[2023] KEHC 26960 (KLR)

In re Estate of Kiiti Mulinge Ngao (Deceased) (Succession Cause 357 of 2006) [2023] KEHC 26960 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26960 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 357 of 2006

MW Muigai, J

December 8, 2023

IN THE MATTER OF THE ESTATE OF KIITI MULINGE NGAO(DECEASED)

Between

Paul Wambua Kiiti

Administrator

and

Philip Mulinge Kiiti

Administrator

Judgment

Background 1. The petition filed on 14th July, 2006, the petitioners Grace Kailu Kiiti and Paul Wambua Kiiti petitioned this Court for a grant of Letters of Administration intestate of the estate of Kiiti Mulinge Ngao (deceased) who died on 5TH September, 2001 domiciled in Kenya at Kiitini.

2. Pursuant to the Affidavit in support of Petition for Letters of Administration Intestate, the deceased died intestate and left the following surviving him {as shown in the Chief’s Letter of 13/7/2006}; -1. Grace Kailu Kiiti- 1St Wife2. David Makau- Adult Son3. Monicah Kaluki Kiiti- Adult-daughter4. Joyce Kavene Kiiti- Adult Daughter5. Rose Kalondu Kiiti- Adult Daughter6. John Kamwanza Kiiti- Adult Son7. Esther Munini Kiiti- Adult Daughter8. Paul Wambua Kiiti- Adult Son9. Patrick Kioko Kiiti- Adult Son1. Ndakava Kiiti- 2nd Wife2. Grace Kavoo Kiiti- Adult Daughter3. Philip Kisilu Kiiti- Adult Son4. Mutinda Kiiti- Adult- Daughter5. Kamwati Kiiti- Adult Daughter6. Katanu Kiiti- Adult Daughter7. Mwangangi Kiiti- Adult Son8. Ndunge Kiiti- Adult Daughter

3. The Affidavit in Support of Petition for Letters of Administration Intestate mentioned full inventory of all assets left by the deceased at the date of his death to be:a.Machakos/Kiitini/566 (estimated Value KSHS. 500,000).

4. By Assistant Chief’s letter dated 13th July, 2006 confirmed that the deceased hailed from Kalawa location- Kiitini Sub-location. The deceased was survived by two (2) wives and fifteen (15) children. The said chief’s letter reiterated the two (2) wives and children mentioned in the Petition.

5. Chief’s letter further indicated that they consented that one Paul Wambua Kiiti, do follow their father’s estate and also file for a succession cause.

6. Vide the Gazette notice dated 28th July,2006,Grace Kailu Kiiti and Paul Wambua Kiiti both of Massani in Kenya the deceased’s widow and son respectively were gazetted for grant of Letters of Administration Intestate to the Estate ofKiiti Mulinge Ngao late of Kiitini Location who died at Machakos Hospital on 5th September, 2001.

Notice Of Objection. 7. By Notice of Objection dated 16th August,2006 filed in court on 17th August,2006, Philip Kisilu Kiiti, objected the Grant of Representation to be made to Grace Kailu Kiiti and Paul Wambua Kiiti, some dependents were left out particularly the objector herein and his mother Ndakava Kiiti, Co-wife to the first Petitioner. Secondly, LR NO. Kalama/ Kiitini/648 was not included which is another property of the estate of the deceased.

Replying Affidavits 8. The Replying Affidavits of the Petitioners sworn and filed court on diverse dates by the petitioners herein, they deposed that the names of all the members of the family of the deceased were all included; that the objectors were invited to go and the Petitioners in the Petition but they refused and objector’s brothers and sisters were approached but they equally refused; deposing that they were approached by the chief and the Sub Chief to join the Petitioners in the Petition but they declined.

9. It was deposed that there was no intention to deprive the objector and his family of their share of the estate as they were occupying their share of the Deceased Estate at present and that they were all aware of the intention to apply for letters of Administration in respect of the late deceased Estate.

10. It was stated that the objector and his family will never suffer any loss since their share was intact and they will be invited to court during confirmation of the grant. Deposing that they were not aware of the existence of that piece of land as the objector had kept the Title Deed. at any rate it will be included in the estate and shared accordingly.

Further Affidavit 11. The objector Philip Kisilu Kiiti in his further Affidavit in reply to the Petitioners Replying Affidavit filed in court on 30th October,2006, deposed that he had never been invited by the Petitioners and declined to sign succession documents as claimed nor had he been invited by the Area Chief; further, the Petitioners filed this Succession Cause to disinherit other members of the family; deposing that the Petitioners in their replying affidavit dated 1st September,2006 stated that they did not include his name in the succession cause and gave reasons; consequently, Kalama/ Kiitini/648 be included in the present Succession Cause so that succession is not done in piece meal. On 29th July,2008 directed by consent the Letters of Administration were issued to Philip Kisilu Kiiti and Paul Wambua Kiiti.

Summons For Confirmation & Rectification Of Grant 12. Vide the Summons for Confirmation & Rectification of Grant and affidavit in support of the summons for confirmation and Rectification of grant dated and filed in court on 12th February,2014, wherein the Applicant Grace Kailu Kiiti sought orders that:1. The grant of letters of Administration intestate issued to Paul Wambua Kiiti and Philip Kisilu Kiiti, issued on the 7th December,2011 be amended to remove the 2nd Petitioner from the said grant to replace him with Grace Kailu Kiiti who is the Administrator in the Petition forms.

13. The Application was premised on the grounds that:the grant of letter of administration issued on the 7th December,2011 was issued with the 2nd Administrator who was wrongly included in the said grant instead of Grace Kailu Kiiti a widow of the deceased and the estate of the deceased be distributed among his beneficiaries as indicated in the annexed affidavit.

Replying Affidavit To The Summons For Rectification 14. By a Replying Affidavit to the summons for rectification, dated 28th May,2014 and filed in court on 21st August,2014, that the said application is not only lacking in merit but also frivolous and vexatious; deposing that the Administrators were joint pursuant an order of the court granted after the said Administrators entered a consent to that effect.

15. Vide Court Ruling delivered by E.K. Ogolla J on 23rd February,2017, the court dismissed the Application to remove the Co- administrator. The Court noted inter alia that PAUL WAMBUA KIITI had refused to cooperate and in particular refused to attend court for purposes of distribution of the property.

Summons For Confirmation Of Grant. 16. By summons for Confirmation of grant dated and filed in court on 21st June,2017 wherein the Applicant sought orders that:1. The grant of (letters of Administration intestate) made on the said Philip Kisilu Kiiti & Paul Wambua Kiiti in this matter on 29th July,2008 be confirmed2. The costs of this application be in the cause.

Supporting Affidavit 17. The application was Supported by an affidavit dated and filed in court on 21st June,2017, sworn by Paul Wambua Kiiti listed the beneficiaries and the parcel of land as follows:i.Kalama/ Kiitini/648-be registered in the names of Philip Kisilu Kiiti.ii.Kalama/ Kiitini/566½ share be registered in the names of Philip Kisilu Kiiti (to hold in trust for himself and for the other beneficiary namely: Mwangangi Kiiti) ½ share be registered in the names of Paul Wambua Kiiti (to hold in trust for himself and for the other beneficiaries namely: (John Kamwanza Kiiti & Patrick Kioko Kiiti).

Affidavit In Protest Against Confirmation Of Grant 18. Pursuant to the Affidavit in Protest against the Confirmation dated 16th May,2017 and filed in court on 19th October,2017 sworn by Philip Kisilu Kiiti, he deposed that Land Parcel No. 412 Kathekani Settlement Scheme is part of the deceased’s property which should likewise be subjected to division on equal basis amongst the surviving wives of the deceased, mainly since it was gained through expense of their late father.

19. He deposed that since 1965 up and until August,2001, the family by the first wife of the deceased did not participate in parental care in respect to the deceased and such burden was all left on him and his mother for 39 years; in 1999 their father fell sick and was admitted in Machakos General Hospital for one week and he met the hospital bills alone. He lamented further that in 2001 his father fell and passed away whence all hospital bills mortuary and funeral expenses were shouldered by him to the fact that the afore said family members remained reluctant to contribute towards the same always promising to pay later which they have failed refused and/or neglected to pay to date.

20. He lamented that Petitioners willingly participated in all family meetings where the property of the Deceased was apportioned and distributed; further the acts of the Petitioners while obtaining the letters of administration herein were made in bad faith, meant to mislead this Court the same amounted to non-disclosure of pertinent material facts; it was his position that the allegations/misrepresentations actuated by the Petitioners are only meant to enable them benefit wrongly from an estate whereof there are other bonafide beneficiaries.

Supplementary Affidavit 21. Vide a Supplementary Affidavit dated and filed in court on 12th February,2018, sworn by Paul Wambua Kiiti, wherein he deposed that Plot No. 412 Kathekani Adjudication Scheme does not form part of the deceased’s property because it is owned by Kailu Kiiti as evident from the letters by the Assistant Chief Kathekani Sub Location and the District Land Adjudication and Settlement Officer Kibwezi District respectively (annexed and marked copy of the letters dated 12/8/2008 and 25/9/2008 respectively); further, he lamented that the Protestor’s purported Sale Agreement Marked “PKK I” is not only invalid but also forgery since some of the witnesses like Mbaluka Mwandiku have never existed and that Kioko Ngomo was 13 years in the year 1990 (annexed and marked copy of his National Identity Card to that effect.) he deposed that the aforementioned Affidavit of Protest ought to be struck out and/or dismissed with costs.

Court Ruling 22. The Court vide its ruling dated 31st July,2019 by D.K.Kemei J observed that Plot No. 412 Kathekani Settlement Scheme should be excluded from the Estate of the deceased and found that the Objector’s protest lacked merit and dismissed the same, directing the Petitioners to proceed to set down the summons for confirmation of the grant as a matter of priority owing to the fact that the matter is fairly old.

Fresh Grant Of Letters Of Administration. 23. This Court by Consent dated 11th February,2021 granted fresh letters of Administration in the joint names of Paul Wambua Kiiti & Philip Mulinge Kiiti, and issued on 24th February,2021 as personal representatives of the deceased’s estate to render a just and true account thereof as required by law.

Replying Affidavit Dated 19Th May,2021. 24. By replying Affidavit dated and filed in court on 19th May,2021 Sworn by Philip Kisilu Kiiti, objector herein, wherein, he deposed that he reliably learnt that there is another parcel of land at Kathekani- Kibwezi which is unsurveyed and which ought to be included in the Petition as it belonged to the the deceased; the subject land is in possession of the Petitioners but they failed to disclose to court the existence of the said land. He lamented that the said land ought to be shared equally among the beneficiaries.

Affidavit In Response To The Objector’s Replying Affidavit Sworn And Filed On 19/5/2021. 25. by affidavit in response to the Objector’s Replying Affidavit dated and filed in court on 31st May,2021 Sworn by Philip Wambua Kiiti, the 1st Administrator herein, wherein he deposed inter alia that there is absolutely no an unsurveyed parcel of land in Kathekani-Kibwezi belonging to the deceased herein nor are they settled therein contrary to the Objector’s grave allegation. Deposing that his brothers and himself are settled in land Parcel No. 412 Kathekani Settlement Scheme which is solely owned and registered in the name of their late mother Grace Kailu Kiiti. (annexed and marked documentation to that effect). He lamented that on 11/2/2021 the Objector categorically told the Court that he was dissatisfied with the Ruling dated and delivered on 31/7/2019 dismissing his protest. He deponed that though the Objector had sufficient time to either seek leave to lodge an Appeal in the Court of Appeal or institute a suit in the Environment and land Court he deliberately decided to sit on his laurel. Deposing that the Replying Affidavit is for all intents and purposes aimed at opening Pandora’s Box for the Objector to have a second bite at the cherry; he lamented that the Replying Affidavit is not only an afterthought but also a delaying tactic whose timing is suspicious considering that this matter is 15 years old. It was his deposition that Replying Affidavit is not properly on record and thus should be struck out and/or expunged from court record.

Confirmation Notices And Summons To Attend And Give Evidence. 26. On the court record are two confirmation notices with the Affidavit of Service thereunder dated 29th September,2021 and 28th October, respectively, served upon the protestor’s side that if no appearance is made on their part, confirmation will issue their absence notwithstanding. Similarly, there is summonses dated 28th June,2022 and Affidavit of service filed in court on 12th July,2022 effected to the beneficiaries to attend court and give evidence in the above cause.

Replying Affidavit Dated 12Th February,2023. 27. By a Replying Affidavit dated 12th February,2023 and filed in court on 24th February,2023 sworn by Philip Kisilu Kiiti, objector herein, wherein, he deposed that he did not sign the consent for confirmation because the Applicant is seeking to have property no Kalama/ Kiitini/566 shared between all the families of the deceased. He deposed that land registration stated earlier at Kalama and parcel Kalama/ Kiitini/566 was registered in his name and that land registration at Kibwezi did not start during his lifetime.

28. Deposing that both families of Grace Kailu Kiiti and Ndakava Kiiti were brought up at Kibwezi where they were doing extensive crop and animal farming. Lamenting that before the death of the deceased he decided that the family of Grace Kailu Kiiti live and own land at Kibwezi while that of Ndakava Kiiti to live exclusively at Kalama. He deponed that when land Registration begun at Kibwezi the land was registered under the name of Grace Kailu Kiiti. It was his deposition that after the demise of Grace Kailu Kiiti her children sold most of their land and developed an interest in the land at Kalama namely Kalama/ Kiitini/566; further that signing the consent would legitimize their interest over Plot No. Kalama/ Kiitini/566.

Affidavit in Response to the Objector’s Replying Affidavit dated 12/2/2023. 29. By Affidavit in Response to the Objector’s Replying Affidavit dated 4th May,2023 and filed in court on 9th May,2023 Sworn by Philip Wambua Kiiti, the 1st Administrator herein, wherein he deposed inter alia that the issued raised in the aforementioned Affidavit were heard and determined by this Court vide the Ruling dated 31/7/19 hence the same cannot be revisited owing to the Doctrine of Res-judicata; deposing that if the Objector was dissatisfied with the above Ruling he should have lodged an Appeal in the Court of Appeal; further the affiant is advised by his Advocate on record that in view of the forgoing, this honorable is not only functus officio but also lacks requisite jurisdiction to entertain the present Replying Affidavit.

30. He stated that the deceased had two (2) parcels of land both which are in Kalama to wit land parcel Kalama/ Kiitini/566 and 648 (annexed and marked copies of searches respectively to that effect). Lamenting further that he categorically deponed that P/NO. 412 Kathekani Settlement Scheme belongs to the first wife of the deceased herein by the name Grace Kailu Kiiti by virtue of the same having been solely acquired by her demarcated and registered in here name on 15/8/91 (Annexed and marked copy of the demarcation sheet ownership document to that effect.).

31. He deposed that before the deceased passed on, he sold his land parcel No. Kalama/ Kiitini/648 to the Objector herein hence the reason why nobody is laying any claim over the same. It was his deposition that during the Deceased’s lifetime, he stated that upon his demise land parcel Kalama/ Kiitini/566 should be shared equally between the two (2) houses; further that the Objector is simply changing goal posts and that his present Replying Affidavit is aimed at arresting the confirmation process hence the objector is not in any way seeking justice but rather settling scores with them.

32. He deposed that that the Objector’s Replying Affidavit is filed in bad faith with view of perpetuating side shows hence the same should be struck out and/or expunged from the court record. The affiant implored this court to disregard the Objector’s distraction and confirm the grant issued on 11/2/202.

Court Record 33. This Court took over the matter on 28/10/2021 and it was brought to this Court’s attention that the 2 rulings on record; Court Ruling delivered by Hon.E.K. Ogolla J on 23rd February,2017, the court dismissed the Application to remove the Co- administrator, Paul Wambua Kiiti had refused to cooperate and in particular refused to attend court for purposes of distribution of the property. The Ruling of 31/7/2019 by Hon D.K.Kemei J dismissed the Protestor by Phillip Kisilu Kiiti that Plot 412 was part of deceased’s estate and was excluded.

34. On 17/3/2022 the 2nd Petitioner/Objector Phillip Mulinge Kiiti who sought confirmation of grant proceedings to be stopped. The 1st house objected to halting of confirmation of grant proceedings as the Protest was dismissed vide the Ruling of 31/7/2019 which remains valid and legal until set aside varied or successfully appealed against. The Court sough ALL beneficiaries to attend Court.

35. On 23/5/2022, the beneficiaries were represented by the respective advocates, Mr Mutuku for the 1st House submitted that members of 1st House had appeared in Court and given written consents as far back 11/2/2021; Paul Wambua, Rose Kalondu Kiiti, Monica Kaloki, John Mulinge and Patrick Kioko. The 2nd House, Phillip Mulinge Kiiti consented and by consent of both Advocates Messrs Mukula & Messrs Kaloki Advocates agreed on fresh grant of Summons for Confirmation was to be filed.

36. On the same day, 23/5/2022,Phillip Kisilu Kiiti stated that there was a dispute on distribution of the estate of the deceased; the 1st house had/has 2 parcels of land and they sold and therefore the 2nd House is entitled to ½ of Plot 412. The same proposal was made by Regina Ndunge Kiiti that both houses resided in /on Plot 412 6 children of 2nd House and 1st House 7 children. They cultivated the land on Plot 412 and then took it to Kalama. They want Plot 412 to be divided into 2 parts too. This court referred the matter for Court annexed mediation.

37. On 22/6/2022, this Court was informed that Court annexed mediation failed. On 21/7/2022 members of the 1st house attended Court and gave consents to Summons for Confirmation of 21/6/2017. The 2nd house members failed to attend. The Court allowed parties to pursue partial confirmation of grant on what was agreeable and rest be heard and determined in the appropriate forum.

38. On 3/10/2022, Daniel Mutua Mutie told the Court that when he was born he found deceased’s 1st widow Grace resided in Kathekani 412 Settlement Scheme and 2nd widow of deceased resided at Kiitini Kalama.Paul Wambua, KamwanzaKiiti, Kioko Kiiti and 1st widow Grace sold to Buyer Pius Ngoloma the land in Kiitini where 2nd widow resided Kiitini Kalama. Alice Mukuthe stated after their mother’s land was sold they blocked any transfer/registration at Machakos. The 2nd family took the view that if Kathekani 412 was registered in Grace Kiiti then the 2nd house should have Kalam/Kiitini/566 whole to the 2nd House.

39. From 1/11/26022,24/2/2023,20/4/2023 & 30/5/2023 was to have Protest(s) filed to Summons for Confirmation and written Submissions filed and exchanged.

Submissions The 2Nd Administrator’s Submissions (on the Applicant’s Summons for confirmation of grant and his protest) 40. The 2nd Administrator in his Submissions dated and filed in court on 29th June,2023, Mr. Mutuku, Counsel for the 2nd Administrator opposed the proposed mode of distribution on the summons for confirmation dated 21/6/2017 and is of the position that the estate of the deceased should be distributed as follows:

41. Land parcel registration number Kalama/ Kiitini/648 be registered in the name of Philip Mulinge Kiiti; and Land parcel registration number Kalama/ Kiitini/566 be registered in the name of Philip Mulinge Kiiti.

42. Alternatively, he suggests that Land parcel registration number Kalama/ Kiitini/648 be registered in the name of Philip Mulinge Kiiti; and Land parcel registration number Kalama/ Kiitini/566 be registered in the name of Philip Mulinge Kiiti. A ½ share of plot no 142 Kathekani settlement Scheme Kibwezi be registered in the name of Paul Wambua Kiiti (to hold in trust for himself and for other beneficiaries namely John Kamwanza Kiiti & Patrick Kioko Kiiti); and A ½ share of plot no 142 Kathekani settlement Scheme Kibwezi be registered in the name of Philip Mulinge Kiiti (to hold in trust for himself and for other beneficiary by the name of Mwangangi Kiiti)

43. Counsel submitted that it is Administrator’s/Protestors position that the deceased had two households and it is the 2nd Administrator’s/Protestors position that the Household of Grace Kailu Kiiti was resident in Kibwezi, Makueni County while the household of Ndakava Kiiti was resident in Kalama, Machakos County.

44. Submitting that the Parcel registration number Kalama/ Kiitini/648 and land parcel registration Kalama/ Kiitini/566 were under the control and use of the household of Ndakava Kiiti as the deceased intended during his lifetime and therefore should only be distributed amongst the household of Ndakava Kiiti.

45. It was averred that on the other hand the household of Grace Kailu Kiiti had occupation, control and use of Plot No. 412 Kathekani settlement Scheme Kibwezi, Makueni County as the deceased intended during his lifetime and therefore should only be distributed amongst the household ofGrace Kailu Kiiti

46. It was the submission of the 2nd Administrator herein that Grace Kailu Kiiti had plot no 412 Kathekani settlement Scheme Kibwezi, Makueni County registered by the land Adjudication office in her name because at the time of registration her husband the deceased herein had already passed on hence according to the 2nd Administrator plot no. 412 comprises the Estate of the deceased and belongs solely to the household of Grace Kailu Kiiti and therefore should not be seeking to have the properties in Kalama, Machakos, County distributed amongst their household.

The Petitioner’s/ 1St Administrator’s Submissions 47. By the Petitioner’s/ 1st Administrator’s Submissions dated and filed in court on 23rd June,2023, counsel for the Petitioner raised the following issues for determination:1. Whether the court has jurisdiction to hear and determine the purported Objection.2. Whether the grant herein should be fully confirmed.3. Who should bear costs.

48. On Whether the court has jurisdiction to hear and determine the purported Objection, counsel for the Petitioner averred that this Honorable Court is Functus Officio, the issue raised in the purported Objection is Res-judicata, ownership of the suit property is a preserve of the Environment and Land Court. to buttress the point jurisdiction counsel relied on the cases of Samuel Kamau Macharia & Another Vs KCB Ltd & 2 Others [2011] eklr and The Owners of Motor Vessel Lilian “S” Vs Caltex Oil (K) Ltd [1989] KLR, and submitted that jurisdiction is not only a Constitutional but also statutory creature and thus it is central and integral part of our justice nomenclature.

49. On res judicata, Counsel relied on Section 7 of the Civil Procedure Act.

50. It was the position of the Counsel on behalf of the Petitioner that the issue raised in the alleged Objection dated 12/2/2023 is the same issue the 2nd Administrator raised vide his Protest filed on 19/10/17 which was dismissed vide the impugned Ruling by Kemei J dated 31/7/19. Contending that the crux of this matter is ownership of P/NO. 412 KATHEKANI SETTLEMENT SCHEME which the Objector alleges that it belongs to the Deceased herein whilst the Petitioner asserts that that it belongs to the First Wife of the Deceased by the name the LATE GRACE KAILU KIITI.

51. It was the contention of the Petitioner that the Objector never adduced evidence in respect to his grave allegation, the Petitioner availed demarcation sheet ownership document dated 15/8/91 and Assistant Chief’s letter dated 12/0/2008 respectively to buttress his point. Hence the Objector has not discharged his onus as envisaged under Section 107-109 of the Evidence Act.

52. It was the Petitioner’s case that this Honorable Court is functus officio owing to the Ruling by Kemei J dated 31/7/2019 which essentially dismissed a similar protest by the Objector herein. To buttress his position on functus officio counsel relied on the cases of Raila Odinga & 2 O thers Vs the Independent and Boundaries Commission & 3 Others [2013] eklr and Re Estate of Macahria Kimani (Deceased) [2019] eKLR where Onyiego J observed that:“In a nutshell, the issues now being raised by the applicant are geared towards reopening the entire suit which is already determined. The applicant is actually raising an appeal indirectly in the same court. She should have challenged the decision before the Court of Appeal instead of filing one through the backdoor. The allegations that some properties listed in the schedule of assets had been distributed in the estates of Wangari Macharia the widow to the deceased and Eliud Ndirangu Macharia is not correct as the assets in each cause are distinct.In the circumstances of this case, this court has become functus officio. Section 76 regarding annulment or revocation cannot apply as parties were given an opportunity to be heard and presented their respective cases when the protest was canvassed. To hear and determine the application in question will be akin to sitting on an appeal in respect of my colleague’s judgment. The suit has been fully heard and determined by a competent court with jurisdiction. Indeed, litigation must come to an end. The applicant should be contented with the determination (Judgment) and the mode of distribution of the estate adopted by the court. For the above reasons stated, I am convinced that the application dated 18th December 2018 is bad in law on account of resjudicata and the same is dismissed with no order as to costs.”

53. Counsel submitted that whereas the Probate and Administration Court has power to distribute the deceased property the issue of ownership of any property is within the purview of the Environment and Land Court by dint of Article 162 (2) of the Constitution of Kenya 2010

54. Counsel placed reliance on the case Re Estate of the late Jonathan Kinyua Waititu (Deceased) [2017] eKLR, it was observed that:“From the foregoing, it is clear that the mandate of the probate court is limited. A distinction ought to be made between a claim against the estate of a deceased and a claim on inheritance in respect of the estate of the deceased……... …….The upshot is that this court lacks jurisdiction to resolve the proprietary interest on land based on the alleged trust. The available option was for the objectors to articulate their claim by instituting proceedings against the estate of the deceased suing the administrators to obtain orders on declaration of a trust leading to enforcement of their proprietary interests on the land……. ….. ….. …By the time the certificate of title was issued in 1978, the objectors were adults. There is no explanation why they never claimed their portion of the subject land if indeed they were clear in their minds that their deceased brother held the land in trust for himself and themselves…… … ….Consequently, and for the above stated reasons, it is my finding that the objectors' claim over the land is not one which the Probate court would have jurisdiction to hear and determine and even if this court were clothed with the necessary jurisdiction, there is no evidence in support of the trust alleged…… …… …... ……. …..With the result that the objection herein is dismissed”

55. On whether the Grant herein should be fully confirmed, it was Counsel opined that the court record will bear witness that the grant is pending confirmation with regard to the 2nd Administrator’s side (the beneficiaries from the second house of the deceased only); because the beneficiaries from the 1st house of the deceased showed up in court in three (3) occasions to wit 11/2/2021, 20/5/2021 & 13/7/2012 respectively. Contending that by virtue of p/no 412 Kathekani Settlement Scheme being in the name of The Late Grace Kailu KiitI and having been excluded from the estate of the Deceased herein vide the Ruling by Kemei J dated 31/7/2019 the same is not available for distribution since it belongs to a different Estate all together.

56. Counsel implored the Honorable Court to confirm the grant in terms of paragraph 3 of the Petitioner’s supporting Affidavit dated 21/6/17.

57. As to who should bear the costs, reliance was placed on Rule 69 of the Probate and Administration Rules which provides that“Costs of any proceedings are at the discretion of the Judge or Court”

58. Submitting that the purported Objection is not only incompetent but also bereft of merit hence should be dismissed with costs. Counsel implored the court that the grant herein dated 24/2/2021 should be fully confirmed in the interest of justice and dismiss the purported objection with costs for want of merit.

Determination/analysis 59. The Court considered the pleadings and submissions by parties through respective Counsel on record. The issue for determination is distribution of the deceased to the beneficiaries of the estate.

60. The jurisdiction of the Court is housed under Constitution of Kenya; Article 165 (3) (a) CoK 2010; unlimited original jurisdiction in civil and criminal matters. Specific to the matter in question; Law of Succession Act Preamble provides;An Act of Parliament to amend, define and consolidate the law relating to intestate and testamentary succession and the administration of estates of deceased persons; and for purposes connected therewith and incidental thereto

61. The issue of beneficiaries there is no dispute as beneficiaries were outlined in the Petition filed on 14/6/2006 and Chief of Kiitini of 13/7/2006 and outlined above.Distribution of the EstateAccording to Section 3 (1) of the Law of Succession Act Cap 160 Laws of Kenya (LSA), estate means the free property of a deceased person.In the Matter of the Estate of Nelson Kimotho Mbiti(deceased) HCSC NO.169 of 2000, M.Koome L J (as she was then was) directed that the estate of a polygamist be divided in accordance with the provisions of Section 40 of the Act. The estate was divided into units according to the number of children in each house with the widows being added as additional unitsIn the Matter of the Estate of the Joseph Eric Owino (Deceased) Succession Cause (P&A) No.58 of 2020, R Nyakundi J at paragraph 12 observed that, in a case of this nature where the deceased died intestate and was a polygamous man survived by two widows and children the anchor on distribution of his estate is Section 40 of the Law of Succession Act which primarily provides as follows;“(1)Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate, shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.

62. The issue relates to distribution of the estate of the deceased amongst the beneficiaries. The Petition lists only Machakos Kiitini /566 as the property available for distribution to the family of the deceased. During proceedings it emerged that there were/are 2 other properties; namely LR Kalama/Kiiti/648 and also included was 412 Kathekani Settlement.

63. On record from the pleadings are various versions by the parties on settlement, exodus, gift inter vivos and development on the portions of land that comprise assets of deceased’s estate.In the absence of agreement between the parties on the mode of distribution of the estate, the law requires that the estate of the deceased, who was polygamous, be distributed in accordance with section 40 of the Succession Act.

64. The Petitioners/Administrators of the estate of the deceased have divergent views on the distribution of the deceased’s estate.

65. The grant issued was to Grace Kailu Kiiti and her son Paul Wambua Kiiti. Philip Kisilu Kiiti filed objection and on hearing the grant was issued in both names of Paul Wambua and Philip Kisilu on 7/12/2008.

66. The Summons for Confirmation filed on 16/7/2013 & 12/2/2014 sought distribution as follows;a.Kalama/ Kiitini/648- registered in the name of Philip Kisilub.Kalama/ Kiitini/566- registered in the names of ;c.½ in the names of Ndakava Kiiti -2nd wifed.½ in the names of grace Kailu Kiiti-1st wife

67. Summons for Confirmation was filed on 21/6/2017 and sought distribution as follows;a.Kalama/ Kiitini/648- registered in the names of Philip Kisilub.Kalama/ Kiitini/566- registered in the names of ;c.½ in the names of Philip Kisilu Kiiti ( to hold in trust for himself and Mwangangi Kiiti)d.½ in the names of Paul Wambua Kiiti ( to hold in trust for himself and for John Kamwanza Kiiti & Patrick Kioko Kiiti)

68. Philip Kisilu Kiiti filed Protest against the Summons for Confirmation of Grant that there was material non-disclosure of Parcel Number 412 Kathekani settlement Scheme which was part of deceased’s estate and should likewise be available for distribution to both houses of deceased’s family.

69. By Ruling of 31st July 2019 by Hon. D. K. Kemei J dismissed the Protest and found Parcel Number 412 Kathekani Settlement Scheme was registered in the name of 1st wife Grace Kailu Kiiti. The Court found plausible explanation that the said property was for 1st House/1st wife as per the Assistant Chief Kathekani Sublocation and the District Land Adjudication & Settlement Officer Kibwezi District that by 2004 after demise of deceased in 2001 and demarcation started registration of the said Plot/Land was in the name of Grace Kailu Kiiti as surviving spouse of the deceased residing on the property. There were 3 Witness Statements of Anthony Nguluma Mulinge, Boniface Kyule and Paul Wambua Kiiti confirmed Grace Kailu Kiiti went to Kambu in 1962 and settled on P/No Kathekani Settlement Scheme.

70. The said Ruling remains a valid, regular and lawful order of the Court as it is not set aside, varied or successfully appealed against.

71. Parcel Number 412 Kathekani Settlement Scheme from the deceased was registered in the 1st wife’s name and was/is available to the 1st House children of the deceased.

72. Kalama/ Kiitini/648 is alleged by deponents of Witness Statements of Anthony Nguluma Mulinge, Boniface Kyule that the deceased gave his son Philip Kisilu Kiiti Parcel Number Kalama/ Kiitini/648. This position is fortified by the Affidavit of Protest by Philip Kisilu Kiiti of 12/10 2017 which has annexed the Sale of Kalama/ Kiitini/648 by the deceased to Philip Kisilu Kiiti translated from Kamba to English that the deceased decided to sell his son land so as to take care of his health as the 1st House left him in 1966 and he did not receive any support whatsoever.Various payments are listed and witnessed by Elders listed who signed the Agreement and the deceased thereafter gave Kisilu Plot 648.

73. I find sufficient evidence confirming that the deceased gave /sold Kalama/Kitini/648 to Philip Kisilu Kiiti. The said property though in the names of the deceased, the property was sold/gifted by deceased to Objector for taking care of the deceased and payment he made to deceased as exhibited by the said Agreement annexed to the Protest.

74. This leaves Land Parcel Kalama/ Kiitini/566The Court in Re Estate of John Musambayi Katumanga – Deceased [2014] eKLR held as follows:“The spirit of Part V, especially Sections 35, 38 and 40, is equal distribution, of the intestate estate amongst the children of the deceased. There have been debates on whether the distribution should be equal or equitable. My reading of these provisions is that they envisage equal distribution for the word used in Sections 35(5) and 38 is ‘equally’ as opposed to ‘equitably’. This is the plain language of the provisions. The provisions are in mandatory terms – the property “shall … be equally divided among the surviving children.” Equal distribution is envisaged regardless of the ages, gender and financial status of the children.”

75. The statutory provisions and case-law point to equal distribution of the estate of the deceased to the family members as far as possible irrespective of age gender ability affluence success of any of the children or surviving spouse(s). In the instant case, 1st house has beneficial interest in Parcel Number 412 Kathekani Settlement Scheme which was from the deceased but by the time demarcation of land was conducted, it started in Kibwezi and since deceased’s demise in 2001, the surviving spouse was registered in 2004 and the same was/is available to/for the 1st House. The suit property Kalama/Kitini/648 was given/sold by deceased to Philip Kisilu Kiiti. What remains is that the 2nd House has no property bequeathed to the family members with beneficial interest. In light of the above circumstances is it fair the 1st house has another bite at the cherry where they already enjoy beneficial interest in Parcel Number 412 Kathekani Settlement Scheme and also be entitled to ½ of Land Parcel Kalama/ Kiitini/566?

76. The Objector/Protestor Philip Kisilu Kiiti deposed that both family members of Grace Kailu Kiiti and Ndakava Kiiti (both wives of deceased) were brought up at Kibwezi and did crop and animal farming. The deceased decided that the family of Grace Kailu Kiiti live and own land at Kibwezi while that of Ndakava Kiiti to live exclusively at Kalama. He deponed that when land Registration begun at Kibwezi the land was registered under the name of Grace Kailu Kiiti after deceased’s demise. After the demise of Grace Kailu Kiiti, her children sold most of their land and developed an interest in the land at Kalama namely Kalama/ Kiitini/566 where the 2nd House children of Ndakava Kiiti reside.

77. The 1st house family members rely on the fact that the deceased through the elders divided Kalama/ Kiitini/566 into 2 portions as deposed by Witness Statements of Anthony Nguluma Mulinge and Boniface Kyule. This Court finds that during the deceased’s lifetime Parcel Number 412 Kathekani Settlement Scheme was not demarcated and registered in the name of 1st wife Grace kailu Kiiti. Circumstances changed after the deceased’s demise. Therefore, in the spirit of fairness, equal/equitable distribution Kalama/ Kiitini /566 ought to held by the 2nd House only.

Disposition 78. The Summons for Confirmation applications on record are compromised as follows in term as of distribution of deceased’s estate;a.Parcel Number 412 Kathekani Settlement Scheme in the names of Grace Kailu Kiitini for 1st House only.b.Parcel Number Kalama/Kitini/648 for Philip Kisilu Kiiti only.c.Kalama/ Kiitini/566 for the 2nd House only.d.Costs in the Cause.

JUDGMENT DELIVERED SIGNED DATED IN OPEN COURT ON 8/12/2023 IN MACHAKOS. (VIRTUAL/PHYSICAL CONFERENCE)M.W. MUIGAIJUDGEIn the presence of;Mr Mukula For Petitioner/1St Administrator