[2019] KEHC 5936 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 677 OF 2012

IN THE MATTER OF THE ESTATE OF PHILIP ITUMO KIVINDYO (DCD)

ROSEMARY NDINDI MBONGE....................................1ST PETITIONER

GEORGE KIOKO KIVINDYO.......................................2ND PETITIONER

VERSUS

PRIESTLY MUTUKU ITUMO............................................1ST OBJECTOR

RICHARD WAMBUA ITUMO............................................2ND OBJECTOR

JOHNSON MUTINDA KIVINDYO....................................3RD OBJECTOR

RULING

1. This matter relates to the estate of Itumo Kivindyothe deceased who died intestate on 4. 5.2010. The Petitioners and the 1st and 3rd objectors applied for Letters of Administration intestate in the estate of the deceased. A grant was issued on 20. 9.2012.

2. On 19th November, 2013, an application was made for confirmation of grant and rectification that the alias name of George Kioko Itumo as George Kioko Kivindyo. In the application for confirmation of grant the proposed mode of distribution was as follows:

PROPERTIES BENEFICIARY SHARES

MITABONI/ MUTITUNI/118 a) Nzula Itumo Kivindyo

b) Jainer Koki Itumo

c) Agnes Nditu Itumo Hold in trust for themselves and their children

MITABONI/ MUTITUNI/1899 Jonathan Nzei TItus Absolutely

IVETI/ MUNGALLA/115 a) Priestly Mutuku Itumo

b) Jainer Koki Itumo Half share each

MUMBUNI/ KASINGA/91 d) Nzula Itumo Kivindyo

e) Jainer Koki Itumo

f) Agnes Nditu Itumo Hold in trust for themselves and their children

MACHAKOS/MUA HILLS/273 g) Agnes Nditu Itumo Absolutely

NDALANI/MAVOLONI/BLOCK 1/436 h) Rosemary Ndindi Mbonge

i) Esther Musyimi Mwikali In equal shares

MUMBUNI/ KASINGA/105 j) Priestly Mutuku Itumo Absolutely

IVETI/ MUNGALLA/113 k) Nzula Itumo Kivindyo

l) Jainer Koki Itumo In equal shares

MITABONI/ MUTITUNI/1893 m) Nzula Itumo Kivindyo

n) Jainer Koki Itumo

o) George Kioko Kivindyo Hold in trust for themselves and their children

MAVOKO TOWN BLOCK 3/3389 p) Jainer Koki Itumo Absolutely

MUMBUNI/ KASINGA/11 q) Nzula Itumo Kivindyo

r) Jainer Koki Itumo

s) Agnes Nditu Itumo In divided shares

IVETI/ MUNGALLA/117 t) Nzula Itumo Kivindyo

u) Jainer Koki Itumo

v) Agnes Nditu Itumo In divided shares

MBUKONI/ MUTITUNI/118 w) Nzula Itumo Kivindyo

x) Jainer Koki Itumo

y) Agnes Nditu Itumo In divided shares

MITABONI/ MUTITUNI/1969 z) Esther Mwikali Musyimi Absolutely

MAVOKO TOWN BLOCK 3/973 aa) Rosemary Ndindi Mbonge Absolutely

PLOT NO 147-NDOVOLONI

LUKENYA RANCH-MACHAKOS a) Rosemary Ndindi Mbonge

b)Esther Mwikali Musyimi Equal shares

MAVOKO TOWN BLOCK 3/320 a)Rosemary Ndindi Mbonge

b) Agnes Nditu Itumo Half share

MUTITUNI MARKET PLOT NO 73 Jainer Koki Itumo Absolutely

MAVOKO TOWN BLOCK 3/3649 a)Rosemary Ndindi Mbonge &

Esther Mwikali Musyimi

b) Nzula Itumo Kivindyo 20 acres

20 acres

IVETI/ MUNGALLA/2 a) Jonathan Nthei Titus

b) James Mutua Itumo In divided shares

3. Before the grant was confirmed, objections were filed, firstly by 2nd and 3rd objectors on 4th December, 2013 who claimed that Johnson Kivindyo Itumo was left out of the petition forms, that not all the assets of the deceased were disclosed by the 1st, 2nd and 4th petitioners and that not all the beneficiaries were consulted before the petition was filed and there was no consultation in the appointment of the surety hence Stephen Mutisya Makau the 2nd surety is not known to the objectors.

4. Secondly, an objection was filed on 17th August, 2015 by the 1st objector who was a son to the deceased and stated that the deceased had distributed his estate verbally and the petitioners/ beneficiaries occupy the land according to the verbal distribution and live there permanently and have developed the land, however the 1st petitioner wants to evict some of the beneficiaries from the portions that they have settled in order to dispose those portions and that the 1st petitioner who is a daughter of the first wife and is married is aware of the verbal distribution and as such the confirmation of the estate should not be granted without the consent of the beneficiaries because it will affect the developments made by the beneficiaries on the respective portions.

5. The Petitioner countered this vide affidavit filed on 5th October, 2015 and in response stated that it is not true that the deceased distributed his estate before his death and the objector wants to benefit from the parts of the estate that he allocated to himself before the letters of administration were issued. She also denied trying to evict the beneficiaries from the land.

6. In further response to the objections filed on 17. 8.2015 and 28. 5.2013, four responses were filed on 12th November, 2015. Jonathan Nthei Titus averred that it is not true that the deceased distributed his estate before his death and that no one wants to evict any beneficiary from where they currently reside. Esther Mwikali Musyimi averred that it is not true that the deceased distributed his estate before his death and that no one wants to evict any beneficiary from where they currently reside and George Kioko Kivindyo reiterated these averments. Rosemary Ndindi Mbonge averred that all assets of the deceased were included in the petition and further that all family members were consulted vide a meeting held at the chiefs offices that was held on 4. 3.2012 and minutes of the same were attached to her affidavit.

7. Rosemary Ndindi Mbonge vide further affidavit filed on 18. 4.2016 sought that the grant be confirmed as prayed and attached copies of searches in respect of the deceased’s properties.

8. In response to the summons for confirmation, the 2nd objector proposed a mode of distribution that according to him was as per the deceased’s will as follows:

PROPERTIES BENEFICIARY 1st petitioners proposal

MITABONI/ MUTITUNI/118 Nzula Itumo Kivindyo

Jainer Koki Itumo

Agnes Nditu Itumo

MITABONI/ MUTITUNI/1899 Jonathan Nzei TItus

IVETI/ MUNGALLA/115 c) Priestly Mutuku Itumo

d) Jainer Koki Itumo

MUMBUNI/ KASINGA/91 Esther Nzula Itumo

Jainer Koki Itumo

Agnes Nditu Itumo

MACHAKOS/MUA HILLS/273 Esther Nzula Itumo

Jainer Koki Itumo

Agnes Nditu Itumo Was allocated to

Agnes Only

NDALANI/MAVOLONI/BLOCK 1/436 Esther Nzula Itumo

Jainer Koki Itumo

Agnes Nditu Itumo Rosemary Ndindi

Mbonge

Esther Musyimi Mwikali

MUMBUNI/ KASINGA/105 Priestly Mutuku Itumo

IVETI/ MUNGALLA/113 Esther Nzula Itumo

Jainer Koki Itumo

MITABONI/ MUTITUNI/1883 Esther Nzula Itumo

Jainer Koki Itumo

Agnes Nditu Itumo Nzula Itumo Kivindyo

Jainer Koki Itumo

George Kioko Kivindyo

MAVOKO TOWN BLOCK 3/3389 Jainer Koki Itumo

MUMBUNI/ KASINGA/11 Nzula Itumo Kivindyo

Jainer Koki Itumo

Agnes Nditu Itumo

IVETI/ MUNGALLA/117 Nzula Itumo Kivindyo

Jainer Koki Itumo

Agnes Nditu Itumo

MBUKONI/ MUTITUNI/118 Nzula Itumo Kivindyo

Jainer Koki Itumo

Agnes Nditu Itumo

MITABONI/ MUTITUNI/1969 Esther Mwikali Musyimi

Rosemary Ndindi Mbonge Esther Mwikali Musyimi

MAVOKO TOWN BLOCK 3/973 Nzula Itumo Kivindyo

Jainer Koki Itumo

Agnes Nditu Itumo Rosemary Ndindi

Mbonge

PLOT NO 147-NDOVOLONI LUKENYA RANCH-MACHAKOS Nzula Itumo Kivindyo

Jainer Koki Itumo

Agnes Nditu Itumo Rosemary Ndindi

Mbonge

Esther Mwikali Musyimi

MAVOKO TOWN BLOCK 3/320 Nzula Itumo Kivindyo

Jainer Koki Itumo

Agnes Nditu Itumo a)Rosemary Ndindi

Mbonge

b) Agnes Nditu Itumo

MUTITUNI MARKET PLOT NO 73 Nzula Itumo Kivindyo

Jainer Koki Itumo

Agnes Nditu Itumo Jainer Koki Itumo

MAVOKO TOWN BLOCK 3/3649 Esther Mwikali Musyimi

Agnes Nditu Itumo a)Rosemary Ndindi Mbonge & Esther Mwikali Musyimi

b) Nzula Itumo Kivindyo

IVETI/ MUNGALLA/2 a) Jonathan Nthei Titus

b) James Mutua Itumo

9. The 1st petitioner opposed the distribution and averred that she had not been given her fair share. Richard Wambua Itumo opposed the distribution vide summons dated 7th November, 2013 and proposed as follows;

PROPERTIES BENEFICIARY allocated by 1st objector and administrator SHARES

IVETI/ MUNGALLA/2 Jonathan Nthei Titus

b) James Mutua Itumo To be divided equally among the 4 households in trust for their siblings

NDALANI/MAVOLONI/BLOCK 1/436 Esther Nzula Itumo

Jainer Koki Itumo

Agnes Nditu Itumo and

Rosemary Ndindi Mbonge

Esther Musyimi Mwikali

respectively To be divided equally among the 4 households in trust for their siblings

MAVOKO TOWN

BLOCK 3/973 Nzula Itumo Kivindyo

Jainer Koki Itumo

Agnes Nditu Itumo and

Rosemary Ndindi Mbonge

respectively To be divided equally among the 4 households in trust for their siblings

MAVOKO TOWN

BLOCK 3/320 Nzula Itumo Kivindyo

Jainer Koki Itumo

Agnes Nditu Itumo and

Rosemary Ndindi Mbonge

Agnes Nditu Itumo respectively To be divided equally among the 4 households in trust for their siblings

10. Rosemary Ndindi Mbonge, George Kioko Kivindyo, Esther Mwikali Musyimi and Jonathan Ntheu Titus consent to the proposed mode of distribution by Rosemary Ndindi. However Priestly Mutuku Itumo opposed the said mode and his proposal was supported by Stephen Musyoka Itumo, James Mutua Itumo. Johnson Mutinda Kivindyo, Sebastian Muthoka Itumo and Richard Wambua Itumo object to both modes of distribution and Nzula Itumo Kivindyo is yet to see the proposed mode.

11. Priestly Itumo’s submissions reiterated the fact that his mode of distribution ought to be allowed and that of the 1st petitioner be disallowed. The 1st petitioner in her submissions averred that the 1st objectors gravamen are that the 1st petitioner is married; she reiterated her proposed mode of distribution and submitted that the 1st objector has not satisfied the court that the deceased distributed his property before he died and because the beneficiaries had not consented to his mode of distribution therefore hers ought to be allowed.

12. The parties herein adduced evidence in Court vide their affidavits that were filed. I have considered all the evidence adduced. There are three issues which arise for determination:

- Who are the beneficiaries entitled to the estate of the deceased"

- How should the estate be distributed"

8. Who are the beneficiaries"

The deceased was survived by 4 wives namely:

- Rhoda Itumo (deceased)

- Nzula Itumo Kivindyo

- Jainer Koki Itumo

- Nditu Itumo

He was survived by the following children

- Rosemary Ndindi Mbonge

- Esther Mwikali Itumo

- Priestly Mutuku Itumo

- Margaret Ndunge Kiilu

- Jonathan Nthei Itumo alias Jonathan Nthei Titus

- Syombua Mwololo

- Stephen Musyoka Itumo

- Mutua Itumo

- Lilian Kanini Sila

- Johnstone Mutinda Kivindyo

- Richard Wambua Itumo

- Mutisya Itumo

- Wavinya Itumo

- Kivindyo Itumo

- Nzioki Itumo

- Ndila Muli

- Mwongeli Ndolo

- Mutheu Ndolo

- Nzomo Itumo

- Kyalo Itumo

- Mutile Itumo

- Muthoka Itumo

- George Kioko Kivindyo

- Wanzila Mbuli

- Nthenya Itumo

- Nyamai Itumo

- Kalekye Itumo

- Katuku Itumo

- Mwithi Itumo

- Munyao Itumo

- Ndunda Itumo

Section 29 of the Law of Succession Act provides:

“For the purposes of this Part, “dependant” means –

(a) The wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;

Thus, the children of the deceased and the wives are dependants whether or not they were maintained by the deceased prior to his death. The above named who are wives and dependents of the deceased are therefore dependants who are entitled to the estate of the deceased.

13. This brings me to the last consideration which is the distribution of the estate. I have looked at the modes of distribution of the 1st objector and the 1st petitioner and find that they do not indicate that all the dependants have been given a share of the estate. The proposal that seems to account for all the dependants is the proposal by Richard Wambua Itumo. The 1st objector averred that the deceased left an oral will. However the court is not satisfied that the same has been proven and as such the distribution must be under intestate succession and in any case the 1st objector filed this cause as an intestate succession.Section 34 of the Law of Succession Act provides:

“A person is deemed to die intestate in respect of all his free property of which he has not made a will which is capable of taking effect.”

14. In the case of Elizabeth Chepkoech Salat v Josephene Chesau, Chepkaron Salat (2015) eKLR:- the court held as follows:

“For an oral will to be valid, it has inter alia to be made before two or more competent witnesses (Section 9(1) (a) of the Act)”

15. The deceased was polygamous. Section 40 of the Law of Succession Act deals with the issue of polygamous families and stipulates as follows:-

Section 40 (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 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.”

Section 40 (2):-

“The distribution of the personal and household effects and the residue of the net intestate within each house shall then be in accordance with the rules set out in sections 35 to 38. ”

16. Having established the law relating to the distribution of the estate of the deceased, and having established who the beneficiaries of the estate of the deceased are, because the deceased had 4 houses, Section 3 of the Law of Succession Act, defines the “house”as 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. There is no permission for discrimination of the children on grounds of their sex. All the three surviving wives of the deceased and all their children and the deceased’s wife’s children are therefore entitled to a share of his net intestate estate equally as provided for by section 40 of the Law of Succession Act.

17. I am of the view that the estate of the deceased should devolve as provided under Section 40 of the Law of Succession Act (supra).

18. Section 38 of the Law of Succession Act provides:

“Where an intestate has left a surviving child or children but no spouse the net estate shall subject to the provisions of Section 41 and 42 devolve upon the surviving child, if there be only one or shall be equally dived among the surviving children.”

In Christine Wangari Gichigi v Elizabeth Wanjira Evans & 11 Others (2014) eKLRthe Court held that:

“Under Section 38 of the Act all that one needed to establish in this cause was to show that they were either children or grandchildren of the deceased. Matters of failure to participate actively in the litigation proceedings should not have dissenting consideration in respect of 2, 3 and 4 cross appellants in the absence of renunciation of respective claims to the estate.”

19. I order that the estate of the deceased be distributed as proposed by the 2nd Objector Richard Wambua Itumo. That is to say that the properties be divided equally among the 4 households in trust for their siblings. This proposed scheme of distribution of the estate appears to be quite fair and in tandem with the provisions of the Law of Succession Act However the respective shares ought to take into account where the matrimonial homes stand. In light of the foregoing authority, I caution against excluding the dependents of the deceased who have not participated in the litigation and that all the beneficiaries must be involved in the distribution of the estate. The parties are now directed to proceed and commence the distribution exercise in line with the proposal by the 2nd Objector Richard Wambua Itumo that has been accepted by this court as fair and appropriate. The grant herein is hereby confirmed and the estate be distributed in terms of the proposal by the 2nd objector Richard Wambua Itumo. This being a dispute involving family members, each party will bear its own costs.

It is so ordered.

Dated and delivered at Machakos this 2nd day of July, 2019.

D.K. KEMEI

JUDGE