[2023] KEHC 24506 (KLR)

In re Estate of M’Elongi Itiame alias Erongi Itiame (Deceased) (Succession Cause 224 of 2010) [2023] KEHC 24506 (KLR) (26 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24506 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 224 of 2010

TW Cherere, J

October 26, 2023

IN THE MATTER OF THE ESTATE OF M’ELONGI ITIAME alias ERONGI ITIAME (DECEASED)

Between

Miriti Robert Elongi

Petitioner

and

Benjamin Ntongai Kabira

Administrator

Ruling

Background 1. M’Elongi Itiame alias Erongi Itiame (Deceased) died sometimes on 25th July, 1984. Deceased’s estate comprises of LR. Amwathi/Maua/2610, LR. Amwathi/Maua/3378 and LR. Amwathi/Maua/9526.

2. The chief’s letter dated 29th April, 2010 filed together with this cause discloses that deceased was survived by the following dependents:Widows1. Ciondia M’Itiame2. Nyoroka M’itiameChildren1. Robert Miriti M’Elongi2. Richard Murungi M’Elongi3. Cornelius Mutuma Kabira4. Peter Kaberia Kabira5. Fredrick Kirimi Julius6. Henry Nkunja Kabira7. Jacob Itiame8. Benjamin Ntongai Kabira9. Lucy Kathure10. Gladys Mwende

3. By an order dated 20th February, 2019, this court appointed Miriti Robert Elongi and Benjamin Ntongai Kabira as joint administrators of the estate and directed Miriti Robert Elongi, the Petitioner/1st Administrator to apply for confirmation of the grant within 30 days.

4. Subsequently by an affidavit dated 04th March, 2019, the Petitioner/1st Administrator proposed to distribute the estate as follows:LR. Amwathi/Maua/2610 (1. 63 acres)1. Peter Kaberia Kabira 1 acre2. Cornelius Mutuma Kabira 0. 63 acresLR. Amwathi/Maua/3378 (6. 95 acres)1. Nyoroka M’itiame 0. 6 acres2. Benjamin Ntongai Kabira 1. 25 acres3. Margaret Muiti w/o Jacob Itiame 1. 00 acre4. Henry Nkunja Kabira 1. 00 acre5. Richard Murungi M’Elongi 1 acre6. Miriti Robert M’Elongi 1. 20 acres7. Lucy Kathure 0. 10 acres8. Gladys Mwende 0. 10 acresLR. Amwathi/Maua/9523(0. 50 acres)Ciondia M’Itiame

5. Petitioner/1st Administrator proposal was supported by all the beneficiaries except Benjamin Ntongai Kabira the 2nd Administrator who made the following proposal:LR. Amwathi/Maua/2610 (0. 50 acres)1. Miriti Robert M’Elongi 0. 30 acre2. Gladys Kathuure 0. 10 acre3. Ciondia M’Itiame 0. 10 acresLR. Amwathi/Maua/3378 (7. 45 acres)1. Benjamin Ntongai Kabira 5. 45 acres2. Henry Nkunja Kabira 1. 00 acre3. Jacob Itiame (deceased) 1. 00 acreLR. Amwathi/Maua/9526(1. 65 acres)1. Cornelius Mutuma Kabira 0. 50 acres2. Peter Kaberia Kabira 0. 50 acres3. Richard Murungi M’Elongi 0. 50 acres4. Fredrick Mitu M’Elongi 0. 30 acres5. Lucy Kathure 0. 05 acres6. Nyoroka M’Itiame 0. 10 acres

6. After it became apparent that the parties could not agree on the mode of distribution, the court directed that the matter be heard on merit.

Petitioner’s case 7. Miriti Robert Elongi, the Petitioner/1st Administrator opposed distribution of LR. Amwathi/Maua/3378 as proposed by the 2nd Administrator on the ground that his proposal that the same be distributed to Benjamin Ntongai Kabira, Henry Nkunja Kabira and the family of Jacob Itiami(deceased) who are in occupation is reasonable. It was also his evidence that the proposal that LR. Amwathi/Maua/9526 be distributed to Ciondia M’Itiame is also based on the same ground that she is in occupation of that land.

2nd Administrator’s case 8. Benjamin Ntongai Kabira the 2nd Administrator- stated that he had used his resources to recover LR. Amwathi/Maua/3378 and was therefore entitled to a bigger share of the estate but in cross-examination conceded that he did not have any proceedings to support his claim. He however supported the 1st Administrator’s proposal to distribute LR. Amwathi/Maua/9523 to deceased’s surviving widow Ciondia M’Itiame.

9. Julius Mbaabu conceded that deceased did not make any expression concerning how he wanted his estate distributed and that it was the 2nd Administrator who informed him that his father wished that he gets a bigger share of LR. Amwathi/Maua/3378.

Analysis and determination 10. I have considered the proposed modes of application for revocation in the light of the affidavits and annexures thereto, the oral evidence and submissions of the parties and I have deduced the following issues for determination:1. Whether deceased made a wish concerning distribution of his estate2. How ought the estate be distributed?

Whether deceased made a wish concerning distribution of his estate 11. The case by the Applicant is that deceased wished that he gets a bigger share of LR. Amwathi/Maua/3378 which he had allegedly recovered from one M’ Mauta M’ Mithiaru.

12. Section 109 of the Evidence Act, Cap 80 places the burden of proof on him who alleges and states as follows: -‘The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie in a particular person.’

13. The foregoing section was reiterated in Evans Nyakwana vs. Cleophas Bwana Ongaro (2015) eKLR where it was held that:“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence………...”

14. The question of burden of proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 as follows:“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place..……………………….”

15. In Palace Investment Ltd vs. Geoffrey Kariuki Mwenda & Another (2015) eKLR, the Court of Appeal held that:“Denning J. in Miller Vs Minister of Pensions (1947) 2 ALL ER 372 discussing the burden of proof had this to say; -“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will loose, because the requisite standard will not have been attained.”

16. In support of his claim, the 2nd Administrator annexed summons for Objection No. 134 of 1997 but there is nothing on that summons to demonstrate any nexus with LR. Amwathi/Maua/3378. From the evidence on record, the 2nd Administrator failed to place before the court any material to support his case that he had reclaimed LR. Amwathi/Maua/3378 from one M’ Mauta M’ Mithiaru or that deceased had wished that he gets a bigger share of that land. His witness did not make it any better for the reason that his evidence was hearsay based on what he was informed by the 2nd Administrator concerning the alleged wishes of the deceased.

17. It should be remembered that no beneficiary has a better right to a deceased’s estate than the other. From the foregoing, I find that the 2nd Administrator has not demonstrated that he has a better title to deceased’s estate as compared to all the other beneficiaries and his claim for a bigger share of LR. Amwathi/Maua/3378 is therefore rejected.

How ought the estate be distributed? 18. In a case of this nature where the deceased died intestate and was a polygamous man survived by one widow and children, the anchor on distribution of his estate is Section 40 of the Law of Succession Act which primarily 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”.

19. The mode of distribution proposed by the Petitioner/1st Administrator is supported by all the beneficiaries except the 2nd Administrator. I also notice that the Petitioner/1st Administrator has proposed to give the 2nd Administrator a slightly bigger share which the other beneficiaries are comfortable with.

20. In my considered view, the proposal that was made by the Petitioner/1st Administrator is reasonable and objective and there would be no reasonable cause to for the court to depart from the will of the majority of the beneficiaries.

21. Consequently, the orders that commend to me and which I hereby issue that1. Deceased’s estate shall be distributed as follows:a.LR. Amwathi/Maua/26101. Peter Kaberia Kabira 1 acre2. Cornelius Mutuma Kabira 0. 63 acresb.LR. Amwathi/Maua/33781. Nyoroka M’itiame 0. 6 acres2. Benjamin Ntongai Kabira 1. 25 acres3. Margaret Muiti w/o Jacob Itiame 1. 00 acre4. Henry Nkunja Kabira 1. 00 acre5. Richard Murungi M’Elongi 1 acre6. Miriti Robert M’Elongi 1. 20 acres7. Lucy Kathure 0. 10 acres8. Gladys Mwende 0. 10 acres(c)LR. Amwathi/Maua/9523Ciondia M’Itiame

1. Mention on 14th December, 2023 to confirm compliance with these orders and for further orders and/or directions2. Each party shall bear its own costs

DATED AT MERU THIS 26TH DAY OF OCTOBER 2023WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/MuneneFor Petitioner/1st Admin-Mr. Gitonga for Basilio Gitonga, Muriithi & AssociatesFor 2nd Administrator -Mr. Asuma for Mutembei & Kimathi & Co. Advocate