[2022] KEHC 2733 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

SUCCESSION CAUSE NO. 200 OF 2012

RE ESTATE OF MAIMBA GICHUKI alias KARURI GICHUKI (DECEASED)

EMILY WAMENDI MAIMBA.........................................PETITIONER

VERSUS

JOAKIM GATINU MAIMBA..................................1ST PROTESTOR

JOSEPH GICHUKI MAIMBA...............................2ND PROTESTOR

JUDGMENT

1. Maimba Gichuki alias Karuri Gichuki (hereafter the deceased) died intestate on 11th November 1979. His widow, Lucy Wanjiru Maimba, applied for a grant of letters of administration. However, she died on 13th November 2012 and was substituted by her daughter, Emily Wamendi Maimba, the present petitioner.

2. The two protestors, Joakim Gatinu Maimba and Joseph Gichuki Maimba, are sons of the deceased. The deceased’s other children are Susan Njoki Maina, Rebecca Njeri Maina and Catherine Nyambura Maimba.

3. Unfortunately, the children are squabbling over the distribution of the deceased’s four properties known as Loc.9/Kiruri/96; Loc.19/Kiawambogo/827; Loc.19/Kiawambogo/821; and, Loc.19/Kiawambogo/Wanjerere/T.86 (hereafter the suit properties).

4. According to the substituted petitioner, the just course would be for all the children to share the estate as more particularly set out in her further affidavit sworn on 23rd February 2021. Her position is supported by her three sisters. The daughters oppose the modes of distribution proposed by either of their two brothers (the protestors) for giving some of them a lesser share; or, entirely locking out one of them from inheritance.

5. The 1st protestor proposes to inherit all the 4. 6 acres in Loc.19/Kiawambogo/827 and a further 8. 6 acres in Loc.19/Kiawambogo/821. The remainder of the latter being 5. 1 acres would then go to his brother (the 2nd protestor). He proposes further that each of his four sisters gets 1. 5 acres in Loc.9/Kiruri/96 while his brother (the 2nd protestor) would retain 3. 53 acres. Regarding plot Loc.19/Kiawambogo/Wanjerere/T.86, he opines that it should be shared equally by all the children of the deceased.

6. The 2nd protestor’s case on the other hand is that the deceased died before the Law of Succession Act came into force. Accordingly, his two married sisters, Rebecca and Susan, should not get a share of the estate. He proposes that his two other sisters, Emily (petitioner) and Catherine, get 2 acres each. While he has no objection to his brother retaining the whole of Loc.19/Kiawambogo/827, he proposes that plot Loc.19/Kiawambogo/Wanjerere/T.86 devolve to his cousin, Flora Njeri Kanyiri.

7. On 22nd October 2020, I directed that viva voceevidence be taken. The petitioner and two protestors testified in the matter.

8. The petitioner (PW1) relied partly on her witness statement dated 23rd February 2021. She testified that the modes of distribution proposed by her brothers were discriminatory and unfair.

9. She denied that her brother, Joachim Gatinu, purchased Loc.19/Kiawambogo/827. She made reference to earlier proceedings in the subordinate court in which her late mother testified that the piece of land belonged to the family. I must point out at the earliest that those proceedings and judgment were set aside by the High Court (Mitey J) on 9th January 2003 who ordered a retrial.

10. PW1 said that when her father died, all the children were residing on Loc.19/Kiawambogo/821. At the moment, she, her sister and brother Joseph live on Loc.9/Kiruri/96 but their portions are not demarcated. Her portion is about 5 acres. She and Joseph (2nd protestor) utilize the larger portion.

11. In answer to cross examination, she replied that Loc.19/Kiawambogo/827 is occupied exclusively by her two siblings Joachim Gatinu and Catherine Nyambura. Loc.19/Kiambogo/821 on the other hand is occupied by Joseph Gichuki, Joachim Gatinu and Catherine Nyambura. Her dwelling house is on that land but she does not cultivate there.

12. She conceded that her two sisters, Njoki and Rebecca, have been married for over 30 years; that they live on their respective husbands’ properties; and, that they do not utilize any part of the estate. She opined that Loc.19/Kiawambogo/Wanjerere/T.86 should be distributed equally among the heirs as there was no evidence that it was sold.

13. The 1st protestor (DW2) relied on his witness statement dated 8th March 2021. He testified that his sister, Susan Njoki, married Josphat Maina in 1977 and resides at Karurumo. His other sister, Rebecca Njeri, married Wilson Maina around 1979. The two have never cultivated the deceased’s land since their marriage; and, they were not gifted land by their father.

14. Like I stated, DW2 proposes that all his four sisters get 1. 5 acres each out of Loc.9/Kiruri/96. Regarding Loc.19/Kiawambogo/827, he lays claim to the entire 4. 6 acres on the grounds that he purchased it in 1964 from Mariko Karimi Gichuki. He was 21 years then and employed by a company styled Mdkampf Insurance on a salary of Ksh.450 per month. He claimed that he got a loan from his employer of 1,100. He gave the money to the deceased who registered the land in his (deceased’s) name.

15. But upon cross examination, he conceded that he neither had the sale agreement nor documentary evidence on his salary or the loan facility. He stated that “Mariko Karimi sold it to my father. I did not sign the agreement”. When examined further, he answered that: “Iwas not involved in the actual sale of Loc.19/Kiawambogo/827. The documents were with my mother who confirmed it”.

16. The 2nd protestor (DW1) relied on his witness statement dated 20th April 2021. He also referred to his two affidavits sworn on 14th December 2020 and 28th January 2021. He clarified that the “Njeri” referred to in his affidavit of protest is Flora Njeri Kanyiri, a cousin, and not his sister Njeri. He claimed that Flora Njeri Kanyiri purchased Loc.19/Kiawambogo/Wanjerere/T86 from their “mother and the family” and that she is in possession.

17. But upon cross examination, he conceded that:

I do not have an agreement of sale. The sale took place after the death of my father. The sale took place during the subsistence of the case.

18. The witness said that he resides on Loc.19/Kiawambogo/821 together with Joachim Gatinu and Catherine Nyambura but that he occupies a bigger portion than Catherine. He and Emily (the petitioner) cultivate Loc.9/Kiruri/96. DW2’s son has a house there. He added that Loc.19/Kiawambogo/827 is utilized by both Joachim and Catherine.

19. When examined further on his witness statement, he said-

In my statement I have said two of my sisters should not inherit because they got married over 30 year ago. I have said Emily and Nyambura should only get 2 acres each. My mother used to say we educate them and we should be left with the land. Emily and Nyambura live with us. They are not married

20. Learned counsel for all the disputants have filed their submissions with lists of authorities. The petitioner’s submissions were lodged on 14th December 2021; those by the 1st protestor on 9th December 2021; and, those by the 2nd protestor on 27th October 2021.

21. I take the following view of the matter. The deceased died before the Law of Succession Act came into effect. He was a Kikuyu. The Act commenced on 1st July 1981. Section 2 (1) expressly provides that it shall apply to the estates of persons dying aftercommencement of the Act. I thus readily find that the Act could not apply retrospectively to the estate of Maimba Gichuki. See Re estate of Martha Nyambura Njoroge, High Court, Murang’a Succ. Cause 330 of 2013 [2018] eKLR.

22. Section 2 (2) further provides that estates of persons who died before commencement of the Act are subject to the written laws and customsapplying at the date of death.

23. I thus find that the estate of the estate was governed by Kikuyu customary law. The pertinent question is whether the custom was in conformity with section 3 of the Judicature Act and juxtaposed against the Constitution of Kenya. My view is that the Constitutiondid not outlaw our customs or trash them. No evidence was led to suggest that Kikuyu customary law on intestate succession is repugnant to morality or justice. See MWG v EWK, Court of Appeal, Eldoret, Civil Appeal 20 of 2009 [2010] eKLR. See in particular the dissenting opinion of Nyamu JAin that case.

24. It is not controverted that Susan Njoki got married to Josphat Maina in 1977 and resides at Karurumo. That was well before the death of the deceased. It is also common ground that Rebecca Njeri married Wilson Maina around 1979. Both marriages are still subsisting. The two daughters have never occupied or cultivated the deceased’s land since their marriage. There was also no evidence that any of them was given any land by the deceased.

25. Those two daughters are not entitled to inherit their father’s estate. See Cotran, Eugene Restatement of African Law: 2, London, Sweet & Maxwell (1989). I readily find that it would be unjust and inequitable for them to stake a claim on the estate. However, their two sisters, Emily Wamendi Maimba and Catherine Nyambura Maimba, who are unmarried and have remained on the estate are entitled to inherit their father.

26. Joakim Gatinu Maimba (the 1st protestor) claims that he purchased Loc.19/Kiambogo/827. A cardinal precept of the law of evidence is that he who alleges must prove. See sections 107 and 108 of the Evidence Act. The evidence before me does not prove, on a balance of probabilities, that he purchased the land or that it was held in trust for him by the deceased.

27. I say so for a number of reasons. Firstly, he did not marshal sufficient evidence to establish that he gave the deceased the purchase money. Secondly, he did not produce his employment records or evidence of the loan facility from Mdkampf Insurance to back up his claims. Thirdly, he freely conceded that he did not execute the sale agreement.

28. Furthermore, there are discrepancies in his earlier evidence. For instance, in his affidavit of protest dated 9th June 1994 in the lower court, he did not state that he bought the land. In the current witness statement dated 8th March 2021 he simply states that he bought the land. It is a bare statement unadorned by particulars.

29. In short, he was unable to establish that he purchased the land or that the deceased held it in trust for him. To be fair to him, his late mother may have supported his claims in the lower court. But as I stated, those proceedings were set aside by the High Court. I thus find that Loc.19/Kiawambogo/827 forms part of the estate of the deceased.

30. The 2nd protestor, Joseph Gichuki Maimba, testified that a person known as Flora Njeri Kanyiri purchased Loc.19/Kiawambogo/Wanjerere/T.86 from his late “mother and family”. He alleged that the purchaser is in possession. He was in a lonely corner because all the other children of the deceased denied the sale. No documentary evidence of the transaction was availed. It follows as a corollary that the plot remains part of the estate.

31. By dint of sections 27, 28 and 35 of the Law of Succession Act, the court has been clothed with wide discretion to provide for dependents or beneficiaries. The distribution is not necessarily equal but equitable. In this case I have been partly guided by the portions occupied by the heirs, the evidence and materials before me and the justice of the case.

32. My final orders are thus as follows-

a) That Susan Njoki Maina and Rebecca Njeri Maina are not entitled to a share of the deceased’s estate.

b) That Loc.19/Kiawambogo/Wanjerere/T.86 measuring 0. 13 acres or thereabouts shall be shared equally between Emily Wamendi Maimba, Joakim Gatinu Maimba, Joseph Gichuki Maimba and Catherine Nyambura Maimba.

c) That Loc.19/Kiawambogo/827 measuring 4. 6 acres or thereabouts shall be divided between Joakim Gatinu Maimba (3 acres); and, Catherine Nyambura Maimba (1. 6 acres).

d) That Loc.9/Kiruri/96 measuring 9. 3 acres or thereabouts shall be divided between Emily Wamendi Maimba (5 acres); Joseph Gichuki Maimba (3. 3 acres); and, Catherine Nyambura Maimba (1 acre).

e) That Loc.9/Kiruri/821 measuring approximately 13 acres shall be distributed to Joakim Gatinu Maimba (6 acres); Joseph Gichuki Maimba (5 acres); and, Catherine Nyambura Maimba (2 acres).

f) The grant shall be confirmed in terms of this judgment.

g) Each party shall bear its own costs.

It is so ordered.

DATED, SIGNED AND DELIVERED AT MURANG’A THIS 3RD DAY OF FEBRUARY 2022.

KANYI KIMONDO

JUDGE

Judgment read in open court in the presence of:

Mr. Gichuki Waiganjo holding brief for Mr. Kariuki for the petitioner instructed by Tim Kariuki & Company advocates.

Mr. J. N. Mbuthia holding brief for Mr. Mwangi for the 1st protestor instructed by Mwangi Kamau & Company advocates.

Mr. J. N. Mbuthia for the 2nd protestor instructed by J. N. Mbuthia & Company advocates.

Ms. Susan Waiganjo, Court Assistant.