[2023] KEHC 26685 (KLR)

In re Estate of M’mwitari M’muthuri alias Mwitari Muthuri (Deceased) (Succession Cause 25 of 2008) [2023] KEHC 26685 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26685 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 25 of 2008

TW Cherere, J

December 14, 2023

IN THE MATTER OF THE ESTATE OF M’MWITARI M’MUTHURI ALIAS MWITARI MUTHURI (DECEASED)

Between

Joseph Nturubi Mwitari

1st Petitioner

Lucy Mpinda Magiri

2nd Petitioner

and

Bundi M’mwitari

1st Protestor

Fridah Gacheri Kaimenyi

2nd Protestor

Ruling

1. M’Mwitari M’Muthuri Alias Mwitari Muthuri (Deceased) died sometimes on 01st June, 1984. His estate comprised of LR. Nyaki/Kithoka/401 and his family comprised of the following:1st houseSarah Kanini - widow- DeceasedChildreni.Francis M’Mugwika - Son- Deceasedii.Bundi M’Mwitari - Soniii.David Kigorwe - Son- Deceasediv.John Kaimenyi - Son- Deceasedv.Peter Ndumba M’Mwitari - Son- Deceasedvi.Geoffrey Kirima M’ Mwitari - Son- Deceased2nd houseSalome Gatwiri - widow- DeceasedChildreni.Margaret Mataria - Daughterii.Joseph Nturibi Mwitari - Soniii.Isaiah Kirinya - Soniv.Jacob Makuyu - Sonv.Janet Mwari - Daughter - Deceasedvi.Fridah Gacheri - Daughter

2. Letters of Administration were issued to the Petitioners on 03rd July, 2019 in their capacity as son and daughter in law of the deceased. Subsequently, by a Certificate of Confirmation of Grant dated 05th July, 2022, the estate was distributed as follows:1. Bundi M’Mwitari - ¼ acre2. David Kigorwe - 1 acre3. Francis M’Mugwika -1 acre4. John Kaimenyi Mwitari - 1 acre5. Geoffrey Kirima - 1 acre6. Peter Ndumba - 1 acre7. Margaret Mataria M’Imathiu - ½ acre8. Joseph Nturibi Mwitari - 1 acre9. Isaya Kirinya Mwitari - 1 acre10. Jacob Makuyu - 1 acre11. Janet Mwari Kaimenyi -1/8 acre

3. The court also ordered that the shares for the deceased beneficiaries be registered in the name of their estates.

4. Afterward, Petitioners who are son of deceased and daughter of Janet Mwari Kaimenyi (deceased’s daughter now deceased) by summons dated 05th October, 2022 protested the distribution on the ground that the beneficiaries were not provided in equal shares.

5. 1st Petitioner explained that the family held a meeting as demonstrated by minutes dated 14th August, 2018 and agreed that the 1st Protestor also known as Ringera Mwitari be given ¼ acre of LR. Nyaki/Kithoka/401 for the reason that he had benefitted from deceased’s land parcel LR. Nyaki/Chungu/328 measuring ¾ acres which was already registered in his name as demonstrated by a search certificate. He additionally stated that as a result, all the parties including the protestors herein appended their signature to the consent to mode of distribution that was filed in court on 26th January, 2021 and he was therefore surprised at the Petitioners’ change of mind. Concerning the 2nd Protestor, the witness proposed to give her mother ¼ acre in place of 1/8 acre. He denied that deceased had a brother known as Ikinyite Muthuri and stated that the family relocated to Kithoka and 1st Protestor remained on the Chugu land.

6. Samuel Ndingu Nteere, senior assistant chief Kithoka location stated that after receiving a complaint from the 1st Protestor concerning distribution of deceased’s estate, he called the deceased’s family to a meeting he called on 14th August, 2018 and recorded minutes of their agreement in which 1st Protestor agreed to take ¼ acre of LR. Nyaki/Kithoka/401 for the reason that he had benefitted from deceased’s land parcel LR. Nyaki/Chungu/328.

7. Benson Mbutu M’Mukiira stated that he was a neighbor of the deceased in Chugu and confirmed that deceased relocated to Kithoka and left his son, the 1st Protestor on his land in Chugu. He denied that deceased had a brother known as Ikinyite Muthuri.

8. 1st Protestor also known as Ringera Mwitari denied that LR. Nyaki/Chungu/328 registered in his name was given to him by his father and instead stated that eh bought it from one Ikinyite Muthuri. He equally denied that he agreed to take ¼ acre of LR. Nyaki/Kithoka/401 nor signed the consent to the mode of distribution. He urged that deceased’s estate be distributed equally to all his children. In cross-examination, he confirmed that his parents and siblings relocated to Kithoka from Chugu. Henry Kinyua confirmed that his evidence related to what he was informed by 1st Protestor.

Analysis and determination 9. I have considered the affidavit of protest filed on 20th September, 2021 application in the light of the evidence on record and the parties’ submissions.

10. The Court in Jamleck Maina Njoroge v Mary Wanjiru Mwangi [2015] eKLR reiterated circumstances that may lead to revocation of a grant as follows:“The circumstances that can lead to the revocation of grant have been set out inSection 76 Law of Succession. For a grant to be revoked either on the application of an interested party or on the court’s own motion there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of false statement, or by concealment of something material to the case, or that the grant was obtained by means of untrue allegations of facts essential in point of law.”

11. Evidence that deceased moved his family from Chugu to Kithoka and left the 1st Protestor in Chugu is conceded by the 1st Petitioner and his witness Benson Mbutu M’Mukiira and also by the 1st Protestor. Evidence by the 1st Petitioner that LR. Nyaki/Chungu/328 now registered in the name of the 1st Protestor belonged to the deceased is also corroborated by his witness Benson Mbutu M’Mukiira who stated he was a neighbor of deceased in the Chugu land now occupied by the 1st Protestor. 1st Protestor has indeed conceded that has conceded that his parents and siblings moved from Chugu and settled in Kithoka while he remained in Chugu

12. 1st Protestor’s evidence that the deceased had a brother called Ikinyite Muthuri was denied by both the 1st Petitioner and his witness Benson Mbutu M’Mukiira. Other than his word that he bought LR. Nyaki/Chungu/328 from one Ikinyite Muthuri, 1st Protestor did not call any corroborative evidence.

13. The issue in question is whether on the whole, the 1st Protestor has demonstrated on a balance of probabilities that 1st Protestor was adequately provided for.

14. In Evans Nyakwana v. Cleophas Bwana Ongaro (2015) eKLR 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. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…….”11. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau v. 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. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”12. In Palace Investment Ltd v. Geoffrey Kariuki Mwenda & (2015) eKLR, the judges of Appeal held that:“Denning J. in Miller v 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.”

15. In the case of Kanyungu Njogu v Daniel Kimani Maingi [2000] eKLR, it was held that when the court is faced with two probabilities, it can only decide the case on a balance of probability, if there is evidence to show that one probability was more probable than the other. has conceded that him and his late mother did not notify the Objector/Applicant of the filing of this succession cause nor distribute any share to him and this leads to the conclusion that the grant was obtained by the making of a false statement and by concealment from the court of material particulars concerning disclosure of the Objector/Applicant’s right over the estate.

16. From the totality of the evidence on record, this court is satisfied that on the whole, the evidence that LR. Nyaki/Chungu/328 belonged to the deceased has been proved on a balance of probability.

17. In a case of this nature where the deceased died intestate and was only survived by children, the anchor on distribution of his estate is Section 38 of the Law of Succession Act which primarily provides that;“Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of Section 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.”

18. It should be remembered that no beneficiary has a better right to a deceased’s estate than the other. This court has a duty to ensure that the estate of the deceased in this matter is distributed justifiably and no one beneficiary benefits at the expense of the beneficiaries.

19. Section 42 provides that during the distribution of the estate, previous benefits or gifts inter vivos be taken into consideration when determining the share of each child.

20. Having determined that LR. Nyaki/Chungu/328 belonged to the deceased, I find that Petitioners acted lawfully when they took into consideration the said land at the point of distributing LR. Nyaki/Kithoka/401.

21. Consequently, I find that the 1st Petitioner has not made out a case for revocation of the grant and the same is declined.

22. Concerning provision for Janet Mwari Kaimenyi now deceased, the 1st Petitioner has reconsidered her shares and has proposed to increase it by 1/8 making it ¼ acre. Her daughter who is the 2nd Protestor did not tender any evidence nor oppose the said proposal.

23. Consequently, it is hereby ordered:1. The Certificate of Confirmation of Grant dated 05th July, 2022 shall be rectified to the effect that LR. Nyaki/Kithoka/401 be distributed in the following terms:1. Bundi M’Mwitari - ¼ acre2. Margaret Mataria M’Imathiu - ½ acre3. The estate of Janet Mwari Kaimenyi - ¼ acre4. Balance be distributed in equal shares to:i.The estate of David Kigorweii.The estate of Francis M’Mugwikaiii.The estate of John Kaimenyi Mwitariiv.The estate of Geoffrey Kirimav.The estate of Peter Ndumbavi.Joseph Nturibi Mwitarivii.Isaya Kirinya Mwitariviii.Jacob Makuyu2. Mention on 29th February, 2024 to confirm distribution

DATED AT MERU THIS 14TH DAY OF DECEMBER 2023WAMAE. T. W. CHEREREJUDGEAppearancesFor Protestors - Mr. Otieno for Otieno C. & Co. AdvocatesFor Petitioners - Mr. Njindo for Mr. Mwendwa for Maitai Rimita & Co. Advocates