[2017] KEHC 6513 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

SUCCESSION CAUSE NO. 923 OF 2009

IN THE MATTER OF THE ESTATE OF MIHUNYO GITIMU alias MIHUNYO s/o GITIMU (DECEASED)

JOSEPH MAINA MIHUNYO................................PROTESTOR

VERSUS

FLORENCE CHAKI MIHUNYO..........................RESPONDENT

RULING

1. The estate relates to the late Mihunyo Gitimu alias Mihunyo s/o Gitimu (deceased) who died on the 17th October, 2003 at Karatina in Nyeri County. The identifiable property comprising the estate of the deceased is land parcel number Kirimukuyu/Ngandu/291 measuring approximately six (6) Acres.

2. The Deceased died intestate and left the following surviving him namely;

(i) Joseph Maina Mihunyo – who shall be referred as ‘the protestor’ herein; and is the deceased’s son;

(ii) Florence Chaki Mihunyo – who shall be referred to as ‘the respondent’ herein; who is the Petitioner and was a wife to the deceased;

(iii) Julieta Nyakonyu Mihunyo – a daughter to the deceased

3. The Grant was issued on the 27/11/2009 and on the 30/07/2010 the Respondent filed a Summons for Confirmation of Grant in which she proposed that the property measuring 6. 0acres be distributed as follows;

(i) Florence Chaki Mihunyo – One (1) Acre

(ii) Juliete Nyakonyu Mihunyo – 2. 5 Acres

(iii) Joseph Maina Mihunyo – 2. 5 Acres

4. The Protestor filed his Affidavit of Protest on the 27th September, 2010 against the Summons for Confirmation of Grant and gave his reasons for protesting and included his proposed mode of distribution of the deceased’s estate.

5. Directions were taken on the 24/07/2015 that the matter proceed for hearing and that ‘viva voce’ evidence be tendered; the matter was partially heard by Wakiaga J who heard the Protestors’ case in full; thereafter the parties agreed that the proceedings be typed and that the matter do proceed from where it had reached and this court proceeded to hear the respondents case; all the parties and their witnesses gave oral evidence and were subjected to cross-examination; hereunder is a summary of the protestor’s case and the petitioners response;

THE PROTESTORS’ CASE

6. The protestor opposed the proposed mode of distribution put forward by the petitioner and proposed that the estate be divided as follows;

(i) Joseph Maina Mihunyo – Four (4) Acres

(ii) Florence Chaki Mihunyo and Julieta Nyakonyu Mihunyo – Two (2) Acres.

7. His evidence was that the mode of distribution proposed by the respondent was not correct as it did not reflect the wishes of his late father and step-mother; that his step-mother Virginia Kiini Mihunyo who was the first wife of the deceased passed on on the 3rd February, 1995; that she predeceased the deceased herein but before her demise the deceased had divided the property into two equal portions and given her three (3) acres; his step-mother being childless took him up as her child and before her demise she gave the protestor her portion of three acres as a ‘gift inter-vivos’; and that these wishes were well known to his deceased father and were reflected in the Chief’s letter dated the 30/06/1997 produced by consent of both parties and was marked as “PExb.1”; vide the same letter his late father had also given him a further one (1) acre share in the portion of the land belonging to his biological mother;

8. The Protestor stated that on the 30/06/1997 his father had called all the family members and expressed the above wishes; that boundaries were placed during the lifetime of the deceased; and that he, the protestor had lived on his side of the land and had even built thereon; he urged the court to distribute the property in accordance to his late fathers’ wishes;

9. The Protestor called PW2 John Wachira as a witness who stated that he was from the same clan as the deceased herein and was also a neighbor; he confirmed that a meeting was called by the deceased and that the area chief was present and the clan members were there too; he also confirmed that the deceased had subdivided the land and that he had witnessed its sub-division;

10. The Protestor closed his case after this witness had testified; his Counsel filed written submissions and submitted depending on the circumstances of the case that this court had the discretion to interfere with Sections 35 and 40 of the Law of Succession Act; and made reference to the renowned Court of Appeal case of Rono vs Rono;Counsel submitted that Section 42 of the Act was also applicable in this instance; that the boundaries existing on the ground were not disputed and further relied on the letter dated 30/06/1997 which was supportive of the deceaseds wishes; Reference was made to the following authority Succession Cause No.404 of 2012in which Mativo J cited with approval the decision of Makhandia J (as he then was) in the case ofPaul Kiruhi Nyingi & Anor vs Francis Wanjohi Nyingi {2009} eKLRas follows;

“Unless it can be demonstrated that those wishes of the deceased as captured in the black book were illegal, unfair, discriminatory and unjust to the beneficiaries or some of them, such wishes ought to be respected in my view.

11. He urged the court to distribute the estate in line with the protestors’ proposal.

RESPONDENTS CASE

12. The Respondent confirmed that the deceased had two wives; she being one of them and the other being the elder wife named Virginia Kieni; this elder wife predeceased the deceased and had no children with the deceased; as for herself she had two children with the deceased the protestor being one of them and the other being the daughter named Julieta Nyakonyu Mihunyo;

13. She testified that there had never been any discussion with the deceased on the apportioning of the land; that the only dispute that arose during the deceased lifetime was when the protestor attempted to chase the sister off the property; the matter was reported to the District Officer by the deceased and a meeting was called for and was held on the 30/06/1997; the DO advised the warring parties to resolve the issue of sub-division through family meetings and discussion; that the deceased passed on without any such meetings taking place to discuss these issues;

14. The petitioner confirmed that the protestor had sub-divided and had taken up the portion belonging to her late co-wife; and the protestor was now claiming a further one acre from her portion of the land; claiming that those were the wishes of his late father; which is not correct as the deceased never stated this whilst alive;

15. There was no dispute that the property was part of the estate of the deceased; that the protestor, her above named daughter and herself all live on the property which she denies has been apportioned and or sub-divided;

16. In the application for confirmation of grant filed in court she proposed that the land be distributed as follows;

(i) The Protestor - to get 2 ½ Acres

(ii) Julieta Nyakonyu- to get 2 ½ Acres; and

(iii) Petitioner- to get one (1) acre

17. The petitioner called her late husbands’ brother Boniface Wamai Gitimu (DW2) as her witness; his evidence was that the land comprised of six (6) acres and that it had been sub-divided into two portions; he confirmed that there was a meeting held at the DO’s office in Mathira but he was not in attendance; that even after reading the letter dated 30/06/1997 he did not see his deceased brothers proposal as being in the letter;

18. Counsel for the respondent put in written submissions and submitted that the applicable section of the law was Section 35 of the Law of Succession Act and the court should be guided by this section when distributing the property; that the deceased died intestate and left one surviving spouse and two children; that she was entitled to a life interest in the net intestate estate;

19. That the authorities cited by the protestor were distinguishable and not applicable as the deceased therein had clear intentions which had been expressed in a black book; that he had caused the property to be sub-divided and titles had been issued; that in the instant case this was not so as the boundaries were forcefully erected by the protestor after the demise of his father;

20. Counsel submitted that Section 42 was also not applicable herein; and urged the court to dismiss the protest.

ISSUES FOR DETERMINATION

21. After hearing the evidence of the parties and upon reading their respective written submissions this court has framed the following issues;

(i) Whether the whole of the property known as Kirimukuyu/Ngandu/291 forms part of the estate of the deceased;

(ii) Whether Sections 35 of the Law of Succession Act is applicable;

(iii) Distribution of the estate of the deceased.

(iv) Costs

ANALYSIS

Whether the whole property known as Kirimukuyu/Ngandu/291 forms part of the estate of the deceased;

22. In the affidavit of protest the Protestor avers at paragraph (4) that he is the biological child of the respondent; and from the evidence adduced it is apparent that the protestor was born out of wedlock; in that the respondent is said to have come into the marriage with the deceased with the protestor who was then aged four (4) years;

23. The protestor in his evidence alludes to the fact that the first elder wife Virginia adopted him and bequeathed her portion to him during her life time; he omits to specifically state the exact age at which his step-mother adopted him and upto when she raised him up; it is also apparent from the evidence that at the time of her demise the property that he claims was bequeathed to him had not been sub-divided by the deceased; nor was there any form of documented evidence tendered by the protestor of any tangible interest that the elder wife bestowed any portion to him;

24. But the law is such that even if the property had been sub-divided and or registered the protestor would still not have qualified for the purposes of succession as a child of the first wife; Section 3(2) of the Law of Succession clearly defines a child for purposes of succession; Section 29 of the Act also requires proof of maintenance of the protestor by the deceased’s elder wife prior to her death; this court reiterates that the protestor tendered no evidence as to the period he lived with the elder wife nor was any evidence tendered as to how the she had maintained him prior to her demise;

25. For those reasons and also in the absence of evidence express or implied that the elder wife bequeathed him any portion, the protestor's interest in any of the elder wifes’ portion of land fails as he does not qualify as her child or heir;

26. The protestor's saving grace is his mother under Section 3(3)of the Act which provides as follows;

“3(3) A child born to a female person out of wedlock, and a child as defined by sub-section (2) as the child of a male person, shall have relationship to other persons through her or him as though the child had been born to her or him in wedlock.”

27. This court finds no evidence of the deceased having given any part of the estate to the heirs during his lifetime; which then means that any interest the protestor derives in the estate of the deceased herein is derived through his mother; in that the deceased by marrying his mother adopted him and he ‘then had a relationship to other persons through her as though the child had been born in wedlock’ (emphasis mine)

28. It can be safely argued that Section 42 is not applicable and the whole property is vested in the deceased herein and upon his demise the estate vests in the respondent as the sole surviving spouse;

29. This court is satisfied and finds that the whole of the property known as Kirimukuyu/Ngandu/291 is the only asset forming part of the estate of the deceased; and that the whole property is available for distribution;

Whether Sections 35 of the Law of Succession Act is applicable;

30. At this juncture and having perused the letter dated 30/06/1997 it is this courts considered view that the letter is not a reflection of the deceaseds wishes; in that it was not written by the deceased nor is his signature appended to it; at best it can be described as a restriction imposed by the DO in an effort to resolve the family dispute; and the restriction that was made was no consent would be given by the Land Control Board to subdivide the land unless the parties were in agreement; and it reads as follows;

“….that the land be used by Boniface, Chaki and their daughter Julieta family land) to share (sub-divide) if they so wish and are in agreement. My land control board not to approve any sub-division unless the four agree (including Maina).”

31. At the time of the demise of the deceased the evidence shows that no agreement had been reached; this court reiterates that Section 42 of the Act is found not to be applicable as this court finds no evidence of the deceased having given any part of the estate to the heirs during his lifetime; the letter from the DO dated 30/06/1997 is supportive and corroborates this fact.

32. There being a surviving spouse the estate of the deceased ought to be distributed as provided by Section 35(1)(b) of the Law of Succession Act; which provides that;

“35(1) Subject to the provisions of Section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to –

(a)…..

(b) a life interest in the whole residue of the net intestate estate:

Provided that, if the surviving spouse is a widow, that interest shall determine upon her remarriage to any person.

33. It is apparent from the evidence that the family is not in agreement on how the property should be distributed; therefore going by Section 35(5) the spouse shall acquire a life interest in the entire property to hold in trust for the two (2) surviving children and upon her demise or remarriage to be divided among her surviving children in equal shares;

Distribution of the estate of the deceased

34. This court reiterates that there is no proof of sub-division and therefore the whole property comprises the estate of the deceased; that the dispute hinges on distribution of the deceased’s estate and the parties are not agreeable upon its mode of distribution; this court is therefore tasked with resolving this; and this court reiterates that it shall be guided by the provisions of Section 35 (5) of the Law of Succession Act;

35. The property known as land parcel number Kirimukuyu/Ngandu/291 measuring 6. 0 Acres shall devolve to Florence Chaki Mihinyu – wholly- and she shall have a life interest and hold the property in trust for Joseph Maina Mihunyo and Julieta Nyakonyu Mihunyo, the children of the deceased.

DETERMINATION

36. The Protest is found lacking in merit and it is hereby dismissed.

37. The Grant is hereby confirmed on the terms as set out hereunder;

(i) Florence Chaki Mihunyo shall hold a life interest in the property known as is land parcel number Kirimukuyu Ngandu/291 measuring 6. 0 Acres and upon her demise or remarriage it shall be shared equally between the protestor and Julieta Nyakonyu Mihunyo;

38. Each party shall bear their own costs.

It is so ordered.

Dated, Signed and Delivered at Nyeri this 16th day of March, 2017.

HON. A. MSHILA

JUDGE.