[2022] KEHC 12706 (KLR)

In re Estate of Kasia Musau alias Kasia Musau Mbuva (Deceased) (Probate & Administration 356 of 2008) [2022] KEHC 12706 (KLR) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12706 (KLR)

Republic of Kenya

In the High Court at Machakos

Probate & Administration 356 of 2008

MW Muigai, J

July 21, 2022

IN THE MATTER OF THE ESTATE OF KASIA MUSAU alias KASIA MUSAU MBUVA (DECEASED)

Between

Munyao Mulinge

Administrator

and

Kawii Mutune

Interested Party

and

Kaswii Mutune

Interested Party

Ruling

Background 1. The deceased herein Kasia Musau Mbuva alias Kasia Musau Mbuvi died intestate on November 4, 1999 as per death Certificate No 879124.

2. The Chief’s letter of August 29, 2007 from Muthetheni Location indicates the deceased was not married and had Mutune Musau (brother) and Munyao Mulinge (nephew) as his beneficiaries.

3. Mutune Musau and Munyao Mulinge petitioned for grant of letters of administration intestate on June 16, 2008 and annexed the following documents:a)The death certificate of death certificate No 879124 Kasia Musau Mbuva who died on November 4, 1999 aged 77 years old and it was issued at Machakos District.b)The Chief’s letter dated August 29, 2007 confirming the list of beneficiaries left behind by the deceased namely:i)Mutune Musau (brother) - aged 52 years.ii)Munyao Mulinge (nephew) – aged 45 years.

4. The petition listed as beneficiaries of the estate of the deceased the following;i)Mutune Musau (brother).ii)Munyao Mulinge (nephew).

5. The deceased left property known as land parcel No Muthetheni/Kionyweni/426.

6. After gazettement of September 16, 2008, the grant of letters of administration was issued at Machakos on September 16, 2008 to Mutune Musau and Munyao Mulinge.

Court Proceedings 7. On July 10, 2015 this matter was marked as closed and the Grant issued on September 16, 2008 revoked due to the failure by the parties to prosecute this matter under section 73 of the Law of Succession Act.

Notice Of Motion: 8. Munyao Mulinge (the petitioner herein) filed an application dated August 21, 2020 and sought the following orders:-(a)That this court set aside the order made on July 10, 2015 in Succession Cause No 356 of 2008 dismissing the petitioners/applicant cause hearing for want of prosecution.(b)That this court reinstates the petitioner’s/applicant’s cause herein for hearing and disposal.

9. The application was based on the following grounds;-(a)That the Notice issued to the petitioner/applicant did not specify a date to attend court.(b)That the failure to prosecute the cause was occasioned by the death of the 1st petitioner (Mutune Musau).(c)That a fresh grant be issued omitting the name of the said Mutune Musau (deceased) and letters of administration intestate be issued afresh.

10. The application was allowed as prayed and this court issued a fresh grant to Munyao Mulinge on November 18, 2020.

Summons For Confirmation Of Grant: 11. The summons for confirmation of grant dated May 10, 2021 was filed in court on May 17, 2021 with the list of beneficiaries that included Mutune Musau (deceased)- son, Munyao Mulinge (petitioner herein)-son and Kaswii Mutune (daughter in law) the proposed mode of distribution of the property that comprised of the estate of the deceased Muthetheni/Kionyweni/426 be divided equally between Munyao Mulinge and Kaswii Mutune (each to have 1. 1Ha).

Affidavit In Protest To Confirmation Of Grant Filed On February 11, 2022 12. The affidavit of protest sworn by Kaswii Mutune an interested party/beneficiary herein on February 2, 2021 stated as follows;-(i)That she is an interested party/beneficiary in the succession cause.(ii)That she sister in law to Kasia Musau alias Musau Mbuva (deceased).(iii)That one Musau Leonard Mutune is nephew to Kasia Musau alias Musau Mbuva (deceased).(iv)That the deceased while he was alive sold the land in question Muthetheni/Kionyweni/426 to the following; Musau Leonard Mutune.

Mutua Mutune.

Munyao Mulinge.(v)That the administrator herein was a buyer of a small portion of the land and was indeed part of the sale.(vi)That the administrator who is also a nephew to the deceased is denying that the sale occurred.(vii)That the administrator wants the land to be divided equally from which he stands to benefit twice.(viii)That the land is to be divided among the three purchasers in their respective shares bought.

Administrator’s Submissions 13. It was submitted that the deceased herein died intestate on the November 4, 1999 and left behind the administrator herein Munyao Mulinge and Mutune Musau (deceased) as the persons surviving him; that they petitioned for grant of letters of administration intestate and a grant was issued on September 16, 2008 to both of them; that after the death of Mutune Mutua the grant was rectified and a fresh grant issued to him as the sole administrator; that the interested party/protestor is the wife of the Mutune Mutua (the deceased administrator).

14. That the interested party/protestor is allegation that before the demise of the Kasia Musau alias Kasia Musau Mbuva (the deceased herein) that he had sold his land to three people who include the administrator and the two sons of the protestor (Musau Leonard Mutune and Mutua Mutune) no sale agreement was produced as evidence, and the alleged shares were not identified.

15. Section 41(3) of the Probate and Administration Rules provides that“Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under order XXXVI, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71(2) of the Act, proceed to confirm the grant.”

16. In the case of Priscilla Ndumbi & Zipporah Mutiga v Gerishon Gatobi Mbui, Meru Succession Cause No 720 of 2013 where the court held that;“The primary duty of the probate court is to distribute the estate of the deceased to the rightful beneficiaries. As of necessity, the estate property must be identified. Thus, where issues on the ownership of the property of the estate are raised in a succession cause, they must be resolved before such property is distributed. And that is the very reason why rule 41(3) of the Probate and Administration Rules was enacted so that claims which prima facie valid should be determined before confirmation.”

17. It was submitted that the parcel of land Muthetheni/Kionyweni/426 was sufficiently determined in Machakos Chief Magistrate’s Court Misc No 86 of 2007 and a decree issued to the effect that the land should be sub-divided between the family of Munyao Mulinge (the administrator herein) and Mutune Musau equally.

18. In the case of Kinogu Mukiria (deceased) [2022] eKLR where the court held as follows:-“In the Matter of the Estate of Andrea Ooko Tianga [2019] eKLR where the petitioners argue that if the issues to be determined are so intrinsically intertwined such that you cannot separate the succession matter from the environment matter, the succession court has jurisdiction to determine the matter. I have looked at the case and note that it is not entirely comparable to the instant matter. In the said decision, the applicants had a decree from the Land Disputes Tribunal and what was pending was execution of the decree of the Chief Magistrate’s Court orders which adopted the ruling of the tribunal. This is not the case herein, whereby the ownership of the suit property has not been determined.”

19. It was finally submitted that this court should proceed to distribute the land equally to the administrator and the protestor since the issue of ownership was determined by a Court of competent jurisdiction and a decree was issued.

Protestor’s Submissions Filed On April 27, 2022 20. It was submitted that the deceased died intestate and had no nuclear family of his own; that by the time of the deceased’s demise he had sold his only property Muthetheni/Kionyweni/426 to the 1st administrator Munyao Mulinge, Mutua Mutune and Musau Leonard Mutune. That the 3 had purchased (1/3) of the portion each and there are clear boundaries for the 3 persons/purchasers.

21. It was finally submitted that the administrator; Munyao Mulinge gave the deceased money to be treated medically, it was not to purchase land. There is no intermeddling on the subject land since the parties bought the land from the deceased during his lifetime and took possession and are in occupation.

Determination 22. The court considered the pleadings, viva voce evidence adduced by the parties and submissions. The issue for determination is with regard to distribution of the estate of the deceased as outlined by the summons for confirmation of May 10, 2021 and protest of February 2, 2021.

23. The mandate of the court under the Law of Succession Act is facilitating and effecting intestate and testamentary succession and the administration of estates of deceased persons.

24. The court in the case of an intestate estate to confirm the grant issued to administrator(s) and distribute the assets that comprise of the estate of the deceased and are available for distribution; in compliance with section 71 of LSAwhich reads in part;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.

25. In the instant case; the evidence on record was as follows;Kaswii Mutune (Protestor) took issue with proposed distribution of the suit property Muthetheni/Kionyweni/426 at ½(1. 1Ha) to Administrator Munyao Mulinge and ½ (1. 1Ha) to Kaswii Mutune Protestor because the deceased during his lifetime sold the suit property to Munyao Mulinge, Leonard Musau Mutune and Mutua Mutune. The suit-property on the ground is already divided into 1/3 for each party. They have lived and developed the land and have been on the land over 10 years now. Leonard Musau Mutune testified and supported his mother’s testimony.

26. Stephen Mutava Ngao from the same clan as the deceased and they called him Uncle. He stated that he knew the parties to these proceedings. The suit property belonged to the deceased and was/is occupied to date by Munyao Mulinge, Leonard Musau Mutune and Mutua Mutune’s family. The dispute of the suit property was settled by the clan and the parties have been on the land over 20 years.

27. The administrator, Munyao Mulinge testified that he lived with the deceased and his father as he had no nuclear family. His father died and he helped the deceased obtain medical treatment through money he advanced him on several occasions between 1994-1995-1996. He called clan members who witnessed the money he advanced the deceased and wrote on a paper and signed. He produced a book where he signed the money he took from him. The deceased gave him a portion of the land in exchange for the money and the protestors family chased him away. Mutune sold part of the land and has been building on the land. He is entitled to a share of the land.

28. This court notes with concern that the parties have disclosed different relationships with/to the deceased as follows;a)Chief’s letter of August 29, 2007 and petition of June 11, 2008 Mutune Musau (brother) of deceased and Munyao Mulinge (nephew) of the deceased.b)Summons for confirmation of May 17, 2021, Mutune Musau is now (son) of deceased, Munyao Mulinge now (son) of the deceased and Kaswii Mutune – daughter in law.c)Protest filed on February 11, 2022, Leonard Musau Mutune, Mutua Mutune & Munyao Mulinge are (nephews) of the deceased and (purchasers) of the suit property.

29. The protestors rely on proceedings Provincial Tribunal Panel at PC’s Office Embu of April 14, 2006 Case 108/2007 where it was ordered that Mutune Musau to file succession case as administrator as Kasia Musau’s land Number Muthetheni/Kionyweni/426 and insert beneficiaries, Musau Mutune, Mutua Mutune & Munyao Mulinge as they bought land.

30. The ownership and distribution of Muthetheni/Kionyweni/426 was alleged to have been sufficiently determined in Machakos Chief Magistrate’s Court Misc No 86 of 2007 and a decree issued to the effect that the land should be sub-divided between the family of Munyao Mulinge (the administrator herein) and Mutune Musau equally. The judgment/ruling/decree/order was not availed to this court to confirm this position.

31. The administrator Munyao Mulinge also produced a book that the deceased signed as he received from the Administrator money for medical care over the years 1994-1997 and the money was not refunded. He lived with the deceased and in return for money expended he was shown a portion of land. He alleged that the protestor’s family chased him away, sold part of the land and built on the land.

32. The totality of the evidence discloses that administrator protestors and deceased are members of the one family and /or purchased the deceased’s land and have all settled on the suit property and developed over the years. The administrator admitted in cross examination that he was aware of the PC’s Office Embu of April 14, 2006 Case 108/2007 that the suit property was to be divided amongst the 3 of them namely; Musau Mutune, Mutua Mutune & Munyao Mulinge.

33. From the pleadings and evidence on record the proposed mode of distribution outlined in the summons for confirmation suit property Muthetheni/Kionyweni/426 at ½(1. 1Ha) to administrator Munyao Mulinge and ½ (1. 1Ha) to Kaswii Mutune is not borne out by evidence on record. The evidence confirms that the administrator failed to disclose the protestor’s family residing on the suit property over the years and who have similar stake on the land as he has and pursued ½ instead of 1/3 which he already has.

34. In Succession Cause 399 of 2007 In Re Estate of John Msambayi Katumanga (deceased) [2014] eKLR, the court considered where beneficiaries did not agree or consent to the mode of distribution of the deceased’s estate, that the court would ensure fair, just and equitable distribution of the estate to the beneficiaries and dependants of the estate.

35. After considering the rival submissions by parties, the justice of the case demands that the proposed mode of distribution applicable as fair just and equitable to the parties is that the administrator, Munyao Mulinge, Leonard Musau Mutune and Mutua Mutune; both sons of protestor obtain a share of the suit property Muthetheni/Kionyweni/426 as agreed and settled at Provincial Tribunal Panel at PC’s Office Embu of April 14, 2006 Case 108/2007.

Disposition 36. The protestor’s mode of distribution is upheld and shall replace the mode of distribution proposed in of summons for confirmation of May 17, 2021.

37. The summons of confirmation shall be confirmed in terms of Muthetheni/Kionyweni/426 divided as follows;1. Musau Mutune 1/32. Mutua Mutune 1/33. Munyao Mulinge 1/3

38. Each party to bear its own costs.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 21ST JULY 2022. (VIRTUAL CONFERENCE)MW MUIGAIJUDGE