[2017] KEHC 2208 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

SUCCESSION CAUSE NO. 901 OF 2012

IN THE MATTER OF THE ESTATE OF MURIITHI MINYATI NGUNU (DECEASED)

LYDIA MUTHONI MUNENE……………........………………… PROTESTOR

VERSUS

CAROLINE WANGUI MURIITHI.................…………………. RESPONDENT

RULING

FACTS

1. The estate relates to the late Muriithi Minyati Ngunu (deceased) who died intestate on the 28th December, 2007; the identifiable properties comprising the estate of the deceased are the following land parcel numbers;

(i) Kabaru/Ngonde/ Block 2/Ngatha measuring approximately 40 acres;

(ii) Ruguru/Karuthi/25 measuring 3. 7 acres.

2. The Deceased died intestate; he was polygamous and had two wives; the first wife Eleys Watere Muriithi is deceased having died on the 7th December, 1986 and the second and surviving widow being Caroline Wangui Muriithi the respondent herein (who shall hereinafter be referred to as ‘Caroline’);

3. The deceased was survived by his widow Caroline and ten (10) dependants, as listed hereunder, namely;

(i) Caroline Wangui Muriithi –widow

(ii) Lydia Muthoni Munene – daughter- 1st house

(iii) Ann Wamuyu Muthee- daughter-in-law-1st house

(iv) Catherine Nyaithanje Mwaniki- daughter-2nd house

(v) Esther Wanjiru –daughter- 2nd house

(vi) Patricia Wangu- daughter- 2nd house

(vii) Separanza Nyaruai- daughter- 2nd house

(viii) Ambrose Githaiga Muriithi- son - 2nd house

(ix) Ephantus Ngatia Muriithi –son- 2nd house

(x) Peter Kariuki Muriithi – son - 2nd house

(xi) Silas Maina Muriithi –son- 2nd house

4. The protestor filed a Citation against the members of the 2nd house in particular Caroline who was then compelled to petition for Letters Of Administration to the deceased’s estate; a Grant was subsequently issued by the court on the 19th February, 2013 to the protestor and Caroline as joint administrators;

5. On the 30th January, 2014 Caroline filed Summons for the Confirmation of the Grant and therein proposed her mode of distribution; the protestor being aggrieved with Caroline’s proposed mode of distribution filed this instant Protest;

6. Directions were given on the 17th March, 2014 that the hearing to proceed by way of viva voce evidence; the parties together with their respective witnesses testified and at the close of the hearing the parties respective Counsels were directed to file and exchange written submissions.

THE APPLICANTS CASE

7. The protestor stated in evidence that she was a retired nurse and a lecturer at Kenya Medical Training College in Nairobi County; that her late mother who was the deceased’s first wife died in 1986; and the 1st house consisted of herself and her late brother David Muthee’s widow Anne Wamuyu (PW2); whilst the 2nd house consisted of the deceased’s 2nd wife (Caroline) her four (4) daughters and four (4) sons;

8. On the 30th January, 2014 Caroline filed an application for confirmation of the Grant without consultation and or consent being sought from the co-administrator (the protestor herein); Caroline’s proposed mode of distribution was as set out hereunder;

(i) Parcel No. Kabaru/Ngonde/737 – to Caroline

(ii) Parcel No. Kabaru/Ngonde/738 - to Nicholas Muriithi Munene;

(iii) Parcel No. Ruguru/Karuthi/25- to be shared equally between Caroline and the Protestor.

9. Whereas the protestor’s proposed mode of distribution was that the remaining properties of the deceased’s estate be allocated as follows;

(i) Parcel No. Kabaru/Ngonde/737 – to the Protestor

(ii) Parcel No. Kabaru/Ngonde/738 – to be allocated to Nicholas Muriithi Munene;

(iii) Parcel No. Ruguru/Karuthi/25 – to Ann Wamuyu Muthee

10. The protestor testified that her late mother Eleys Watiri Muriithi had contributed to the purchase of Kaburu/Ngonde Block2/Ngatha; in 1974 the deceased and Caroline relocated to Kaburu/Ngonde/614 where he lived with the Respondent until his demise; whereas her mother and her late brother continued to reside on the parcel known as Ruguru/Karuthi/25;

11. She stated that before the demise of her father she enjoyed a close and loving relationship with him; that the deceased was diabetic and that it was coupled with senile dementia that made him mentally incapacitated; that it was apparent from the documentation provided that the sub-divisions were done in the year 2005; and at that time the deceased was not capable of making any sensible decision; and that the deceased was totally blind at the time the documents for the Land Control Board were purportedly signed;

12. Her testimony was that the deceased left parcel number Kabaru/Ngonde/Block 2/Ngatha which measured approximately 45 acres intact; he also left parcel number Ruguru/ Karuthi/25; that she had lived on the latter parcel of land and gotten married whilst still resident thereon; her late brother had also lived on the same parcel with his wife until his demise; the protestor lamented that Caroline did not allocate any land to the protestor nor to her brothers widow (PW2);

13. That the deceased had left this latter parcel of land for PW2’s use and cultivation; that her said sister in law resided on the parcel of land with her six children; and any proceeds from that land was used to educate her six (6) children;

14. It was the protestors contention that it was her late father’s wish and intention that his properties be shared equally between the two houses;

15. The protestor reiterated the fact that the deceased was at that time incapable of making any rational decision as he was visibly and mentally incapacitated; and contends that three (3) years prior to her father’s demise Caroline took over the management of the his affairs; that even though Caroline alleged that it was the deceased who had subdivided Kaburu/Ngonde Block 2/Ngatha into parcels measuring 2. 6 hectares and that the deceased had also allocated these parcels to the children in the 2nd house; but the protestor maintained that it was Caroline who had effected the sub-divisions and transfers herself without involving members of the 1st house;

16. Neither the protestor nor PW2 were aware of the sub-divisions and transfers over Kabaru/Ngonde/Block 2/Ngatha; and reiterated that it was Caroline and not the deceased who sub-divided this property and by virtue of these sub-divisions allocated herself and her family the lions’ share of this property; it should be noted that Caroline and her family were already in possession and control of Kabaru/Ngonde/Block 2/614;

17. That Caroline had failed to provide Transfer Forms duly executed by the deceased to prove that he had indeed executed the instruments before his demise; and that Caroline had also given no explanation as to why the titles were issued after the demise of the deceased; that this deliberate failure to disclose and conceal material facts relating to the acquisition of titles was a clear indication that there was an intention to disinherit the 1st house;

18. PW2’s evidence was that she was the daughter in law of the deceased by virtue of being married to the deceased’s late son; that she resided on the parcel of land known as Ruguru/Karuthi/25 with her late husband and her late mother in law; her husband died and left them on this parcel of land which she continues to till and live with her children;

19. That she was never informed of any sub-divisions of the deceased’s land in Kabaru nor was she invited by any member of the 2nd house to attend any Land Control Board where the deceased’s property was supposedly sub-divided; and by virtue of her marriage she is entitled to a share in the Estate of the deceased;

THE RESPONDENTS CASE

20. The respondent confirmed in evidence adduced that she was the 2nd widow of the deceased and that he was polygamous and that there were two houses; the wife in the 1st house was deceased that she had two children; that she had eight issues from the marriage with the deceased; that the deceased’s estate comprises of two parcels of land namely Kabaru/Ngonde/Block 2/Ngatha measuring about 40 acres and Ruguru/Karuthi/25 approximately 4 ares;

21. This first parcel was sub-divided by the deceased and that he attended the Land Control Board to secure the requisite consents and Title Deeds were later issued; that it was the deceased who transferred the sub-divisions to six beneficiaries inter-vivos; the beneficiaries issued with Titles were Silas Maina Muriithi, Ambrose Githaiga Muriithi, Ephantus Ngatia Muriithi and Patricia Wangu who are children of the deceased; one beneficiary Peter Machira Muriithi died before presenting his transfer for registration;

22. All the applications for consents to the Land Control Board and the transfers inter-vivos and were done in a regular manner; and the deceased was not unwell at the time and that he knew what he was doing;

23. As for the Ruguru land she testified to having relocated with her late husband to another parcel of land; that the 1st wife and her late son were left in possession of this parcel; that there were two clear demarcations that exist to date with each house occupying a distinct half portion of the land to the exclusion of the other; and that these sub-divisions were also effected by the deceased during his lifetime;

24. The respondent testified that her proposed mode of distribution was just and equitable; and therefore there was no reason for this court to depart from it; and urged the court to dismiss the protest with costs.

25. Her witness DW2 stated that he was a friend of the deceased for over a period of 20 years; and was privy to the manner the deceased handled his land; the deceased gave the parcel of land at Karuthi to the two wives and the one at Ngonde was given to the children;

26. That the deceased attended two Land Control Board meetings with his children and that DW2 accompanied them as well and was present at all the Land Board meetings; the first meeting was for the sub-division of the land; PW2 attended the first Land Control Board meeting but refused to attend the second one; the deceased therefore disinherited her and gave her portion to a grand-child named Nicholas Muriithi Munene; that the deceased distributed his property to all his children but with the exception of the daughters who were married; all these wishes were made to him by the deceased about three (3) to four (4) years before his demise; that the deceased did not call any clan members when he was distributing the property to his children.

ISSUES FOR DETERMINATION

27. After hearing the rival presentations of the respective parties and reading the written submissions this court has framed the following issues for determination;

(i) Whether this court has jurisdiction to revoke the Titles already issued;

(ii) Which properties of the estate of the deceased are available for distribution;

(iii) Distribution of the estate of the deceased.

ANALYSIS

Whether this court has jurisdiction to revoke the Titles already issued;

28. At that hearing hereof the protestor’s contention was that the deceased was diabetic and that it was coupled with senile dementia that made him mentally incapacitated; that it was apparent from the documentation provided that the sub-divisions were done in the year 2005; and at that time the deceased was not capable of making any sensible decision; and also at the time the documents for Application for Consent of the Land Control Board were purportedly signed by the deceased he was then totally blind; the protesters evidence of the deceased’s incapacity was rebutted the evidence of both the respondent and DW2;

29. Section 107 of the Evidence Act places the evidential burden of proof of any particular fact on the person who makes the averments; it was therefore incumbent upon the protestor to produce expert medical evidence in support of her late father’s mental and visual incapacity;

30. The Protestors case was that the sub-divisions, consents and transfers were obtained irregularly; the reason attributed was that the deceased being incapacitated it was highly doubtful and unlikely to have actually affixed his thumb-print on the requisite application and transfer documents; again the onus was upon the protestor to also provide witnesses to disprove the authenticity of the completion documents produced by the respondent and also ought to have provided expert witnesses to disprove the deceased’s thumb-prints affixed thereon;

31. The above notwithstanding the jurisdiction of this court is also an issue that was raised by the respondent; in the protestors evidence and also in her Affidavit of Protest she acknowledges the fact that Title Deeds emanating from the sub-divisions were issued and that Transfers had already been effected into the names of three of the beneficiaries from the 2nd house; that Title Deeds as well had been issued in the names of these beneficiaries; which therefore means that the interest in these properties has already passed;

32. This court is mandated under the Law of Succession Act and the Constitution 2010 to determine the heirs and dependants and to distribute the net estate of a deceased person; the considered view of this courts is that the proper forum to challenge matters relating to Title would be the Environment and Land Court and it is this aforesaid court that has the mandate to revoke and cancel existing titles;

33. Therefore on the issue of irregularly obtained consents, sub-divisions and Transfers the protestor is directed to move the court with competent jurisdiction for the determination of the validity of processing the Titles and the cancellation or revocation thereof.

Which properties of the estate of the deceased are available for distribution;

34. This court reiterates that the protestor acknowledges in her Affidavit of Protest the fact that Title Deeds emanating from the sub-divisions were issued and that Transfers of three of the sub-divisions had already been effected into the names of three of the beneficiaries from the 2nd house; and that registration had been effected and Title Deeds had also been processed and issued in the names of these beneficiaries; which would therefore mean that the interest in these properties has already passed;

35. The interest in Parcel Numbers Kabaru/Ngonde Block II (Ngatha) 733; Kabaru/Ngonde Block II (Ngatha) 735 Kabaru/Ngonde Block II (Ngatha) 736 and Kabaru/Ngonde Block II (Ngatha) 739 having passed to the respective owners this would therefore mean that these parcels do not form part of the estate of the deceased;

36. From evidence adduced by the protestor and the respondent it is not in dispute that the only remaining properties forming the estate of the deceased which are available for distribution are Parcel Numbers Kabaru/Ngonde/737, Kabaru/Ngonde/738 and Ruguru/ Karuthi/25; and this court has pronounced that since it lacks jurisdiction to revoke the titles to the properties already bequeathed and where interest in the land had passed; therefore these aforementioned properties constitute the net estate of the deceased and that these are the properties that are available for distribution.

Distribution of the estate of the deceased

37. This court is therefore tasked with the distribution of Parcel Numbers Parcel Numbers Kabaru/Ngonde/737, Kabaru/Ngonde/738 and Ruguru/ Karuthi/25;

38. From the evidence adduced it is not disputed that the deceased was polygamous and had two wives there is only one surviving spouse and a total of ten surviving children;

39. The deceased being polygamous and having during his lifetime given out portions of his properties and purportedly disinheriting others this court finds that Section 42 of the Law of Succession Act and the Article 27 of the Constitution 2010 to be the applicable law on distribution in this instance; therefore distribution of the properties shall be subjected to the said provisions;

40. There is documentary evidence in support of the fact that the 2nd house has benefited more and using the protestors own words “the 2nd house has taken the lions’ share of the deceaseds estate” ; to elaborate further the 2nd house is in possession of the whole of Parcel Number Kabaru/Ngonde/Block 2/614 and in Kabaru/Ngonde/ Block 2/Ngatha which measured approximately 45 acres before the demise of the deceased; the 2nd house has already benefitted handsomely from the deceaseds estate and has 40 acres in Kabaru/Ngonde/ Block 2/Ngatha and only 5. 2 acres are available for distribution;

41. In the submissions made by the respondents Counsel it was suggested that the bequests made inter vivos be taken into account; and here the law that is applicable is Section 42 of the Law of Succession Act which promotes the principles of equality and equity and provides that where an intestate has during his lifetime given out property to any of his beneficiaries, that property shall be taken into consideration when determining the shares;

42. The evidence of DW2 was that it was the deceased who had distributed his property to his children and that he had indicated that his married daughters were not to be given land; further that PW2 was disinherited for having refused to attend the land control board meeting in Narumoru and that any portion designated to her for inheritance should be given to one Nicholas Muriithi Munene the deceaseds’ grand-son;

43. It is apparent that respondents mode of distribution of the remaining parcels was based on the deceased’s wishes; the respondent thus locked out the protestor because she was a married daughter and PW2 was also locked out for being un-co-operative;

44. Caroline’s proposed mode of distribution is found to be both discriminatory and unfair;

(i) Parcel No. Kabaru/Ngonde/737 – to Caroline

(ii) Parcel No. Kabaru/Ngonde/738 - to Nicholas Muriithi Munene;

(iii) Parcel No. Ruguru/Karuthi/25- to be shared equally between Caroline and the Protestor.

45. The Law of Succession does not discriminate against married women or single; with the advent of the Constitution 2010 at Article 27 every person is equal before the law and the exclusion of married women from inheritance is a form of discrimination; in this instance both the protestor and PW2 have a right equal to the other children to benefit from the estate of the deceased;

46. The estate of the deceased shall be distributed as follows;

(i) Parcel No. Kabaru/Ngonde/737 – to the protestor as she had proposed in her Protest;

(ii) Parcel No. Kabaru/Ngonde/738 - to Anne Wamuyu Muthee being a widow to a son of the deceased and is therefore entitled to inherit a portion of this property;

(iii) Parcel No. Ruguru/Karuthi/25- to be shared equally between the Protestor and Anne Wamuyu Muthee to give effect to the principle of equality as envisaged by the provisions of Section 42 of the Law of Succession Act;

FINDINGS AND DETERMINATION

47. For the afore-going reasons this court makes the following findings

(i) The respondents mode of distribution is found to be discriminatory and unfair;

(ii) The protest is found to be meritorious and is hereby allowed.

(iii) This court lacks jurisdiction to revoke the Titles transferred inter-vivos;

(iv) The properties enumerated in paragraph 46 hereinabove are found to form the estate of the deceased and are found to be available for distribution and shall be distributed in accordance with the mode set out therein;

(v) Any beneficiary is at liberty to apply for directions;

(vi) This being a family matter each party shall bear their own costs.

It is so ordered.

Dated, Signed and Delivered at Nyeri this 2nd day of November, 2017.

HON. A. MSHILA

JUDGE.