioner and his grandson because she is the one who used to help him. Even if the petitioner would prove that she used to help the deceased during his lifetime, the kind act does not qualify her as a superior heir of the estate as opposed to his other children. It is my considered view that the petitioner ought to be treated equally with the other beneficiaries as provided for by the law.

27. The deceased had two houses that survived him. The first house is said to consist of six (6) children. It was not indicated how many are living or survived the deceased. Going by the joint statement of five of the children filed on 30/05/2018 that was duly signed by all of them, it is evident that the five of them are the beneficiaries of the first house. The petitioner’s evidence was to the effect that she is the only beneficiary. Her mother passed on and her only brother Joseph Ndirangu Kariuki, now deceased had no wife or children. The beneficiaries are hereby identified as:-1. Alice Wanjira Mukanda2. Esther Wothaya Kariuki3. Eunice Wairimu Gituri4. Miriam Muthoni Ritho5. Joseph Mathenge Gatu6. Naomi Nyawira Gatumwa

28. The deceased died in 1980 before the Law of Succession came into force. The two wives of the deceased have since passed on leaving the six (6) children named in foregoing paragraph. However, the provisions of Section 40 of the Law of Succession Act as well as Article 27 of the Constitution will guide this court in the distribution of the property to ensure that equity, if not equality is achieved in the distribution of the estate.

29. The assets available for distribution are identified as Numbers Mweiga/Block I/858 and Mweiga/Block I/1010.

30. I hereby find the protest partly successful and enter judgment in favour of the protestor to the extent of the successful part of the claim.

31. Consequently, the estate of the deceased shall be distributed as follows:-a)LR Mweiga/Block I/858 – 1. 952 ha.i)Alice Wanjira Mukanda ½ share on portion where her mother’s house is locatedii)Eunice Wothaya Kariuki – ½ Shareb)LR Mweiga/Block I/1010 – 2. 104 ha.i.Eunice Wairimu Gaturiii.Miriam Muthoni Rithoiii.Joseph Mathenge Gatu in equal sharesiv.Naomi Nyawira Gatumwa

32. Eunice Wothaya Kariuki is hereby appointed a co-administrator of the estate to represent the 1st house.

33. A certificate of confirmation to issue.

34. It is hereby so ordered.

JUDGMENT DELIVERED VIRTUALLY AT THIKA THIS 29TH DAY OF NOVEMBER 2023. F. MUCHEMIJUDGE