[2022] KEHC 15874 (KLR)

In re Estate of the Late Gasper Walele Mwanguwa (Deceased) (Succession Cause 355 of 2012) [2022] KEHC 15874 (KLR) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15874 (KLR)

Republic of Kenya

In the High Court at Mombasa

Succession Cause 355 of 2012

JN Onyiego, J

November 11, 2022

IN THE MATTER OF THE ESTATE OF THE LATE GASPER WALELE MWANGUWA (DECEASED)

Between

Julius Mndwarigha Walele

1st Petitioner

John Ighachowalele

2nd Petitioner

and

Katharina Wambugha Walele

Objector

Ruling

1. Gasper Walele Mwanguwa the deceased herein died at coast General Hospital in Mombasa on February 20, 2012. According to the court record, he was survived by 8 children among them the petitioners and the widow by the name of Katharina Wambugha Walele the objector herein. Besides, the deceased had taken two other biological children but born out of wedlock as part of his family.

2. Through a Miscellaneous Application No 154/2012 dated July 19, 2012, the objector (widow) sought a number of orders inter alia; preservation of the estate, production of accounts and disclosure of dealings with the estate by the petitioners herein. She also appeared to challenge the validity of a will allegedly written by the deceased and produced during a family meeting by one of her sons one Focus Mwanguwa Walele.

3. During the pendency of the said application, the petitioners in their capacity as executors filed a petition dated August 28, 2012 seeking a grant of probate of written will. Upon hearing the miscellaneous application, Odero J delivered her ruling on March 28, 2013 directing consolidation of the two files. The honourable judge also directed the objector to file objection proceedings.

4. Consequently, on December 11, 2013, the objector filed her petition by way of cross petition for a grant.

5. According to the deceased’s alleged will dated May 27, 2011, he had appointed Veronica Kalamba Walele, Julius Mndwarigha Walele and John Ighacho Walele as joint executors and trustees. He bequeathed his estate as follows; executors to pay;a.Kshs 10,000 per month for the upkeep of my wife Katharina Wambugha Waleleb.The balance upon payment of maintenance expenses if any for the house shall be used for the construction of my house at Bura Kwa Wene Mwangi where I will be buried.c.Payment of school fees and upkeep for Mary Mwai Walele until she completes her education. The period she will stay with Mary Mwai Walele upon my death shall be paid 5000 for her upkeep.

6. He further bequeathed his male children Focus Mwanguwa Walele , John Wanguwa Walele and Julius Mwndwarigha Walele the following properties;a.LR Plot IX/244b.House at Kwa Hola Portreizc.House at Majengod.House on Mbs/Block XII/114 to get one floor each as follows;i.1st floor Focus Mwanguwa Waleleii.2nd floor John Ighacho Waleleiii.3rd floor Julius Mndwarigha walele

7. He bequeathed LR plot No Mombasa/IX/201Tudor and flat No D 8-35 at Nyayo Highrise Nairobi to his female children, namely;(a)Veronica Kalamba(b)Getrude Mwanake Walele(c)Hortensia Mkamburi Walele(d)Elinora Dali Walele(e)Annaciata Marura Walele(f)Mary Mwai Walele

8. To his wife, he bequeathed a house at Makande and upon her death, it be inherited by all his female children including Mary Mwai Walele. He however made a condition that proceeds from all his properties be shared out 10 years after his death.

9. Dissatisfied with the existence of the said will, the objector questioned its validity and content. Upon hearing the objection proceedings challenging the validity of the will, the court delivered its ruling on December 15, 2017 dismissing the objection. The court found that the only recourse the objector had was to ask for reasonable provision as a dependant to the deceased.

10. On August 22, 2019, the objector (widow) and her daughters that is to say the deceased’s female children, filed summons dated August 2019, seeking adequate or reasonable provision. Vide its judgment delivered on May 3, 2021, the court held that the objector was entitled to reasonable provision. Consequently, the court directed for valuation to be done and thereafter parties to file skeleton submissions on the extent of reasonable provision.

11. Subsequently, Njihia Muoka Rashid Co Ltd filed a valuation report dated July 29, 2021. Accordingly, the assets comprising the estate were valued as shown below;a.Msa/BlockXII/114……………………………………Kshs 22millionb.Msa/BlockXII/272……………………………….……Kshs 8milliomc.MN/Section VII/1444…………………………………Kshs3. 2 milliond.Msa /Block IX/201……………………………….……..Kshs 9 millione.Msa /Block /244……………………………………...…Kshs14 millionf.Nyayo High Rise Estate Block D8-Nairobi County…Kshs 3 millionTotal……………………………………………………….59. 2 million

12. In her submissions filed through the firm of Wanjiku Mohammed Advocates LLP dated May 16, 2022, the objector contended that as a widow to the deceased, she played a major role towards the acquisition of the property in question. She urged the court to apply the principle applied in the case of Esther Wanjiru Githatu v Mary Wanjiru Githatu(2019) eKLR where the court recognized the role of the first Widow in the acquisition of the deceased’ estate thus distributed 50% to her to the exclusion of the second wife and then declared the 50% remainder as the portion constituting the estate for distribution.

13. She submitted that since the deceased did not make any advance gift to her, she deserves 50% share of the entire estate. That there were no reasons given in the will stating why the deceased chose to give her only Kshs 10,000 per month. She prayed for Kshs 30 million and the balance of Kshs 29 million be shared amongst the children. In particular, she urged the court to grant her Plots LR No Mombasa /Block XII/114 and 272.

14. On the other hand, the petitioners/executors filed their submissions on May 27, 2022 through the firm of Omondi Waweru Advocates thus contending that the court cannot rewrite the deceased’s will. That the two properties being claimed by the objector are not available as they have been given to other beneficiaries.

15. It was further submitted that the objector has been collecting rent from some assets which amount to about Kshs 9,227,600 hence sufficient enough to take care of her reasonable provision. In conclusion, the court was urged to consider providing for the objector out of several properties left out of the will but are nevertheless available for distribution.

16. I have considered parties’ respective submissions, valuation report and the will executed by the deceased. Having declared the will herein as validly executed, the court was of the view that the widow was not reasonably provided for. It should however be clear that reasonable provision does not mean adequate or equal. It simply means such provision as may be reasonable for the beneficiary entitled not to live a desperate and destitute kind of lifestyle but rather enjoy a decent life which he or she used to enjoy when the deceased was alive.

17. In the instant case, one cannot discern nor question the reason why the deceased did not give sufficient provision to his wife with whom they had lived as husband and wife from 1957 yet recognized his children more than her. I can simply say, those were the wishes of the deceased which must be respected save for minimum intervention to take care of the old lady who supported the deceased until he died. See In the matter of the estate of the late Sospeter Kimani Waithaka Cause No 341 of 1998 as cited In re estate of Jaswinder Singh Saimbi(deceased)(2017) eKLR the court had this to say;“The will of the departed must be honoured as much as it is reasonably possible. Readjustments of the wishes of the death, by the living, must be spared for only accentric and unreasonably harmful testators and weird wills. But in matters of normal preferences for certain beneficiaries or dependants, may be their special goodness to the testator, the court should not freely intervene to alter them”

18. Given the cost of living in Kenya now, the objector definitely cannot survive on Kshs 10,000 per month. See Elizabeth Kamene Ndolo v George MatataNdolo (1996) eKLR where the court held that;“So that if a man by his will disinherits his wife who was dependent on him during his lifetime, the court will interfere with his intention to dispose of his property by making reasonable provision for the disinherited wife”

19. Parties are in agreement that there are other properties not included in the will. Definitely, they will be distributed under the intestate provisions hence the objector will have much latitude to argue her case better than in this case which has more stringent conditions to accommodate her. That notwithstanding, the objector cannot be left to suffer while the property she struggled to acquire with the deceased are being enjoyed by her children almost alone.

20. To sustain the substrum of the will, I will not interfere with the physical asset distribution. Instead, I will direct that the objector’s monthly income be increased from Kshs 10, 000 per month to Kshs to Kshs 40, 000 per month during her lifetime payable from the rent collected from rental properties or any other source of income arising from the estate. In default, the court shall be at liberty to direct the objector to collect rent directly from those properties to realize the amount so ordered.

21. As to the female children, am satisfied that what they were provided for is reasonable hence I will not interfere with the wishes of the deceased. They will have an opportunity to lay more claim under the intestate estate.

22. I wish to advise parties to expedite distribution of the intestate estate as soon as possible so as to solve this problem once and for all. Having confirmed the grant, the estate is hereby distributed in accordance with the written will annexed save for the alteration of the sum of Kshs 10,000 bequeathed to the wife the objector herein to read Kshs 40, 000 per month.

DATED SIGNED AND DELIVERED VIRTUALLY THIS 11THDAY OF NOVEMBER 2022………………J N ONYIEGOJUDGE