[2016] KEHC 1992 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

SUCCESSION CAUSE NO. 34 OF 2013

IN THE MATTER OF THE ESTATE OF KARURI MAGU (DECEASED)

BETWEEN

ZIPPORAH MUTHONI MWANGI............PROTESTOR

AND

MUCHOKI KARURI...............................RESPONDENT

RULING

1. The estate relates to the late Karuri Magu alias Karuri s/o Magu (deceased) who died on the 4th August, 1987 at Kiamabara in Karatina. The identifiable property comprising the estate of the deceased is land parcel number Konyu/Gachuku/ 14 measuring 1. 5 Acres.

2. The Deceased died intestate and left the following surviving him namely;

(i) Zipporah Muthoni Mwangi – who shall be referred as ‘the protestor’ herein; and is the deceased’s daughter in law;

(ii) Muchoki Karuri – who hall be referred to as ‘the respondent’ herein; and is a son to the deceased;

(iii) Jane Wanjiru Muthee – a grand-daughter to the deceased

(iv) Charles Kahindo Mwangi – a grandson to the deceased

(v) Nancy Wamaitha Mwangi – a grand-daughter to the deceased

(vi) Charity Wanjiru Mwangi – a grand-daughter to the deceased

3. The Protestor is the daughter in law of the deceased and had petitioned for Letters of Administration on the 15/01/2013; the Grant was issued on the 15/07/2013.

4. On the 20/01/2014 the Respondent filed a Caveat against the property of the deceased under the provisions of Rule 15 of the Probate and Administration Rules; then on the 22/05/2014 he filed Summons for Confirmation of Grant on the grounds that the Petitioner/ Protester had failed to do so; he proposed that the property measuring 1. 5 acres be distributed equally between himself and the Protestor with each getting 0. 75 acres.

5. The Protestor filed her Affidavit of Protest on the 16th July, 2014 against the Summons for Confirmation of Grant and gave her reasons for protesting and included her proposed mode of distribution of the deceased’s estate.

6. Directions were taken on the 24/07/2015 that the matter proceed for hearing and that ‘viva voce’ evidence be tendered; the matter proceeded for full hearing on the 30/05/2015; all the parties gave evidence and were subjected to cross-examination; hereunder is a summary of the respective parties.

THE PROTESTORS’ CASE

7. The protestor opposed the proposed mode of distribution put forward by the respondent and proposed that the estate be divided into six (6) equal parts as between herself, the respondent and the four (4) other dependants who are the grand-children of the deceased; her evidence was that the deceased had left three (3) children surviving him; that being herself, the respondent and a deceased sister known as Wakini; that there were four (4) grand-children who were heirs to the deceased; three (3) of the grand children were her children (the protestors children) and the only girl grand-child was a daughter of her above mentioned deceased sister; her evidence was that her late father wanted these grand children to have an equal share in his estate; she called two (2) witnesses to support her protest and her proposed mode of distribution;

8. Peter Magu Karani (PW2) told the court that he was a retired teacher and that the deceased was his uncle; that the deceased had three 3 children and that two were still alive and the one known as Wakini was deceased; that Wakini was married and was blessed with two (2) children who lived with their surviving parent; that he was part of the entourage that accompanied the clan on a visit to the deceased’s property to help resolve a conflict that had arisen; they found that the land was not demarcated; that the protestor and respondent were utilizing the property and that it appeared that each party had a half of the land.

9. Jason Maina (PW3) stated that he was a retired civil servant; that the deceased was also his uncle; that the deceased had left a son Mwihia with the responsibility of taking care of the family; unfortunately Mwihia died in 1993 and the mantle was passed onto him; he was tasked with ensuring harmony within the family and also ensuring that the family land was preserved and utilized by all family members; he told the court that the wishes of the deceased was that the land be for the use of the descendants; the clan then proceeded to divide the land into two (2) portions for the parties and for their use;

10. The Protestor closed her case after these witnesses had testified and had been cross-examined.

11. Her Counsel submitted that Sections 26, 27, 28 and 29 of the Law of Succession were the applicable sections of the law as the grand-children were dependants of the deceased; that the protestors husband died before the deceased herein and that it was the deceased who maintained them; she urged the court to consider the grand-children as dependants of the estate of the deceased.

RESPONDENTS CASE

12. The Respondent confirmed that they were four (40 siblings; that his late sister was married and that her children lived with their father; that the clan had apportioned the land into two halves as between the protestor and himself; after the apportionment there was now a fence that demarcated the portions; that since then none of the parties had encroached onto the others portion;

13. He was single and had no children; his late sister had two (2) children and one of them a daughter was married; that the protestor has five (5) children and that she wanted them to be included in the distribution; he denied that his father had wanted the grand-children to be included and that the land was for generations; he reiterated that the 1. 5 acres be divided into two (2) portions;

14. His Counsel submitted that the applicable section of the law was Section 38 of the Law of Succession and proposed that the land be shared equally between the parties since there was no surviving spouse of the deceased.

ISSUES FOR DETERMINATION

15. After hearing the presentations of the respective counsel and reading the written submissions this court has framed the following issues;

(i) Whether all the grand children are dependants and whether they are entitled to benefit from the deceaseds estate;

(ii) Distribution of the estate of the deceased.

ANALYSIS

Whether all the grand children are dependants and whether they are entitled to benefit from the deceaseds estate;

16. The dispute is as between a sister in law and her brother in law; from the evidence adduced there is no dispute as to the property that comprises the estate of the deceased; it is also not disputed that the protestor was the wife of the respondent’s late brother and that she is entitled to a share of the estate;

17. The only dispute is as to whether the grand-children are entitled to a share of the deceased’s estate; the protestor claims upon her husband’s demise the deceased took them in and maintained them; the applicable provision of the law is Section 29 of the Law of Succession which defines a dependant; it reads as follows;

“Section 29: For the purposes of this Part ‘dependant’ means-

(a)……..

(b) Such of the deceased’s parents, step-parents, grand- parents, grand-children, 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;

18. This court notes that the protestor tendered no evidence to show that the deceased had taken the grand-children in as his own family; there was nothing to show that the said grand-children were maintained by the deceased during his lifetime as his own; at the hearing no documentary proof was produced to show that the deceased financially assisted the protestor in the payment of food bills or school fees for these grand-children; it is not known whether she had bills such as rent, electricity or water and who assisted her in the payment of the same; her witnesses did not address or attest to this fact as well;

19. In considering the evidence of both sides in totality this court finds that these grand-children were not dependants of the deceased and do not qualify to inherit any interest in the deceased’s estate in their own right.

Distribution of the estate of the deceased

20. This court reiterates that there is no dispute as to what comprises the estate; the dispute hinges on distribution of the deceased’s estate and the parties are not agreeable upon its mode of distribution; this court is therefore tasked with resolving this.

21. From the evidence it is discerned that the deceased had three (3) children namely Wakini (deceased), the respondent and the protestors husband; Wakini got married and had two issues; one of the issues who is cited in the case as a beneficiary is married and the other a son lives with his surviving parent; as stated earlier there is no evidence that the deceased ever maintained these two grand-children and therefore no interest in the deceased’s estate devolves to them in their own capacity; but the law allows them to take on their deceased mothers interest; the law at Section 41 of the Law of Succession provides that where a child of the intestate has predeceased the intestate that child’s issue alive at the date of the intestate’s death shall take indegree or in equal share that which their parent would have taken had she not predeceased the intestate; in this instant these two (2) issues could have claimed their mothers share but they have not shown any interest by applying to be substituted or to represent the interest of their deceased mother.

22. When it comes to distribution this court is guided by the provisions of Section 38 of the Law of Succession; the section provides that the property be divided equally among the surviving children; the protestor represents her deceaseds’ husbands interests; this husband was the brother of the respondent and the deceased herein left no surviving spouse;.

23. The property known as is land parcel number Konyu/Gachuku/ 14 measuring 1. 5 Acres shall be divided equally between the protestor and the respondent.

FINDINGS AND DETERMINATION

24. The grand-children are not dependants of the deceased and do not qualify to inherit any interest in the deceased’s estate.

25. The Protest is hereby dismissed.

26. The Grant is hereby confirmed on the terms as set out hereunder;

(i) The property known as is land parcel number Konyu/Gachuku/ 14 measuring 1. 5 Acres shall be divided equally between the protestor and the respondent.

27. Each party shall bear their own costs.

It is so ordered.

Dated, Signed and Delivered at Nyeri this 27th day of October, 2016.

HON. A. MSHILA

JUDGE.