[2017] KEHC 1970 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

SUCCESSION CAUSE NO. 419 OF 2006

In the Matter of the Estate of M’raiji Kithiano (Deceased)

JOHN GITUMA M’RAIJI.................................1ST PETITIONER

STANLEY MUREGA M’RAIJI.........................2NDPETITIONER

-Versus-

ELIZABETH KAMWITU....................APPLICANT/OBJECTOR

JUDGMENT

Do not discriminate daughters

[1] In a ruling delivered on 3rd day of October 2017 on Summons for Revocation of Grant application dated 21st July 2009the court stated that:-

From the way parties have proceeded on this application, they seem to have obfuscated two processes; the one for revocation and distribution. But in the interest of justice and good order, I propose to deal with revocation first and depending on the outcome thereof, I will determine the question of distribution of the estate at a later date on the basis of the evidence adduced and pleadings filed in court.

As penultimate decision, the court ordered that:

1. The inhibition placed by the Applicant upon L. R NO.NTIMA/IGOKI/146 in respect of the civil suit No. 148 of 1995 shall remain in force pending the determination of this cause.

2. The grant of letters of administration made to the Petitioners herein on 5th day of August 2008 and confirmed on 15th January 2009 is revoked.

3. In the circumstances of this case and in exercise of my discretion under section 66 of the Law of Succession Act, I hereby appoint the Applicant and the 2nd Petitioner as joint administrators of the estate.

4. I will determine distribution of the estate on the basis of the submissions filed herein and the oral evidence adduced in court by parties. And accordingly confirm the grant herein.

5. This being a matter involving close family members, costs of this application shall be in the cause.

As I promised and in tandem with the intention of the parties, I now embark to determine distribution of the estate and confirmation of the grant.

Applicant’s case

[2] The following is the case as presented by the Applicant. According to the affidavit of the ELIZABETH KAMWITU, (hereafter the Applicant)the deceased who died in 1998 was survived by the following dependants:

1. STANLEY MUREGA

2. JOHN GITUMA - Deceased

3. JAPHET KIRIMA - Deceased

4. JOSEPH KIAMBI - Deceased

5. STEPHEN MURIIRA

6. PETER MUTHAMIA

7. JANET TIRINDI

The Applicant is the widow of JOSEPH KIAMBI, the son of the deceased. She stated that her late husband and their son JOSPHAT KINUE KIAMBI are buried on land parcel NO. NTIMA/IGOKI/146 (hereafter the Suit Land) which she has always occupied and lived upon with her children. The family also developed the said land by building a permanent house, growing various subsistence and cash crops and so on. She now lives on the said land with:

a) JOSHUA MWITI

b) HENRY KIRIMI

c) SAMSON MWENDA

d) PATRICK GIKUNDA

e) SOLOMON KATHURIMA

f) CATHERINE KINYA

g) MARY KAGWIRIA – Granddaughter

She deposed further that none of the other dependants especially Petitioners have ever stepped on the Suit land. And that the other dependants have always lived in Naari on land parcel No. KIIRUA/NAARI/526 measuring about 3. 28 HA of which she and her children have no interest. To her, this matter was filed secretly and she only learnt of it when she was served with the application seeking to remove the inhibition upon the Suit Land in respect of the Civil Suit No. 148 of 1995 in which she had sued the Deceased to transfer the said land but abated upon his death.

[3] She affirms that the Suit Land should be distributed to her since she has always occupied and lived there with her children. She claims that the only reason the Petitioners want portions of the Suit Land is to sell it.

[4] The Applicant also filed submissions dated 19th April 2017 and gave testimony in court on 4th May 2015. The submissions and the testimony are part of record. Nonetheless, the gist of those submissions and testimony is that shegot married to the son of the deceased in 1963 and has since then resided at the Suit Land exclusively to the exclusion of the other children of the Deceased. At the time of marriage she found only her husband living on the land. She testified that even the deceased had already moved from the suit land to Naari where he was living with the other sons of his. Her witness GERALD KITHINJI M’IKUNYUA gave evidence that he knew the Deceased and his family. He lived about a kilometer away from the deceased’s home at Kinoru. His testimony was that the Objector and her husband lived on the Suit land at Kinoru since her husband was given that land by the Deceased when he moved to Naari.She was categorical that during land gathering and eventual adjudication, the deceased had to give up the land at Kinoru to his son Joseph Kiambi so that he could get another land at Naari. That is why he moved to Naari and gave the land at Kinoru to his son Kiambi.

[5] Of the alleged documents for the application of consent to subdivide the land at Kinoru; the Applicant argued that since these documents were not produced, they should be treated as speculations or hearsay. She insisted that when the Deceased died he left her in occupation of the land at Kinoru and that none of his other children occupied the Suit Land. She declared that if the Deceased had any intention of having the Applicant and her family live at Naari, he should have moved them himself during his lifetime as he did with the others. The Applicant stated that the Deceased’s action of settling all his children on respective pieces of land was a gift during his lifetime and it cannot be challenged by any of his children after his death. She claimed that there is no evidence that the Deceased intended to move them from the suit land or share it out to any other defendant.

[5] She also submitted on the claim by the daughter, that they are not entitled to any part of the land at Kinoru as they were given one acre of Naari to share amongst themselves and the same was held by JANET TIRINDI and they never asked their father for more land, thus they are stopped from claiming more land.

Petitioner;my proposal is most acceptable

[6] The 2nd Petitioner filed a replying affidavit dated 28th August 2009. Of direct relevance to this judgment is the averments that the confirmed grant (“SM1”) dated 15th January 2009 has the most acceptable mode of distribution as it caters for all the beneficiaries of the Deceased. He stated further that before the Deceased died he wrote some sort of wish before the members of the family and village elders where he stated how his properties should be shared (annexure “SM2”).The Applicant attended the proceedings and never objected. He wished that land parcel No. NTIMA/IGOKI/146 should be shared among six (6) people while land parcel No. KIIRUA/NAARI/526 should be shared into seven (7) portions. He further stated that the Applicant is only being greedy because she knows that the Suit Land is more valuable as it is within Meru municipality; land No. KIIRUA/NAARI/526 is in the rural area. He states that the Applicant has bad intentions as she focuses on enriching herself at the expense of the other beneficiaries.

[7] The Petitioners also filed submissions dated 24th April 2017 andlisted two issues for determination but of relevant to this judgment is;-

1. Whether the distribution of the assets forming the estate should be as was carried out by the Petitioner or whether the same should be changed.

The 2nd Petitioner stated that married daughters indicated to court during confirmation that they have no interest.

[8] The 2ndPetitioner also testified. It was his testimony and submissions that Kiambi pre-deceased the deceased but the Suit Land was never given to Kiambi or the Applicant. It remained in the name of the Deceased. He stated that the Applicant and her husband who was one of the children of the Deceased had to live on the land but that did not entitle him to the whole land. He explained that Kiambi asked to remain and remained at Kinoru plot because he working at Meru. He also testified that each of the sons including Kiambi was given I acre of land at Naari by the deceased and the share for the Applicant is still intact. He stated that the Applicant was working on the said 1 acre but stopped after the death of her husband and upon filing a case against the deceased claiming that the land at Kinoruwas held in trust for her. He told the court that it is the deceased who panted the coffee and trees in the suit land except the Applicant was the one who was harvesting the coffee. She even tried to beat up the deceased when he attempted to harvest the coffee in the 1980’s. He also stated that his sisters were not aware of these proceedings but they should now be considered in the distribution and should get one acre at Naari. He said that land at Kinoru is of much higher value compared to the one at Naari.

[9] According to the 2nd Petitioner, the Applicant became hostile to the other beneficiaries when they attempted to visit the land before the death of the Deceased. He affirms that at no time did the registered owner give her the Suit Land.He referred to the defense filed by the Deceased in which the deceased pleaded that he had given the Applicant land in Naari.

[10] The 2nd Petitioner in his submissions argued that the deceased had applied to the Land Control Board to have the Suit Land subdivided into ¼ and but he could not deal with the said land further due to the pending civil case. The Deceased’s intentions for subdivision cannot be known. An order was served upon Miriga Meru West Division Land Control Board to supply documents relating to the transaction but the documents could not be traced.Further submissions were made by the Petitioners to the effect that the Applicant’s witness, GERALD KITHINJI IKUNYUA, in his cross-examination admitted that he was from a different clan from the Deceased hence he did not know how the land was acquired and who carried out developments of planting the coffee and trees. They insisted that the deceased carried out the developments on the land. The Petitioners clarified that, contrary to the submissions by the Applicant, it is not STANLEY MUREGA whodied but JOHN GITUMA, the 1st Petitioner. They acknowledge that when their sister testified that she indicated that she should get a share in the Suit Land and that the 1 acre that was shared out to their sister TIRINDI at Naari should be held by her on her behalf and for all the sisters. The Petitioner had no problem with the manner in which L. R. NO KIIRUA/NAARI/526 was shared out save that their sisters’ interest is in the said 1 acre. The Petitioners proposed that the estate should be distributed as follows:

Original L. R NO KIIRUA/NAARI/526

a. JANET NTIRIDI M’RAIJI ]

b. RAEL GAUKU ] 1 Acre

c. BEATRICE KANANU ] to hold together as one title in equal shares

d. ESTHER NKATHA ]

Balance to be shared equally by the following:

a. STANLEY MUREGA

b. ELIZABETH KAMWITU (to hold in trust for the beneficiaries of JOSEPH KIAMBI)

c. NANCY NTHENGI JAPHET (to hold in trust for the beneficiaries of JAPHET KIRIMA)

d. STEPHEN MURIIRA M’RAIJI

e. PETER MUTHAMA M’RAIJI

f. EUNICE GITUMA (to hold in trust for the beneficiaries of JOHN GITUMA M’RAIJI)

The land parcel No. NTIMA/IGOKI/146 which measures 0. 4 Ha to be subdivided equally among all the beneficiaries.

[11] Eunice Karuru wife of late Gituma also testified in support of the Petitioner’s case. She told the court that she was given the title deed for the suit land and passed it over to the 2nd Petitioner. She also said that her father had said that the land at Kinoru and Naari be shared equally by all. She proposed that daughters should also get their share. Esther Nkatha, daughter of the deceased also testified. Her testimony was that she represented the interest of all daughters. She stated that their father had 5 daughters but one of them called Nkoroi is deceased. He also had two pieces of land; one at Naari and another at Kinoru. She proposed that the daughters should be given the 1 acre at Naari which was initially allocated to Janet Tirindi and the balance be shared among the seven sons. She also proposed that, as the land at Kinoru is very valuable, it should be sold and the proceeds shared out to all the children of the deceased as that land together with the coffee thereon belongs to the deceased. She insisted that the Applicant had sued their father in order to force him to transfer the land at Kinoru to her but he died before the case was finalized. She stated that the Applicant had been given her share at Nari and used to live there but left later.

DETERMINATION

Giftinter vivos

[12] I should now decide on distribution and confirm the grant herein. I have considered the evidence adduced in court, the affidavit evidence and the law. According to the Applicant, the deceased made a gift inter vivos of land parcel No NTIMA/IGOKI/146 to her husband. She also claimed that from the time of marriage, she, the children and her husband have lived on the suit land. She stated that the family has developed the said land and has planted coffee and trees. She claims that all the other sons of the deceased relocated to and have lived in Naari and none lives at Kinoru. This was her testimony in court. She called a witness to support her claim. Her claim is therefore largely founded on alleged gift inter vivos by the deceased to her husband. She relies on the case of High Court Succession Cause No. 15 of 2015 In the Estate of The Late Gichunge M’itwerandu alias Githungu M’Nthiiriwhere Justice Mabeya held:

“A person can deal with his property as he wills during his life time. Whoever feels aggrieved on how his/her parent had dealt with his property should at the earliest opportunity question such a person during his/her lifetime. He/She cannot wait until such person dies to raise issues of discrimination or unfairness. Such issues can only validly be raised in cases of a will since wills are kept secret until the testator passes on. However request that are given as gifts inter vivos openly so given and in my view whoever is dissatisfied is at liberty to question the same before the demise of the giftor.”

This calls for examination of the law on gifts inter vivos.

[13] On the law on gift inter vivosI am content to cite the case of re Estate of the Late Gedion Manthi Nzioka (Deceased) [2015] eKLRwhere Nyamweya J stated that:

“In law, gifts are of two types. There are the gifts made between living persons (gifts inter vivos), and gifts made in contemplation of death (gifts mortis causa)….

For gifts inter vivos, the requirements of law are that the said gift may be granted by deed, an instrument in writing or by delivery, by way of a declaration of trust by the donor, or by way of resulting trusts or the presumption of. Gifts of land must be by way of registered transfer, or if the land is not registered it must be in writing or by a declaration of trust in writing. Gifts inter vivos must be complete for the same to be valid. In this regard it is not necessary for the donee to give express acceptance, and acceptance of a gift is presumed until or unless dissent or disclaimer is signified by the donee. See in this regardHalsburys Laws of England 4th Edition Volume 20(1) at paragraph 32 to 51.

In Halsburys Laws of England 4th Edition Volume 20(1) at paragraph 67 it is stated as follows with respect to incomplete gifts:

“Where a gift rests merely in promise, whether written or oral, or in unfulfilled intention, it is incomplete and imperfect, and the court will not compel the intending donor, or those claiming under him, to complete and perfect it, except in circumstances where the donor’s subsequent conduct gives the donee a right to enforce the promise. A promise made by deed is however, binding even though it is made without consideration. If a gift is to be valid the donor must have done everything which according to the nature of the property comprised in the gift, was necessary to be done by him in order to transfer the property and which it was in his power to do.”

[14] Now, applying the above law, the Applicant claims that the deceased gave the Suit Land to her husband as gift inter vivos. Agiftinter vivosshould be complete in order to be valid. Ordinarily, a gift in land should be effected through a written memoranda or a transfer or a declaration of trust in writing showing that the land was gifted to the husband of the Applicant. But, if a gift rests merely in promise, whether written or oral, or in unfulfilled intention, it is incomplete and imperfect, and the court will not compel the intending donor, or those claiming under him, to complete and perfect it, except in circumstances where the donor’s subsequent conduct gives the donee a right to enforce the promise.From the evidence on record, the Applicant’s claim of gift inter vivos to her husband is solely based on a promise and or unfulfilled intention by the deceased. Therefore, for such gift to be completed or perfected, the Applicant must establish circumstances where the donor’s subsequent conduct gives the donee a right to enforce the promise or unfulfilled intention.The evidence tendered in court show that the Applicant filed Civil Case No. 148 of 1995against the deceased claiming that she had acquired proprietary rights over the suit land. The Plaint was not, however, produced in evidence. But the defence filed in the said case by the Deceasedis part of record of court. The Applicant also admitted the existence of the case during cross-examination on 4th May 2015 and stated that:-

‘’…In 1995 I sued my father-in-law in case No. HCCC NO. 148 of 1995 Elizabeth Kamwitu M’Tititiria vs M’Raiji M’Kithiane; claiming the land on basis of trust’’.

The deceased denied the claim in his defence and more specifically that the Applicant acquired proprietary rights on the suit property at all or by adverse possession under section 38 of the Limitation of Actions Act. For a better understanding, I will cite section 38 below:-

38. Registration of title to land or easement acquired under Act.

(1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.

(2) An order made under subsection (1) shall on registration take effect subject to any entry on the register which has not been extinguished under this Act.

(3) A proprietor of land who has acquired a right to an easement under section 32 may apply to the High Court for an order vesting the easement in him, and may register any order so obtained in the register of the land or lease affected by the easement and in the register of the land or lease for whose benefit it has been acquired, and the easement comes into being upon such registration being made, but not before.

(4) The proprietor, the applicant and any other person interested may apply to the High Court for the determination of any question arising under this section.

(5) The Minister for the time being responsible for land may make rules for facilitating the registration of titles to land or to easements acquired under this Act.

The said suit was not concluded and so no declaration was made conferring any proprietary interest in the suit land upon the Applicant on the basis of trust or adverse possession. The suit land still stands in the name of the deceased as the registered proprietor.But the said suit is relevant in ascertaining the subsequent conduct of the deceased in giving any right to enforce a promise or unfulfilled intention to make a gift inter vivos. I will come to it later. That aside, the fact that the deceased left her son and his family to live on the suit land has been explained; Kiambi was working in Meru and so he made a request to be allowed to live at Kinoru. There is absolutely no evidence that the deceased intended to make or made a gift inter vivos of the suit land to his deceased son or the Applicant. Again, it is apparent that in the absence of transfer of the suit land to the Applicant, the averments by the deceased in his defence in suit No HCCC NO 148 OF 1995 was clear negation by the deceased of any promise or intention- if any- to make a gift inter vivos to his son or the Applicant. The overall impression of the facts of this case is that the donor’s (deceased) subsequent conduct does not give the donee (his son or Applicant claiming under him), a right to enforce the promise or unfulfilled intention to make a gift inter vivos. I should add here that, although occupation may be a consideration in appropriate cases, mere occupation of the estate property does not in itself amount to gift inter vivos by the deceased or give the person in occupation any or exclusive right of entitlement to the particular estate property. Much more is required to establish the promise or unfulfilled intention by the donor to make the gift and the donor’s subsequent conduct which gave the donee a right to enforce the promise or unfulfilled intention to make a gift inter vivos. If for example the donee had applied for and obtained consent to transfer the suit land to the Applicant, perhaps the result of these proceedings could have been different. But nothing of the sort is present here. I therefore dismiss the claim based on gift inter vivos and find that the suit land is part of the estate.

Distribution

[14] Following the above finding, how should the estate be distributed amongst the beneficiaries? The Petitioners proposed that suit land should be shared equally among all the dependants. They also propose that the daughters of the deceased to hold 1 acre in the land at Naari in equal shares and the balance thereto be shared among the seven sons of the deceased including the family of Kiambi. This is the 1 acre that had been allocated to Janet Tirindi in the grant that I revoked in my decision of 3rd October 2017. On 26th November 2016 ESTHER NKATHA when giving her testimony she stated that she is representing all her sisters. She supported the proposals by the Petitioner except she stated that the suit land should be sold and the proceeds thereof shared among all the children of the deceased. She added that KIAMBI is buried at Kinoru but no child of KIAMBI is buried there as alleged by the Objector.

[15] The Applicant proposes that she keeps the suit land and then the land at Naari be shared among the other six sons of the deceased. She seemed to be saying that the daughters of the deceased are married and have no right of inheritance in the estate. It is worth pointing out that under the law both men and women are treated equally. No gender is superior to the other. When an intestate has left behind children and no spouse his/her estate is to be shared equally among the children. See Section 38 of CAP 160 and Article 27of the Constitution. But when this rebellious and patriarchal bias and attitude rears its ugly head, the courts of law must of necessity restate their positions against this prohibited discrimination. And so I find no option than to cite a work of court in the Matter of the Estate of M’Ngarithi M’Miriti alias Paul M’NgarithiM’Miriti (Deceased) [2017] e KLRon the subject:-

Discrimination of daughters in inheritance

From the arguments coming through, it is clear issues to do with discrimination based on gender and sex have emerged. There were bad times in the heavily patriarchal African society; that being born as daughter disinherited you. And so, even the judicial journey to liberate daughters from being so down-trodden by the patriarchal society in Kenya on matters of inheritance has been long and painful. As a matter of fact, due to the constitutional architecture of our nation at the time, before 2010, we only saw pin-prick thrusts and rapier-like strokes by courts on these persistent patriarchal biases. But, things changed when RONO vs. RONO [2008] 1 KLR 803 delivered the downright bludgeon-blow on these discriminatory practices against women in inheritance; it splendidly paid deference to the international instruments against all forms of discrimination against women especially the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). And, I am happy to say that from thence, there are many cases- and the number is rising by the day as courts implement the Constitution- which state categorically that discrimination in inheritance on the basis of gender or sex or status is prohibited discrimination in law and the Constitution. More specifically I am content to cite the proclamation by the Court of Appeal in the case of STEPHEN GITONGA M’MURITHI vs. FAITH NGIRAMURITHI [2015] eKLR that:-

‘’Section 38 enshrines the principle of equal distribution of the net intestate estate to the surviving children of the deceased irrespective of gender and whether married and comfortable in their marriage or unmarried…’’

Therefore, a son will not have priority over a daughter of the deceased simply because he is male; all- male and female siblings- are equal before the law and are entitled to equal protection of the law. See article 27 of the Constitution.

[16] Accordingly, daughters have equal right to inherit as the sons of the deceased. On that basis, therefore, the mode of distribution proposed by the Applicant,in so far as it tends to exclude daughters from inheriting the estate, is tinctured with prohibited discrimination. In addition, her proposal is selfish as she intends to keep the most valuable land without any lawful justification. For those reasons, I reject it. I note that the daughters have expressed their will not to insist on equal sharing in both properties and supportedthe mode of distribution suggested by the Petitioners. They are contended with one acre in the land at Naari. Except, they seek equal sharing in respect of the suit land herein. As that is their informed and voluntary choice, this court will not fasten any quarrel thereto. I note that some of the beneficiaries are dead. In accordance with the law, the share of the deceased beneficiaryis taken by his widow and children in equal shares under the principal of representation and section 41 of the Law of Succession Act. In this case, parties have agreed that the share should be held by the widow of the deceased beneficiary for her benefit and in trust for all the children thereof. In sum, I find distribution as proposed by the Petitioners to be reasonable and in line with the law. Accordingly, the estate herein shall be distributed as follows:-

1. L. R NO KIIRUA/NAARI/526

a. JANET NTIRIDI M’RAIJI ]

b. RAEL GAUKU ] 1 Acres

c. BEATRICE KANANU ] to hold in common in equal shares

d. ESTHER NKATHA ]

Balance to be shared equally by the following:

1. STANLEY MUREGA

2. ELIZABETH KAMWITU (to hold in trust for herself and all children of JOSEPH KIAMBI in equal shares)

3. NANCY NTHENGI JAPHET (to hold in trust for herself and all children of JAPHET KIRIMA)

4. STEPHEN MURIIRA M’RAIJI

5. PETER MUTHAMA M’RAIJI

6. EUNICE GITUMA (to hold in trust for herself and all children of JOHN GITUMA M’RAIJI)

2. L.R NO. NTIMA/IGOKI.146

To be shared equally among:

a. JANET NTIRIDI M’RAIJI

b. RAEL GAUKU

c. BEATRICE KANANU

d. ESTHER NKATHA

e. STANLEY MUREGA

f. ELIZABETH KAMWITU (to hold in trust for herself and all children of JOSEPH KIAMBI)

g. NANCY NTHENGI JAPHET (to hold in trust for herself and all children of JAPHET KIRIMA)

h. STEPHEN MURIIRA M’RAIJI

i. PETER MUTHAMA M’RAIJI

j. EUNICE GITUMA (to hold in trust for herself and all children of JOHN GITUMA M’RAIJI)

The grant herein is confirmed accordingly. These proceedings involve close family members and so I order each party to bear own costs. It is so ordered.

Dated, signed and delivered at Meru in open court this 2nd day of November, 2017

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F. GIKONYO

JUDGE

In the presence of:

Kitheka advocate for Mrs. Ntarangwi for Petitioner

Mr. Mwanzia advocate for Mutegi for objection

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F. GIKONYO

JUDGE