[2018] KEHC 221 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO.60 OF 1996

IN THE MATTER OF THE ESTATE OF KANAKE NJOGU (DECEASED)

KIMATHI MANENE NJOGU....................................................PETITIONER

V E R S U S

MUGAMBI KANAKE..................................................................OBJECTOR

JUDGMENT

This matter relates to the estate of Kanake Njogu alias M’kanake Njogu who died intestate on 20/7/1995. On 15/3/1996, the petitioner, Kimathi I’Manene Njogu (hereafter referred to as Kimathi) filed this petition seeking letters of representation. In the petition, Kimathi named the following as the beneficiaries of the said estate.

(1) N’katha Muriithi - daughter of the deceased

(2) Kimathi I’Manene Njogu - uncle to the deceased

(3) Mugambi Kanake - son to the deceased, the objector herein.

Grant of letters of administration were issued to Kimathi on 17/6/1996.

On 14/10/1996, Mugambi N’kanake filed a Notice of Objection and a Petition by way of Cross Petition and answer to Kimathi’s petition and a notice of objection to the grant of letters of administration. The reasons for the said application were that Mugambi is the only biological son of the deceased and the only beneficiary of the deceased’s estate; that Kimathi had filed the Succession proceedings without informing him which amounts to fraud, forgery and deceit.

Mugambi sought to be appointed as the sole lawful administrator of the deceased’s estate.

After various applications in this matter, on 17/2/2010, Justice Kasango gave directions that the objection proceeds by way of viva vice evidence to determine who the administrator of the estate should be and the question of distribution; that the objector Mugambi, would present his case before the petitioner’s case.

The objector’s case:

The objector relied on the documents he had filed in support of his case, testified on oath as PW1 and called a total of five witnesses. He told the court that his father, Kanake Njogu the deceased, was a brother to Manene Njogu (I’manene Njogu), Kimathi’s father; that Kimathi is therefore his cousin; that his father Kanake Njogu died on 20/7/1995 as per Death Certificate (P.Ex.No.1) obtained on 25/7/1995 No.332472; that Kimathi obtained another death certificate on No.327755 on 1/3/1996 (P.Ex.No.2); PW1 further stated that their fathers owned a piece of land each, given to them by his grant father one Njogu; that his father was given Abothuguchi/Mariene 722 measuring 3. 0 HA or 7 acres while Kimathi’s father (I’manene Njogu) was given Abothuguchi/Mariene 535 measuring 2. 34 HA or 6 acres, (registered in the name Kenake Njogu). The registers in respect of both pieces of land were opened on 15/7/1965. The green cards in respect of the two pieces of land were produced as P.Ex.No.(3)(a) & (b) and (4)(a) & (b). PW1 obtained a chief’s letter dated 6/10/1995 (P.Ex.No.6) to enable him file a Succession Cause in respect of his father’s estate. By then PW1 was not aware that Kimathi had filed this cause seeking to be appointed administrator of the deceased’s estate. He learnt from the chief and Nyamu Nyaga Advocate,that earlier in 1993, Kimathi had filed HCC.79/1995 against the deceased claiming half of plot 722; that the deceased filed a defence and counterclaim to which the petitioner filed a reply (P.Ex.7, 8 & 9) but that the suit was on 10/5/1995, dismissed under Order XVI Rule 6 of the Civil Procedure Rules (P.Ex.No.10). PW1 denied that the petitioner ever lived on Plot No.722 or built any canteen, house or toilet on it. PW1 produced a rates/rents card which were paid to the Meru County Council in respect of a canteen that his father, the deceased had built; a permit P.Ex.11(a) & (b); a permit to build the canteen on Plot 722 (P.Ex.12). PW1 also denied that Kimathi ever planted any bananas or coffee trees on the land Plot 722.

The court ordered a site visit by the Deputy Registrar, Gichuki, after which the Deputy Registrar prepared a report dated 7/3/2000 which is part of these court proceedings. According to PW1, whatever cash crops the petitioner showed to the Deputy Registrar as belonging to Kimathi, actually belonged to him and that Kimathi was not able to show the canteen that he allegedly built on the land.

PW1 further told the court that although the deceased educated Kimathi, when he finished school, Kimathi went back to his father’s land, Plot 535 and that Kimathi’s father never claimed any part of plot 722 during his life time.

PW1 denied that Kimathi ever made him aware that he was filing this cause and he only learnt of it when the petitioner went to threaten him with eviction. PW1 contends that being the only son and heir of the deceased, he is the only one who should be appointed as administrator but not the petitioner.

PW2, Isaac Mbaabu Manyara the Land Registrar, Meru Central, produced copies of the registers (green cards) in respect of parcels Abothuguchi/Mariene/535 and 722. He confirmed that parcel 535’s register was opened on 15th July, 1965 in registry NO.112, while 722, the map is 106; that as of 15/9/2015, Parcel 535 was transferred to Kimathi Manene (petitioner) whereas the original owner was Manene Njogu since 1965; that in respect of 722, the land was still registered in the name of Kanake Njogu from 15/7/1965; that I’Manene Njogu and Kanake were first registered in 1965 as absolute owners.

PW3 Japheth Gitonga, the chief of Nyweri Location, where both Kimathi and objector reside said the Land Parcels 722 and 535 are within his area of jurisdiction.

PW3 knows both Kimathi and Mugambi (objector) and was an Assistant Chief in 1995 when the deceased, objector’s father died and so did Manene Njogu – the Kimathi’s father. He knew that, the deceased Kanake Njogu and I’Manene Njogu were brothers who owned plots 722 and 535 respectively. He was aware that the deceased educated Kimathi but did not understand why Kimathi was claiming parcel 722 because his father owned 535 where his parents resided and were buried upon their demise; that Kimathi has property and lives in plot 535. PW3 further told the court that the deceased was buried on parcel No.722 where the objector lives and that it is him who took the objector to the chief to enable him write for him the letter required to file a Succession Cause and one was written on 6/10/1995. PW3 denied knowing whether Kimathi had planted eucalyptus trees, coffee, bushes and bananas on plot No.722. He knew the property on plot 722 to belong to Mugambi.

PW4 Jasper Gikunda who hails from Nyweri testified that he knew both petitioner and objector as they are his relatives; that his father, one M’Mwari Rwigi was a cousin to I’Manene Njogu and Kanake Njogu (deceased). PW4 recalled that on 18/1/1963, during adjudication, the five fathers of their family met, subdivided the land and each of them had to move to his own land which measured about 5 acres; that I’Manene, Kimathi’s father got his land a bit far off from the others and he shifted to Gitene where he built his home and where Kimathi also built a home and lives to date. PW4 denied that the land at Gitene where Kimathi lives was bought, but that it was family land; that Kimathi claimed land from the deceased because he was named after him but that, however, parcel 722 belongs to Mugambi, the only son of the deceased. PW4 denied that Kimathi has ever built a house on parcel No.722.

PW4 is also aware that it is the deceased who educated Kimathi and he used to go to the deceased’s home when a student; that when Kimathi started claiming part of plot 722, a meeting was called and he was told to shift to his father’s land and that his father did not attend the meeting because he said he had no claim over the brother’s land plot 722; that Kimathi has built a permanent house, coffee factory; planted coffee bushes on the father’s land (plot 535) and resides there; PW4 admitted that when young, Kimathi partially lived with the deceased because the petitioner’s parents had separated and the deceased took Kimathi as his own child; PW4 also denied that Kimathi ever built a house in the deceased’s home but would sleep in the house built for visitors; PW4 further said that before shifting to Gitene, Kimathi’s father had built on their land not on the deceased’s land. PW4 told the court that the deceased allowed the petitioner to plant some gravellier trees on his land when Kimathi was a small boy before the land was subdivided; that Kimathi’s coffee bushes were in Muchemi’s land but were uprooted after subdivision and that Kimathi built a house for his mother on PW4’s land but she never occupied it because PW4’s father told Kimathi to go built at Gitene on their land (parcel 535).

Mutonga Mutuemeri (PW5), an area manager at Nyweri knew both Kimathi (petitioner) and Mugambi (objector). He recalled 4/7/1993 when Kimathi requested the deceased to give him land to plant French beans and clan elders met that day having been called by Kimathi. PW5 was present at the meeting; that the deceased told Kimathi to go and plant the beans on his father’s land; that Kimathi again reported the matter to chief Kirima who ruled that Kimathi should go to plant the beans on his father’s land. It was PW5’s evidence that the objector lives on his father’s land while Kimathi also lives on his father’s land at Gitene.

The petitioner’s Case:

The petitioner, Kimathi (DW1) testified at length. He confirmed being the son of I’Manene Njogu while the objector is son to Kanake Njogu, the deceased; that his parents separated in 1958 and the deceased and his cousin Ruiji took care of him; that the deceased paid his fees; that his father had planted coffee, bananas and yams on the family land, 722 where they lived initially before 1963 when demarcation was done; that I’Manene being the eldest, called a meeting of 2 families and they agreed that one family gets land across the river while the other including I’Manene, Kanake, Marete Kerea Ruinji, Ringera, Muricha and Kibutana got on one side; that I’Manene called another meeting where it was suggested that I’Manene should not benefit from the land because he had bought 3 pieces of land which was enough; that Marete shared the land between Kanake Njogu, Rwigi Marete and Muricha; that on sharing, they included Manene’s 3 pieces of land which he had bought. They shared and Kimathi was given 2 acres; that I’Manene called a Surveyor and he was given the land at Gitene which is the present Plot 535; that in 1970, he built a house for his mother on his side of the land and he also built for his 2 younger sisters who needed to go to school; that in the same year, I’Manene was asked to pay dowry for the objector’s mother which he did and the objector and his sister went to live at Gitene; that on 4/7/1973, there was a family meeting following his request to the father that he wanted to build a coffee factory on Plot 722; he was sent to Kerea to inform the deceased; that in 1994, the deceased told them he could no longer work and wanted the objector to cultivate where he used to and the petitioner to take the other side; that he took possession and planted arrow roots, nappier grass and beans and then in 1995 the deceased passed away.

He heard rumours that people had gone to file a Succession Cause in Nairobi and he decided to go to Meru to file the instant Succession Cause in order to stop those who had gone to Nairobi from taking the land, Plot 722; that while in court, the judge ordered a site visit and a report was prepared by Mr. Gichuki, the Deputy Registrar; that during the visit, he showed the Deputy Registrar all his properties on parcel 722 including coffee, gravellier trees, fruit trees and where he had built his houses but that Mugambi countered all that and claimed that all the properties belonged to him; that the lawyers were asked to file their summary but the court file disappeared. He urged the court to render judgment based on Justice Etyang’s ruling/judgment dated 28/2/2013.

Fredrick Mworia Gatunga (DW2) a brother to Japheth Gitonga, PW1, told the court that the deceased, Kanake was a friend to his father Gatunga Nchira; that he was circumcised together with Kimathi when Kanake and I’Manene told them to remain friends; that because the land had been subdivided by a road into 2, Mugambi should stay on the side of I’Manene while Kimathi and Kanake took the opposite side on Plot 722 which was family land; that he lived with Kimathi from 1966; that Kimathi had been shown where to build. DW2 could not tell whether or not Plot 535 was family land. He denied there being any dispute between the deceased and his brother, I’ Manene over land.

DW3 Hellen Ncurubi is a sister to Kimathi who testified that their father I’Manene Njogu bought 3 pieces of land from Nyaye and another from Kinui in exchange for goats and from a 3rd a person, where he built; that by the time of survey, she was already married and that after survey, her father went to live at leaving Kimathi on the family land plot 722 till he got married then shifted to Gitine; she said that there existed a dispute over the land between her father I’Manene and Kanake; that I’Manene used to say that Kanake should give land to Kimathi; that Kimathi called elders to ask Kanake for land but he refused to give. According to DW3, the land at Gitine is not ancestral land but was bought by I’manene.

Before the hearing of this case commenced, Kimathi had insisted that the court do adopt the judgment rendered by J. Etyang’

I have perused the court file and there is no evidence that any judgment was rendered in this matter on 28/2/2013. In fact, there is no record of that day. The report by Hon. Gichuki, Deputy Registrar was ordered by the court to assist the court it in determining the issues herein and is not a judgment. The court will consider the said report in this judgment.

I have now considered all the pleadings on record, the evidence of all the witnesses and submissions. The first issue I will tackle is who should be appointed as administrator of the deceased’s estate. It is not in dispute that the deceased Kanake Njogu was the brother of Imanene (Manene) Njogu. Kimathi, the petitioner, is the son of Imanene Njogu while the objector, Mugambi, is the son of the deceased, Kanake Njogu.

Section 66 of the Law of Succession Act is the guide on who should be appointed an administrator in respect of a deceased’s estate. Section 66 reads:

“66. When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interest of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference:-

(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;

(c) The Public Trustee; and

(d) Creditors:

Provided that, where there is partial intestacy, letters of administration in respect of the intestate shall be granted to any executor or executors who prove the will.”

Section 66 of Law of Succession Act sets out the order of preference on who has priority in taking out letters of administration on behalf of a deceased’s estate. See Cause 1506/1997 Re Estate of George Ragwe Karanja (2016) KLR.

In the petition for letters of administration, Kimathi named the objector as one of the beneficiaries of the deceased’s estate.

In his testimony, Kimathi claimed that the objector is the deceased’s adopted child because he was sired by one M’Arimi. However, in the same evidence, he admitted that the objector was indeed the deceased’s son and therefore his cousin. Having acknowledged that fact and corroborated by the evidence of all the witnesses on record that the objector is indeed the deceased’s son, there is no doubt that the objector was the deceased’s son.

It is also a fact that the objector’s only sister is deceased. The objector is the only surviving child of the deceased. Kimathi admitted that he did not inform the objector of the filing of this cause because he had learnt that some other people had gone to file a Succession Cause in Nairobi. Contrary to the above, Kimathi also claimed that the deceased had made a will and left the land in his charge so that he could hold it in trust for the objector’s son. It is not possible to tell which of the two versions is the correct one. The bottom line is that the petitioner secretly filed this Succession Cause without informing the only heir of the deceased. For whatever reason he gave, Kimathi was not justified to file this cause. Only if the objector had declined to file the cause would Kimathi have moved to do so if indeed he had a claim over the estate. Kimathi’s explanation as to why he took out these proceedings is unconvincing and unacceptable. For that reason, I order that the grant issued to Kimathi be revoked. Instead, the grant of representation be issued to the objector, Mugambi.

The next issue for consideration is whether the petitioner is entitled to part of the deceased’s estate.

In his testimony and the cross examination that followed, Kimathi gave varying reasons as to why he claims half of the land Abothuguchi/Mariene/722.

No doubt that the said parcel of land is registered in the name of the deceased. It was so registered way back on 15/7/1965 after the demarcation exercise that was carried out in 1963. It is also a fact not disputed that Kimathi’s father is the registered owner of Plot 535 and the register in respect thereof was opened on the same date 15/7/1965. This is evidenced by the green cards Ex.no.3(a) and 4(a). It is Kimathi’s contention that parcel 722 was family land whereas 535 which was registered in his father’s name and later transferred to him, was purchased by I’Manene. That is why he seeks a portion of parcel 722, which he calls family land.

It is noteworthy that when the deceased was still alive, Kimathi filed HCC.73/1993 seeking to be declared owner of half of parcel 722 (Ex.P.Ex.7). The deceased filed a defence and counterclaim denying that half of the land belonged to Kimathi and he sought a counterclaim for an order of injunction to stop Kimathi from interfering with parcel 722.

The said suit was dismissed on 10/5/1995 for want of prosecution. The petitioner has failed to explain why he did not prosecute the said case when the deceased was still alive. Apart from DW3, Kimathi’s sister, who claimed that there existed a land dispute between the deceased and I’Manene, Kimathi’s father, all the witnesses testified, that during the life time of the deceased and I’Manene, there had no dispute over ownership of 722 or any other parcel of land. Kimathi confirmed that there was no dispute over the said plot (722) between the deceased and I’Manene, his father.

Kimathi gave this court an explanation as to how he came to claim part of Plot 722. It seems that parcel 722 is situated where the larger family land was situated and the land was shared out during demarcation; that he was informed by one Kerea that his father never got a portion of the ancestral land but bought 2 pieces of land from Kinuri and one from Nyaye which were exchanged and I’Manene got plot 535. I’Manene never laid claim to parcel No.722 in his lifetime and it is a wonder why Kimathi started laying claim to it. This allegation that I’Manene never got any part of the ancestral land is not supported by any evidence. Had plot 722 been ancestral land then I’Manene would have laid claim to it during his life time.

Another theory that Kimathi advanced to support his claim to plot 722 is that during demarcation, he was given 2 acres from parcel No.722 which was registered under the deceased’s name because he was still young and that it is his father, I’Manene who gave those directions so that Kanake could take care of Kimathi. If indeed I’Manene gave the land to the deceased, the question is whether it was a lease or why did he not claim it back himself during his lifetime? Besides, this explanation does not make sense bearing in mind that the petitioner actually claims a half of parcel 722 which is more than 2 acres.

Another theory advanced by Kimathi is that the deceased made a will in 1994 leaving all the land parcel 722 to him to hold in trust for the objector’s son. In fact, he said that the deceased died when going to transfer parcel 722 to him. If that is true, then it means that the land plot 722 does not belong to Kimathi at all, but he was holding in trust. But what makes that explanation by Kimathi strange is the fact that he sued the deceased in 1995 for half of the land.

The other explanation advanced by Kimathi is that he lived on the said land plot 722, planted coffee trees, gravellier trees, bananas, fruit trees, built a latrine, a canteen and even houses. He also claimed that his father had planted coffee on the same land. Ordinarily, coffee farmers are allocated numbers through which they receive payment after delivery of coffee. Kimathi said that his father’s number was no.7969.

He said that the booklet in which deliveries of coffee were made was at home but despite the fact that the case was adjourned severally during his testimony, he never produced the said card or booklet. There is totally no evidence to prove that it is Kimathi or his father who planted the coffee on parcel 722 and that the said coffee belonged to him.

I have read the report prepared by the Deputy Registrar Hon. Gichuki on 7/3/2000 regarding the site visit to the disputed parcel, 722. The petitioner was allowed to show the court all the property he alleged to own on parcel 722 which included a canteen, houses, macademia trees, bananas, arrow roots, trees.

The objector was also given an opportunity to show the court what belonged to the deceased and he controverted all that Kimathi had claimed to be his. As regards the canteen, the objector produced in evidence P.ex.12, a permit for the building of the canteen from County Council of Meru for the year 1994 and has a receipt in which Kshs.220/= was paid on 1/2/1994. The objector also produced a bundle of receipts issued by County Council of Meru for payment of rates and trade license. (P.Ex.12 in respect of Plot 701). The objector explained that the canteen was registered as plot 701. To the contrary, Kimathi did not adduce any evidence to support his allegation that he built the canteen or that it belonged to him. The objector also denied that he had ever seen Kimathi come to get bananas, yams or arrow roots from Plot 722 since he left. Kimathi should have demonstrated that these were his properties and he had been using them, which he failed to do.

It is not in dispute that Kimathi lived with the deceased when he was growing up and attending school. If he planted a tree or bananas or yams during his stay with the deceased that does not, in my view, entitle him to the said properties.

It is trite law that he who alleges must prove. It is Kimathi who came to court claiming to be the rightful heir to the deceased and was entitled to half of parcel 722. So far, he has failed to adduce any evidence, on a balance of probability, to support the various claims he has made to the said land. As earlier pointed out, parcel 722 was first registered on 15/7/1963. It was ancestral land and it was registered in the name of the deceased. On the same date, parcel 535 was registered in the name of I’Manene Njogu father to Kimathi. Kimathi has failed to prove that parcel 535 was not ancestral land. He made mere allegations. Even his own independent witness who was the close associate (DW2) could not confirm whether or not parcel 535 was ancestral land. Save for DW3, and Kimathi all the other witnesses including the chief of the area PW3, PW4 a relative to the family, PW5, the area manager were all aware that I’Manene’s land is 535 and is situate at Gitine where Kimathi lives and has all his property. PW4 was aware of the demarcation that took place in 1963, and confirmed that parcel 535 was given to I’Manene who moved to settle there and so did Kimathi. Kimathi put up a factory on a plot 535 and has planted trees and cash crops on the said land. Though it was not very clear, it seems Kimathi moved to plot 535 about 1969 to 1973 as per his own evidence. He never adduced any evidence as to how he used the properties on plot 722 till 1995 when he filed a suit.

After considering all the evidence before the court, I find the petitioner’s case is full of irreconcilable contradictions over his claim over parcel 722.

I am satisfied that Kimathi’s father was given his portion of ancestral land parcel 535 where he settled with his family including Kimathi. Both the deceased and I’Manene were satisfied with what they were given as ancestral land during demarcation and no wonder I’Manene never made any claim to parcel 722 even if it was slightly larger than his parcel.

I find that Kimathi’s claim over plot 722 is unfounded. He cannot try to undo what was settled in 1963 at the time of demarcation and which his father never opposed. I, therefore, dismiss Kimathi’s claim.

I make the following orders:

1. The grant of letters of administration issued to Kimathi on 17/6/1996 are hereby revoked;

2. Mugambi Kanake is appointed as sole administrator of the deceased’s estate;

3. The parcel Abothuguchi/Mariene/722 devolves to the objector as the only beneficiary of the deceased;

4. The petitioner will bear the costs of this cause.

DATED AND SIGNED AT NYAHURURU THIS 2nd DAY OF September, 2018.

R.P.V. WENDOH

JUDGE

DELIVERED BY A. MABEYA (J) THIS 3RDDAY OF October, 2018