[2022] KEHC 14917 (KLR)

In re Estate of Nahason Kiragu Mbuthia (Deceased) (Succession Cause 146 of 2017) [2022] KEHC 14917 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14917 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Succession Cause 146 of 2017

CM Kariuki, J

November 3, 2022

IN THE MATTER OF THE ESTATE OF NAHASHON KIRAGU MBUTHIA (DECEASED) MARY WANGUI KIRAGU ……….……………1ST ADMINISTRATOR Versus ANN WAIRIMU GACHERU…...2ND ADMINISTRATOR/PROTESTOR

Judgment

1. The 1st Administrator, via Chamber Summons dated 5th December 2017 and filed on 6th December 2017, sought confirmation of the grant of the instant estate plus costs. The same was supported by the Affidavit of Mary Wangari Kiragu, sworn on 5th December 2017.

2. The proposed distribution attracted a protest from the 2nd Administrator as parties could not agree on the distribution of the Estate.

3. Thus, the matter went into trial on the distribution issue after the closure of their case; the court directed their argument be via submissions which were filed and exchanged.

4. The Protestor /2nd Administrator case and submission. The 1st Administrator seeks to distribute the deceased’s estate herein between the 1st and 2nd houses in the manner proposed under paragraph 8 of the supporting affidavit. Thus, the proposals are as follows;(i)First House;LR No. Nyandarua/olkalou South/533,

LR No. Nyandarua/UPPhus ERGilgi/219,

UNS. Read.plot No. 286 Gathundia Township

LR No. Nyandarua/uppert Gilgil/1038

and LR No. Nyandarua/gilgil West376(ii)The 2nd HouseUNS. Residential Plot No. 30 Olkalou,

LR No. Nyandarua/ndemi/368,

LR No Dundori/lanet Block 2/1247(Ndege)

and LR No. Nyandarua/kiambaga/2000.

5. It is submitted that in light of the above-proposed mode of distribution, it is vided the valuation report by Applecross surveyors dated 26th May 2017 and filed before Court, the 1st House seeks to retain the estate property valued at Kshs. Twenty-four million four hundred thousand leaving the 2nd House with estate property valued at Kshs. 11,600,000.

6. The 2nd Administrator/Protestor, vide an affidavit of Protest dated 9th May 2019 and filed in court on the 16th May 2019, protested the 1st Administrator’s proposed mode of distribution, stating, among other things, that the two (2) houses have equal units of four (4) units and each and therefore the estate of the deceased should in the very least devolve equally between the two (2) household as by law provided.

7. This matter was heard between the 17th of March 2022 and the 25th of May 2022, and the evidence is summarized hereunder.

8. PW1 Ann Wairimu Gacheru

9. The witness testified that she is a Ndege Ndimu, Nakuru County resident. She adopted her statement dated 23rd September 2020. She further produced her bundle of documents contained in her list of records dated 23rd September 2020 as P exhibit 1-10.

10. She stated that she is the 2nd wife of the deceased herein, having been married to the deceased in or around 1999. Together, they were blessed with two (2) children to wit, Mary Kiragu and Suleiman Mbuthia Kiragu, both minors.

11. The Protestor further testified that at the time of her marriage, she already had her first-born daughter, Nancy Wangari Kiragu, who was only one (1) month old. The deceased herein assumed parental responsibilities over the said minor until his demise.

12. The witness testified that she approached this court for legal redress since the first family had failed to distribute the estate of the deceased in accordance with the deceased’s wishes. She expressed her dissatisfaction with the 1st administrator’s proposed mode of distribution.

13. The witness proposed that the first family should bequeath LR No.nyandarua/olkalou South/533, LR No. Nyandarua/upper Gilgil/219, UNS. Read. Plot No. 286 Gathundia Township and UNS. Residential Plot No. 30 Olkalou

14. She further proposed that LR No. Nyandarua/gilgil West /376 and LR No. Nyandarua/kiambaga/2000 be shared equally between the first and the second house. That proposed mode of distribution gives the first house total of Ksh. Twenty-one million six hundred thousand leaving the protestor with a total of Kshs. Fourteen million four hundred thousand in terms of the valuation report by Applecross Surveyors dated 26th May 2017, filed pursuant to the orders of a court on 30th March 2017.

15. Upon Cross-examination, the witness confirmed that she was born in the year 1982. That at the time of her marriage, she was living in Tumaini with her cousins. Further, she confirmed that her firstborn daughter was one (1) month old at the time of her marriage.

16. She confirmed that she was married when she was about seventeen (17) years old and that her parents were informed. She further confirmed that her husband was accompanied by elders who included but were not limited to Joseph Kariuki

17. The witness confirmed that the deceased had his first wife, Jane Wanjiru, and they had three (3) children together. That the fourth child was born later, she confirmed that during the said period, the deceased had already acquired property No. 219 (Nyandarua/Upper Gilgil) and (Nyandarua/Gilgil West /376). That the rest of the properties were developed during the subsistence of her marriage with the deceased.

18. She confirmed that one and half years (1½) into the marriage, they relocated from Tumaini to Olkalou, where the deceased established her cereal business. Later, she started selling second-hand clothes until the year 2015.

19. She confirmed that her firstborn was born in Dundori Centre while She confirmed that she helped the deceased acquire the estate properties through the proceeds from her business and loans. That she used to give her deceased husband about Kshs. 8,000-10,000 every week. She confirmed that the deceased took her to her current matrimonial home in LR No. Dundori/lanet Block 2/1247 (Ndege) in the ear 2015.

20. She confirmed that Jane Wanjiru was living in her current matrimonial home, established on LR No. Nyandarua/upper Gilgil/219.

21. The witness confirmed that the family meeting held on the 11th of February, 2016, was not intended to distribute the deceased’s estate. She was advised to give her consent to commence the succession proceedings.

22. She confirmed that the deceased shared LR No. Nyandarua/gilgil West /376 equally between her and the 1st House to cultivate. That she used to produce her portion and even planted trees thereon.

23. She confirmed that no one has ever used the Kaibaga land. She further confirmed that Plot No. 30 Olkalou has very little income and is not, therefore, sufficient to help her raise the deceased children, who are still minors.

24. The witness confirmed that she has never lived on plot No. 1038 and that they were only recently constructed before the deceased’s demise. She confirmed that the agent has been collecting rent from plot No. 1038.

25. She further confirmed that the Lanet house is not a story building but a three-bedroomed house which is her matrimonial home. That the same was built in the year 2014.

26. Upon Re-examination, the witness clarified that the 1st Administrator and the first house have not denied that she is the deceased’s wife.

27. The witness clarified that the grant was issued on the 30th of May 2016, while the family meeting was held on the 11th of February 2016. That it was impossible to agree on the mode of distribution of the deceased's estate even before the grant was issued.

28. She reiterated that the agreement dated 11th February 2016 was to commence the succession cause, not the distribution of the deceased’s estate. She urged the court to be guided by the law governing the distribution of the estate where the deceased died intestate, as well as the minors of the deceased in distributing the estate herein.

29. According to the protestor, the issues are;a.Whether the 1st Administrator is entitled to the orders sought.b.Whether the 2nd Administrator/Objector is entitled to the orders sought.c.Who should bear the cost of this suit?

30. On the first issue, reliance is made on- Section 40 of the Law of Succession Act expresses in simple and self-explanatory terms that:“(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 place, but also adding any wife is 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 by the rules set out in sections 35 to 38. ”

31. She relies on the case of Re Estate of Ramaita Solitei (deceased) [2019] eKLR.

32. She contends that the deceased assumed parental responsibility for her minor child getting out of wedlock, which the 1st Administrator did not controvert and relied on provisions of Section 3(2) of the Law of Succession Act. Also relied on Re the Estate of Ernest Mjala Nyange (deceased) [2018] eKLR., Section 29 (b) of the law of Succession of the Act, Re Estate of Joseph Eric Owino (deceased) [2022] eKLR, and the case of In Re Estate of Paul Kamau Njoroge (deceased) [2021], eKLR.

33. In the instant case, it is evident that the 1st and 2nd Houses have four units, each pursuant to the provisions of section 40 of the Act.

34. The 1st Administrator’s proposed distribution mode failed the legal test under Section 40 of the Act.Whether 2nd Administrator or objector is entitled to the orders sought

35. On whether the protestor is entitled to the orders sought, it is contended that it is imperative to note that the following properties are not in dispute in the summons for confirmation of the grant and the protest:First Housea.LR No. Nyandarua /upper Gilgil/219b.LR No. Nyandarua/olkalou South/533c.Plot No. 286 Gathundia Town.Second Housea.LR No. Dundori/lanet/block 2/1247b.LR No. Nyandarua/ndemi/3688

36. Thus relies on the case of Francis Mwangi Thiong’o and4 others-vs. Joseph Mwangi Thiong’o[2015]eKLR where the court held that:“Section 40 states above that it is any wife surviving the deceased that would be considered as an additional unit in the number of children… the ground of appeal, therefore, succeeds as the Judge should have found that the first house had four units and the second comprising the respondents had five units. The land should therefore have been subdivided in the first instance along the ratio of 4:5”.

37. LR. No. Nyandarua/Olkalou South/533 LR No. Nyandarua/upper Gilgil/219, uns. Read. Plot No. 286 Gathundia township and uns. Residential plot no. 30 Olkaloube bequeathed to the 1st house while the 2nd house is given LR No. Nyandarua/Ndemi/1038, and LR No. Nyandarua/ndemi3688.

38. It was her further proposal LR. No. Nyandarua/Gilgil West 376 and LR No. Nyandarua/Kiambaga/2000 be shared equally between the first and the second house.

39. It is worthy of note that should this court adopt the Protestor’s proposed mode of distribution, the 1st House will receive a total of Kshs. 21,600,000 while the Protestor a total of Kshs. 14,400,000 as per the Valuation report by Applecross Surveyors dated 26th May 2017. It is, therefore, evident that the Protestor’s mode of distribution is not only equitable but also in tandem with the provisions of Section 40 of the Act and should be adopted. She cites the case of Mary Rono versus Jane Rono & William Rono [2005] eKLR, while quoting section 40 (1) of the Act, held that:“My understanding of that section is that while the net intestate estate is to be distributed according to houses, each house being treated as a unit, the Judge doing the distribution still has the discretion to take into account the number of children in each house. If Parliament had intended that there must be equality between houses, there would have been no need to provide in the section that the number of children in each house is taken into account…………..’

40. The Protestor confirmed that Save for the 1st born daughter, who is now above the majority, all other children are still minors who still need to be maintained, educated, and generally seen through life. She relies on the case of re the matter of the Estate Kariuki Kiburu (Deceased) Rahab Njeri Kariuki v Joyce Waruguru Kariuki & 2 others [2016] eKLR.

41. Givenvenw of the preceding, she submits that it is evident that the 2nd administrator/Protestor’s proposed mode of distribution agrees with the provisions of section 40 of the Act. However, should this court be inclined to vary the Protestor’s method of distribution, such variations should be made in her favor as held in Mary Rono versus Jane Rono & William Rono [2005] eKLR cited above

42. As regards the cost, legal fees, valuation fees, and other expenditures, the same will be recovered from the estate. That this court to find and hold as much.

1st Administrator Case and Submissions 43. The 1st administrator Mary Wangui Kiragu filed a summons for confirmation of the grant dated 5/12/17, where she sought for the license issued on 30/5/2016 to be rectified by deleting the name of the 2nd administrator and for the appointment to be confirmed as follows:-1st House.Jane Wanjiru Kiragu.L.R No. Nyandarua/olkalou South/533. L.R No. Nyandarua/upper Gilgil/219. UNS ResdPlot No. 286 Gathundia Township.L.R No. Nyandarua/upper Gilgil/1038. L.R No. Nyandarua/gilgilWEST/376. (Matrimonial Home)2nd House.Ann Wairimu Gacheru.L.R No. Residentail Plot No. 30 –OlkalouL.R No. Nyandarua/ndemi/3688. L.R No. Dundori/lanet Block2/1247 (Ndege). (Matrimonial Home).L.R No. Nyandarua/kaimbaga/2000.

44. The 3rd administrator filed an affidavit of protest dated 9/5/2019, where she sought for the estate to be distributed as follows: -1st House.L.R No. Nyandarua/Upper Gilgil/219. (Matrimonial Home).L.R No. Residential Plot No. 30. L.R No. Nyandarua/olkalou South/533. PlotNo. 286 Gathundia Town.2nd House.L.R No. Dundori/lanet/bloock2/1247. L.R No. Nyandarua/upper Gilgil/1038. L.RNo. Nyandarua/ndemi/3688. Jointly.L.R No. Nyandarua/gilgil West/376. (1st House Matrimonial Home)L.R No. Nyandarua/kiambogo/2000.

45. The parties could not agree, and the matter proceeded for a full hearing, with the parties testifying in support of their written statements and relying on the evidence as captured on record.

46. The parties are in agreement that the following assets should be distributed as follows: -SUBPARA1st House.L.R No. Nyandarua/olkalou South/533. L.R No. Nyandarua/upper Gilgil/219. L.R No. Plot No. 286 Gathundia Township.SUBPARA2nd House.L.RNo. Nyandarua/ndemi/3688. L.R No. Dundori/lanet Block2/1217 (Ndege). (Matrimonial Home)

47. The parties have disagreed on the following assets: -L.R No. Nyandarua/gilgil West/376. (1st House Matrimonial Home)L.R No. Nyandarua/kaimbaga/2000. L.R No. Nyandarua/upper Gilgil/1038. L.R No. UNS Residential Plot No. 30 Olkalou.

48. On the parcel number L.R No. Nyandarua/gilgil West/376 and L.R No. Nyandarua/kaimbaga/2000.

49. The 1st administrator testified that L.R No. Nyandarua/gilgil West/376 was acquired by the deceased and the 1st wife in the year 1996, and the two settled on the land with their young family, but they later relocated to Tumaini town on a 50 X 100 ft Plot where they started a shop business, and this is L.R No. Nyandarua/upper Gilgil/219.

50. The protester identified the plot as the 1st house matrimonial home. Still, the 1st administrator denied this from the official search attached to the valuation report prepared by Applecross surveyors and filed in Court, Parcel No. Nyandarua/gilgil West/376 was registered to the deceased on 5/11/1996, and a title deed was issued on the same date. It hosts a mud and timber poles walls house with a sitting room, three bedrooms, an external kitchen, a store, and an external toilet.

51. This is where the deceased and his wife started their humble beginnings before moving to Tumaini trading Centre after purchasing a plot from proceeds of farming both agricultural and livestock on the farm. The family relocated to Tumaini in 1999 after constructing some houses on the Tumaini Plot, where they started a shop business. Through they acquired and developed other properties through the business and farming at Parcel No. 376. The protester indeed confirmed in her evidence that parcel No. 376 and Plot No. 219 were acquired before she knew the deceased.

52. The 1st house is entitled to sole ownership of Plot No. 376 as the property was acquired before the protester came into the picture as a matrimonial home. The only reason the 1st house resides at Tumaini is to enable them to operate the shop business. On the other hand, the protester has her matrimonial home on L.R No. Dundori/lanet Block 2/1247 (Ndege) with a 4-bedroomed residential house in an own compound fully fenced. She is also to get L.R No. Nyandarua/ Kaimnbaga/2000, where she can farm and construct a house if she so wishes, and thus, the 1st house proposes that the two properties be shared out as submitted by the 1st administrator.The 1st house is not seeking part of the 2nd house’s matrimonial home, which is fully developed and allowing the protester’s proposal shall occasion great injustice.

53. It is contended that the proposal by the 1st administrator is in line with the family agreement of 11/2/2016 before the area chief. The protester did not deny knowledge of the agreement, and she indeed signed the agreement in the presence of her mother, aunt, and two cousins, who signed as witnesses as No: 1-4 on page 2 of the agreement. The agreement was produced as an exhibit by both parties.

54. The Law of Succession Act does not bar parties from agreeing on how the estate shall be shared pending the filing of a Succession cause. The agreement does not amount to intermeddling with the deceased estate, as no transfers took place. Courts have recognized such family agreements in adopting the mode of distribution of an estate. Reliance is made on the case of Silas Ruguaru M’ltambu –vs.- Gideon Muthuiri M’itambu & Ano (2017)eKLR.

55. On the essence of Section 40 of the Law of Succession Act, the 1st Administrator contends that it has been considered in several decisions. In the case of Margaret Wambui Irungu –vs- Agnes Wanjiru Kanyi Succession Cause No: 25 of 2014. “I have considered these arguments. What arises is the distribution of the deceased’s estate under Section 40 of the Law of Succession Act. The question is whether the court has to consider blatantly that the properties belong to the deceased, in which case it has no option but to apply Section 40 of the Act or whether the court has to consider the contribution by the protestor and grant her a larger share of the estate of the deceased. This issue has been considered in various decisions by the High Court with a clear line of consensus that they are unfair to the first wife, who may have been married for years and not only witnessed the properties being acquired but contributed to their acquisition before a 2nd or 3rd wives comes in and becomes entitled to an equal share. Justice Koome, as she then was, in Succession Cause No. 1033/1996 In the Matter of the Estate of Mwangi Giture – Deceased, while appreciating that Section 40 of the Act applies to the estate of deceased persons who were polygamous, acknowledged the unfairness of the mode of distribution and stated as follows: -“Perhaps it is high time the commission charged with law reform addressed the issue of the inequality raised under Section 40 of Cap 160. The 1st widow’s entitlement vis the 2nd widow or subsequent widow who perhaps come into marriage much later to find that the 1st widow has worked tirelessly and sometimes denies herself tremendous comfort to enable her husband to create and accumulate wealth. The 1st widow is then relegated by Section 40 of the Law of Succession to the same position as the last-born child of the 2nd or subsequent widows. The widow is supposed to be considered as a unit alongside the children.In this regard, the last-born child of the subsequent widow who will have contributed nothing is elevated in law because he will have notarily (sic) absolute rights but will be entitled to an equal share with the 1st widow. The 1st widow is only entitled to a life interest; after the life interest, the property devolves to her children in equal shares. I agree with counsel for the protester 1st widow that this state of affairs bleeds inequalities and inequities in our law and ought to be addressed urgently to enable our courts to dispense justice that meets the provisions of the Constitution of Kenya and give due regard to the principles of nondiscrimination based on sex which is also the principles of nondiscrimination provided for under the International Conventions especially the Convention Against all forms of Discrimination against Women (C.E.D.A.W.) which Kenya has signed and ratified. If the principles laid down in the International conventions were to be applied, the 1st widow would get a share of the property acquired during her marriage to the deceased, leaving the other half share to be shared by all the deceased heirs. If the distribution is of a polygamous intestate, each widow will get a share of what she contributed to.”“13. Makau J expressed similar sentiments in his decision in Succession Cause No. 110 of 2010- In the Matter of The Estate of Samwel Miriti (Deceased) M M M’M vs. A I M, which Counsel for the 2nd petitioner has referred this court to. The question before the court was whether the deceased’s estate should be distributed by section 40 of the Law of Succession Act or the first widow should get a larger share. The court expressed the following view:“In the instant application, the 1st petitioner is opposed to equal distribution while the interested party/2nd petitioner seeks and favors distribution according to Section 40 of the Law of Succession Act. This court is bound by Section 40 of the Law of Succession Act and has no discretion. The section provides that the estate be divided between the houses taking into account the number of children in each place. Fortunately, the two houses have an equal number of children.However, this court shall not shut its eyes to unfairness meted on a deceased’s widows who are not allowed to take an extra share and whose efforts in acquiring the properties are ignored and treated merely like children of the deceased, notwithstanding having been equal partners with the deceased. It is further unfortunate when the first wife who sacrificed a lot of her energy and who participated in the acquisition of the more significant part of the deceased estate and even in a situation where the properties are solely acquired by the first wife but registered in a husband, have ended up being shared equally among all the wives not taking into account of less contribution by the younger wife who is married after the acquisition of the bulk of the properties if not all the estate and who has contributed very little or nothing towards the purchase of the estate. The court hopes that the unfairness to widows and discrimination against the first wife, as reflected under Section 40 of the Law of Succession Act will soon be corrected so that the distribution of the deceased estate takes into account the contribution of the first wife and that of the 2nd wife or any other wife and the shares of the wife or wives is calculated differently from that of children who are treated as the same as their mother. (Emphasis added).”“14. The issue also came up in Probate & Administration Cause No. 244/2002, High Court Eldoret Re- Estate of Ephantus Githatu Waithaka. (deceased) Ester Wanjiru Kiarie –v- Mary Wanjiru Githatu. The contention by the objector was that the bulk of the properties comprising the deceased's estate was watered between 1968 and 1984 before the deceased married the deceased. She was therefore entitled to the half share and the balance equally. The petitioner claimed that they were both unemployed housewives and that the estate should be provided under Section 40 of the Act. The court stated that the issue to be considered was whether the objector would get half share of what was acquired before 1984 or whether the estate should be distributed as provided under Section 40 of the Act. The Judge was of the view that considering the Judgment in Rono –v- Rono Section 40 does not take away the court’s discretion to distribute the estate of the deceased fairly.In the words of Omollo J A in Rono vs. Rono:“I had the advantage of reading in draft form the judgment prepared by Waki, JA, and while I broadly agree with that judgment, I nevertheless wish to point out that I do not understand the learned judge to be laying down any principle of law that the Law of Succession Act, Cap 160 of the Laws of Kenya, lays down as a requirement that heirs of a deceased person must inherit equal portions of the estate where such a deceased dies intestate and that a judge has no discretion but to apply the principle of equality as was submitted before us by Mr. Gicheru. I can find no such provision in the Act”. (Emphasis added).“15. Justice Kimondo, after considering the evidence by both parties in Re-Estate of Ephantus Githatu Waithaka, stated: -“Granted that evidence, it would lead to serious injustice to apply section 40 blindly in this case. The section does not completely tie the hands of the court. See Rono v Rono & another [2005] 1 KLR 538, Rael Vulekani Musi v Rachael Edagaye Akola, Eldoret, High Court P&A 5 of 2013 [2016] eKLR. I am also fortified by the decision of Koome J (as she then was) in Re Mwangi Giture (Deceased) High Court at Nairobi, Succession Cause 1033 of 1996 [2004] eKLR cited by Mr. Momanyi, learned counsel for the petitioner. The learned judge lamented that section 40 of the Act led to inequality by relegating the 1st widow to the same position as the youngest child of the subsequent widows….” (Emphasis added)“I agree with those sentiments. The judge felt her hands were tied by the Act and called for law reform. But Rawal J (as she then was) in Dorcas Wangari Macharia v KCB & 2 others, Nairobi, High Court, Civil Case 18 of 2003 (O.S) (unreported) had a more progressive approach. She held as follows.“If a widow is an owner as a tenant in common with the deceased or a joint tenant along with the deceased in respect of a property, her rights and liabilities in law over the said property shall survive even after the demise of her husband. This position should be recognized and cannot be ignored as per the law and principles of equity”.“The Judge eventually proceeded to hold that the objector was entitled to half a share of the estate acquired before the 2nd wife married the deceased.”“Again, this issue was considered by Justice Mumbi Ngugi In the Re-estate of the Late George Cheriro Chepkosiom (deceased) 2017 eKLR. The judge had to determine whether the petitioner should get a larger share of the Estate. In this case, the objector, the 1st wife of the deceased, protested at the mode of distribution of the estate proposed by her co-petitioner, who was her co-wife. 1st petitioner argued that the land parcel comprising the deceased’s estate was acquired jointly by herself and the deceased, and she substantially contributed towards the payment of the loan until completion in 1976 when the land was registered in the name of the deceased. The 2nd petitioner got married in 1976, and she came into the picture long after the land had been acquired, and the loan fully paid off. The petitioner contended that she should get 10 acres in recognition of her substantial contribution towards the acquisition of the land.”“Justice Mumbi Ngugi, in holding that the demand by the 1st petitioner was fair and reasonable demand stated as follows:-“I agree in substance with the reasoning and final decision of my brother Kimondo J in the Estate of Githatu Waithaka decision. I am of the view that the unfairness and discrimination that their Ladyship and Lordship, Justices Koome and Makau J, decried in their respective judgments can only be adequately addressed by considering the contribution of the widow to the acquisition of property and taking this contribution into account when determining what she is entitled to in a succession cause to the estate of a polygamous deceased person who dies intestate.33. To equate the widow to children, or the first widow to widows who enter the home decades later, which may be the age of the first widow’s children and did not contribute to the acquisition of the estate registered in the name of the deceased, is to perpetrate an injustice against women that cannot be justified under any circumstances. For the courts to perpetuate the perpetration of injustice based on section 40 of the Law of Succession Act is to abdicate their constitutional responsibility to do justice. The principle of equality and non-discrimination is at the core of the sovereign law of this land, the Constitution. For a court, therefore, to apply any law in a manner that is discriminatory based on sex, or any of the prohibited grounds of discrimination, or to apply a provision of the law that is discriminatory, as section 40 admittedly is, or to consider itself bound by such discriminatory law, is to fail to meet the constitutional demands imposed on it.”“19. I am inclined to agree with my Brother and Sister’s Judges, Kimondo, Koome (as she then was), Mumbi Ngugi, and Makau, in the cases cited above that the distribution under Section 40 of the Act is unfair and discriminatory. For failing to consider the contribution by the 1st wife, who has been married for many years and contributed to the acquisition of the property only to be equated with the children, including those of the 2nd or 3rd wife and the wives who have come to the property long after they were acquired. For the court to apply Section 40 Act strictly and fail to address the cry for justice by windows which have contributed to acquisition without giving an extra share in recognition of their contribution is to perpetrate an injustice from the seat of justice based on Section 40 of the Act. The Hallmark of decision-making is the exercise of unfettered discretion. The discretion of the court must be exercised fairly. As Justice Ngugi stated, courts should not abdicate their constitutional duty to do justice. I am of the view that by considering the contribution by the 1st wife in the distribution of the estate of a polygamous deceased, the court would be able to address the unfairness, injustice, and discrimination which would result from applying Section 40 of the Act strictly.”

56. It would indeed be unfair to direct that Plot No: 376, which was acquired by the deceased and the 1st wife and which land holds their matrimonial house to be shared equally as proposed by the protestor and thus,1st house pray for the same to be transferred to the 1st house.

57. The same reasoning should be applied in the distribution of L.R No: Nyandarua/upper Gilgil/1038 - vs- USD Residential Plot No: 30 Olkalou. In the family agreement of 11/2/2016, the protestor agreed that PlotNo: 1038 should be inherited by the 1st house, whereas she was to get Plot No: 30. The protestor did not contribute towards the acquisition and development of any of the properties.If her evidence is to be believed, she confirmed in cross-examination that the deceased settled her on Plot No: 30 Olkalou, where she started a business. The plot has residential houses with rental income.The proposal by the 1st administrator is reasonable, and the court is urged to dismiss the protest.

Issues, Analysis, and DeterminationAfter going through the pleadings, proceedings, and submissions on record, the core issues are whether the distribution in the instant matter should be in the dictates of the provisions of section 40 of the succession Act. If the above is negative, what is the appropriate method of sharing the instant estate subject herein? And the order as to estate expenses and costs.

58. It is not in dispute that the deceased died intestate and was survived by two houses composed of; 1stHouse.a)Jane Wanjiru Kiragu - 1st wife.b)Mary Wangui Kiragu- daughter.c)Lucy Njeri Kiragu- daughter.d)Suleiman Mbuthia Kiragu- son.e)Naomi Nduta Kiragu-daughter.and2nd House.a)Ann Wairimu Gacheru-widowb)Nancy Wangari - adult- 23 yearsc)Suleiman Mbuthia Kiragu-son. - 17 yearsd)Mary Wangui Kiragu- daughter.

59. The deceased left behind the following assets: -a)L.R No. Nyandarua/olkalou South/533. b)L.R No. Nyandarua/upper Gilgil/219. c)L.R No. Gathundia Township Plot– 286. d)L.RNo. Nyandarua/ Upper Gilgil/1038. e)L.R No. Nyandarua/gilgil West/376 (Kihoto Farm).f)Residential Plot No. 30 Olkalou.g)L.R No. Nyandarua/ndemi/3688. h)L.R No. Dundori/lanet/block2/1247. i)L.R No. Nyandarua/kaimbaga/2000. The parties are in agreement that the following assets should be distributed as follows: -1st House. L.R No. Nyandarua/olkalou South/533.

L.R No. Nyandarua/upper Gilgil/219.

L.R No. Plot No. 286 Gathundia Township.2nd House. L.R No. Nyandarua/ndemi/3688.

L.R No. Dundori/lanet Block2/1217 (ndege). (matrimonial Home)The parties have disagreed on the following assets: - L.R No. Nyandarua/gilgil West/376. (1stHouse Matrimonial Home)

L.R No. Nyandarua/kaimbaga/2000.

L.R No. Nyandarua/upper Gilgil/1038.

L.R No. Uns Residential Plot No. 30 Olkalou.

60. The court heard both sides justifying their positions on the method most appropriate in the distribution of the estate assets in the issue.

61. Whereas the Protestor proposes on behave of the second house that provisions of section 40 of the LSA cap 160 LOK should apply, the stand on behalf of the first house is premised on the pre-grant agreement, equity, and fairness arising from judicial pronouncements on whether the first wife should be considered on an equal basis on sharing of deceased assets acquired during the first marriage where the subsequently married wife/wives come in after certain assets have been acquired in the first marriage.

62. In the instant matter, it is not disputed that LR numbers 376 and 219 were acquired before the protestor married the deceased. However, the protestor claims an equal share of parcel no LR 376 because she has been cultivating a part of it and on the edicts of section 40 of the LSA.

63. On the other hand, the first house claims LR 376 based on the same having been acquired by the deceased and the 1st wife before the marriage of the protestor. It is a first wife matrimonial home though the first house relocated to Tumaini Plot no 219 in 1999 after constructing in Tumaini houses where they started a shop business and, through farming in LR No 376, were able to acquire and develop other properties. Thus, the only reason the first house lives in Tumaini is to enable them to operate the shop business. The plot has residential homes with rental income.

64. In the case of Margaret Wambui Irungu–vs- Agnes Wanjiru Kanyi Succession Cause No: 25 of2014. The court had this to say;“I have considered these arguments. What arises is the distribution of the deceased’s estate under Section 40 of the Law of Succession Act. The question is whether the court has to consider blatantly that the properties belong to the deceased, in which case it has no option but to apply Section 40 of the Act or whether the court has to consider the contribution by the protestor and grant her a larger share of the estate of the deceased. This issue has been considered in various decisions by the High Court with a clear line of consensus that they are unfair to the first wife, who may have been married for years and not only witnessed the properties being acquired but contributed to their acquisition before a 2nd or 3rd wives comes in and becomes entitled to an equal share. Justice Koome, as she then was, in Succession Cause No. 1033/1996 In the Matter of the Estate of Mwangi Giture – Deceased, while appreciating that Section 40 of the Act applies to the estate of the deceased persons who were polygamous, acknowledged the unfairness of the mode of distribution and stated as follows: -“Perhaps it is high time the commission charged with the responsibility of law reform addressed the issue of the inequality raised under Section 40 of Cap 160. The 1st widow’s entitlement vis the 2nd widow or subsequent widow who perhaps come into marriage much later to find that the 1st widow has worked tirelessly and sometimes denies herself tremendous comfort to enable her husband to create and accumulate wealth. The 1st widow is then relegated by Section 40 of the Law of Succession to the same position as the last-born child of the 2nd or subsequent widows. The widow is supposed to be considered as a unit alongside the children.In this regard, the last-born child of the subsequent widow who will have contributed nothing is elevated in law because he will have notarily (sic) absolute rights but will be entitled to an equal share with the 1st widow. The 1st widow is only allowed to have a life interest; after the life interest, the property devolves to her children in equal shares. I agree with counsel for the protester 1st widow that this state of affairs bleeds inequalities and inequities in our law and ought to be addressed urgently to enable our courts to dispense justice that meets the provisions of the Constitution of Kenya and give due regard to the principles of nondiscrimination based on sex which is also the principles of nondiscrimination provided for under the International Conventions especially the Convention Against all forms of Discrimination against Women (C.E.D.A.W.) which Kenya has signed and ratified. If the principles laid down in the International conventions were to be applied, the 1st widow would get a share of the property acquired during her marriage to the deceased, leaving the other half share to be shared by all the deceased heirs. If the distribution is of a polygamous intestate, each widow will get a share of what she contributed to.”“ Makau J expressed similar sentiments in his decision in Succession Cause No. 110 of 2010- In The Matter of The Estate of Samwel Miriti (Deceased) M M M’M vs. A I M which Counsel for the 2nd petitioner has referred this court to. The question before the court was whether the deceased’s estate should be distributed by section 40 of the Law of Succession Act or the first widow should get a larger share. The court expressed the following view:“In the instant application, the 1st petitioner is opposed to equal distribution while the interested party/2nd petitioner seeks and favors distribution according to Section 40 of the Law of Succession Act. This court is bound by Section 40 of the Law of Succession Act and has no discretion. The section provides that the estate be divided between the houses taking into account the number of children in each home. Fortunately, the two places have an equal number of children.However, this court shall not shut its eyes to unfairness meted on a deceased’s widows who are not allowed to take an extra share and whose efforts in acquiring the properties are ignored and treated merely like children of the deceased, notwithstanding having been equal partners with the deceased. It is further unfortunate when the first wife who sacrificed a lot of her energy and who participated in the acquisition of the more significant part of the deceased estate and even in a situation where the properties are solely acquired by the first wife but registered in the husband has ended up being shared equally among all the wives not taking into account of less contribution by the younger wife who is married after the acquisition of the bulk of the properties if not all the estate and who has contributed very little or nothing towards the purchase of the estate. The court hopes that the unfairness to widows and discrimination against the first wife, as reflected under Section 40 of the Law of Succession Act, will soon be corrected so that the distribution of the deceased estate takes into account the contribution of the first wife and that of the 2nd wife or any other wife and the shares of the wife or wives is calculated differently from that of children who are treated as the same as their mother. (Emphasis added).”“14. The issue also came up in Probate & Administration Cause No. 244/2002, High Court Eldoret Re- Estate of Ephantus Githatu Waithaka. (deceased) Ester Wanjiru Kiarie –v- Mary Wanjiru Githatu. The contention by the objector was that the bulk of the properties comprising the deceased’s estate was acquired between 1968 and 1984 before the deceased married the deceased. She was therefore entitled to the half share, and the balance is shared equally. The petitioner claimed they were both unemployed housewives and that the estate should be provided under Section 40 of the Act. The court stated that the issue to be considered was whether the objector would get half share of what was acquired before 1984 or whether the estate should be distributed as provided under Section 40 of the Act. The Judge believed that considering the Judgment in Rono –v- Rono Section 40 does not take away the court’s discretion to distribute the estate of the deceased fairly.In the words of Omollo J A in Rono vs. Rono:“I had the advantage of reading in draft form the judgment prepared by Waki, JA, and while I broadly agree with that judgment, I nevertheless wish to point out that I do not understand the learned judge to be laying down any principle of law that the Law of Succession Act, Cap 160 of the Laws of Kenya, lays down as a requirement that heirs of a deceased person must inherit equal portions of the estate where such a deceased dies intestate and that a judge has no discretion but to apply the principle of equality as was submitted before us by Mr. Gicheru. I can find no such provision in the Act”. (Emphasis added).“ Justice Kimondo, after considering the evidence by both parties in Re-Estate of Ephantus Githatu Waithaka, stated: -“Granted that evidence, it would lead to serious injustice to apply section 40 blindly in this case. The section does not completely tie the hands of the court. See Rono v Rono & another [2005] 1 KLR 538, Rael Vulekani Musi v Rachael Edagaye Akola, Eldoret, High Court P&A 5 of 2013 [2016] eKLR. I am also fortified by the decision of Koome J (as she then was) in Re Mwangi Giture (Deceased) High Court at Nairobi, Succession Cause 1033 of 1996 [2004] eKLR cited by Mr. Momanyi, learned counsel for the petitioner. The learned judge lamented that section 40 of the Act led to inequality by relegating the 1st widow to the same position as the youngest child of the subsequent widows….” (Emphasis added)“I agree with those sentiments. The judge felt her hands were tied by the Act and called for law reform. But Rawal J (as she then was) in Dorcas Wangari Macharia v KCB & 2 others, Nairobi, High Court, Civil Case 18 of 2003 (O.S) (unreported) had a more progressive approach. She held as follows.“If a widow is an owner as a tenant in common with the deceased or a joint tenant along with the deceased in respect of a property, her rights and liabilities in law over the said property shall survive even after the demise of her husband. This position should be recognized and cannot be ignored as per the law and principles of equity”.“ The Judge eventually proceeded to hold that the objector was entitled to half a share of the estate acquired before the 2nd wife married the deceased.”Again this issue was considered by Justice Mumbi Ngugi In the Re-estate of the Late George Cheriro Chepkosiom (deceased) 2017 eKLR. The judge had to determine whether the petitioner should get a larger share of the Estate. In this case, the objector, the 1st wife of the deceased, protested at the mode of distribution of the estate proposed by her co-petitioner, who was her co-wife. 1st petitioner argued that the land parcel comprising the deceased’s estate was acquired jointly by herself and the deceased, and she substantially contributed towards the payment of the loan until completion in 1976 when the land was registered in the name of the deceased. The 2nd petitioner got married in 1976, and she came into the picture long after the land had been acquired, and the loan fully paid off. The petitioner contended that she should get 10 acres in recognition of her substantial contribution towards the acquisition of the land.”“Justice Mumbi Ngugi, in holding that the demand by the 1st petitioner was fair and reasonable demand stated as follows:-“I agree in substance with the reasoning and final decision of my brother Kimondo J in the Estate of Githatu Waithaka decision. I am of the view that the unfairness and discrimination that their Ladyship and Lordship, Justices Koome and Makau J, decried in their respective judgments can only be adequately addressed by considering the contribution of the widow to the acquisition of property and taking this contribution into account when determining what she is entitled to in a succession cause to the estate of a polygamous deceased person who dies intestate.To equate the widow to children, or the first widow to widows who enter the home decades later, which may be the age of the first widow’s children and did not contribute to the acquisition of the estate registered in the name of the deceased, is to perpetrate an injustice against women that cannot be justified under any circumstances. For the courts to perpetuate the perpetration of injustice based on section 40 of the Law of Succession Act is to abdicate their constitutional responsibility to do justice. The principle of equality and non-discrimination is at the core of the sovereign law of this land, the Constitution. For a court, therefore, to apply any direction in a manner that is discriminatory based on sex, or any of the prohibited grounds of discrimination, or to apply a provision of the law that is discriminatory, as section 40 admittedly is, or to consider itself bound by such discriminatory law, is to fail to meet the constitutional demands imposed on it.”“. I am inclined to agree with my Brother and Sister’s Judges Kimondo, Koome (as she then was), Mumbi Ngugi, and Makau in the cases cited above that the distribution under Section 40 of the Act is unfair and discriminatory. For failing to consider the contribution by the 1st wife, who has been married for many years and contributed to the acquisition of the property only to be equated with the children, including those of the 2nd or 3rd wife and the wives who have come to the property long after they were acquired. For the court to apply Section 40 Act strictly and fail to address the cry for justice by windows which have contributed to acquisition without giving an extra share in recognition of their contribution is to perpetrate an injustice from the seat of justice based on Section 40 of the Act. The Hallmark of decision-making is the exercise of unfettered discretion. The discretion of the court must be exercised fairly. As Justice Ngugi stated, courts should not abdicate their constitutional duty to do justice. I am of the view that by considering the contribution by the 1st wife in the distribution of the estate of a polygamous deceased, the court would be able to address the unfairness, injustice, and discrimination which would result from applying Section 40 of the Act strictly.”

65. It is the holding of this court that it would indeed be unfair to direct that Plot No: 376, which was acquired by the deceased and the 1st wife, and which land hosts their matrimonial house to be shared equally as proposed by the protestor. In the words of Justice Ngugi, In the Re-estate of the Late George Cheriro Chepkosiom (deceased) supra, the courts should not abdicate their constitutional duty to do justice. I am of the view that by considering the contribution by the 1st wife in the distribution of the estate of a polygamous deceased, the court would be able to address the unfairness, injustice, and discrimination that would result from applying Section 40 of the Act strictly.

66. The proposal by the 1st administrator is in line with the family agreement of 11/2/2016 before the area chief. The protester did not deny knowledge of the agreement, and she indeed signed the agreement in issue in presence of named witnesses, e.g., aunt, and two cousins, who have signed as No: 1-4 on page 2 of the agreement as witnesses. The agreement was produced as an exhibit by both parties. The Law of Succession Act does not bar parties from agreeing on how the estate shall be shared pending the filing of a Succession cause.

67. In the case of Silas Ruguaru M’ltambu –vs.- Gideon Muthuiri M’itambu & Ano (2017) eKLR, the Court held as follows: -“The Petitioner contended that before he filed this succession cause, a meeting was held at the local chief’s office, and it was agreed that the distribution of the estate of the deceased is in accordance with the wishes of the deceased. That a resolution was arrived at and signed by all, who attended. That those in attendance included the 1st Protestor and the widow. The particulars of the agreement were contained in a letter written by the Chief and were signed where all were present. At the hearing, that letter was produced and shown to the 1st Protestor, who admitted having signed it. The letter is dated 6th November 2001. The 1st Protestor did not challenge the contents of that letter in any respect. His case is that the distribution was discriminatory as he was given a lesser share as compared to his other brothers and that his mother (replaced by his sister after the mother’s demise) should have been taken care of during the distribution. This court has carefully looked at the said letter; there is a purported distribution of the estate of the deceased. It is signed by six sons of the deceased, the widow, and six elders who were present. The mode of distribution therein is the one that was adopted when the Petitioner applied for the confirmation of the grant. The 1st Protestor did not dispute the contents of that letter nor explain why he signed it and later sought to recant the resolution thereof.”

68. In view of the foregoing, I find the court has to exercise discretion as donated by the provisions of section 40 LSA cap 160 LOK to the extent that the mode proposed by the 1st administrator will be the sharing mode of the estate herein subject to the adjustment that protestor will get half an acre of Nyandarua /Gilgil/ West/376 where she said she has been cultivating and harvesting crops. At the same time, the balance goes to the house of the 1st House. Thus, the court makes orders that; The distribution will be;i.Jane Wanjiru Kiragu.The first house. L.R No. Nyandarua/olkalou South/533.

L.R No. Nyandarua/upper Gilgil/219.

UNS ResdPlot No. 286 Gathundia Township.

L.RNo. Nyandarua/upper Gilgil/1038.

L.R No. Nyandarua/gilgil West/376. (Matrimonial Home) But half an acre to be given to the second House from this LR 376.

2ndHouse.ann Wairimu Gacheru.

L.R No. Residential Plot No. 30 – Olkalou

L.R No.Nyandarua/ndemi/3688.

L.R No. Dundori/lanet Block2/1247 (Ndege). (Matrimonial Home).

L.R No. Nyandarua/kaimbaga/2000.

Half an acre from L.R No. Nyandarua/gilgil West/376ii.That cost, legal fees, valuation fees, and other expenditures will be recovered from the estate.

DATED, SIGNED, AND DELIVERED AT NYAHURURU THIS 3RD DAY OF NOVEMBER 2022. ..............................CHARLES KARIUKI.JUDGE