[2017] KEHC 2560 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIVASHA

SUCCESSION CAUSE NO. 57 OF 2014

IN THE MATTER OF THE ESTATE OF JOSEPH KIRAGU MACHARIA (DECEASED)

NYANDIA KIRAGU MACHARIA............................1ST ADMINISTRATOR

JOHN MACHARIA KIRAGU.................................2ND ADMINISTRATOR

VERONICAH WANJIKU KIRAGU........................3RD ADMINISTRATOR

R U L I N G

1. The Petition for Letters of Administration was filed subsequent to a compromise between the Citor and Citee who are mother and son respectively. Pursuant to the Grant of letters issued on 19th June 2015 to Nyandia Kiragu Macharia (widow of the deceased and 1st Administrator), John Macharia Kiragu (son of the deceased and 2nd administrator) and Veronicah Wanjiku Kiragu (3rd Administrator and daughter of the deceased), the 1st Administrator filed Summons on 12th May, 2016 to confirm the grant.

2. The Summons stated that her application was made on behalf of herself and her co-administrators and to it was attached a schedule describing the family’s agreed mode of distribution, wherein majority of the 15 identified assets of the estate would devolve upon the 1st Administrator.

3. At the hearing of the Summons for confirmation, the Administrators and beneficiaries were unable to agree on and the mode of distribution. This being the only contested issue, the court eventually directed them to file affidavits proposing their preferred mode of distribution. This has now been done.

4. By their affidavit filed on 5th June 2017, all the sons of the deceased, namely John Macharia Kiragu, Wanjohi Kiragu,Paul Maina Kiragu, Samuel Kingori Kiragu, James Mwangi Kiragu and one of their five sisters, namely Jane Wahito Kiragu express displeasure with the distribution proposal by the 1st Administrator as contained in the Summons. They state that she is advanced in age and being illiterate and of poor health, incapable of administering the estate alone.

5. Asserting that seven of the immoveable properties had been gifted to the beneficiaries by the deceased before his death though not transferred, they identified the following properties as those available for distribution:

1. Land Parcel No. Naivasha/Mwichiringiri/3/279

2. Land Parcel No. Naivasha/Mwichiringiri/3/229

3. Land Parcel No. Naivasha/Mwichiringiri/3/231

4. Land Parcel No. Mwega Farm Block 8/482

5. Land Parcel No. Lorien Farm Certificate No. 894

6. Land Parcel No. Kiambogo Scheme

7. Commercial Plot No. 24 & 51

8. Commercial Plot Naivasha Mwichiringiri 2/272

9. Income from 7 & 8 above amounting to Shs 65,000/= per month

10. Motor Vehicle Registration No. KTH 117 Ford Lorry

11. 6109 Company Shares in Five Companies.

6) In the Protestors’ view these unassigned properties ought to be shared by the agreement and for the benefit of all the beneficiaries. They pledge to bear all the attendant costs.

7) Responding to the affidavit above, the 1st Administrator has no contest regarding the list of beneficiaries entitled, proposed administrators, and the gifts intervivos to beneficiaries. However, she states that the deceased left the 11 extra properties listed by the protestors as unassigned including profits therefrom “under the management of the widow” to support herself and cater for her medical needs. In support of these assertions, she relied on the copy of minutes of a family meeting on 14/1/2012 (NKM I & II) which, according to her, reflect the wishes and intentions of the deceased.

8) Having considered the rival affidavits, it would seem that the following issues are not in contention. Firstly, the identities of beneficiaries of the estate of the deceased, the properties forming part of his estate at the time of his death, and the identified assets thereof gifted to but not transferred to some beneficiaries.

9) The only assets in contention so far as distribution is concerned are the eleven outlined herein before. While the protestors contend these are for the benefit of all, the 1st administrator asserts that these were left under her management and or for her exclusive benefit by the deceased.

10) The deceased herein died intestate. Although copies of minutes NKM I & II tend to confirm that, some of the assets were gifted before death, the minutes are general and contain no specifics as to the title numbers, shares etc. Secondly, it is evident that the deceased was keen to hand over authority to his wife in guiding the administration of the estate. However, I cannot find any support in the minutes for the contention that the 1st Administrator was bequeathed all the 11 disputed assets for her exclusive benefit.

11) The words “chairmanship”, “management”, “supervision” as used in the minutes do not in my view convey such an intention. As for the “four pieces of land in the upper Nyandarua”, these were not specified although the minutes record that “mother is ………..to decide about the lands.”

12) That said, the widow appears to have been a dependent of the deceased and also an entitled beneficiary whose interests must be catered for. While it is important to consider records of meetings in which the deceased may have expressed his intention or wishes, it must be stated that the minutes such as produced herein do not constitute a will in the sense anticipated under Section 11 of the Law of Succession Act.

13) The Section provides that:-

“No written will shall be valid unless-

(a) the testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator;

(b) the signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will;

(c) the will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”

(See also Section 34 of the Law of Succession Act).

14) Section 35 of the Law of Succession Act as quoted below, provides for the distribution of the estate of an intestate such as the deceased herein:-

“(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; and

(b) a life interest in the whole residue of the net intestate estate:

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 subsection (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) …………….;

(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.”

15. Judging from the contents of paragraph 8 (1) to (8) of the Protestor’s affidavit the dependents are agreed on the assignment of the following properties:-

Description of Property Share Person entitled

1. NAIVASHA/MWICHIRINGIRI BLOCK 3/509 0. 8094 HA John Macharia Kiragu

2. NAIVASHA/MWICHIRINGIRI BLOCK 3/508 0. 8094 HA Wanjohi Kiragu

3. NAIVASHA/MWICHIRINGIRI BLOCK 3/507 0. 8094 HA Paul Maina Kiragu

4. NAIVASHA/MWICHIRINGIRI BLOCK 3/920 0. 8094 HA Samuel Kingori Kiragu

5. NAIVASHA/MWICHIRINGIRI BLOCK 3/918 0. 8094 HA James Mwangi Kiragu

6. NAIVASHA/MWICHIRINGIRI BLOCK 3/353 0. 70 HA Daughters

Susan Njoki

Regina Wangui

Veronicah Wanjiku

Cicilia Wanjiru

Jane Wahito

7. NAIVASHA/MWICHIRINGIRI BLOCK 3/919 0. 8094 HA Nyandia Kiragu Macharia

16. Evidently, the five daughters were by the above arrangement to receive only 0. 70 hectares which they were to share, but in the distribution mode proposed by the 1st Administrator the said property is proposed to go to her. Each of the gifted sons, on the other hand received 0. 8094 hectares. That is hardly equitable.

17. Distribution of estates is about equity though not necessarily equality. Omollo J A (as he then was) stated in Rono -Vs- Rono [2005] eKLR.

“I had the advantage of reading in draft form the judgment prepared by Waki, J.A., and while I broadly agree with that judgment, I nevertheless wish to point out that I do not understand the learned Judge to be laying down any principle of law that the Law of Succession Act, Cap 160 of the Laws of Kenya, lays down as a requirement that heirs of a deceased person must inherit equal portions of the estate where such deceased dies intestate and that a judge has no discretion but to apply the principle of equality as was submitted before us by Mr. Gicheru. I can find no such provision in the Act.

My understanding of that section is that while the net intestate estate is to be distributed according to houses, each house being treated as a unit, yet the Judge doing the distribution still has discretion to take into account the number of children in each house. If Parliament had intended that there must be equality between houses, there would have been no need to provide in the section that the number of children in each hose be taken into account.

Nor do I see any provision in the Act that each child must receive the same or equal portion. That would clearly work an injustice particularly in a case of a young child who is still to be maintained, educated and generally seen through life. If such a child, whether a girl or a boy were to get an equal inheritance with another who is already working and for whom no school fees and things like that were to be provided, such equality would work an injustice and for my part, I am satisfied that the Act does not provide for that kind of equality.”

18) In the circumstances it is only mete and just that the daughters as equals to the sons be considered for an adequate portion of the land parcels which the 1st Administrator seeks to keep for herself. Finally, as noted earlier the 1st Administrator is well advanced in years and admits to chronic medical conditions. It is prudent that the distribution obviates tensions and rivalry among beneficiaries as would attend her proposal to have the lion’s share of the estate devolve upon her.

19) Thus the land parcels number NAIVASHA/MWICHIRINGIRI BLOCK 3/226measuring 1. 41 hectares and land parcels NAIVASHA/ MWICHIRINGIRI BLOCK 3/353measuring 0. 70 hectares will be shared equally among the five daughters of the deceased. The daughters will also jointly share the KIAMBOGO SETTLEMENT PLOT NUMBER 1942and the parcel related to LORIEN FARM SHARE CERTIFICATE 894.

20) On their part, the sons will take their agreed gifts intervivos and also share jointly land parcels NAIVASHA/MARAIGUSHU BLOCK 8/482 (Mwega Farm) (0. 7157 hectares) and NAIVASHA/MWICHIRINGIRI BLOCK 3/231 (0. 945 hectares), as well as the two commercial plots identified as PLOT NUMBER 24 AND 51. They will also take and share equally proceeds from the sale of the lorry registration numberKXY 523 (listed in the Petition).

21) The widow and 1st Administrator is entitled to the income from and a life interest in respect of land parcels number NAIVASHA/ MWICHIRINGIRI BLOCK 3/79 (3. 731 hectares) and the commercial plot number NAIVASHA/MWICHIRINGI BLOCK 2/272. She will take absolutely the lorry registration numberKTH 117 and also the whole of 6,109 Company Shares held by the deceased in five companies under CDS Account No. 1923200.

22) Upon the 1st Administrator’s demise, the residue of the portion of the estate assigned to her will devolve equally upon the surviving children as provided under Section 35 (5) of the Law of Succession Act. The tables below sets out the distribution of the entire estate of the deceased including gifts intervivos.

TABLE A: AS DIRECTED BY COURT

Description of Property Share Person entitled

1. NAIVASHA/MWICHIRINGIRI BLOCK 3/226 1. 41 HA All Daughters to share equally

Susan Njoki

Regina Wangui

Veronicah Wanjiku

Cicilia Wanjiru

Jane Wahito

2. KIAMBOGO SETTLEMENT SCHEME PLOT NUMBER 1942

3. LORIEN RANCHING COMPANY LIMITED SHARE CERTIFICATE 894 (for land)

4. NAIVASHA/MWICHIRINGIRI BLOCK 8/482

(Mwega Farm) 0. 7157 HA All Sons to share equally

Wanjohi Kiragu

Samuel Kingori

James Mwangi

Paul Maina

John Macharia

5. NAIVASHA/MWICHIRINGIRI BLOCK 3/231 0. 945 HA

6. COMMERCIAL PLOT NO. 24

7. COMMERICIAL PLOT NO. 52

8. LORRY REGISTRATION NO. KXY 523

9. NAIVASHA/MWICHIRINGIRI 3/79 3. 731 HA Nyandia Kiragu Macharia (Widow)

10. KINUNGI SHOPPING CENTRE PLOT NO. 272

12. CDS ACCOUNT NO. 1923200 (Centum 840, Kengen 1036, Kenya Re 333, Mumias Sugar Co. 1100 and Safaricom Ltd 2800) 6109 Shares

13. LORRY REGISTRATION NO. KTH 117

TABLE B: AS AGREED BY PARTIES (Gifts Intervivos)

Description of Property Share Person entitled

1. NAIVASHA/MWICHIRINGIRI BLOCK 3/509 0. 8094 HA John Macharia Kiragu

2. NAIVASHA/MWICHIRINGIRI BLOCK 3/508 0. 8094 HA Wanjohi Kiragu

3. NAIVASHA/MWICHIRINGIRI BLOCK 3/507 0. 8094 HA Paul Maina Kiragu

4. NAIVASHA/MWICHIRINGIRI BLOCK 3/920 0. 8094 HA Samuel Kingori Kiragu

5. NAIVASHA/MWICHIRINGIRI BLOCK 3/918 0. 8094 HA James Mwangi Kiragu

6. NAIVASHA/MWICHIRINGIRI BLOCK 3/353 0. 70 HA Daughters to share equally

Susan Njoki

Regina Wangui

Veronicah Wanjiku

Cicilia Wanjiru

Jane Wahito

23) I am persuaded that the above mode of distribution is not only equitable but also makes proper provision for the widow of the deceased, and all the beneficiaries their respective portions having been delineated as provided in the proviso to Section 71 (1) of the Law of Succession Act which states:-

“(1) After the expiration of a period of six months, or such shorter period as the court may direct under subsection (3), from the date of any grant of representation, the holder thereof shall apply to the court for confirmation of the grant in order to empower the distribution of any capital assets.

(2) …………..

Provided that, in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled; and when confirmed such grant shall specify all such persons and their respective shares.”

24) Grant confirmed accordingly. In light of the nature of this dispute each party will bear its own costs.

Delivered and signed at Naivasha this 6thday ofOctober,2017.

In the presence of:-

1st Administrator – Present

2nd Administrator – Present

3rd Administrator – Present

Court Assistant – Barasa

C. MEOLI

JUDGE