[2017] KEHC 3135 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 195 OF 2014

In the Matter of the Estate of the Late Ismael Kinyua alias Ishmael Kinyua M’Rimberia (Deceased)

LUCY KATHURE GIKUNDA …………..PETITIONER/RESPONDENT

Versus

AGNES WANJA M’MBURUGU …………… OBJECTOR/APPLICANT

R U L I N G

1. The late Ismael Kinyua alias Ishmael Kinyua M’Rimberia (hereinafter “the deceased”) died on the 9th of December, 2008 at Gaitu from what is described as ‘penetrating injuries’ in the Certificate of Death No. 271041 dated 16th May, 2013. He left behind the following five properties as his estate:-

a) Abothuguchi/Gaitu/2525

b) Abothuguchi/Gaitu/2526

c) Abothuguchi/Gaitu/2527

d) Abothuguchi/Gaitu/2477

e) Abothuguchi/Gaitu/2478

2. On 24th March, 2014, two of his sons, Julius Mutuma Murithi and Wilson Mbogori Kinyua applied for letters of administration intestate which were granted to them on 10th June, 2014. The application was made in the Meru Succession Cause No. 115 of 2014. In Form No. P&A 5, they disclosed a total of 12 sons, 3 daughters and 5 other persons whose relationship with the deceased was not disclosed to be that of beneficiaries.

3. On the other hand, on 12th May, 2014, Lucy Kathure Gikunda, a daughter to the deceased, (hereinafter “the Petitioner”) made yet another application for letters of administration intestate in this cause which were granted to her on 20th August, 2014. In the Affidavit in support of the application, she disclosed the following as the only persons surviving the deceased:-

a) Romano Mutugi Kinyua

b) Lucy Kathure

c) Joel Nyerere Kinyua

d) Wilson Mbogori Kinyua

e) Ann Kathambi

The above names were also contained in the letter dated 29th August, 2013 by the Assistant Chief of Mbajone sub-location.

4. On 13th April, 2015, the Petitioner applied for the confirmation of grant and proposed to distribute the estate as follows:

a) Benjamin Njogu Mberia – Abothuguchi/Gaitu/2526

(to hold in trust for D K G, a Minor)

b) Wilson Mbogori Kinyua - Abothuguchi/Gaitu/2525

c) Romano Mutugi Kinyua }-Equally Abothuguchi/Gaitu/2478 }

Joel Nyerere Kinyua }

d) Ann Kathambi Kinyua - Abothuguchi/Gaitu/2477

e) Lucy Kathure Gikunda - Abothuguchi/Gaitu/2527

5. On learning of the two Succession Causes, Agnes Wanja M’Mburugu (hereinafter “the Objector”), applied for the Revocation of the two grants on 7th February, 2017. The two Succession Causes were consolidated on 15th June, 2016 and Succession Cause No. 195 of 2014became the head file. The parties were directed to file affidavit evidence and that the application be heard by way of viva voce evidence. The Petitioner only filed a Replying Affidavit to the application but filed no affidavit evidence. On her part, the Objector filed one affidavit evidence. Both parties, the Petitioner and the Objector testified in support of their respective cases but called no witness. Julius Mutuma Murithi and Wilson Mbogori Kinyua did not file any response to the application.

6. The Objector told the Court that the deceased married her in the year 2000 under the Meru customary law after the demise of the deceased’s first wife; that the deceased paid dowry to the Objector’s brother; that she lived with the deceased at Charia until 9th December, 2008 when the deceased was brutally murdered by amongst others, one of his sons; that out of her relationship with the deceased, a girl by the name Doreen Mwendwa was born on 26th March, 2005. The Objector further narrated to court how the deceased had settled his family and sold part of his properties to 3rd parties. She gave names of some of these 3rd parties to whom the deceased had sold his properties. She was emphatic that she was never informed of these proceedings.

7. On her part, the Petitioner relied on her Replying Affidavit sworn on 8th May, 2017. She stated that the deceased never re-married after the demise of her mother in 1997; that the Objector was a total stranger to the family of the deceased and that she was out to defraud the deceased’s family. She admitted that the deceased had distributed his properties during his lifetime but there was a portion of 0. 5acres that remained undistributed. She disclaimed the mode of distribution contained in her affidavit in support of the application for confirmation of grant. She urged the court to distribute the estate in accordance with the way the deceased had distributed his properties in 1989.

8. The Petitioner did not file any submissions but Counsel for the Objector did file his. The court has considered those submissions.

9. It is clear from the evidence on record that the Objector was never involved in or notified of these proceedings. The question for determination therefore is whether she was entitled to be so notified and her consent obtained and if so what is the fate of the grant issued herein?

10. The Objector testified that she was the second wife of the deceased; that he married her under the Meru customary law; that he paid dowry for her in or about 2005 when he delivered a goat to her brother. She also gave a graphic explanation on how she witnessed the murder of the deceased on the fateful night to show that she was living with him at the time he violently met his death.

11. The burden of proof in any civil action lies with the person who alleges (see section 107 of the Evidence Act, Cap 80 Laws of Kenya).It was for the Objector to prove two things; firstly, that she was married to the deceased under the Meru customary law, and secondly, that the ceremony or activities that took place or actions undertaken by the deceased amounted into a traditional marriage under the Meru customary law. This in my view she failed. African customary law must be established and proved. She failed to call any evidence to establish how a traditional marriage under the Meru customary law is undertaken.

12. Further, the Objector failed to establish where the ceremony took place or the people involved. An African traditional marriage ceremony is ordinarily not a private function involving the man and woman only. It must necessarily involve other persons. The brother who allegedly received the goat from the deceased as dowry was not called to testify and confirm the allegations of the Objector. The mere fact of a woman living with a man does not qualify one to be a wife. To this court’s mind, the moment the Petitioner challenged the Objector’s standing, the incidence of proof shifted to the Objector to proof that there was a ceremony that amounted to a traditional marriage under the Meru customary law. This she failed to discharge and the burden continued to rest on her.

13. The Objector told the court that her relationship with the deceased bore a child, Doreen Mwenda. She produced a Child Health Card (Immunization Card) for that child. The Card produced as “AWM1”, showed that the child was born on 26th March, 2005 to Ismael Kinyua and Agnes Wanja. In my view, that is prima facie evidence that the child Doreen Mwendwa was a child of the deceased. The Objector’s testimony that the child was recognized during the burial of the deceased as also not seriously contested or displaced. Although the Petitioner had vehemently denied knowing the Objector, she admitted that she saw the Objector at the burial of the deceased. Accordingly, this court is satisfied that there is sufficient evidence that Doreen Mwendwa is a daughter of the deceased. There is no evidence to show that her mother was notified of these proceedings nor that she was catered for in the proposed distribution.

14. As regards the position of the Objector’s other daughters, there was no evidence to show that the deceased had taken them as his own or had provided for them. Their ages were not disclosed, they never appeared in court nor any evidence produced to prove that they were being maintained by the deceased prior to his death.

15. Accordingly, I am of the view that the Objector as the mother of Doreen Mwendwa, a lawful daughter of the deceased, she was entitled to be notified of these proceedings which she was not. To that extent the grant cannot stand.

16. The evidence on record shows that apart from the children of the deceased, 3rd parties also have a claim to the estate. There are those who had purchased portions of land from the deceased. The Objector gave their names and the Court has seen some of those names set out in the Succession Cause No. 115 of 2014 that was lodged by Julius Mutuma MurithiandWilson Mbogori Kinyua. Those parties should be heard before any final orders on distribution is made.

17. Be that as it may, the evidence on record shows that while the deceased distributed his properties, there was 0. 5 acres that was left undistributed. If the parties so wish to reduce costs and any further friction and unnecessary litigation, they could allocate this to Doreen Mwendwa and the matter be closed. This however, the Court leaves it to the parties and their legal advisers.

18. Accordingly, the grants issued on 10th May, 2014 and 20th August, 2014 are hereby revoked. The parties have 30 days to appoint fresh administrators failing of which the Court shall do so under section 66 of the Act. This matter be mentioned on 6th December, 2017 for further directions.

It is so ordered.

DATED and DELIVERED at Meru this 5th day of October, 2017.

A. MABEYA

JUDGE