[2024] KEHC 11112 (KLR)

In re Estate of Mbaria Kaniu (Deceased) (Succession Cause 94 of 2011) [2024] KEHC 11112 (KLR) (19 September 2024) (Ruling)

Neutral citation: [2024] KEHC 11112 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause 94 of 2011

SM Mohochi, J

September 19, 2024

IN THE MATTER OF THE ESTATE OF MBARIA KANIU (DECEASED)

Between

Gladys Nyawira Gathii

Objector

and

Lucy Wangari Kibara

Petitioner

Ruling

1. This matter pertains to late Mbaria Kaniu a polygamous man who died intestate on 11th December, 2003 and left behind five (5) houses comprising of huge household.

2. Grant of Letters of Administration issued to Isaac Maina Mbaria and James Maina Mbaria on 12th June, 2017 was revoked and fresh grant issued to Lucy Wangari Kibara, Isaac Miana Mbaria, Isaac Maina Mbaria and James Maina Mbaria on 25th November, 2020.

3. The Petitioner filed Summons for Confirmation of Grant dated 27th September, 2021 under Section 71(3) of the Law of Succession Act and Rule 40 of the Probate and Administration Rules and supported by an Affidavit sworn by the Petitioner and wherein she proposed a mode of distribution.

4. By an Affidavit of Protest lodged by the Objector on 14th December 2021, on behalf of the 2nd and 3rd Administrators, the Objector objected to the Confirmation of the Letters of Administration in respect of the estate based on the mode of distribution proposed by the Petitioner. It was the argument of the Objector, that a meeting was held on 11th September, 2021 wherein the Petitioner was present and it was agreed that the estate be shared by the number of children. He accused the Petitioner of proposing that the estate be shared according to the houses. The Objector also proposed a mode of distribution.

5. The matter proceeded by way of viva voce evidence on 29th February, 2024.

Objector’s Case 6. OW1, James Maina Mbaria, the deceased son from the 5th house adopted his Affidavit of Protest filed on 30th November, 2021 and urged the Court to be guided by his proposal and the minutes attached thereto. Proposed that Naivasha Township 1/44/468 a commercial plot be developed and not sold. That a company be incorporated to be owned by the entire family.

7. In cross-examination, he confirmed that, prior to the deceased’s death, the 1st wife was living at Molo Kamwaura. She was displaced by clashes and moved to Lesirko, she was also buried there. He however denied that she was to be settled at Kijabe. The 2nd wife resided in Naivasha and sometimes in Lesirko and 3rd wife in Lesirko. He also denied that the deceased had mentioned that Lesirko was to be divided between the 3rd and 5th Houses.

8. He confirmed that he lives together with other siblings at Maraigushu Naivasha Block 6/102 where the 2nd and 4th wife also resided. He added that no widows are surviving. He denied that the deceased distributed his estate or that Kijabe/Kijabe should go to the Petitioner.

9. He stated that Elizabeth, 2nd wife had been collecting rental income from the Naivasha plot and he confirmed that they started collecting rent upon her demise and dividing proceeds to the 1st family. He however denied squandering the income and instead averred that they have supported medical needs as well as school fees.

10. It was his testimony that some properties be disposed of to develop the Naivasha plot and that there are no differences except with the Petitioner and that she can receive her share in monetary terms. He confirmed that valuation had not been undertaken.

11. It was also his testimony that they agreed to distribute to the ladies 0. 39 or ¼ for the ladies and the men got an acre each as girls are not entitled to inherit.

12. In re-examination he pointed out that in the meeting they agreed that there will be no discrimination of married or unmarried daughters. That they have not protested as they were present in the meeting and signed the minutes apart from the Petitioner. That the Petitioner gets 1:56 Nyandarua/Lesirko just as the male beneficiaries for the reason that she had assisted the family after the deceased had passed on and still rely on her.

Petitioner’s Case 13. PW1, Lucy Wangari stated that the deceased had five (7) wives the 1st wife Martha Wangari (deceased) had seven (7) children with only the Petitioner being alive. From the six (6) deceased only two, Wanjiku and Nyambura left behind children. The 2nd wife Elizabeth Wairimu (deceased) had seven (7) children. Three (3) are alive and the deceased ones left behind children. The 3rd wife Pricilla Muthoni (deceased) had 6 children all of whom are alive. The 4th wife Jacinta Nyokabi has nine children alive and lives in Maraigushu and finally the 5th wife lives has nine children who are still alive

14. She stated that Elizabeth and Jacinta resided on Naivasha Maraigushu 12 acres and wishes for the 2nd house to share with the 4th house as the deceased had identified where each family was to reside. LR Nyandarua/Lesirko 17. 5 acres currently occupied by the 5th and 3rd house be shared as the deceased had pointed out 5th and 3rd House to share.

15. As for Kijabe/Kijabe Block 1/1013 5 acres unallocated, she proposed that whoever buried the 1st wife should get this. She was buried at Lesirko. She was taking care of her mother who had a shamba at Kamwaura Molo/Kariba and was a victim of clashes thus fled to her house. She had wanted to construct at Kijabe.

16. Regarding Plot 1144/468 Naivasha township a commercial plot undeveloped used by the 3rd and 4th House. One has a butchery and M-Pesa business and the other has a hotel and M-Pesa business and proposed the same to be sold and proceeds be shared equally as it cannot be divided.

17. As for Molo Kariba plot 184, Geta, Plot 11 Gichaka township and North Kangema two plots she proposed that it be disposed and proceeds to be shared amongst all units equally. As for Kajwiri she stated that it was for the deceased brothers and the grandfather had distributed to his sons and does not form part of the estate. the deceased had not transferred and it should be given to the brothers who occupy the same.

18. In cross examination she also confirmed that there was a meeting and only she and their uncle agreed her proposal. That they were not 29 in attendance ass alleged and only about 18 people; she never signed the agreement and nobody signed. That there was no dialogue.

Petitioner’s Submissions 19. The Petitioner filed her submissions on 27th May, 2024 and submitted that the law does not discriminate on the female gender and the children of the deceased either male or female should be treated equal. She relied on the estate of Gathima Chege (Deceased) Nairobi HCSC No 1955 of 1996, Estate of Mariko Murumbi Kiuru (Deceased) Nairobi HCSC No. 2011 of 1997 and Grace Nguhi Mibocho (decased) Nairobi HCSC No. 1978 of 2000 to submit that all the deceased children equal be considered equal under Section 40(1) of the Law of Succession.

20. Further, it was submitted that the wishes of the deceased ought to be considered as he had settled his wives in respective parcels of land and that was an indication of the deceased intentions. The Petitioner sought to have the Court depart from the provisions of Section 40(1) of the Law of Succession Act.

21. The Petitioner also relied on the decisions in Estate of the Late Kanyari Njari Nyeri HCSC No. 570 of 2011 and Re Estate of Late Saiwanyang Ngilotich (Deceased) [2021] eKLR to persuade the Court to adopt her mode of distribution as it was a reflection of the deceased’s wishes and maintain the houses in the manner in which they settled by the deceased.

The Objector’s Submissions 22. Through submissions filed on 9th August, 2024 the Objector contended that the wishes of the beneficiaries ought to be considered. It was also submitted that since it had been agreed in the meeting that some members would get a higher share than others, there was no discrimination or illegality in the proposed mode of distribution. Further, that the Objector has all the blessings of the other beneficiaries and that the Petitioner can only argue her case.

23. That the proposal to give the Kijabe property to the 1st house was not supported by any other beneficiary and the 1st wife did not live in the property and therefore the proposal is selfish. That all the other beneficiaries are okay with the proposal agreed on by them on 11th September, 2021 and hence the Court should agree with the said proposal.

24. It was argued that no other beneficiary disputed the proposed mode of distribution by the objector and further no other beneficiary confirmed to the Court that the deceased had expressed his wishes as to distribution of the estate.

25. On the issue of accounts of rental income from Naivasha 1144/468, the Objector submitted that it would not be in the interest of justice not to reopen the issue as the Petitioner confirmed the monies were used for the entire family.

Analysis and Determination 26. After carefully analyzing the pleadings, the two proposed modes of distribution and the submissions on record, before this Court for determination is firstly the Confirmation of the Grant issued on 25th November, 2020 and secondly distribution of the estate of the deceased herein.

27. No oral or written Will has been placed before Court and therefore the deceased died intestate. The Applicable law on Confirmation of Grants is provided for under Section 71 of the Law of Succession Act, (the Act) and Rule 40 of the Probate and Administration Rules.

28. Pertaining confirmation of grant, Section 71 of the Act provides thus: -“71. Confirmation of grants1. After the expiration of a period of six months, or such shorter period as the court may direct under subsection (3), from the date of any grant of representation, the holder thereof shall apply to the court for confirmation of the grant in order to empower the distribution of any capital assets.2. Subject to subsection (2A), the court to which application is made, or to which any dispute in respect thereof is referred, may-a.if it is satisfied that the grant was rightly made to the applicant, and that he is administering, and will administer, the estate according to law, confirm the grant; orb.if it is not so satisfied, issue to some other person or persons, in accordance with the provisions of sections 56 to 66 inclusive, a confirmed grant of letters of administration in respect of the estate, or so much thereof as may be unadministered; orc.order the applicant to deliver or transfer to the holder of a confirmed grant from any other court all assets of the estate then in his hands or under his control; ord.postpone confirmation of the grant for such period or periods, pending issue of further citations or otherwise, as may seem necessary in all the circumstances of the case:”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 the grant shall specify all such persons and their respective shares.”

29. Rule 40(4) of the Probate and Administration Rules provides that“Where the deceased has died wholly or partially intestate the applicant shall satisfy the court that the identification and shares of all persons beneficially entitled to the estate have been ascertained and determined”

30. From the pleadings and testimonies, there are certain issues that stand out. For starters there seems to be a disconnect on the number of children that the deceased had with the first and the second wives or the actual number of beneficiaries of the estate remaining from those two houses and their survivors. The Petitioner in her sworn testimony stated that the first and second houses had seven (7) children each. She further stated that the only two (2) of the dependents in the first houses left behind children whereas the all the seven (7) in the second house left behind children.

31. From the Objector and as per the Chief’s letter dated 19th November, 2010 it appears there are only 3 children each from the two houses. There is no dispute as to the number of children in the third, fourth and fifth houses.

32. The meeting held on 11th September 2021 was attended by twenty-seven individuals. With the exclusion of the Petitioner and her son the number of beneficiaries present to consent to the Objector’s proposal as claimed is still less. The Objector in his affidavit claimed to have authority from some of the beneficiaries and listed them in his affidavit. What of the other deceased’s beneficiaries not listed or part of the meeting? Are they part of the process?

33. Secondly daughters of the deceased from the second house were all married with children. The children or members of those families that survived the beneficiaries have not been identified despite being mentioned. For instance, it has not been ascertained or disclosed the position of the survivors Dorcas and Margaret from the second house. The law under Rule 40(4) envisages full disclosure of persons beneficially entitled to the estate. The rights of those survivors are not extinguished and are protected under of Section 41 of the Act. They take up the share that should have gone to their parents and should be part of the discussion.

34. Musyoka J in re Estate of Samson Amasini Adeya (Deceased) (Succession Cause 151 of 2011) [2022] KEHC 14839 (KLR) (4 November 2022) (Judgment) opined that: -“…To ensure distribution in accordance with section 40, the administrators ought to make a full disclosure of all the survivors of the deceased, by disclosing all the surviving spouses, their children and grandchildren, in case some of the children have died and have been survived by children, all grouped or categorized according to the houses to which they belong. That would assist the court in distributing the estate strictly in accordance with the requirements of section 40…”

35. Further, upon being ascertained, disclosed and listed, the survivors of deceased’s beneficiaries are expected to participate in the process or at least be aware of the process and the discussions thereto. Those who opt out of their share of the estate are expected file documents in Court renouncing their share. At no point does the law force those survivors to take up shares in the estate if the opt not to. the law cannot also force them to take up what they are legally entitled to if the chose to take up a lesser share. The law however, envisages full disclosure, all those beneficially entitled being allowed to make decisions for themselves and then either renouncing those shares or abdicate on their rights.

36. Musyoka J. In re Estate of Josephat Otande Okuku (Deceased) [2019] eKLR stated that:-“22…..The effect of the two provisions above is that the court will have to be satisfied, before it confirms a grant in intestacy, that all the persons entitled to a share in the estate have been properly identified and that the shares in the estate to which they are entitled have also been identified, so that after confirmation the certificate of confirmation of grant would reflect all such persons and the shares allotted to them.”

37. The other critical consideration would be to confirm whether all the assets of the estate have been ascertained and proven. The estate of the Deceased is said to comprise of about ten (10) or eleven (11) parcels of land namely:- Kijabe / Kijabe Block 1 / 1013; Naivasha Maraigushu Block 6/102; Nyandarua / Lesirko / 2865; Plot No. 11 Kichaka Township Oraimutia; Plot No. 38 Geta Township; Plot No. 1144/ 468 Naivasha Township; (Italian) North Kangema -Two (2) plots; Molo Kariba No.184 and Gilgil/Gilgil Karunga Block

38. On perusal of the record, the only ownership documents presented are for properties Nyandarua/Lesirko/2865, Naivasha/Maraigushu/Block 6/102, and Kijabe/Kijab/Block 1/1013. The Court can only concern itself with these properties or otherwise risk issuing orders to no purpose. All the property available for distribution must be proved to be such.

39. Further the Objector claims to have the authority of Richard Mbaria who is the survivor of the late Hannah Wanjiku Kiarie from the first house and who is said to be currently suffering from memory loss. In such a case the Objector has to demonstrate to this Court that he has the authority to act on behalf of the said Richard Mbaria based on this new development of him suffering from memory loss. He was part of the meeting therefore at what point did he start experiencing memory loss and to what extent is what the Court has not been informed. Does he have children and are they aware of the said ‘authority to act’?

40. As regards distribution, Part V of the Act provides for the disposition of intestate estates. Having established the deceased died intestate, it is not in doubt that he was also a polygamous man. He had five (5) wives and only two (2) are surviving. Each widow had children some surviving and others deceased. The Applicable law in this case is Section 40 of the Act which caters for distribution where the deceased had married more than one wife and it provides that:-“40(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.”

41. The Petitioner proposed that the estate should be distributed according to the houses and not according to children. She further submitted that Section 40(1) of the Act considers all children irrespective of gender, equal and as such the Court should uphold the same. On the other hand, she suggested that on the part where each beneficiary is considered a unit should be disregarded and the estate be distributed according to the houses.

42. The Petitioner strongly argues that the deceased had settled all his wives in their respective properties and that the deceased had wanted the first wife to construct at Kijabe/Kijabe Block 1/1013. She contended that being the first born, she was aware of the wishes of the deceased. There is nothing on record to support the assertions and none of the surviving beneficiaries have come out to support those assertions. Therefore, having not tabled proof before Court the estate can only be distributed in accordance with the law.

43. Pertaining the Objector’s proposed mode of distribution, the sons are allocated 1. 56 or 1. 6 acres while the daughters are allocated a paltry 0. 39 or ¼ of an acre. The Objector submitted and acknowledged that the applicable law is Section 40 of the Act but invited the Court to consider the wishes of the beneficiaries as per the minutes of the meeting held on 11th September, 2011. From the hearing and the oral testimony of the Objector, the basis on which he proposed the allocation to the daughters and argued strongly in favour of was that, girls do not inherit.

44. The assertion that girls do not inherit by the Objector is discriminatory and goes against the spirit of the Constitution and the Law of succession Act. The rights of women to land are legally equal to those of men under Article 27 which provides that,(2)“equality includes the full and equal enjoyment of all rights and fundamental freedoms”(3)“women and men have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social spheres.”

45. In the same breadth, Article 60 (1) (f) of the Constitution provides for the elimination of gender discrimination in customs and practices related to land. It gives everyone, both men and women, the right to inheritance and an unbiased access to land.

46. In the minutes at paragraph 4 they even go ahead to say girls will be content with what they get the women get a quarter and the men an acre. In the Objector’s proposed mode of distribution, it is clear men a getting more that the agreed acre. The Objector admits that the Petitioner will get the same share as the men because she took steps towards securing the assets of the deceased. If she had not, then she would suffer the same fate as the other daughters? There is a clear differential treatment of women in the Objector’s proposal. The fact that there was a discussion as to what sons get as opposed to what daughters get in itself an indication of bias.

47. The distribution proposed by either side is unequal and does not abide by the law. Section 40 of the Act provides that each member is regarded as a unit including the surviving widows of the deceased. Going by the prescriptions of Section 40 of the Act, the estate of the deceased ought to be distributed amongst the houses of the deceased proportionate to the number of survivors in each house.

48. All the foregoing factors considered it is clear this grant is not ripe for confirmation and the Court is not satisfied as to the respective identities of all persons beneficially entitled or the assets of the deceased and herby direct that: -a.Confirmation of the Grant dated 25th November, 2020 and distribution of the estate is postponed by virtue of Section 71(2)(d) of the Law of Succession Act until compliance with the following directionsi.Copies of all ownership document of all the assets of the deceased up for distribution to be filed afresh;ii.The Petitioner does file afresh an updated list of beneficiaries including the deceased beneficiaries and their survivors if any within fourteen (14) days from this date;iii.Any of the beneficiaries or survivors of the beneficiaries who do wish to renounce their rights to the estate or who wish to accept a share lesser than what they are entitled to as proposed to, shall file an affidavit to the effect within the next twenty-eight (28) Days from this date;iv.Mention to confirm compliance to be Assigned by the Court Assistant Court number 3, subject to the court diary; andb.This being a family matter there shall be no order as to costs.It is so ordered.

SIGNED, DATED AND DELIVERED AT NAKURU ON THIS 19TH DAY OF SEPTEMBER, 2024. MOHOCHI S.M.JUDGE