[1998] KEHC 42 (KLR)

REPUBLIC OF KENYA

HIGH COURT AT MACHAKOS

Prob & Admin Cause 267 of 1995

ESTATE OF STEPHEN KIMUYU NGEKI…………….DECEASED

ANDAGNES MUTHOKI STEPHEN..………...…..1ST PETITIONER

ALFONSEK. STEPHEN…….............................……2ND PETITIONER

Coram: J.W. Mwera J.

Mr. Kakonzi Advocate for Petitioners

Mrs. Mwangangi Advocate for Objectors/Cross-Petitioners

Court Clerk Muli

RULING

From the record Agnes Muthoki Stephen and Alphonse Stephen filed this cause on 27th October 1995. Form P&A5 states that the subject matter is the estate of one Stephen KimuyuNgeki who died on 6th August 1995 in Machakos Town intestate. That the Applicants beingwife and son respectively to the deceased Stephen, they named one Loise Mutheu as (another)wife plus a list of 15 children - 7 sons and 8 daughters. The estate was said to comprise 5properties namely MACHAKOS/TOWN/909/655, Plot 670. 63 Katelembo Market; Plot No. 1698Katelembo: Plot no. 91 Kithayoni Market and a temporary jua kali plot Machakos.

On 31st October 1995 the Applicants/Petitioners having acquired services of MessrsKakonzi & Co. Advocates Machakos filed a chamber summons to restrain one Loise MutheuStephen, Ngeki Stephen and Martin Stephen from disposing of any assets belonging to the estateof the late Stephen aforesaid until the petition in the cause was finally determined. LoiseMutheu is the wife also named in P&A 5. So are Ngeki and Martin (sons). The secondpetitioner Alphonse Kioko Stephen swore an affidavit in support of this application. He said thatLoise was the late Stephen's first wife, Agnes Muthoki (1st Petitioner) (he 2nd wife while oneRamla (3rd wife?) was deceased. He referred to the heirs and stated that at his time of deathStephen was not living with Agnes Muthoki, the 1st Petitioner, that she was living with herparents while Stephen gave her financial assistance there. It was added that the assets were aslisted in form P&A 5 (above) and that an unnamed motor vehicle had been left at the Jua Kaliplot. That the Respondents in the application had sold that motor vehicle full of scrap metal.That Ngeki and Martin, whom Alphonse described as his step-brother had refused to account forthe lorry sale proceeds and were taking some household items from the MACH/TOWN/909/665house while having taken over the business in that building also. That they were about todispose of the deceased's assets.

Ngeki Stephen swore an affidavit on 14th November 1995 to counter that of Alphonse.He said inter alia that the 2 petitioners had no right to involve themselves in the matters of theestate of the late Stephen because they had no relationship with him at all. That his late fatherhad only 2 wives: Loise Mutheu and Ramla with their children. That he knew of the petition forletters to administer the estate of Stephen Kimuyu when he was served with the chambersummons aforesaid (dated 31st October 1995 and filed on the same day). That this act was otherwise secretive, fraudulent and unlawful on the part of Agnes Muthoki and her sonAlphonse. These two were never known to the 3 Respondents but only came up to lay claim onthe assets of Stephen after he died. It was further said that in addition to having no right over theestate, the Petitioners had come to court tainted and they had even acquired another deathcertificate while Ngeki Stephen also called David had properly and lawfully obtained one. Aconsent order of this court made on 19th January 1996 restrained both parties from disposing ofany properly of the estate; the 2nd Petitioner, Alphonse was to vacate theMACH/TOWN/909/665 premises to leave the Respondents to run the business therein.

There was a further affidavit sworn now by Agnes Muthoki (1st Petitioner) on 21st November 1995. She insisted that she was Stephen's wife by customary law and that the otherfamily members were endeavouring to deny her her right and share in his estate. That she hadbeen named as a wife in the funeral arrangements, funeral programme, radio announcement etc.The 3 heirs Loise and her 2 sons in challenging the intended grant had now acquired services ofMessrs Mwangangi & company Advocates Machakos.

Indeed even as at this time this succession cause remains ungazetted and so no side haseven a temporary grant to the estate of the late Stephen. So the Objectors said that they soughtto file formal objection under the law. This was done on 22nd May 1996. Again citing lack oflocus standi or indeed any right to concern themselves with the estate of the late Stephen theObjectors David Ngeki Stephen, Martin Wambua Stephen and Monicah Katingi Kimuyu addedthat the 2 Petitioners had misrepresented to this court the true nature of the estate and its rightfulheirs. A list was added of 10 dependants besides the 3 Objectors.

On 11th June 1996 a cross-petition was filed by the 3 Objectors. They prayed to beissued with a grant to administer the estate in issue. Assets were set out as in the petition but aliability was added to the effect that the deceased had sold a portion of Plot No. 1698 Katelemboto one David Nzau. The petition by Agnes Muthoki and Alphonse Kioko was to be dismissed, sosaid David Ngeki Stephen, because the two were never related to the deceased in any way toentitle them to his estate. Yet they had moved secretly and fraudulently to get the grant.

The matter then came up for hearing of the petition and cross-petition by way of viva voce evidence.

Agnes Muthoki, 1st Petitioner told this court that she married the late Stephen in 1966under Kamba Customary Law and this was signified by Stephen who had another wife LoiseMutheu before and after that Ramla, delivered 3 goats called MBUISYA NTHEO to her parents.They lived at Machakos, Nairobi and Mombasa. Stephen died in 1995 but for ten years beforethat Agnes had left him and was living with her parents. She had left on her own for noparticular reason. That before his death Stephen used to support Agnes and her 7 children withfood and money. He had not given her any land but he left properties outlined in the petition andcross petition. She said that the town property was a business place where tenants paid rents but.she did not get any of it. That she was listed in the death announcement over the radio as one ofthe wives of Stephen. She did not know who placed this announcement. Agnes howeverattended the burial, laid a wreath on Stephens grave but the family did not sit down to discussthe distribution of the estate. So she with her son Alphonse lodged the petition herein because the other family members from Loise Mutheu's side appeared to want to disown them. But thatthe group, now the Objectors, knew of the petition for grant. She had never customarilydivorced from Stephen even at the time of his death.

In cross examination Agnes told the court that she had no child when she married Stephen. That when Stephen and another man Ndivo, now deceased brought the 3 goats hisparents did not accompany him. She was not shown where to build and cultivate when shemarried Stephen. Then as if in contradiction to initial answers here, the 1st Petitioner said thatshe bore the 2nd Petitioner in 1963 that is before she married Stephen in 1966. So she had achild by that time. She bore her 2nd child Kanini in her marriage and the rest when she wasback to her parents. She did not know if the deceased gave properties to Mutheu's children oreven her own.

She said that she did not involve the Objectors in the petition because they denied her.But they knew of it. She did not get their consent either. She had moved quickly to obtain thedeath certificate necessary to petition because the Objectors were selling some of the deceased'sproperty. It was not secretive at all.

Peter Munyao (PW2), Agnes Muthoki's elder brother told the court that the deceasedmarried his sister and delivered the 3 traditional goats. But the 2 separated for over 10 yearsbefore Stephen died. They were never divorced. He saw the deceased, assisting Agnes Muthokiand her children e.g. paying Alphonse Kioko's fees. PW2 knew that the deceased had property at Grogan Machakos Town and Kyumbi. He knew his first wife Mutheu and brothers Philip andMbaluka.

In cross examination PW3 denied that he knew one Athumani Kingoo, of Kiima Kimwewho once married Agnes Muthoki. He said that on the day the 3 goats are delivered to thebride's home it is such an important occasion that the groom's parents must attend. Stephen andNdivo delivered the 3 goats but his parents did not come along although they were alive. Thecourt then heard Patricia Mbithi (PW3) who took down and filed a radio funeral announcementpresented and paid for by David Ngeki. (Exh.Pl). It bears the name of Agnes as the other wifeof the late Stephen.

Dominic Mukilo Mutiso (PW4) is Agnes Muthoki's uncle. He lives in Makueni. Butwhen Stephen married Agnes under Kamba Customary Law, PW4 was sent for. He saw Stephenand Ndivo deliver the 3 Mbui Sya Ntheo to the home and parents of Agnes. Other peopleattended and the ceremony went on well. Unlike PW2, Dominic told the court that Stephen'srather did not attend it. He was dead. And while Peter Musyoka Munyao (PW2) saw onlyStephen and Ndivo on the day of the 3 goats, Dominic added that Stephen's step-mother, MonicaKimuyu attended in place of his mother who was dead. Stephen and Agnes Muthoki never divorced.

The Objectors/Cross-Petitioners then started their case when David Ngeki Stephen(DW1) took the witness box. He denied that Agnes and Alphonse were ever related to thedeceased. The former is not her step-mother and the latter not a step brother, He knew Agnes as a villager. He listed the issues of his mother Loise and only co-wife Ramla with his father thedeceased. The former lived at Kyumbi while Ramla lived with Stephen at the business premisesin Machakos Town. At no time did Agnes live on any of his father's land and he never paid feesfor Alphonse Kioko - the 2nd Petitioner - or assist any other children. The deceased had givensome properties to DWl and his brothers before he died. He never gave any to Alphonse Kioko.All plot certificates were produced (Exh.D/A-D). That the petitioners never consulted DavidNgeki and his group before filing the petition. They did not consent to such move and theycould not because the Petitioners had no business to concern themselves with the estate of thelate Stephen. DWl went through the list of heirs and excluded five "strangers". He added thateven one of his brothers, Kioko, had been excluded by the Petitioners. DWl denied ever placingthe radio announcement (Exh.Pl) and ended by stressing that the 2 Petitioners had no right overStephen Kimuyu Ngeki's estate. He wanted the court to dismiss the petition and allow the cross petition.

In cross examination, David Ngeki said that somebody had forced himself in his latefather's premises and David had failed to evict him. That Kanini no longer runs a restaurant inone business property in town.

Pressed further about the placing of the radio announcement (Exh.Pl) along a receiptDavid's lawyer had availed to the Petitioners' lawyer, DWl seemed to want the court to believethat he did not have anything to do with either the announcement or the receipt issued.

Monica Kimuyu (DW2) the step mother of the late Stephen testified. She denied thatAgnes Muthoki, 1st Petitioner, a villager since childhood, ever married Stephen in 1966. Nosuch thing took place and no 3 goats were paid. She flatly rejected Dominic Mutiso's evidence(PW4) that such a thing took place and that she was present, The 80 year old witness went overthe steps taken in a Kamba Customary Law and said that in 1966 her husband was still alive. Henever told her of a marriage between Stephen and Agnes. They never gave goats to Stephen to deliver to the home of Agnes with one Ndivo whom she didnot even know. She had done all thecorrect things when Stephen married Loise Mutheu. He then married Ramla in town. When shedied he buried her on his property at Katelembo. On her part Agnes never had a home inStephen's compound. She always lived with her parents at Manza. D W2 then spoke of thedeceased's properties. She only knew Alphonse Kioko, the 2nd Petitioner as Agnes Muthoka'sson and a neighbour. Muthoki had attended Stephen's burial on reasons known by her - orprobably just as a friend or neighbour,

Lydia Kaluki Nzioka (DW3) then testified. She was not related to Stephen Ngeki, thedeceased but she knew Agnes Muthoki who was once married to her younger brother, Kingoo.She got a son Kioko and then separated. That recently Agnes had met Lydia and asked her tointercede for her son to be given some land from Kingoo's family. In cross examination Lydiamaintained that she was married only to Nzioka Mweu with whom she lived. That she had never contracted a woman-to-woman customary marriage (KAWETO) with one Nthamba wife of Kycluka.

Now we take the evidence of Peter Nzioki (DW4). He knew the Petitioners and StephenNgeki with his wife. They were villagers who lived in Manyata Village, Mumbuni LocationMachakos. He had heard that Stephen married Agnes but he never saw her living in Stephen'shome which is three quarters of kilometre from his own. He too went over the initialceremonies of a Kamba Customary Law marriage, the delivery of the 3 traditional goats but heneverheard that such a ceremony was conducted for Stephen Kimuyu and Agnes Muthoki.DW4 recalled that he used to see a brown girl living in Stephen's mother's home but not thechildren of the 1st Petitioner. She was Agnes Muthoki's child. That the deceased used to payher school fees. Nzioki used to visit the deceased's scrap metal shop. He saw saleswomenthere. The deceased's wife who used to work in that shop died.

The last witness for the cross petitioners was Philip Kimuyu (DW5) the deceased'sStephen's elder brother, He knew the deceased's 2 wives and their children, They live on hisproperties. He came from Manyata a neighbouring village to Manza where Alice Muthoki camefrom. She once married one Athman Kingoo and had a son, the 2nd Petitioner. Agnes wasnever the late Stephen's wife. DW5 recited the properties of the estate and said that thedeceased bought and gave some parcels of land to his sons. He never maintained Agnes with herchildren or gave them properties. When Stephen diedand the petition herein was filed Philipnever knew of it. He only came to learn of it when he was summoned to court. The Petitionerswere not entitled to bring this cause or share in the estate. DW5 told the court that whenStephen died the family sat and discussed which relatives to put in the radio announcement.Then David Ngeki was detailed to file the announcement with Kenya Broadcasting Corporation.It shall be remembered that David Ngeki (Dwl) denied such an act. The announcement was made twice in Kiswahili and it was satisfactory that is including Agnes as the wife, But hequestioned David about the featuring of this name but he denied knowledge. DW5 rememberedthat Kanini, Muthoki's daughter was left by her with a relative then Stephen took her in sayingthat Muthoki had squandered his property. He educated her but did not support any other ofMuthoki's children.

Both sides submitted. The 3 broad questions to be answered were;

(1) Whether Stephen Ngeki married Agnes Muthoki.

(2) Whether the Petitioners arc entitled for a grant of letters of administration as

prayed.

(3) Whether Agnes Muthoki and her children are entitled to share in the estate.

It has taken considerable space to go over the pleadings and the evidence herein, but theanswers to the 3 questions may not be that lengthy.

0. 1 Whether Stephen Ngeki married Agnes Muthoki. This court does not think so. AKamba customary marriage follows an elaborate course and emphasis seems to lie more withpayment by the groom of 3 traditional goats called Mbui Sya Ntheo. Agnes Muthoki with herrelatives who testified claimed that indeed the deceased and one Ndivo did deliver these goats toher home. Both are since demised. That she lived with Stephen at various places - Machakos,Mombasa and Nairobi. Then on her own she left him and went back to live with her parents -after 10 years. But this court did not believe her and particularly if the evidence of her witnessesis scrutinised in the light of the denial of such a marriage by the cross-petitioner's side. While Peter Musyoka (PW2) told the court that he was present at the ceremony and only the lateStephen and one Ndivo came from Stephen's side, Dominic Mokila (PW4) said that he too waspresent and Monica Kimuyu (DW2) also came with the two men. That she representedStephen's mother who was dead. But F W2 told the court that both of Stephen's parents werealive at the time the goals were delivered except that they did not come along. Indeed PW4added that even Stephen's father was dead also. But when Monica Kimuyu (DW2) testified, shewas the late Stephen's step mother, she denied ever attending such a ceremony and added thather husband died some time in the 90s. So can it be said with this kind of evidence that surelyStephen married Agnes under Kamba Customary Law? Not at all. Not when 2 of her relativesgive conflicting evidence of one occasion and who were present or dead. So this question ofmarriage is answered in the negative. Muthoki has always lived in her parents home at Manza and if she had any relationship with Stephen it did not amount to a marriage at all.

Q.2: Whether the Petitioners are entitled to the grant: This is the wish of AgnesMuthoki and her son Alphonse. But this court shall not grant it. It has not been shown that these2 had the kind of relationship with the deceased to entitle them to petition for a grant toadminister his estate. In her evidence Agnes at one point told the court that she had no childwhen she claims she married Stephen in 1966. But further on she changed this to the effect thatshe got Alphonse Kioko in 1963 - 3 years before her alleged marriage. Had this court found, butit did not, that Stephen and Muthoki were married under custom it could be assumed that they adopted Alphonse but there is no such basis. So because this court has found that there was nosuch marriage and Stephen did not adopt Alphonse, neither of them should concern him/herself with the estate of Stephen. Their petition is dismissed.

The cross-petitioners in this courts' view are the ones entitled to petition.. They aregranted leave to follow the process. The Petitioners tried to go behind their back in a rather secretive manner. Even if the Petitioners were entitled to petition or as co-petitioners onewould expect them to move along with the Cross-Petitioners. They did not take this course andAgnes Muthoki told this court that it was so because the cross-petitioners' side was hostile andwanted to exclude her and her son from benefiting from the estate in issue. That conduct wasfound wanting in fairplay and indeed suspect. The cross petitioners on procuring the grant, it isbelieved and hoped will follow the Kamba Customary Law pertaining to inheritance andapportion to those entitled their respective shares.

Q.3: Whether Agnes Muthoki and her children are entitled to shares in thedeceased's estate: This court was left with the impression that if Stephen and Muthoki had a relationship, and the court found that it was not matrimonial, perhaps another one did exist. Butit was not shown and proved to this court. The Petitioners sought to establish and the cross-petitioners denied that the former depended on the late Stephen. That he gave them money and bought them things. That he even paid Alphonse's school fees. But there was no proof.The 1st Petitioner did not have it easy to show the court that Stephen gave her any property orthat she lived on any of Ms lands. She appeared to have lived with her people to date. PeterKaloki (DW4) and Philip Kimuyu (Dw5) said something to the effect that Stephen took in and educated a woman called Kanini whose mother is Muthoki. If she had been party to this cause probably one could see that she was a dependant of Stephen. But that is only as far as that. In sum, the Petitioners side is not entitled to shares in the deceased's estate.

Before making final orders in this matter, it appears pertinent to comment on something about the radio announcement (Exh.P 1). David Ngeki (DWl) did not appear truthful on thispoint. He denied placing that announcement yet it bore his name. It included one Agnes, the other name was not shown, as the wife of his late father. But when Philip Kimuyu (DW5) testified he said that during the funeral arrangements, the family under his stewardship authorised the announcement, and dispatched DWl to place it. He did and he paid. How Agnes came in does not seem easy to resolve but it was found as a fact that DWl placed that announcement. He should not have denied it. But still the appearance of Agnes in that announcement or that she attended the funeral of Stephen and placed a wreath on his grave doesnot make her a wife. That bit has already been determined.

The conclusion in this hearing is that:

(1) Stephen Ngeki did not contract a customary marriage with Agnes Muthoki.

(2) The Petitioners are not entitled to procure the grant to the estate of Stephen Ngeki. The cross-petitioners are

(3) Agnes Muthoki and her children are not entitled to share in the estate of StephenNgeki.

Orders accordingly.

Costs to the cross petitioners.

Delivered on 17th December 1998.

J.W. MWERA

JUDGE