[2022] KEHC 11113 (KLR)

In Re Estate of Robert Mutheca Mwangi (Deceased) (Succession Cause 458 of 2014) [2022] KEHC 11113 (KLR) (2 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11113 (KLR)

Republic of Kenya

In the High Court at Murang'a

Succession Cause 458 of 2014

K Kimondo, J

June 2, 2022

RE ESTATE OF ROBERT MUTHECA MWANGI (DECEASED)

Between

Beth Njambi Karanja

1st Administrator

Anyesi Wanjiku Mwangi

2nd Administrator

and

Philomena Wanjiru Moni

Protestor

Judgment

1. Robert Mutheca Mwangi (hereafter the deceased) died intestate on 12th November 2011. According to the death certificate, he was aged 41 and succumbed to a heart attack.

2. He left behind some pieces of land, a motor vehicle and monies in bank accounts listed in the affidavit in support of the letters of administration sworn on 24th June 2014 and more particularly set out in paragraph 18 of this judgment.

3. It is common ground that he was polygamous. His first wife was Beth Njambi Karanja (hereafter the 1st administrator) but they had separated long before his death. Their union bore two daughters, Agnes Wanjiku Mutheca, who testified in this cause as PW2 and Michelle Wanjiru Mutheca (now deceased).

4. The second wife is Philomena Wanjiru Moni, (hereafter the protestor) with whom they got three children, Patra Wanjiku Mutheca, Kefas Cherere Mutheca and Imelda Wanjiku Mutheca.

5. The 1st administrator and the deceased’s mother, Anyesi Wanjiku Mwangi (the 2nd administrator) obtained a grant on 9th June 2015. They then took out a summons for confirmation of grant dated 11th April 2016. They proposed that the net intestate estate be distributed as particularized in paragraph 4 (a) to (n) of their joint affidavit of even date.

6. In the meantime, the protestor filed summons for revocation of the grant on 21st May 2019 on grounds that it was obtained fraudulently. She deposed that her consent was never obtained; and, that the signature appearing in the application for letters of administration was foreign. That summons was contested by the 1st administrator through a deposition sworn on 13th August 2019.

7. It would appear that the administrators filed a citation on 27th August 2014 directed to the protestor. She entered an appearance through J. N. Mbuthia Advocate on 14th August 2014. But as correctly observed by Waweru J on 11th May 2015, the citation was highly irregular as the cause had already been gazetted on 22nd August 2014. The learned judge directed the administrators to apply for a grant in the usual manner.

8. The court directed that viva voce evidence be taken. On the date of the hearing on 30th March 2022, the protestor’s counsel sought adjournment on grounds that he was attending to another matter at Nairobi. The motion was unmerited. Owing to the age of the cause and for other reasons on the record, the adjournment was declined.

9. The 1st administrator testified as PW1. In a nutshell, she proposed that the properties be divided equally between the two houses. The widows would thereafter distribute their share to their respective children. Her daughter, Agnes Wanjiku Mutheca (PW2) supported that position.

10. The 2nd administrator (DW1) was of the view that the assets be distributed to the children. Her daughter, Nancy Waitherero (DW2), testified that the protestor was collecting rent from Plot C6-162 Kayole. The protestor may also have disposed of some of the deceased’s properties including Plot 5B Mariaini, Loc.8/Gatara/1086 and Loc.8/Gatara/1087. But there was no tangible evidence of the sale. In view of the caution lodged against the two latter properties (exhibits DExh 5 & 6), I presume that the assets are still available for distribution.

11. DW2 accused the protestor of cohabiting with an unnamed man at the Mariaini plot after the death of the deceased. She said that the protestor has since disappeared. As I have stated earlier, the protestor did not take to the stand. The above evidence thus remains largely uncontroverted.

12. DW2 opined that the court should ring-fence the interests of the children from both houses. She proposed that the assets be distributed directly to the children because the 1st widow had separated from the deceased while the 2nd widow (protestor) intermeddled with the estate and remains at large.

13. I take the following view of the matter. The administrators freely conceded that the protestor is a wife of the deceased and that she and her three children are entitled to inherit the deceased. The substance of the summons for revocation of grant was that her interest had not been recognized. The true issue is how the net intestate estate should be distributed. No meaningful purpose would thus be served by revoking the grant. The summons for revocation of grant dated 21st May 2019 is thus disallowed.

14. Secondly, there is a notice of motion dated 3rd April 2018 by Agnes Mutheca. She was seeking access to the deceased’s bank accounts to meet her college fees at Kiriri Women’s University. My predecessor, Waweru J, declined relief and directed the applicant to await the hearing of the summons for confirmation. The cause having now been heard on merits, the application is overtaken and is equally disallowed.

15. The deceased was polygamous. Regarding the distribution of the estate, I find that section 40 of the Law of Succession Act is generally applicable in this case. It provides-“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.(2) the distribution of the personal and household effects and the residue of the net intestate within each house shall be in accordance with the rules set out in section 35 to 38”.

16. Section 40 does not however take away the discretion of the court to distribute the estate fairly. By dint of sections 26, 27, 28, 29 and 35 of the Act, as read together with Rule 73 of the Probate and Administration Rules, the court has been clothed with complete discretion to provide for dependents or beneficiaries.

17. That point was succinctly captured by Omollo J A in Rono v Rono & another [2008] 1 KLR (G&F), [2005] 1 KLR 538 at 553. See generally Re Estate of Morgan Njoroge Gakuo (Deceased), Nairobi High Court Cause No. 591 of 2007 [2016] eKLR;Re Estate of Manasseh Mwea Kariuki (Deceased), Murang’a High Court Cause No. 57 of 2014 [2021] eKLR.

18. I am also alive that under the Act the widows have a life interest on the land but for the ultimate benefit of their children. The first wife is separated from the deceased while the second wife remains at large. I received evidence that she had even started cohabiting with another man at the deceased’s house at Mariaini Plot 5B and may even have sold it.

19. Like I pointed out earlier, there was no tangible evidence of the alleged sale. I thus presume that the assets are still available for distribution. The justice of this case dictates that the interests of the surviving children from both houses be safeguarded. I am accordingly minded to distribute the majority of the assets to them but also make provision for the two wives and the mother of the deceased.

20. My final orders are thus as follows-i)That the summons for revocation of grant dated 21st May 2019 taken out by Philomena Wanjiru Moni (2nd wife) is dismissed.ii)That the notice of motion dated 3rd April 2018 by Agnes Wanjiku Mutheca (daughter) is disallowed.iii)That Loc.8/Gatara/1086 measuring 0. 40 ha shall devolve wholly to Beth Njambi Karanja (1st wife).iv)That Loc.8/Gatara/1087 measuring 0. 40 ha shall be distributed wholly to Philomena Wanjiru Moni (2nd wife).v)That Commercial Plot No. 5B Mariaini Market, Murarandia shall be distributed to the three children of the 2nd house, Patra Wanjiku Mutheca, Kefas Cherere Mutheca and Imelda Wanjiku Mutheca.vi)That Plot No. C6 -162 Kayole, Nairobi shall be distributed equally to the children of the deceased from both houses, Agnes Wanjiku Mutheca, Patra Wanjiku Mutheca, Kefas Cherere Mutheca and Imelda Wanjiku Mutheca.vii)That all the monies held in the following bank accounts in either the name of the deceased or his two businesses (Ronman Enterprises and Marks Investments) at Equity Bank Kayole Branch a/c xxxx; Equity Bank Kayole Branch a/c xxxx; and, Family Bank Kayole Branch a/c xxxx shall be distributed equally to the children of the deceased from both houses, Agnes Wanjiku Mutheca, Patra Wanjiku Mutheca, Kefas Cherere Mutheca and Imelda Wanjiku Mutheca.viii)That all the monies held in the following bank accounts in the name of the deceased at KCB Moi Avenue Branch a/c xxxx; KCB Murang’a Branch a/c xxxx; Equity Bank Kayole Branch a/c xxxx; and, Family Bank Kayole Branch a/c xxxx shall be distributed equally to the children of the deceased from both houses, Agnes Wanjiku Mutheca, Patra Wanjiku Mutheca, Kefas Cherere Mutheca and Imelda Wanjiku Mutheca.ix)That Motor Vehicle Registration number KAW 242C Toyota Corolla Saloon shall be registered to Philomena Wanjiru Moni (2nd wife).x)That the deceased’s shares in Jitahidi Spine Road Self Help Group Member No. 0002 shall be registered in the name of Beth Njambi Karanja (1st wife).xi)That the undeveloped Plot No.3 at Embakasi Nairobi shall be distributed equally to the children of the deceased from both houses, Agnes Wanjiku Mutheca, Patra Wanjiku Mutheca, Kefas Cherere Mutheca and Imelda Wanjiku Mutheca.xii)That the undeveloped plot at Kitale Kwanza Market shall devolve wholly to the deceased’s mother, Anyesi Wanjiku Mwangi.

21. The grant issued by the Court on 9th June 2015 shall be confirmed in terms of this judgment.

22. I order that each party shall bear its own costs.

It is so ordered.

DATED, SIGNED AND DELIVERED AT MURANG’A THIS 2ND DAY OF JUNE 2022. KANYI KIMONDOJUDGEJudgment read in open court in the presence of:1st administrator (in person).Ms. Susan Waiganjo, Court Assistant.