[2017] KEHC 689 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 128 OF 2011

IN THE MATTER OF THE ESTATE OF M’MWONGERA M’WAMARU alias REUBEN MWONGERA alias MWONGERA S/O RUUKO ( DECEASED)

STANLEY RIMBERIA.......................................PETITIONER

VS

SALOME KATHURE MWONGERA...............PROTESTER

JUDGMENT

The deceased herein Reuben M’Mwongera alias Reuben Oruko died intestate on 25th January 1993 leaving behind;

1. Salome Kathure M’Mwongera – widow

2. Stanley M’Rimberia – son 80 years

3. Jonathan Kaaria Reuben – 67 years

4. Alice Gaceri Mugambi –daughter 38 years

5. Benjamin Muriungi – deceased

6. Julia Nyegera Murungi & 9 children – daughter-inlaw

7. Henry Magiri – son deceased

8. Tabitha Karegi & 7 children – daughter – in law

9. Sarah Kanana –daughter 33 years

10. Tabitha Nguta – daughter 29 years

11. John M’Rutere – son 58 years

12. Lydiah Mpinda –daughter – 30 years

13. Becly Makena – daughter 29 years

14. Doreen Kathambi – daughter 26 years

15. Charles Mugambi – daughter 32 years

16. Rosemary Nkatha – 40 years

17. Mark Kirimi Reuben son –Deceased

The net intestate estate consists of L.R. No. Abothuguchi/Katheri/1425. Stanley M’Rimberia was authorised in form 38 P&A to petition Letter of Administration by the other beneficiaries and grant of Letters of Administration was made to him on 4th day of October 2013. Summon for confirmation was filed on 12th March 2014 dated 11. 3.2014 and it was supported by the affidavit sworn by Stanley M’Rimberia on 11. 3.2014 accompanied by consent to confirmation and mode of distribution signed by Jonathan Kaaria Reuben, Alice Gacheri Mugambi, Tabitha Karegi Kairigo, Sarah Kanana and Tabitha Nguta.

Lydia Mpinda, Becky Makena, Doreen Kathambi, Charles Mugambi, Rosemary Nkatha and Salome Kathure didn’t sign consent.

Salome Kathure filed affidavit of protest to the application for confirmation in which she said that she is wife/widow to the deceased and that they sired 5 children. She contended that the administrator Stanley Rimberia filed the cause secretly without involving all family members.

That the administrator is dishonest since he concealed material facts to the court and can’t be trusted to distribute the deceased estate. She said she is in occupation of one acre of land from Abothuguchi/Katheri/1425 which she had developed with coffee trees and other horticultural crops.

She said that before Stanley M’Rimberia filed the cause they went to chief’s office, and obtained chiefs letter which they were both to be administrators but Stanley secretly obtained another letter. She said she had not consented to the distribution in affidavit dated 11. 3.2014.

She gave her mode of distribution of L.R.No. Abothuguchi/ Katheri /1425 as follows ;

a) Salome Kathure – 1 acres

b) Sarah Kanana – 0. 31 acre

c) Jonathan Kaaria – 0. 31 acre

d) Julia Nyegera – 0. 31 acre

e) Tabitha Nguta – 0. 31 acre

f) Alice Gaceri – 0. 31 acre

g) Stanley Rimberia – 0. 31 acre

The Petitioner and his witnesses said he bought 2 acres of land from one Morutara – now deceased for Kshs 300/= while he was working at Kiirua as an Inspector of Police and it is his father the deceased and his brother Jonathan Kaaria who transacted and his 2 acres of land was consolidated with another 1. 5 acres and registered in the name of the deceased. That Stanley Rimberia planted coffee trees on his portion of 2 acres while objector uses 300 trees of coffee out of 500 planted on the remainder 1. 5 acres.

They say Salome should not inherit L.R.Abothuguchi/Katheri/1425 because her house got 5 acres out of L.R. Abothuguchi/Katheri/318 during the life time of the deceased whereas the Petitioner mother’s house got only 4 acres.

The objector said the deceased had entrusted her with title of land in question and that her husband had intended to subdivide the land between the 2 houses so that each house gets equal area of land. The objector said that during the deceased person’s life time Stanley didn’t raise issue of the 2 acres from this particular land in question that he claims he bought.

That Stanley heard his father give instructions on how to subdivide land but he kept quiet and greed with what the father said. That in 2008 when she was consulted last, the area Chief wrote a letter to the D.O asking him to assist them.

Lydia Mpinda the daughter of the deceased with Salome also testified reiterating what her mother said in court. She said that the divided his 9 acres form between his 2 wives and her mother and siblings got 5 acres of one side of the tarmac road while her step mother and her children got 4 acres.

She said during family meetings with his children the deceased said that his 3 acre of land at Riiji, was to be subdivided and one acre given to his 2nd wife and 2 acres to the 1st wife’s house. She said that if Stanley had any objection to the wishes of the deceased he should have raised it as deceased spoke openly how he wanted the land to be subdivided.

That he should have had his portion from the Riiji land transferred to him during the life-time of the deceased if it is true he bought it in 1969.

Mpinda said that her father could not have left title deed with her mother with instructions that Stanley and her mother administer land if it did belong to Stanley. She said her mother had been using the land planting trees, coffee and Napier grass. She urged that her mother be given one acre out of land in question to make 6 acres for her mother’s house and 2. 5 acres to Stanley’s mother’s house to make 6. 5 acres.

From the evidence on record for the protester/objector and her mothers and from evidence of Petitioner and his one witnesses as well as submissions the issue herein is whether the court has been satisfied that parcel of Land No. Abothuguchi/Katheri/1425 is registered in the name of the deceased.

If registered in the name of the deceased, whether it forms part of the estate of the deceased or part of it i.e. 2 acres was held in trust for the Petitioner?

The Petitioner did not dispute that the District Officer Abothuguchi West Division initially gave a letter introducing survivors of the deceased dated 13th November 2008 and that he and Salome were agreed upon to be administrators to the estate of the deceased which was made up of parcel No. L.R Abothuguchi/Katheri/1425. The Petitioner has not denied that subsequently he got another letter from Assistant Chief dated 22nd August 2009 from office of Assistant chief Kianthumbi Sub location indicating Stanley M’Rimberia was the one entitled to seek Letters of Administration. Land Parcel No. Abothuguchi/Katheri/1425 is still registered in the name of the deceased and the certificate does not show it was held in trust by the deceased for Stanely M’Rimberia or any other person and the claim that it was held in trust is an issue that can’t be resolved in a succession matter. The Petitioner and his witnesses claim he bought land in 1969 while he was an Inspector of Police. There is no agreement for sale of land to that effect and there is nothing to prove Petitioner gave money for purchase at all and if he gave whether it was money for purchase of land or anything else. The period between 1969 to 25th January 1993 is a total of 24 years and that was sufficient time for the Petitioner to make his claim from the deceased during his life time. The 2nd Petitioner witness Jonathan Kaaria admitted that Salome uses the land that remained for their father from Abothuguchi/Katheri/1425.

In consideration therefore, that the net intestate estate is comprised of only L.R. Abothuguchi/Katheri/1425 this court will make an order that the said parcel of land be shared equally among the beneficiaries and/or dependants of the deceased unless anyone of them denounces their interest on the estate in writing. Each party will bear their own costs. Orders accordingly.

HON. A.ONG’INJO

JUDGE

21. 11. 2017

Before Adwera – Ong’injo J

Penina – C/A

Petitioner – Stanley Rimberia – Present in person

Protester – Salome Kathure – Present in person

M/s Mokua Obiri & Associate advocates for Petitioners – N/A

Order

Judgment delivered, dated and signed in court on 21st November 2017.

HON. A.ONG’INJO

JUDGE