[2017] KEHC 1435 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

SUCCESSION CAUSE NO. 3 OF 2017

IN THE MATTER OF THE ESTATE OF JOYCE KANJIRU NJIRU (DECEASED)

NICHOLAS IRERI MBARIRE………………………………………..1ST PETITIONER

ROSE NJERI AYANGA………………………………………………2ND PETITIONER

JUDGMENT

1. This matter relates to the estate of Joyce Kanjiru Njiruthe deceased who died intestate on 16th February, 2001. The Petitioner Rose Njeri Ayanga applied for Letters of Administration intestate in the estate of the deceased Joyce Kanjiru Njiru. A grant was issued on 4th June, 2009.

2. Before the grant was confirmed, protests were filed, firstly by Lucy Gatune Njiru who claimed that there were discrepancies in the dates of birth of the beneficiaries. She further averred that the Petitioner had failed to call for a meeting to discuss the distribution of the estate and that one of the beneficiaries had already sub-divided L.R. 2787/395 Nanyuki Municipalityinto four portions and vowed to deny his brother Nicholas Ireri any inheritance of the land.

3. Secondly, a protest was filed by David Debenham a son-in-law to the deceased who stated that they had built a house on L.R. 2787/395 Nanyuki Municipality together with his wife Mercy Thaara who unfortunately passed away with her three children. That the deceased had wished for his daughter Yvonne Debenham to inherit the said house.

4. A Summons for Revocation of the Grant was also filed by Nicholas Ireri since the Petitioner had failed to apply for confirmation of grant ad had concealed from Court some of the beneficiaries.

5. The Petitioner countered this and in response stated that the applicant has failed to co-operate with her or give his consent to the mode of distribution of the estate. The house on L.R. 2798/395 Nanyuki Municipality belongs to her late sister Mercy Thaara who left behind her daughter Yvonne Debenham as the rightful heir. In her application for confirmation of grant she proposed the mode of distribution as follows:

PROPERTIES BENEFICIARY SHARES

Bank A/c:-

Barclays Bank Nanyuki A/c No. [particulars withheld]

Standard Chartered Bank Nairobi A/c No. [particulars withheld] Rose Njeri Ayanga

Nicholas Ireri Mbarire

John Miriti Mbarire

Lucy Gatune Njiru

Catherine Gicuku Mbarire 1/5 each

L.R 2787/395 Nanyuki (deceased had sub-divided prior to her demise) Rose Njeri Ayanga

John Miriti Mbarire

Catherine Gicuku Mbarire

Mercy Thaara (deceased) to go to her daughter Yvonne Debenham 0. 3393 Ha

0. 3141 Ha

0. 3350 Ha

0. 3231 Ha

SHARES:-

Barclays Bank Ltd. Shares (810)

E.A. Breweries Ltd. Shares (379)

Kenya Breweries Ltd. Shares (94)

KFA/KGGCU Ltd. shares (01/1884) Rose Njeri Ayanga

Nicholas Ireri Mbarire

John Miriti Mbarire

Lucy Gatune Njiru

Catherine Gicuku Mbarire 1/5 each

John Miriti Mbarire and Catherine Gichuku Mbarire consent to the proposed mode of distribution. However Lucy Gatune opposed the confirmation of grant contending that the mode of distribution was not acceptable. Her proposal is that the land parcel No. L.R. 2787/395 Nanyukishould be shared equally amongst all the beneficiaries. She contends that her late brother’s son Hanny Munene has been omitted on the list of beneficiaries. A similar objection was raised by Nicholas Ireri. In addition he stated that before the deceased died she left a Will in which she bequeathed the land parcel to all her daughters. That John Miriti coerced the deceased to alter the Will by deleting Lucy Gatune Njiru’s name to include his.

6. It is against this background that a ruling in a summons for revocation of grant dated 6th June, 2015 was made. The grant issued to Rose Njeri Ayanga was revoked and a fresh grant was ordered to be issued to Rose Njeri Ayanga and Nicholas Ireri Mbarire. Thereafter Nicholas Ireri Mbarire applied for confirmation of grant in an application dated 6th June, 2015. He proposed the mode of distribution as follows:

PROPERTIES BENEFICIARY SHARES

Bank A/c:-

Barclays Bank Nanyuki A/c No. [particulars withheld]

Standard Chartered Bank Nairobi A/c No. [particulars withheld] Rose Njeri Ayanga

Nicholas Ireri Mbarire

John Miriti Mbarire

Lucy Gatune Njiru

Catherine Gicuku Mbarire

Yvonne Mercy Debenham

Hanny Munene 1/7 each

L.R 2787/395 Nanyuki Rose Njeri Ayanga

Nicholas Ireri Mbarire

John Miriti Mbarire

Lucy Gatune Njiru

Catherine Gicuku Mbarire

Yvonne Mercy Debenham

Hanny Munene Approximately 0. 20 Ha

SHARES:-

Barclays Bank Ltd. Shares (810)

E.A. Breweries Ltd. Shares (379)

Kenya Breweries Ltd. Shares (94)

KFA/KGGCU Ltd. shares 01/1884) Rose Njeri Ayanga

Nicholas Ireri Mbarire

John Miriti Mbarire

Lucy Gatune Njiru

Catherine Gicuku Mbarire

Yvonne Mercy Debenham

Hanny Munene 1/7 each

Against this a protest was filed by John Miriti Mbarire. His contention is that Yvonne Mercy Debenham and Hanny Munene are not beneficiaries of the estate of the deceased as defined by the Law of Succession Act. That if they are to benefit from the estate, the paternity of Hanny Munene has to be ascertained and their shares be held in trust by Rose Njeri Ayanga. He further states that Lucy Gatune and Nicholas Ireri had already inherited eleven (11) acres from their late father Jacob Njiru Mbarire and therefore it would amount to double apportionment.

7. The parties adduced evidence in Court. I have considered all the evidence adduced. There are three issues which arise for determination:

- Who are the beneficiaries entitled to the estate of the deceased?

- Are the grandchildren entitled to inherit the deceased’s estate?

- How should the estate be distributed?

8. Who are the beneficiaries?

The deceased was survived by her children namely:

- Rose Njeri Ayanga

- Nicholas Ireri Mbarire

- John Miriti Mbarire

- Lucy Gatune Njiru

- Catherine Gichuku Mbarire

While Mercy Thaara and Stephene Mbae are deceased.

Section 29 of the Law of Succession Act provides:

“For the purposes of this Part, “dependant” means –

(a)The wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;

(b)Such of the deceased’s parents, step-parents, grand parents, grandchildren, step children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death;

Thus, the children of the deceased are dependants whether or not they were maintained by the deceased prior to his death. The above named who are children of the deceased are therefore dependants who are entitled to the estate of the deceased.

9. The second consideration is whether the grand children are entitled to inherit the deceased’s estate

From the definition given under Section 29 (supra) the spouses and children of the deceased have priority to inherit the estate. The grandchildren and others can inherit if they were being maintained by the deceased prior to her death. In this present cause, the two grand children are not claiming interests as dependants but are coming in to claim the interests of their respective parents who are now deceased. My view is that the children are entitled to inherit the share which their deceased parents would have inherited. In persuasive decision by Musyoka J. in the case of Estate of Veronica Njoki Wakagoto (deceased) (2013) eKLR it was stated:

“……….grandchildren can only inherit their grandparents indirectly through their own parents, the children of the deceased. The children inherit first and thereafter the grand children inherit from the parents. The only time grandchildren inherit directly from their grand parents is when the grandchildren’s own parents are dead. The grand children step into the shoes of their parents and take directly the share that ought to have gone to the said parents.”

It is not in dispute that Yvonne Mercy Debenham is daughter of one of the children of the deceased by name Mercy Thaara who is deceased. Mercy Thaara was entitled to a share of the estate. It came out clearly in evidence that Mercy Thaara had built a house on Land parcel No. L.R. 2787/395 Nanyuki Municipality. Since the mother of Yvonne Debenham is deceased, she is entitled to inherit her share. Similarly Hanny Munene is a grandson of the deceased whose father Stephene Mbae is also deceased. Stephene Mbae (deceased) is survived by his son. The share of Stephene Mbae, deceased, should go to his child. No basis was laid for this Court to order a paternity test. My view is that Hanny Munene is entitled to get the share of his deceased father from the estate of the deceased herein.

10. This brings me to the last consideration which is:

Distribution of the Estate:

The parties herein had filed succession in the estate of their deceased father at Embu High Court. In that cause, No. 120 of 2009 – Estate of Jacob Njiru Mbarire the Court Held: “According to Section 41 of the Law of Succession Act the children of Mercy Thaara and Stephene Mbae should inherit the share that would have been inherited by their parents.” It is important to note that the two married daughters of the deceased Rose Njeri Ayanga and Lucy Gatune Njiru are not claiming any share. None of them opposed the mode of distribution by the petitioner which had excluded them as heirs.”

This was in the estate of their deceased father. The Court after considering that Nicholas Ireri Mbarire was given Kagaari/Kanja/1197 while John Miriti Mbarire was given Kagaari/Gitare/T 160 by the deceased proceeded to distribute the estate as follows:

-Kagaari/Kanja/3844 Catherine Gichuku Mbarire and John Miriti Mbarire.

- Kagaari/Kigaa/4500 Catherine Gichuku Mbarire.

- Kagaari/Gikuuri/T 246 Yvonne Mercy Debenham and Hanny Munene.

I have looked at the judgment as it shows that all the dependants who are the same ones before me got to inherit their father’s property apart from the two Rose Njeri Ayanga and Lucy Gatune Njiru who were not claiming a share in the estate. There is no reason why this Court should deviate from the distribution of the estate of their deceased father. In the present case Rose Njeri Ayanga and Lucy Gatune Njiru did not oppose the proposed mode of distribution. The deceased did not leave a valid Will. As such the distribution must be under intestate succession. In the case of Elizabeth Chepkoech Salat -V- Josephene Chesau, Chepkaron Salat (2015) eKLR:-

“For an oral will to be valid, it has inter alia to be made before two or more competent witnesses (Section 9(1) (a) of the Act)”

11. Section 38 of the Law of Succession Act provides:

“Where an intestate has left a surviving child or children but no spouse the net estate shall subject to the provisions of Section 41 and 42 devolve upon the surviving child, if there be only one or shall be equally dived among the surviving children.”

In Christine Wangari Gichigi -V- Elizabeth Wanjira Evans & 11 Others (2014) eKLRthe Court held that:

“Under Section 38 of the Act all that one needed to establish in this cause was to show that they were either children or grand children of the deceased. Matters of failure to participate actively in the litigation proceedings should not have dissenting consideration in respect of 2, 3 and 4 cross appellants in the absence of renunciation of respective claims to the estate.”

12. The Protestors did not prove that there was an oral Will as envisaged under Section 9 (1) of the Law of Succession Act. From the evidence the deceased was not capable to make an oral Will three months prior to her death in view of the sickness which she had as described by the 1st petitioner. In any case the Petitioner filed this cause as an intestate succession. Section 34 of the Law of Succession Act provides:

“A person is deemed to die intestate in respect of all his free property of which he has not made a will which is capable of taking effect.”

I am of the view that the estate of the deceased should devolve as provided under Section 38 of the Law of Succession Act (supra). I order that the estate of the deceased be distributed as proposed by the petitioner. That is to say:-

PROPERTIES BENEFICIARY SHARES

Bank A/c:-

Barclays Bank Nanyuki A/c No. [particulars withheld]

Standard Chartered Bank Nairobi A/c No. [particulars withheld] Rose Njeri Ayanga

Nicholas Ireri Mbarire

John Miriti Mbarire

Lucy Gatune Njiru

Catherine Gicuku Mbarire

Yvonne Mercy Debenham

Hanny Munene 1/7 each

L.R 2787/395 Nanyuki Rose Njeri Ayanga

Nicholas Ireri Mbarire

John Miriti Mbarire

Lucy Gatune Njiru

Catherine Gicuku Mbarire

Yvonne Mercy Debenham

Hanny Munene Approximately 0. 20 Ha

SHARES:-

Barclays Bank Ltd. Shares (810)

E.A. Breweries Ltd. Shares (379)

Kenya Breweries Ltd. Shares (94)

KFA/KGGCU Ltd. shares 01/1884) Rose Njeri Ayanga

Nicholas Ireri Mbarire

John Miriti Mbarire

Lucy Gatune Njiru

Catherine Gicuku Mbarire

Yvonne Mercy Debenham

Hanny Munene 1/7 each

With regard to the property L.R. 2787/395 Nanyuki Yvonne Mercy Debenham share to be where the house built by her mother stands.

This being a dispute involving family members, each party will bear its own costs.

Dated and delivered at Kerugoya this 7th day of December, 2017.

L. W. GITARI

JUDGE

Judgment is read out in open court.

L. W. GITARI

JUDGE

7. 12. 2017