[2022] KEHC 9801 (KLR)

In re Estate of Kiswii Mutwanyaa (Deceased) (Succession Cause 83 of 2017) [2022] KEHC 9801 (KLR) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9801 (KLR)

Republic of Kenya

In the High Court at Makueni

Succession Cause 83 of 2017

GMA Dulu, J

July 21, 2022

(FORMERLY MACHAKOS HC SUCCESSION CAUSE NO. 15 OF 2012) IN THE MATTER OF THE ESTATE OF KISWII MUTWANYAA (DECEASED)

Between

Pius Mutunga Munyao

Petitioner

and

Mary Kitulu Kyuvi

Objector

Ruling

1. This is a contested application for confirmation of grant of letters of administration. The summons for confirmation herein is dated October 30, 2012, in which the administrator herein Pius Mutunga Munyao applied for confirmation of grant of letters of administration in the estate of Kiswii Mutwanyaa. He is a grandson of the deceased and all the listed beneficiaries are said to be grandsons or granddaughters and daughters in-law of the deceased.

2. He lists two properties that is land parcel No. Nzaui/Nziu/226 and Nzaui/Nziu/238 which are proposed to be distributed in the names of Alex Yumbya Muinde and Geoffrey Kimanthi Mbuno respectively, both of whom are not among those listed as survivors or beneficiaries of the deceased Kiswii Mutwanyaa.

3. The listed survivors or beneficiaries of the deceased are Jacinta Mumbua Munyao daughter in law, Samuel Munyao grandson, Geoffrey Muli Munyao grandson, Pius Mutunga Munyao grandson, Joseph Kisui Munyao grandson, Murithi Musyanga grandson, Katuku Munyao granddaughter, Mutinda Munyao grandson, Waiu Munyao grandson, and Kamenwa Mutuku daughter.

4. To this application for confirmation of grant and the proposed mode of distribution of the assets, Mary Kitulu Kyuvi (the objector) filed an affidavit of protest claiming to be a wife of a great grandson of the deceased and in particular claiming to be entitled to a portion of land parcel No. Nzaui/Nziu/226, which she claimed to have been in occupation for long, as it was ancestral land registered in trust for her benefit, among others. According to her the land was registered in the name of Kiswii Mutwanyaa as trustee for the family of Nthale Mutwanyaa, among others.

5. The matter proceeded by way of tendering oral evidence. In this regard, the objector called two witnesses. Dw1 was the protestor Mary Kitulu whose evidence was that the deceased Kiswii Mutwanyaa was the grandfather of her husband. It was also her evidence that Pius Mutunga Munyao the petitioner is a son of Munyao a son of the deceased herein.

6. It was her further evidence that parcel Nzaui/Nziu/266 was ancestral land registered in the name of Kiswii Mutwanyaa in trust and that she had been living on the said land for 45 years, while Pius Mutunga Munyao lived on another parcel of land, both of which were ancestral land.

7. It was her evidence that the deceased had two wives and thus the land had to be divided among the two houses and that Pius Mutunga Munyao is from the other house. She stated further that there was another plot No.227 and that there was a clan meeting in 1992 wherein it was resolved that she inherits the portion of plot No. 266, which was the entitlement of her late husband.

8. She complained that the petitioner had now filed a proposed mode of distribution of the assets of the deceased, and excluded her from the list of beneficiaries, by proposing that the parcel 266 be devolved to Alex Yumbya Muinde, a purported buyer, who was a stranger to the family lineage and not a beneficiary. She stated, in cross examination, that she did not personally attend the clan meeting in 1992 which discussed the sharing of the land but maintained that the meeting did take place. She said that the deceased herein died in 1974 and, that the parcels of land he left behind were Nzaui/Nziu/235, 266 and 243. According to her, plot No.226 was wrongly registered in the name of Kiswii, because the Nthale family had occupied and was entitled to that parcel as they had no other land.

9. Ow2 was Paul Mulu Kimomo, whose evidence was that the objector was the wife of Ngui Vandika. He also knew the petitioner/respondent Pius Mutunga Munyao.

10. It was his evidence that he belonged to the same clan as the deceased, the Akitiku clan. He stated that, having been born in 1960, he was 13 years old in 1973 when adjudication took place. He stated that Ngui’s father was Vandika Mutunga and the mother was Mukulwa Vandika. He stated that he attended the clan meeting in 1992 which discussed the land matter, when he was 32 years old and a clan elder. He was aware thatin 1992 the deceased herein had already died and that he was the registered owner of the land. That was the objector’s evidence.

11. The petitioner Pius Mutunga Munyao on his part, testified that the deceased herein was his paternal grandfather, and that his father was Munyao Kiswii. It was his evidence that the objector was from their clan, but not same house.

12. It was his further evidence, that when he applied for confirmation of grant, the objector filed an objection. He stated that his grandfather had one wife, but the great grandfather had two wives. He agreed that the objector Mary Kitulu was married in the house of Ndunya and was married to Ngui Vandika a son of Mutisya. He produced document on plots owned or in the name of his grandfather.

13. He stated that the objector had no right to claim land, as she was not related to the deceased. He contended that no one had sold her land. He maintained that plot No.226 belonged to his grandfather.

14. He stated in cross examination, that his father died on February 18, 1975 when he was 7 years old. He agreed that land survey was done in 1969 when he was young. He agreed also that the objector currently occupied land No. 226 since marriage in 1994, when his father was alive.

15. He denied that there was a clan meeting on March 24, 1992. He agreed that his great grandfather owned plots 226, 227, 238 and 239, but denied ownership of plot 84. He agreed that Mukeku and Vandika were brothers, and that Mary’s (objector’s) husband was Vandika’s son.

16. In re-examination, he stated that his father died in 2009, and said that he got the clan history from him. He agreed also that there was a meeting held in 1992 at the house of Vandika’s mother, wife of Mutisya. At that time, the succession cause had not been filed. He said that land registration was done in 1974, before his grandfather died in 1975. He agreed that the objector was married in 1994 and that she entered plot No.226 then.

17. Pw1 was Mary Nduku Kamama alias Kamenwa Mutuku. It was her evidence that Pius Mutuku was her nephew, and a son of Kiswii Munyao. She also said that she knew Mary Kituku the objector, who was not from their father’s house.

18. In cross examination, she said that she did not know the objector but knew Vandika and Ngui. She stated that though the objector lived on the land in dispute, she had not lived there for long. She stated that the objector, found her mother in law living on the land. According to her, her father gave the objector permission to work on that land. She stated that the objector has built on that land, and that the petitioner merely asked her to move out.

19. She stated further, that Mutwanyaa had three wives Ndhuma, Weiyo and another, and that she herself was from Weiyo’s house. She stated that the protestor was from Ndhuma’s house. It was her evidence that in 1992 there was a clan meeting which she attended where it was decided that the objector moves out of the land. According to her, the land had been lawfully registered in the name of Kisiwii.

20. In cross-examination, she said that there were minutes to the 1992 meeting. She agreed that Kasina was her cousin, Mwau was from another house, and that Julius Mwania and Mukuku were cousins to Kisiwii. She also stated that Vandika Mutisya was from Ndhunya’s house and the father of Ngui, that Kimonde Mutisya was wife of Vandika, and that Musyoki was from another house, that Kassimu Mukeku was from Ndhunya’s house and that Munyao Kisevii was petitioner’s father. She stated also Kitundu Kilonzi was not their relative, and that Kisanga Kiswii was a brother of Munyao Kiswii.

21. She further agreed that the objector had been given the portion of land where she had built and that the clan planted sisal as boundary, but that she uprooted and threw the sisal away. She said that the objector lives on Kisevii’s land.

22. After the close of the parties evidence, the parties’ counsel filed written submissions. In this regard, I have perused and considered the submissions filed by O.N Makau & Mullei for the objector, and the submissions filed by Nzei & company for the petitioner.

23. From the evidence on record, the petitioner herein is a grandson of the deceased Kiswii Mutwanyaa, and not a son. He claimed initially that he did not know the objector, as she was a complete stranger. However, later in evidence, he and his witness admitted that the objector was married in their larger family, and that infact she had lived and built on the subject land No. 226, and that had so occupied that land even when the petitioner’s father was alive.

24. Counsel for the petitioner has relied on a legal technicality that this court does not have jurisdiction to deal with the issue of customary trust rights in land matters. That is not entirely true because this matter is primarily a succession and inheritance matter among relatives not strangers, and proof of trust can actually be inferred through the family conduct and arrangements, which can assist the succession court to determine inheritance matters. This court thus has jurisdiction herein.

25. Though there is an allegation that a clan meeting in 1992 decided that the objector leaves the subject land, in my view, such resolution was not proved as no specific reference to that resolution was either referred to the court in evidence, nor specifically highlighted by counsel on record.

26. What comes out in evidence herein, in my view, is an attempt to evict the objector from the land which she has occupied and built on during the life of the parents of the petitioner. Thus, in terms of the provisions of the Law of Succession Act, the petitioner should have disclosed her in the documents filed by him in court, as a dependent as occupier of the deceased’s land, as she was a woman legitimately married in that large family, and thereafter, the issue of which particular land she will be entitled to be determined during distribution of the assets, just, like for any other dependant or survivor. The petitioner, in any event, had no legal power or authority to sell the land before conclusion of succession proceedings herein. Thus his attempt to distribute the land to strangers can be challenged.

27. Thus, with respect to the objection proceedings herein, therefore, I find that the objector is a dependant and beneficiary of the deceased herein, as a married woman in the family and an occupant and developer of land Nzaui/Nziu/266, and that she is entitled to have a share of land in the estate of the deceased herein. I will thus grant her a share of the land.

28. Before I conclude, I wish to state that the Chief’s letter is meant to assist the court in determining the known beneficiaries of a deceased person’s estate; it is not conclusive authority or evidence to establish the beneficiaries. Thus someone listed in the Chief’s letter as survivor or beneficiary can be proved though evidence to be a stranger, and someone not listed in the letter, can still be proved through evidence to be a beneficiary.

29. Having found that the objector is a beneficiary to the estate of the deceased herein, and bearing in mind that the proposed mode of distribution is for Nzaui/Nziu/226 to be registered in the name of Alex Yumbya Muindi, and Nzaui/Nziu/238 to be registered in the names of Geoffrey Kimanthi Mbuno, and Nzui/Nziu/266 said to be being 2. 6 hectares, and Nzaui/Nziu 238 1. 0 hectares, I order that parcel Nzaui/Nziu/266 will be divided in two equal shares, and the objector will get 1. 3 hectares.

30. I thus order as follows:1. The objector herein Mary Kitulu Kyuvi is a beneficiary of the estate of the deceased herein.2. The two listed land properties in the estate will be distributed as follows –a)Parcel Nzaui/Nziu/266 will be divided into two equal parts, and the objector Mary Kitulu Kyuvi will get half of the land (1. 3 hectares) which will include her house on the land. Alex Yumbya Muindi will get the other half.b)Nzaui/Nziu/ 238 will be in the name of Alex Geoffrey Kimanthi Mbuno as proposed.c)A surveyor will survey and divide parcel Nzaui/Nziu/266 into two equal portions and the objector will get one half of it as in (a) above. The petitioner and the objector will each bear 50% cost of the survey.d)Confirmed certificate of grant of letters of administration to issue and assets distributed as above.

31. Parties will bear their respective costs of the succession proceedings herein.

DELIVERED, SIGNED & DATED THIS 21ST DAY OF JULY 2022, IN OPEN COURT AT MAKUENI.GEORGE DULUJUDGE