[2019] KEHC 5777 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

SUCCESSION CASE NO. 22 OF 2017

IN THE MATTER OF THE ESTATE OF MILKA WANJIRU CHEGE (DECEASED)

JUDGMENT

1. This dispute has a long and chequered history. It all began with the first false step made on 20th May 1984, following the death of Chege Karanja, the husband to Milka Wanjiru Chege (deceased herein) both being parents to the seven children or their representatives named as beneficiaries in the summons to confirm grant which was filed on 31st May 2017 and which is the subject of this judgment.

2. The false step involved the execution by family members of a purported agreement, now disputed, in respect of the land parcel No. Muguga/Kanyariri/193 which belonged to Chege Karanja, the father to the beneficiaries listed in the summons for confirmation. The purported agreement effectively distributed the estate of the deceased Chege Karanja among beneficiaries who included his wife Milka Wanjiru (Kagure) Chege and the seven children who survived the said Chege Karanja. The agreement seems to have run into problems as a further ‘agreement’ was executed purportedly between family members (it too is now disputed) in respect of the said subject matter on 19th January 1989, before the Chief and elders of Muguga Location, after Milka Wanjiru Chege referred the same question to the Chief. A letter dated 27/8/04 by the said Chief seeks to confirm the contents of the so-called agreement in Kikuyu language dated 19th January 1989.

3. The first “agreement” is annexed to the Replying affidavit of Mburu Chege filed on 26/5/05 as annexure MC(a) and MC(b). The second “agreement” marked FKC 3 and confirmation are annexed to the affidavit sworn by Francis Kamenwa Chege the Protestor, in summons for revocation filed on 23/2/05. It appears that no succession proceedings were taken in respect of the estate of Chege Karanja. What appears to have happened subsequent to the so-called agreements is that the land parcel No. MUGUGA/KANYARIRI/193 was subdivided into portions No. 605 to 612, which were on 21/8/89 registered in the joint names of Milka Wanjiru (Kagure) Chege and her son Peter Karanja Chege. Earlier on 29. 11. 73 a land parcel No. Muguga/Kanyariri T 227, also the property of Chege Karanja had similarly been registered in the joint names of these same persons.

4. Peter Karanja Chege died on 22nd September 1994 and succession Cause No.151 of 2003 was filed at the then SPM’s Court Kiambu by his sibling Mburu Chege, to whom a grant issued on 17th November, 2003. Milka Wanjiru Chege subsequently died on 23rd June 2000. A succession Cause at the SPM’s Court Kiambu No.150 of 2003 was filed by Mburu Chege, her son. Similarly a grant issued in favour of Mburu Chege on 17th November 2003. On 12th August 2004 the said Kiambu Succession Causes No. 150 of 2003 and 151 of 2003 were consolidated by an order of the court.

5. Pursuant to Summons for revocation, filed in the High Court in Nairobi Succession Cause No.413 of 2005 in respect of the estates of Milka Wanjiru Chege(Milka) and Peter Karanja Chege on 23rd February 2005, an order was made on 22nd March 2006 by Kubo J(as he then was) that the consolidated files in the lower court be forwarded to the High Court. It does not appear that the summons for revocation filed on 23rd February 2005 was ever heard. In any event, the holders of the impugned grant had already died. A subsequent summons seeking similar orders and the appointment of another son, Francis Kamenwa Chegeas administrator, filed on 23rd July 2013 was not heard.

6. What happened in the meantime was that Mburu Chege the administrator in respect of the estates of Milkaand Peter Karanja Chege died on 24th June 2012. On 11th November 2013 Stephen Mwirikia Karanja a son to Milkaand Chege Karanja applied to be substituted as an administrator in place of the deceased Mburu Chege. This application was allowed by consent of the parties on 3rd December 2013 and a grant was issued in the name of Stephen Mwirikia Karanja on 3rd December 2013 by Musyoka J.

7. Subsequent proceedings on 9th February 2016 and 25th March2016 in respect of the summons to confirm the grant, that was filed by the Protestor Francis Kamenwa Chege on 14th November 2014, were set aside vide the ruling of Musyoka J dated 11th December 2016 and delivered on 29th December 2016. The key reason being that, the summons to confirm grant was incompetent, having been filed by a person other than the grant holder, in this case the Protestor herein. Pursuant to the ruling Stephen Mwirikia Karanja the grant holder, on 31st May 2017 filed the summons to confirm grant. The said summons is the subject of this ruling, as it was met by a protest by Francis Kamenwa Chege. The court directed the parties to file affidavits in preparation for the viva voce hearing which took place on 24th October 2018.

8. Adopting this affidavit in support of the summons and the statement filed by him on 21/6/18 the grant holder, Stephen Mwirikia Chege (Stephen) asserted that the two assets owned by his father Chege Karanja at the time of death i.e LR Muguga/Kanyariri/193 and LR Muguga/Kanyariri/T227 were transferred to his deceased mother Milka Wanjiru Chege and deceased brother Peter Karanja Chege following a clandestine subdivision of the former parcel into eight parcels and that each child was shown their parcel and took possession. His evidence was that the entire land parcel ought to be consolidated and subdivided into seven portions so that each of the seven children can benefit equally.

9. He disputed that the eighth parcel being subdivision No.608 belonged to the deceased Milka and that she disposed of it by a will in favour of the Protestor. He stated that himself and five other siblings were not interested in the parcel Muguga/Kanyariri/T227 as an aunt, Beatrice Njeri Kibugiwas entitled to inherit it.

10. By his affidavits and evidence, the Protestor asserted that land parcel No. LR Muguga/Kanyariri/193 which measured 3. 1 acres no longer exists in light of the subdivision. He claimed that out of the seven children of Milka only the grant holder, himself and Richard Chege Karanja are still living, but that the deceased siblings are survived by their families. He asserted that despite the subdivision of the LR Muguga/Kanyariri/193 parcel into 8 portions, titles had not been issued due to the subsistence of this cause but that all the siblings had taken possession of their respective parcels.

11. He claimed that the subdivision No.608 was to go to Milka and that she bequeathed it to him as the last-born son, through the will annexed to his affidavit. With regard to the land parcel No. Muguga/Kanyariri/T227 the Protestor’s position was that he was entitled to his portion therein even if his siblings had surrendered their entitlements to Beatrice Njeri Kibugi whom he did not recognize as a beneficiary of the estate.

12. At the close of the hearing, the court directed the parties to file their respective submissions but none are on record. The court has considered the oral and affidavit evidence tendered in respect of the protest to the summons to confirm grant filed on 31/5/17.

13. There is no dispute that the two assets of the estate, namely LR Muguga/Kanyariri/193 (subdivisions No. 605 to 612), and LR Muguga/Kanyariri/T227were previously the property of the deceased Chege Karanja, the father of the beneficiaries or their representatives listed in the summons, and who was husband to Milka. There is no dispute that subsequent to his death the two assets were registered in the joint names of the son Peter Karanja Chege and wife Milka, both of whom are deceased. With the exception of the subdivision of No. 608 of Muguga/Kanyariri/193 the beneficiaries are settled on their respective parcels assigned to them by Milka.

14. Apart from the Protestor, the other beneficiaries are agreed that the land parcel No. Muguga/Kanyiriri/T227 ought to devolve upon their relative Beatrice Njeri Kibugi. Despite the grant holder’s unhappiness with the fact that the land parcel LR Muguga/Kanyariri/193 was divided into eight rather than 7 parcels, I did not hear any party seriously object to the fact that the subdivisions thereof were jointly registered in the name of a brother Peter Karanja Chege and Milka Njeri, quite apparently as trustees.

15. Indeed, the disputants confirm that they have taken possession of their respective parcels resulting from the subdivision and live thereon. The key dispute relates to the claim by the Protestor of entitlement to an extra plot – the subdivision number 608 - which he claims was bequeathed to him by Milka via a will. He also claims that the land parcel No. Muguga/Kanyariri 193 no longer exists in light of the subdivisions.

16. It is important to recall that the present Succession Cause relates to the two joint registered owners of the subject assets and who on all accounts were so registered as trustees on behalf of all the children of the deceased Chege Karanja who previously owned the properties. The Protestor has claimed that the subdivision No. 608 was the portion designated to Milka after subdivision. There is no evidence to confirm this assertion as all the subdivisions were registered in the joint names of Milka and her son Peter Karanja Chege. The joint ownership by apparent trustees has remained todate. Thus, the subdivision No.608 was not available as the free and personal property of Milka to bequeath to another by way of a will as the Protestor alleges.

17. Section 5(1) of the aw of the Law of Succession Act provides that a person of sound mind may “dispose of all or any of his free property by will”. Free property is defined in Section 3(1) of the Law of Succession Act to mean

“The property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death.”

18. Milka and Peter Karanja Chege were undoubtedly joint proprietors holding in trust the assets herein. Even though it seems, by virtue of her position as the mother to the beneficiaries who had survived her deceased husband, Milka took up the role of assigning or showing each beneficiary their respective portion, she was not the absolute sole owner of this property and she was not legally competent to dispose of any of the assets. Her purported will dated 29th September 1992 [annexureFKC2 to the Protestor’s affidavit] could therefore not pass a title she did not have. Moreso when Peter Karanja Chegewas still alive and was not involved.

19. Section 11 of the Law of Succession Act stipulates the requirements of a valid written will, which include the signature of the testator on the will and the attestation by two or more competent witnesses to the testator’s signature. In this case, the proferred purported will bears a thumbprint in the space designated for the testator’s signature and beside it two signatures, presumably of witnesses whose names are not stated. These persons were not identified or called by the Protestor to testify. The law does not envisage anonymous attestation.

20. During his testimony, the Protestor was hard pressed during cross-examination to explain his failure to take action on the will he claimed to have kept in his possession until Milka died. He stated:

“I was in possession of the will when mother died. I kept it and gave Stephen (grant holder) a copy. I could not file petition (for succession) in respect of the will because I did not anticipate problems. Public Trustee appointed executor. I have never taken copy of (of will) to Public Trustee – ignorance is to blame. Yes I have an advocate.”

21. The purported will is of no moment, for want of legal competency by the testator in making the purported dispositions, and for the fact that the Protestor has made no effort to bring it within the validity requirements prescribed in Section 11 of the Law of Succession Act. Thus Peter Karanja Chege and Milka both died intestate and in the circumstances of this case, all the beneficiaries to the property held in trust by the said intestates are entitled to share equally in the said property, as provided in Section 38 of the Law of Succession Act.

22. I say so because neither Milka nor Peter Karanja Chege owned the estate property in their own right. Rather, they were essentially trustees for the entire family of Chege Karanja, in respect of whom no proper succession was done. In my considered view, no useful purpose would be served by revisiting that failure, in light of the fact that the protagonists herein admit, albeit indirectly, that Milkaand Peter Karanja Chege were mere trustees in respect of the estate of Chege Karanja and not the absolute owners of the suit premises.

23. For all their disputation, the parties before me appeared unconcerned with the legal failure in respect of the succession concerning Chege Karanja’s estate and were only interested in the distribution of the said estate among the undisputed beneficiaries who are the seven children of Milka and Chege Karanja. In this regard I have noted the consents filed by the beneficiaries who are still alive, to the summons for confirmation.

24. This court is satisfied that the said named beneficiaries are entitled to share equally the land parcel LR Muguga/Kanyariri/193or subdivisions thereof. They have all settled and developed the respective portions shown to them by Milka. The disputed portion No.608 lies in the middle of the subdivisions No. 605 to 612 as per the mutation copies in the bundle of documents marked FK1 attached to the Protestor’s Replying affidavit (Protest) filed on 20/9/17.

25. The grant holder sought that the original parcel No. 193 be reconsolidated and subdivided into 7 equal portions, even though a consolidation prayer is not included in his application. The subdivision parcel No.608 which on all accounts is the only one in dispute measures slightly above a ¼ acre. The beneficiaries have apparently settled on the other subdivisions where they have their homes. Their respective settled parcels are not in dispute.

26. This cause has been in court since 2003 and the dispute started way back in the 1980s. The subdivisions of the land parcel LR Muguga/Kanyariri/193 were completed in 1989. The protagonists are senior citizens and some beneficiaries have since died. There is little likelihood that if a reconsolidation is ordered, a fresh subdivision after almost 30 years will be an easy task in light of the strained relationship between the actors. The court has to give serious thought to make orders that will as much as possible be practicable and will not lead to a fresh spate of dispute between the parties.

27. In my considered view, an order of reconsolidation and fresh subdivision will not only be an expense to the parties but will also cause delay and possible new conflict in the family before me. In the circumstances, this court does confirm, in respect of the original LR Muguga/Kanyariri/193, that subdivision portions currently occupied by the respective beneficiaries, with the exception of subdivision No. 608, will go to those beneficiaries as follows:

a. LR No. Muguga/Kanyariri/605 measuring 0. 44 acres to Moses Njenga Mbiku and if he is deceased, to his estate.

b. LR No. Muguga/Kanyariri/606 measuring 0. 20 acres to Richard Chege Karanja (living).

c. LR No. Muguga/Kanyariri/607 measuring 0. 30 to Gladys Sherina Maciea or if she is deceased to her estate.

d. LR No. Muguga/Kanyariri/609 measuring 0. 44 acres to Francis Kamenwa Chege(living).

e. LR No. Muguga/Kanyariri/610 measuring 0. 44 acres to go to Stephen Mwirikia Chege (living).

f. LR No. Muguga/Kanyariri/611 measuring 0. 44 acres to go to the estate of Anthony Mburu Chege (deceased)

g. LR No. Muguga/Kanyariri/612 measuring 0. 44 acres to the estate of Peter Karanja Chege (deceased).

28. With regard to the subdivision No. Muguga/Kanyariri/608, the same is to be sold by the administrator and the proceeds shared equally among the 7 beneficiaries herein or their respective estates if deceased.

29. Concerning the asset Muguga/Kanyariri/T 227, save for the Protestor, all the other beneficiaries agree that the same should devolve upon the estate of Beatrice Njeri Kibugi. For his part, the Protestor referred the court to the consent between him and the said party made in respect of the said parcel before Musyoka J on 9/2/16 to the effect that the estate of Beatrice Njeri Kibugi was to receive 6/7 of the parcel and the Protestor the 1/7 remaining. Those proceedings were subsequently set aside by the ruling of Musyoka J referred to earlier. Nonetheless, as the six beneficiaries entitled to share in the said parcel have given up their shares in favour of Beatrice Njeri Kibugi the said asset will devolve as follows:

LR No. Muguga/Kanyariri/T 227

a) Beatrice Njeri Kibugi, or her estate if she is deceased – 6/7

b) Francis Kamenwa Chege - 1/7

Parties will bear own costs.

DELIVERED AND SIGNED AT KIAMBU THIS 4TH DAY OF JULY 2019

......................

C. MEOLI

JUDGE

In the presence of:

Mr. Oyugi holding brief for Mr. Ngugi for Administrator

Protestor in person