[2022] KEHC 3352 (KLR)

In re Estate of the Late Kimunyu Warui Karidi alias Kimunyu Warui (Deceased) (Civil Appeal 58 of 2018) [2022] KEHC 3352 (KLR) (2 June 2022) (Judgment)

Neutral citation: [2022] KEHC 3352 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 58 of 2018

RM Mwongo, J

June 2, 2022

ESTATE OF THE LATE KIMUNYU WARUI KARIDI ALIAS KIMUNYU WARUI (DECEASED)

Between

Esther Muthoni Kimunyu

Appellant

and

Harrison Kinyua Kimunyu

Respondent

Judgment

Background 1. The deceased died on 10th November 2007. According to the petition the only property of the deceased was Parcel No Mwerua / Kabiriri/750, comprising 1. 21 hectares or 2. 989 acres.

2. His wife, Esther Muthoni Kimunyu, filed a petition for grant of letters of administration in Wanguru Succession Cause No. 161 of 2017. She identified her eight children as the deceased’s survivors. A grant was issued in the lower court on 8th December, 2017, with the petitioner appointed as the administrator of the estate. A certificate of grant was issued on 2nd February, 2018.

3. The administrator applied for confirmation of the grant by summons dated 23rd April 2018. The distribution mode proposed for the deceased land No Mwerua/Kabiriri/750, was in favour of her children and herself, as follows:1)John Waweru Kimunyu - 0. 24 ha2)Esther Muthoni Kimunyu }3)Irene Wamarwa Kimunyu }4)Janet Wangari Kimunyu } 0. 24 ha5)Nancy Wangui Kimunyu }6)Margaret Wanjiru Kimunyu }7)Zachary Githaka Kimunyu - 0. 24 ha8)Stephen Kariuki Kimunyu - 0. 24 ha9)Michael Warui Kimunyu - 0. 24 ha

4. A protest was filed by the Harrison Kinyua, a son of the deceased, on 30th April 2018. He asserted that the deceased had a first wife –Hellen Wambura Kimunyu – who had left the deceased’s homestead before his death. He proposed distribution as follows:1)John Waweru Kimunyu - 0. 201ha2)Esther Muthoni Kimunyu }3)Irene Wamarwa Kimunyu }4)Janet Wangari Kimunyu } 0. 201 ha5)Nancy Wangui Kimunyu }6)Margaret Wanjiru Kimunyu }7)Zachary Githaka Kimunyu - 0. 201 ha8)Stephen Kariuki Kimunyu - 0. 201 ha9)Michael Warui Kimunyu - 0. 201 ha10)Harrison Kinyua - 0. 201 ha

5. The summons for confirmation and protest were heard with evidence being adduced by the protestor (PW1); Peterson Waweru Warui PW2 deceased’s brother; Dision Kamau Warui PW3 deceased’s brother; DW1 Esther Muthoni Kimunyu; and DW2 Karuri Warui Kimunyu deceased’s brother.

6. The trial court found that the deceased had two wives, five(5) children from the first house and eight (8) children from the second house. The court confirmed the letters of Administration issued on 2nd February, 2018, and ordered distribution of the deceased’s land as follows:a)0. 5 ha to the 2nd deceased and in reference to section 38 of LS.A, her children will share their portion equally.b)0. 8 ha to Esther Muthoni Kimunyu.

7. Dissatisfied, the appellant has appealed against the judgment of the lower court on the grounds, that :1. The learned Magistrate erred in law and in fact by holding that the protestor was the son of the deceased contrary to the evidence tendered in court.2. The learned magistrate erred in law and in fact by sharing land parcel number Mwerua/Kabiriri / 1750 to persons who are already deceased.3. The learned magistrate erred in law and in fact by giving a share of land parcel number Mwerua/ Kabiriri/ 1750 to person who was never a protestor or mentioned in the protest and application for confirmation of grant.4. The learned magistrate erred in law and in fact by failing to consider that the protestor has never utilized the said land parcel number Mwerua/ Kabiriri/ 1750 and also the developments which has been done by the petitioner.5. The learned magistrate erred in law and in fact by misinterpreting the law of succession Act and particularly the sections dealing with the distribution of the estate of the deceased.6. That the decision and ruling of the learned magistrate is not only flawed by error on the record but total misunderstanding of the legal principal involved in Law of Succession Act which deals with distribution of the estate of the deceased.

8. The Appellant seeks that the judgement of the subordinate court be aside, the appeal be allowed, and the property of the deceased be distributed as per the appellant’s /petitioner’s proposal.

Appellant’s submissions 9. The appellant urged all six grounds of appeal together. She submits that the judgment is flawed since the property of the deceased cannot be distributed to a deceased person. At page 54 of the record of appeal the trial Magistrate indicated the names of the children of the deceased. She further stated that the property should be distributed to the children of the 2nd deceased. There are two children who are also deceased.

10. Further in part (b) of the said judgment in the distribution part instead of distributing property to the children of the deceased, t learned magistrate gave the whole portion measuring 0. 8 ha to Esther Muthoni, the widow of the deceased. The children of the deceased were never given any portion of land.

11. This the appellant argues, is contrary to section 40 of the law of succession Act which provides that state that: Where an intestate has married more than once under any system of law permitting polygamy, his personal and house hold effects and the residual of the estate 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.

12. Thus the parcel of land in this case should have been distributed to the beneficiaries of the Petitioner plus the Protestor after having found that the deceased was polygamous.

Respondent’s submissions Ground 1 13. The Appellant contends that there was an injustice where the court found that the respondent was a son to the deceased.

14. The Respondent herein became part of the succession proceedings when he filed his affidavit of the protest dated April 27, 2018 (attached at page 19-20 of the record of appeal). He claimed for a share of the estate of the deceased on grounds that he was his biological father. He stated that the deceased had married his mother Hellena Wambura and that he was born out of the union. He did not deny that the Appellant was also married to the deceased. It was the evidence of his 1st witness, Peterson Waweru Warui that the protestor was indeed a son to the deceased. He confirmed that the deceased was his eldest biological brother and that the deceased and the Respondent's mother sired 5 children together and that only 3 are now alive.

15. The Respondent’s 2nd witness by the name Dison Kamau Warui stated that the deceased was his elder brother and that the Respondent’s mother was known as Hellena Wambura Kimunyu. He also confirmed that the deceased and Hellena had sired 5 children together, inclusive of the protestor and that only 3 children were presently alive. Both witnesses as well as the Respondent confirmed that the protestor’s mother had died before the deceased and that was when the Petitioner was married as a 2nd wife. They further confirmed that upon the death of the deceased, the 2nd wife (petitioner) chased way the Respondent and his siblings, taking over land parcel, Mwerua/Kabiriri/I750, the subject matter of these proceedings.

16. The respondent submits that the two witnesses called by the Respondent were his paternal uncles. This was not contested and therefore the trial court was convinced that the Respondent’s claim was legitimate. Further, the Petitioner’s sole witness also confirmed that the protestor’s mother was indeed a wife to the deceased .

17. Nevertheless, the Petitioner denied knowing that the deceased had a 1st wife, but her witness was aware of the same. Her intention was clearly to solely inherit the estate of the deceased together with her children leaving out the protestor and 3 his surviving siblings.

Ground 2 18. The respondent submit that an estate of a deceased person cannot be distributed among people that are also deceased .It was therefore an error for the court to distributing the estate to deceased person instead of distributing their share to their surviving beneficiaries/ dependants. The grant as issued was therefore unenforceable.

Grounds 3, 4, 5 and 6 of the appeal 19. The respondent submits that in succession matters, it does not matter who has developed what part of the estate, the same should be distributed equally.

Issues for determination1. Whether the learned Magistrate erred in law and in fact by holding that the protestor was the son of the deceased contrary to the evidence tendered in court.2. Whether the learned magistrate erred in law and in fact by sharing land parcel number Mwerua / Kabiriri / 1750 to persons who are already deceased

Analysis and determination 20. This being a first appellate court, its duty is to re-evaluate, re-analyse and reconsider the evidence before it and make its own independent findings bearing in mind that it did not have the benefit, enjoyed by the trial court, of seeing the witnesses testifying, and therefore should give due allowance for that. See: Selle & Another v Associated Motor Boat Company Ltd & Others[1968] EA 123 and Peters v Sunday Post Limited, [1958] EA 424.

Whether the protestor was the son of the deceased** 21. The Appellant questioned the correctness of the trial court’s finding that the respondent was a son to the deceased. The Respondent claim for a share of the estate was set out in his affidavit of the protest dated 27th April, 2018. He asserted that the deceased was his biological father. He stated that the deceased had married his mother Hellena Wambura as the first wife (the 2nd deceased) and that he was born out of that union.

22. According to him, his mother, Hellena Wambura Kimunyu, died in 1986. She was blessed with 5 children of whom he Harrison Kinyua Kimoni, was the protestor. Two of his siblings were deceased. On the other hand, the surviving wife Esther Muthoni was blessed with 8 children.

23. The respondent submitted that his two witnesses were his paternal uncles. Their evidence was not contested. He had fulfilled the legal burden of proof and therefore the trial court was convinced that the Respondent’s claim was legitimate. Reference was made to section 107 of the Evidence Act on the burden of proof

24. The petitioner denied that she knew the protestor and also denied he was her son or step-son. She testified that he did not live on the deceased’s land. However, the her sole witness, DW2-Karuri Warui Kimunyu, who was also a brother of the deceased, confirmed that the protestor’s mother was indeed a wife to the deceased; That they had three children and the ones alive are two. He said that the protestor had not constructed on the said land.

25. During highlighting of submissions, counsel for the respondent submitted that the appellant’s counsel did not address the fact that the protestor was the son of the deceased. Nevertheless, it is on record that the respondent had two witnesses (paternal uncles) who confirmed that the respondent was the son of the deceased.

26. On her part, the appellant did not produce evidence to counter or discredit the fact that the respondent was a son of the deceased. Accordingly, the trial court was entitled to conclude, as it did from the strength of the evidence, that the protestor was a son of the deceased, and therefore a beneficiary of his estate

27. This conclusion was in line with the provisions of section 29 of the Law of Succession Act, which defines a dependant as follows:“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….” (Emphasis added)

28. As a child of the deceased who had been a dependent at one time, the fact that he was not living with the deceased or being maintained by the deceased did not remove his right to claim dependency. There was proof that he was a son of the deceased.

29. The trial magistrate, correctly, stated that she had considered various authorities and the Children’s Act, and stated:“[I]accept a child does not lose parentage merely because his parents have differed and parted ways”

30. On this issue as to whether the protestor was the deceased’s son, the trial court’s finding cannot be faulted. I uphold the position and dismiss this aspect of the appeal.

Whether the learned magistrate erred in law and in fact by sharing land parcel number Mwerua / Kabiriri / 1750 to persons who are already deceased 31. The trial court was faulted for distributing the deceased’s property with persons who were deceased.

32. The trial court found from the evidence adduced that the deceased had a first wife who had three living and two deceased children; and that the second wife, the petitioner/appellant, had eight children. In making her final determination, the learned trial magistrate took all the wives and children into account. In so doing she rejected the distribution proposals of both the petitioner and the protestor by expanding the coverage of the distribution to all children of the deceased.

33. The trial court found that the only property available for distribution was the deceased’s land parcel number Mwerua / Kabiriri / 1750 measuring 1. 2 hectares. It also found that there were two wives with two houses. The court then took umbrage in section 40 of the Law of Succession Act where it provides as follows where the intestate was polygamous:“(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 estate 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 estate within each house shall then be in accordance with the rules set out in sections 35 to 38. ”

34. The trial court also relied on section 35(1) and (2) of the LSA which provides for the situation where the deceased has left a surviving spouse and child or children, as follows:“(1)Subject to to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to –(a)The personal and household effects of the deceased absolutely; and(b)a life interest in the whole residue of the net intestate estate:Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person.(2)A surviving spouse shall, during the continuation of the life interest provided by subsection (1), have a power of appointment of all or any part of the capital of the net intestate estate by way of gift taking immediate effect among the surviving child or children, but that power shall not be exercised by will nor in such manner as to take effect at any future date.”

35. On the basis of these provisions, the learned magistrate determined the distribution as follows:“(a)0. 5 ha to the 2nd deceased and in reference to section 38 of LSA, her children will share their portion equally.(b)0. 8 ha to Esther Muthoni Kimunyu.”

36. The appellant submitted that the trial Magistrate indicated the names of the children of the deceased, and that the property should be distributed to the children of the 2nd deceased. It was urged that since two of those children are also deceased, the order could not be effected.

37. Further, in giving to Esther Muthoni 0. 8 ha, her children were omiited, and therefore appear to be disinherited.

38. The appellant’s complaint on these two points is therefore justified. In the case of Kithaka Kithiru & another v Anastasia Njagi Mwinukie [2021] eKLR Mshila J held that:“The contentious issue, therefore is, the procedure adopted by the trial court in vesting Ngungi Muinukie’s portion parcel No.Nthawa/Riandu/308 in his widows in equal shares and in purporting to have applied the mode of distribution as provided in Section 40 of the Act… For those reasons this court finds good reason to warrant interfering with the trial courts finding on the amendment and mode of distribution of the Certificate of Confirmation to the two (2) widows. This court hereby directs that the Certificate of Confirmation be rectified to read that ‘the two widows hold the properties in trust for all the beneficiaries of the deceased Ngungi Muinukie’ ”

39. I would adopt a similar position since deceased persons cannot be vested with property. Secondly, it is unclear that Esther Muthoni is required to share her portion with her children. The court should not issue unenforceable or uncertain orders.

Conclusion and Disposition 40. On the first issue herein, I hold that the protestor was properly found to be the deceased’s son. On this point the appeal fails

41. On the second issue regarding distribution, the appeal succeeds, and this court finds fault with the trial court’s final orders. I therefore hereby set aside the said orders and substitute with the following order that: the Certificate of Confirmation of grant be rectified as follows:a.0. 5 ha to the surviving children and or dependants of the 2nd deceased, and in reference to section 38 of LSA, they will share their portion equally.b.0. 8 ha to be distributed to Esther Muthoni Kimunyu and her children in agreed portions, and failing agreement, in equal shares

42. This being a family matter, there shall be no order as to costs

43. Orders accordingly.

DELIVERED AT KERUGOYA ON THIS 2ND DAY OF JUNE, 2022. R MWONGOJUDGEDelivered in the presence of:Ndana for the AppellantNyangati for the RespondentMurage Court Assistant