[2023] KEHC 24799 (KLR)

In re Estate of Munene Kamau (Deceased) (Civil Appeal E022 of 2021) [2023] KEHC 24799 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24799 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal E022 of 2021

LM Njuguna, J

November 3, 2023

In the Matter of the Estate of Munene Kamau (Deceased)

Between

Lydia Gachanja Munene

Appellant

and

Francis Muchira Munene

Respondent

(Appeal from the Judgment of Hon. G.K. Odhiambo RM delivered in Principal Magistrate’s Court at Gichugu Succession Cause No. 70 of 2019 on 11th June 2021)

Judgment

1. The appellant has filed a memorandum of appeal dated 18th June 2021 seeking the following orders:a.That the appeal be allowed;b.The judgment of the lower court be set aside and be substituted with an order that the deceased’s estate namely land parcel number Kabare/Gachigi/210 be distributed equally among all the eleven(11) beneficiaries of the deceased irrespective of whether they are male or female, married or unmarried; andc.Costs of the appeal be provided for.

2. The appeal is premised on the grounds that the trial magistrate erred in law and fact by:a.Delivering a judgment against the weight of evidence adduced by the petitioner;b.Not holding that the deceased died intestate and polygamous, therefore Section 40 of the Law of Succession Act should apply;c.Holding that the protestors had been given land as gift inter-vivos by the deceased whereas no evidence was adduced to that effect;d.Failing to hold that land parcel number Kabare/Gachigi/210 ought to have been equally distributed among the eleven (11) children of the deceased;e.Deciding the matter based on extraneous evidence adduced in court;f.Discriminating against the daughters of the deceased and giving larger portions of the land to the sons.

3. The background of the matter is that a grant of letters of administration was issued on 07th January 2020 jointly to the appellant, the respondent and one James Kamau Munene. As the case should be, a summons for confirmation of the grant was filed. The affidavit in support of the summons proposed a mode of distribution in equal shares for all the beneficiaries. However, the other two administrators objected to the mode of distribution. The consent to confirmation of the grant was also not fully signed by the beneficiaries. The respondent proceeded to file an affidavit of protest claiming that he was unaware of the succession proceedings seeking confirmation of grant. That according to him, the deceased gave one acre to each of the sons while he was still alive and a portion to his 2 wives who are now deceased, to hold in trust for all the daughters. He also filed his witness statement alongside Joseph Kanyiri Munene and James Bundi Gituto.

4. The court took viva voce evidence and in the protestor’s case, the respondent stated that the deceased had given each son one acre and retained 1. 3 acres of the land for each of his wives who would hold the same for their daughters. That the deceased even placed proper boundaries for this purpose. That in the proposed mode of distribution, the appellant had included the widower of one of their deceased sisters. That the appellant already lives on their late mother’s portion of the land while Lucy Wakabu Munene of the other house is also living on the portion belonging to the deceased step-mother. That the deceased divided the land in the presence of the clan members and a land surveyor but he died before completing the process of transfer of the land. He denied that the deceased left a will.

5. PW2 was James Bundi Gituto who adopted his statement and upon cross-examination, stated that the deceased called the clan and subdivided the land and a surveyor established beacons. That the deceased died before he was able to complete the process of transferring the land to the sons. That he had been called by the deceased to witness the sub-division of the land. That the appellant lives on the portion that was left for her deceased mother and does not allow her sisters to come and visit.

6. PW3 was Joseph Gichobi Wambugu, a friend of the deceased who also adopted his statement as evidence-in-chief and upon cross-examination confirmed what PW2 said. He added that the land was subdivided in the year 1987.

7. PW4, James Kamau Munene had filed an affidavit of protest and relied on it as his evidence-in-chief. On cross-examination he stated that after the deceased distributed the land to his sons, he left 2. 6 acres for each of his wives which portion was meant to be given to the daughters in the event that their marriages did not work out. That none of them have a portion of land in their names.

8. PW5, PW6 and PW7 supported the protestor’s case and had given authority to PW4 to plead and argue on their behalf.

9. On her part, the appellant/petitioner stated that the deceased had twelve children and not four children who were given the land. That she settled on the land which was given as her late mother’s portion. That her mode of distribution also included the husband of their late sister because he is a beneficiary. She stated that the land should be divided equally amongst all the beneficiaries.

10. DW2, John Kamau Munene stated that all the beneficiaries should be given an equal portion of the deceased’s land according to the appellant’s proposed mode of distribution.

11. DW3, Francis Muthiki Kariuki was a friend of the deceased who was present at the time when the deceased distributed his land. He adopted his statement as his evidence-in-chief. On cross-examination, he stated that the deceased distributed his land to his sons and the boundaries were placed and although some marks were removed, the distinguishing lines still exist. That the appellant is living on the portion of land left for her deceased mother.

12. DW4 Gacoki Mwangi was a friend of the deceased who was present when the land was distributed to five children of the deceased. That the deceased wished that the land would be distributed according to how he had said. That the deceased was involved in an accident and died before he could process titles for the sons. That the distribution was done sometime between the years 1970-1980.

13. The trial court maintained the distribution as envisioned by the deceased and was guided by the cases of Re Estate of Nahasho Arimba Ndiira (deceased) (2019) eKLR, Re Estate of M’Tuerandu M’Itunga (deceased) (2019) eKLR, Martha Wanjiku Waweru v Mary Wambui Waweru (2007) eKLR, Paul Kiruhi Nyingi & Another v Francis Wanjohi Nyingi (2009) eKLR and Re Estate of Joshua Orwa Ojodeh (2014) eKLR. In its judgment, the trial court found that the distribution of the property to the sons of the deceased amounted to gifts inter vivos.

14. In this appeal, the parties filed their written submissions.

15. The appellant submitted that the trial court erred in finding that the distribution of the land to the sons was gift inter vivos yet the same did not meet the legal threshold of such a gift. That upon the death of the deceased, Section 40 of the Law of Succession Act ought to have been applied in distributing the estate. That the distribution of the land according to the wishes of the deceased was discriminatory and unfair. That the distribution per Section 40 should be done equally to all the beneficiaries according to the two houses. On her submission that the distribution was discriminatory, she relied on the cases of Re Estate of Francis Mwangi Mbaria (deceased) (2018) eKLR and Stephen Gitonga M’Muriithi v. Faith Gira Muriithi (2015) eKLR.

16. The respondent submitted that following distribution of the estate by the deceased, the respondent and all other recipients of the gifts inter vivos have settled on the land for more than 40 years uninterrupted. That the deceased died before completing the process of transfer of the properties and that all they have is a sketch map of the land. He supported the decision of the trial court and the cases relied upon, to make its decision.

17. From the foregoing, the issues for determination are as follows:a.Whether the distribution of the estate of the deceased before his death amounted to gifts inter vivos; andb.If the determination in (a) is not in the affirmative, whether the intestate should be subjected to Section 40 of the Law of Succession Act.

18. On perusal of the evidence adduced, the deceased distributed the land to his sons between the years 1970-1980 and he died in the year 2001. It is stated by various witnesses that he died before he could process titles for the sons. On the question of whether his distribution of the land to his sons amounted to gifts inter vivos, we must understand the elements that validate this type of a gift and how it can be distinguished from a will. Gifts inter vivos are governed by Section 42 of the Law of Succession Act as follows:“Where-a.an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; orb.property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.”

19. During the life time of the deceased, he was free to deal with his property howsoever he wished. After his death, the actions he took which affected the estate must be subjected to the Law of Succession Act whether he died intestate or otherwise. That is to say, all his property, will be accounted for under the Act for a determination on whether the properties remain as part of the intestate estate or were passed on to other parties before death of the deceased. Even if the latter is the case, the properties will be considered for the purpose of establishing the net estate for purposes of distribution. In our present case, it was stated that the deceased called his sons and distributed his land to them, showing them boundaries and even marking beacons. The deceased died more than 21 years (estimating from 1980-2001) after the said distribution but no further processes had been undertaken to complete the process of acquisition of the land by the sons.

20. Gifts as envisioned in Section 42 of the Act are gifts inter vivos. Gifts inter vivos are passed from the deceased during his lifetime and should be passed completely or absolutely. The deceased intended to give the properties to his sons and he even proceeded to call witnesses to attest as he distributed the property. He gave clear instructions on the distribution. However, the gifts remained incomplete and were not passed to the individuals who were intended to receive them. Before the death of the deceased, it was imperative that the donor and donees take the necessary steps to pass legal possession of the property. Gifts inter vivos are discussed extensively in the case of Micheni Aphaxard Nyaga & 2 others v Robert Njue & 2 others (2021) eKLR where the court stated thus:“In any event the person who makes such a gift must have the capacity and competency to gift the property and the gift must be perfected. In the case of inter vivos the gift must go to the donee absolutely during the lifetime of the donor. It is also well established that where the gift has been made, delivery to the beneficiary is necessary to consummate the gifts."

21. According to 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.”

22. Odunga’s Digest on Civil Case Law and Procedure Vol (III) Page 2417 at paragraph 5484 (d) e – 1 states thus:“Generally speaking the moment in time when the gift takes effect is dependent on the nature of the gift; the statutory provisions governing the steps taken by the donor to effectuate the gift. (See in Re Fry Deceased {1946} CH 312 Rose: and Trustee Company Ltd v Rose {1949} CL 78 Re: Rose v Inland Revenue Commissioners {1952} CH 499, Pennington v Walve {2002} 1WLR 2075, Maledo v Beatrice Stround {1922} AC 330. Equity will not come to the aid of volunteer and therefore, if a donee needs to get an order from a Court of equity in order to complete his title, he will not get it. If, on the other hand, the donee has under his control everything necessary to constitute his title completely without any further assistance from the donor, the donee need no assistance from equity and the gift is complete. It is on that principle that in equity it is held that a gift is complete as soon as the donor has done everything that the donor has to do that is to say as soon as the donee has within his control all those things necessary to enable him, complete his title. Where the donor has done all in his power according to the nature of the property given to vest the legal interest in the property in the donee, the gift will not fail even if something remains to be done by the donee or some third person. Likewise, a gift of registered land becomes effective upon execution and delivery of the transfer and cannot be recalled thereafter even though the donee has not yet been registered as a proprietor. (See Shell’s Equity 29ED Page 122 paragraph 3)”

23. Having said this, it is my view that the intended gifts inter vivos were not complete and therefore are as good as gifts not passed yet. They are to be considered as part of the intestate estate of the deceased and to be subjected to the relevant mode of distribution according to the Law of Succession Act.

24. On the second issue for determination, I shall now dwell on distribution of the intestate estate of the deceased. It is not in question that the deceased had two wives. This created two houses according to Section 3(1) of the Law of Succession Act which states that "House" means a family unit comprising a wife, whether alive or dead at the date of the death of the husband and the children of that wife. On this basis, I must use Section 40 of the Act as my focal point for this polygamous scenario. It provides:“40. Where an intestate was polygamous;1. Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children;2. The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38. ”

25. Now that it is established that the property title number Kabare/Gachigi/210 is the only estate for distribution, two more questions arise, first, whether the husband of one of the deceased daughters can inherit and secondly, whether all the beneficiaries should get an equal share in the estate. I do note that the mode of distribution proposed in the summons for confirmation of the grant included the husband of one of the deceased daughters. This is a case of a deceased beneficiary. In my view, the portion of the estate that will be determined towards the deceased beneficiary shall revert to the estate until such time that an administrator is appointed in the estate of the deceased beneficiary. Such was the position taken in the case of Kambora Mamau v Esther Nyambura Kirima [2002] eKLR where the court stated:-“As I said in this court’s Succession Cause No 1086 of 1995, in the matter of The Estate of Ndungu Kariuki (unreported); a certificate of confirmation of grant confers upon a beneficiary under it a beneficial interest. I stated:“As a certificate of confirmation of grant, also referred to as a certificate of confirmation, confers upon a beneficiary under it a beneficial interest in the estate of the deceased person, where such a beneficiary subsequently dies before the executor or administrator of the estate for which the certificate of confirmation was issued transfers the resultant legal interest or title to the aforesaid beneficiary, it is not proper and lawful to proceed under rectification of that certificate of confirmation to replace the deceased beneficiary with a person other than a confirmed executor or administrator of the estate of the deceased beneficiary.”.... To get to be a confirmed executor or administrator of the estate of a deceased beneficiary, the proper procedure would be for the person aspiring to replace the deceased beneficiary to start the ball rolling in separate proceedings being a petition for the grant of probate or letters of administration in the estate of the deceased beneficiary. The aspirant will start those proceedings either as a petitioner as well as a beneficiary or as a purely beneficiary influencing others interested to have the petition filed.”

26. On whether the distribution should be in equal portions to all the beneficiaries, Article 27(3) of the Constitution provides that:“Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres”.

27. In the case of the Estate of M’Ngarithi M’Miriti alias Paul M’Ngarithi M’Miriti (Deceased) [2017] KLR as follows: -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 v. Rono [2008] 1 KLR 803 delivered the downright bludgeon-blow on these discriminatory practices against women in inheritance…..More specifically I am content to cite the proclamation by the Court of Appeal in the case of Stephen Gitonga M’murithi v 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...”

28. This means that the rights of sons and daughters in the estate of the deceased is recognized in equal measure under the constitution. At this point, I note that all of the sons and daughters have an inheritance in some sort of way. However, the matter is before this court to ascertain if the distribution is equitable and just. My point of departure is the houses and number of units available for distribution. In this case, excluding the two deceased wives of the deceased, the number of beneficiaries/units is twelve (12) including the estate of the deceased beneficiary. In the case of Rono v. Rono (supra), the court applied Section 40 of the Law of Succession Act and stated;“....More importantly, Section 40 of the Act which applies to the estate makes provision for distribution of the net estate to the “houses according to the number of children in each house, but also adding any wife surviving the deceased as an additional unit to the number of children….”

29. I am inclined to find that the 12 beneficiaries in the estate of the deceased should benefit from the estate. In the case of In re Estate of Waweru Mwaniki Gatuha (Deceased) [2020] eKLR where the court was guided by the decision in Scolastica Ndululu Suva v Agnes Nthenya Suva [2019] eKLR where it was held:“It is therefore evident that although Section 40 of the Law of Succession Act provides a general provision for distribution of the estate of a polygamous deceased person, the court has the discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate.”

30. I have considered the submissions, and the relevant case law and I find that the appeal has merit and is allowed with orders as follows:a.That the estate of the deceased being land parcel number Kabare/Gachigi/210 be distributed amongst the 12 beneficiaries as follows:i.The sons each to get ¾ of an acre.ii.The daughters to share the remaining land equally including the deceased beneficiary but her portion shall remain in the hands of the administrators until such a time that an administrator is appointed for her estate.b.A certificate of confirmation of the grant to issue as per above terms.c.Each party to bear their own costs.

31. It is so ordered.

DELIVERED, DATED AND SIGNED AT KERUGOYA THIS 3RD DAY OF NOVEMBER, 2023. L. NJUGUNAJUDGE............................ for the Appellant............................ for the Respondent