[2018] KEHC 3320 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 1783 OF 2013

IN THE MATTER OF THE ESTATE OF THE LATE NELSON NDARA KOIBITA (DECEASED)

JUDGMENT

1. The deceased herein died on 25th April 2013. The proceedings herein were initiated by Edith Wanjiru Magondu and Ruth Muthoni Magondu in their purported capacities as wife and mother-in-law of the deceased. In their affidavit in support of the petition they expressed the deceased to have had been survived by two widows, being Edith Wanjiru Magondu and Nancy Wairimu, and three minor children being Michael Mungai, Faith Ann Muthoni and Abel Mungai. He was expressed to have died possessed of Nairobi Block 82/1251, Nairobi Block 82/1569, Kiambaa/Karura/T189, Donholm Estate 82/2395, and moneys in accounts with the Cooperative and Equity banks.

2. During the pendency of the said petition, the first petitioner, Edith Wanjiru Magondu, moved the court by way of a summons dated 18th December 2013 for special limited grant to enable her collect rent from the listed estate assets. A grant ad colligenda bona was made to her on 9th January 2014. Further orders made in the matter on 3rd February 2014 revoking the limited grant of 9th January 2014 and directing that Nancy Wairimu Ndara files a petition in the cause within 14 days, with the petitioners filing a cross-petition and objection within 14 days. The parties were also directed to open a special account for receiving rental income from estate account.

3. Nancy Wairimu Ndara, herein after referred to as the respondent, complied with the said orders by filing a petition herein on 26th February 2014, jointly with her brother, Manase Maina Kiritu. She listed herself and her two children, Faith Muthoni and Abelmos Koibita, as the sole survivors of the deceased. She also listed Nairobi Block 82/1251, Nairobi Block 82/1569, Kiambaa/Karura/T199, Donholm Estate 82/2395, property located at Muitiku in Karura, and moneys in accounts with the Cooperative and Equity banks. Edith Wanjiru Magondu and Ruth Muthoni Magondu, the original petitioners, filed an answer to the petition and a petition by way of cross-application on 18th March 2014. They listed Edith Wanjiru Magondu and Cynthia Koibita as the widows of the deceased. They also filed a notice of objection.

4. I gave directions on 18th December 2015 that the objection proceedings be disposed of by way of oral evidence, and that the parties’ witnesses file statements to be the basis for the trial.

5. The oral hearing commenced on 6th June 2016. Edith Wanjiru was the first on the stand. She stated that she had cohabited with the deceased from 2006 to 2013, during which period they got one child, Michael Mungai, whose birth certificate she produced. She stated that the deceased often sent school fees for the child. She also stated that she participated at his burial, and was mentioned in the funeral programme. She mentioned that she cohabited with the deceased during a period when he was separated from Nancy Wairimu. She asserted that she was told so by the deceased himself. She also stated that she knew Cynthia Koibita as a wife of the deceased, with whom he was also estranged. She stated that she and the deceased lived at a rental house at Kiserian. She conceded that at the time she met him, he lived at his own house at Doonholm, but he never took her there. She testified that she and the deceased married in 2006 before he left for the United States of America (USA) in 2007. She stated that Nancy was mentioned to her although the two never met until during the funeral.

6. The next on the stand was Hannah Wambui Mungai, the mother of the deceased. She stated that the deceased used to live abroad in the USA, and at the time of his death he was living at his house at Doonholm, Nairobi, at a place called Savannah. She said that the deceased lived in the USA with a wife and children. She said that she did not know the woman that he lived with in the USA, but she had seen their marriage certificate. She said that she did meet the wife and the children at the funeral but they left shortly thereafter. She mentioned that she was aware of two other women who were never married to him but only used to play with them. She asserted that the deceased had only one wife, the one in the USA. She asserted too that she never met the parents of Edith Wanjiru and Nancy Wairimu, neither could her relatives ever have visited them without her consent. She mentioned that she used to visit the house of Nancy Wairimu, during the birthday events of her son Mungai, and when the deceased was ill. She mentioned that the deceased used to live with Nancy Wairimu at the house at Savannah, Doonholm, during the deceased’s illness. But she said that even then Nancy Wairimu did not care very much for him as she used to abandon him at the house. She said that Nancy Wairimu was the one who had invited her to her son’s birthday and not the deceased. She stated that the deceased used to provide for her during his lifetime, although Nancy Wairimu was the one collecting rent she never extended any help to her. She claimed that she helped the deceased with the construction of the houses at Savannah. She stated that it was the wife in America who was entitled to representation to the deceased’s estate. She mentioned that the deceased had children with the other two women that he lived with. She stated that the deceased died at the home at Doonholm and it was Nancy Wairimu who informed her of the death. She conceded that Nancy Wairimu was then living with the deceased and his personal effects were with Nancy Wairimu. She stated that whenever the deceased was in Kenya he would stay with Nancy Wairimu, and sometimes with another woman at Kiserian. She added that the deceased told her that he stayed at Kiserian with the other woman after Nancy Wairimu had rejected him. She asserted that Nancy Wairimu was not a wife of the deceased, she only lived with him. She complained that Nancy Wairimu did not visit her after the deceased died, like Edith Wanjiru did.

7. The next to take the witness stand was Mary Njeri Kamenwa, the second original administrator, who was also a stepsister of the deceased. She asserted that the deceased’s wife was Cynthia Koitaba. She claimed that she represented her as the latter was unavailable. She claimed to have a power of attorney from her enabling her to testify on her behalf. She stated that the deceased was resident in the USA where she lived with Cynthia Koitaba. He would come back to Kenya and buy houses then go back to the USA. She gave details of the houses that the deceased bought at the periods when he was alleged to be in Kenya. She stated that whenever he came back to Kenya he would at times live or stay with Nancy Wairimu or Edith Wanjiru, during which periods he begat children with them. She stated that the deceased had two children with Cynthia Koitaba, being Erica Wangui and Jason Mungai. By the time of his death, the deceased was still married to Cynthia Koitaba. The deceased died in 2013 after coming back to Kenya in 2012. He was then living with Nancy Wairimu in one of his houses at Greenfield, Nairobi. She asserted that the deceased was not married to either of the two women, but he had a child with each of the two. She conceded that Nancy Wairimu and the deceased went through a ceremony of marriage at Sheria House, although the previous marriage between the deceased and Cynthia Koitaba had not been dissolved. She said she was party to the deceased’s funeral arrangements. She said she was party to the deceased’s funeral arrangements. She said that Nancy Wairimu played no role at all in the arrangements, but Cynthia Koitaba and her children, and Edith Wanjiru and her child, actively participated in them. Nancy Wairimu allegedly attended only one meeting, but stayed away after it was clear that Cynthia Koitaba and Edith Wanjiru would be recognized as wives of the deceased. She stated that it was Nancy Wairimu who was collecting rent from assets of the estate and that Cynthia Koitaba was not getting a share thereof. During cross-examination, she stated that Cynthia Koitaba never lived in Kenya and did not therefore have a home in Kenya. She said that she had no evidence that Cynthia cohabited given money to the deceased for the acquisition of assets in Kenya. She stated that the deceased and Cynthia Koitaba wedded in the USA and that she did not attend the ceremony. She also stated that she was unaware of any separation. She stated that she was aware that at some point the deceased lived with Edith Wanjiru, and he had told her that he had had a child with her. She said that the marriage between the deceased and Nancy Wairimu was one of convenience as it was entered into at a time when Nancy Wairimu wanted to go to the USA. She said he married Edith Wanjiru after he was ill-treated by Nancy Wairimu. She mentioned that the photographs in the funeral programme only featured two families, that of Cynthia Koitaba and Edith Wanjiru, Nancy Wairimu was said to have refused to provide photographs of her side of the family. Nancy Wairimu was said to have had only one child with the deceased. The other child was allegedly gotten before the two met.

8. James Njenga Mungai came next. He was the elder brother of the deceased. He testified that the deceased had married Cynthia Koitaba and that the two had two children. They lived in the USA, and had gotten married in church. The deceased was also said to have had two girlfriends, Nancy Wairimu and Edith Wanjiru, with whom he had a child each. He said that he knew that they lived with the deceased but he did not know that they were married to him. He asserted that he could not recall paying dowry for them. He stated that the deceased had property that was being controlled by Nancy Wairimu, who allegedly began to collect rent thereon after the deceased’s demise. He asserted that the family did not authorize her to manage the property, adding that she should not be granted representation to the estate. During cross-examination, he conceded that the deceased lived in one of his houses at Doonholm with Nancy Wairimu and her children. He described Nancy Wairimu as having been a friend of the deceased, saying that the deceased had himself told him so. He said that he was unaware that the two formally married and had a marriage certificate.

9. Nancy Wairimu Ndara took the witness stand on 30th October 2017. She testified that she had sought representation to the estate jointly with her brother. She said that she was the sole surviving spouse of the deceased. She asserted that she was unaware that the other claimants were also spouses of the deceased. She also said that the deceased had never told her that he had had children with other women. She asserted that the deceased lived with her and it was not possible that he could have had another boma with another woman, that is regarding Edith Wanjiru. With respect to Cynthia Koitaba, she stated that the deceased had mentioned to her that he had a woman living abroad but that they were separated. She said that she did see the children of the deceased with the other women at the funeral, but she could only recall the name of only one of them. She stated that she married the deceased at Sheria House on 2nd February 2005. She said that at that ceremony the deceased had stated that he was a bachelor having never married. After the ceremony they allegedly went to the deceased’s mother who blessed their union. She stated that after the deceased died his family wanted to drive her away, and as a result there was a standoff between them. She said that they discussed about the deceased’s assets, where they wanted to give her the rural home, but she refused, hence the disputes over rent. She stated that she lived in one of the estate’s assets, and knew where all the other assets were. She also said that she had the title documents in her house. She stated that she would be faithful if appointed administrator. During cross-examination, she stated that she had met the deceased sometime in November 2004 and they got a child between them sometime in December 2005. She conceded that the other child was born of a different man, although the deceased had obtained a certificate of birth indicating him as the father of the child. She stated that she and the deceased cohabited for nine years during which period she never got to know that he had had children with other women, saying that she only got to hear of them in court. She said it was for that reason that she did not list the other children in her petition. She stated that after the family of the deceased isolated her she chose to petition for representation jointly with her brother. She said that she had never been to America, but she and the deceased had discussed about going there, she went to the American embassy with her marriage certificate for an interview, but she was denied a visa. She denied that the ceremony of marriage she went through with the deceased was for the convenience of obtaining a visa to travel to the USA, saying that it was the deceased who wanted her to go to America. She started that after she got married to him, she never got to know whether he had married previously, and she never got to see any divorce papers. She said that she was unaware that the deceased had gone through a ceremony of marriage with Cynthia Koitaba in 1987 and he had not shown her any certificate of marriage. She asserted that when they went to the registrar of marriages the deceased indicated that he was a bachelor. She said that she sought a visa to travel to America after four years of marriage, and the same was turned down on grounds that she did not have a healthy bank balance. She said that they met in December 2004 and the deceased told her that he had come back in November 2004, and he did not mention any other wife. She said that no one had gone to the police claiming that she had in her possession a fake marriage certificate. She said she did not see the funeral programme at the funeral but at her advocates offices. She further said that the deceased never told her that he had another family abroad, and no other woman came to her claiming to be a wife of the deceased. She asserted that she did not stop any one from applying for representation, adding that someone had applied but the court told her to go ahead and apply.

10. At the close of the oral hearing, I directed the parties to file written submissions. There has been compliance. I have read through the said written submissions and noted the arguments made therein. The only issue for me to determine is who, as between the three claimants, is entitled to representation to the intestate estate of the deceased.

11. I have read through the papers filed herein and the documents presented as evidence during the trial. The picture that emerges is that the deceased herein had in 1981 met and on 11th December 1982 gone through a ceremony of marriage with one Cynthia Elaine Bradley before a registrar at the County of Los Angeles in the State of California in the USA. That union allegedly produced two children, Erika Wanoii Koitaba and Jason Mongae Koibita. In the course of November 2004, he met and on 2nd February 2005 married Nancy Wairimu Kinyua at the office of the registrar of marriages at Sheria House in Nairobi. That union was blessed with one child, Abelmos Koitaba, born on 12th December 2005. Nancy brought into this arrangement a child that she had had previously with another man before she met the deceased. From 2006, and for an indeterminate period of time, the deceased had a liaison with Edith Wanjiru, which produced a child known as Michael Mungai. At his death, Edith Wanjiru and Cynthia Koitaba moved the court for representation excluding Nancy Wairimu, who also joined the fray claiming to be the sole widow of the deceased.

12. The question to be determined is who of the three women was the legitimate widow of the deceased as at the date of his death. From the material before me, Cynthia Koitaba was the first in time. She was married in a civil ceremony in the USA. She got children with the deceased. She has a marriage certificate to support the union. Nancy Wairimu says that the deceased had intimated to her that he had either divorced or was separated from Cynthia Koitaba as at the time he went through a ceremony of marriage with her. If he was merely separated from her then he was still locked in marriage with her and he would have had no capacity to contract marriage with Nancy Wairimu. If he had divorced her, then he would have had capacity to marry Nancy Wairimu at the ceremony in Nairobi. Unfortunately, no evidence was placed before me of the alleged divorce. I note that the larger family of the deceased is fairly united in recognizing Cynthia Koitaba as the lawfully wedded wife of the deceased, and from their testimonies I did not get a whiff of any divorce or separation between them.

13. The ceremony that Nancy Wairimu and the deceased went through was conducted at a time when the deceased was still lawfully married to Cynthia Koitaba, to the extent that it has not been demonstrated that the two had divorced. This appears to me to be a clear case of bigamy, for that is the offence defined in circumstances where a person goes through a civil ceremony of marriage while another civil marriage between him and another is still subsisting. Nancy Wairimu gives two conflicting accounts as to whether she was aware of the deceased’s marriage to Cynthia Koitaba. In one breathe she says that the deceased had told her that he had married a black American, but that he was separated from her or had divorced her; in the other breathe she says that she knew nothing about Cynthia Koitaba, the deceased had never talked about her and when they married at the registrar’s office he described himself as a bachelor, meaning that he had never married in his life. Then there is the allegation that this was a marriage of convenience. The parties allegedly met in November 2004 and went through a ceremony of marriage three months later on 2nd February 2005. Nancy Wairimu talks of presenting the marriage certificate at the US embassy in Nairobi for a visa to facilitate her travel to the USA, although no date has been attached to this event. Nancy Wairimu asserts to be the sole surviving widow of the deceased, yet she has provided no proof whatsoever that the civil marriage between the deceased and Cynthia Koitaba had been dissolved to clear the way for her marriage to the deceased in a civil ceremony. Quite clearly the civil ceremony of 2nd February 2005 could not have produced a valid marriage. Nancy Wairimu cannot therefore assert herself as a widow of the deceased founded on that ceremony.

14. Was Nancy Wairimu a wife of the deceased in customary law? She did not assert herself as the customary law wife of the deceased. She did not allege that any customary law rites were ever performed. Members of the family of the deceased who testified in the matter did not consider her to have been married by the deceased at customary law. They were categorical that no dowry was paid for her, and asserted that she was a mere friend of the deceased. Indeed, they depicted her as a friend of the deceased with whom he resided whenever he was in Kenya. Clearly, she was not a customary law wife of the deceased.

15. The next question that I should ask is whether marriage could be presumed from prolonged cohabitation between the deceased and Nancy Wairimu. The common law presumption of marriage has been imported into the Kenyan law by the reception clause as embodied in section 3(2) of the Judicature Act, Cap 8, Laws of Kenya. The first record of its application is in the case of Hortensia Wanjiku Yawe vs. The Public TrusteeNairobi CACA No. 13 of 1976. In the matter, the parties had cohabited from 1963 to 1972 when the man died. The woman claimed his estate as his widow under customary law. The Public Trustee then moved the court asking for a determination as to whether the woman was the widow of the deceased. The court did not consider whether or not the essentials of a Kikuyu customary law had been complied with, but considered the circumstances of the parties cohabitation - that the man had orally and in writing described the woman as his wife, the community treated the couple as husband and wife, the mother of the man knew the woman as her son’s wife, among others. The court concluded that the fact of the long cohabitation as man and wife gave rise to the presumption of a marriage in favour of the woman, which presumption could only be rebutted or displaced by cogent evidence to the contrary. It was stated that the presumption was derived from English law and was not opposed to Kikuyu law.

16. Hortensia Wanjiku Yawe vs. The Public Trustee(supra) has been followed by a long line of other decisions emanating from both the High Court and Court of Appeal. In Mary Njoki vs. John Kinyanjui Mutheru(1982-88) 1 KAR the court held that promise to marry was not required to make the presumption of marriage arise nor was the performance of any customary ceremonies required. In In Re the Estate of Gerald Kiragu Gatheru(Deceased) (2006) eKLR it was held that where there was proof of cohabitation and where three children were born one of whom was over 20 years could be considered as a marriage by reputation that required a formal divorce. In Christopher Nderi Gathambo vs. Samuel Muthui MuneneNairobi HCCC No. 1372 of 2001, it was held that once the man showed that he was living with the deceased woman as man and wife for nine years he was in law presumed to be married unless the contrary be clearly proved. The court held that the criteria that the court could use to define cohabitation includes the cohabitants financial arrangements, the intimate commitment the outward observable features of the relationship such as whether the cohabitants adopt the same second name, but they are not conclusive. It was also stated that where a party has decided to join in cohabitation even without specifying their individual rights in that relationship the court cannot just raise its hands up in impotent inability and ignore to exercise justice to the parties. In In The Matter Of The Estate Of Late Evanson Kiragu MureithiNakuru HCP&A. No. 163 of 1995 it was held that even though the requirements of a Kikuyu customary marriage had not been fulfilled, the parties had cohabited as husband and wife from the circumstances which included the fact that their children were named after the parents of both parents as required under Kikuyu customs and that the husband’s parents had visited the wife’s home to inform them the husband was cohabiting with the woman, and paid some money and brought beer for the elders and sodas for the women. In The Matter Of The Estate Of John G. KinyanjuiHCP&A No. 317 of 1984 court held that cohabitation can be evidence from which it may be presumed that the parties to the cohabitation did marry.

17. In the instant case, Nancy Wairimu claims that she and the deceased lived together for nine (9) years. They lived in one of the properties owned by the deceased, a fact that was acknowledged by the three members of the family of the deceased who testified. The couple even had a child between them, who carries the name of the deceased. Indeed, the picture painted is that the two lived together, and the family member-witnesses testified to visiting the deceased whilst he lived with Nancy Wairimu. They acknowledged too that the two had the said son. The mother of the deceased visited regularly to mark the birthday of the said child and when the deceased was ailing. It is common ground that the deceased was living or staying with Nancy Wairimu up to the final hours, when she took him to hospital and he died either at the hospital or on the way there. She is said to be the one who notified the family about the death. The witnesses from the family gave testimonies that put Nancy Wairimu and the deceased together, although they asserted that she never was a wife to him. I note that the funeral programme, in particular the eulogy, recognized her as one of the wives of the deceased. It should be a matter of common knowledge that such funeral programmes or eulogies are drawn by the family of the deceased, and cannot possibly be distributed without their approval. It is telling that Nancy Wairimu is recognized here as a wife. My understanding of it is that whereas the larger family was aware that Nancy Wairimu did not go through a valid ceremony of marriage with the deceased, they nevertheless still regarded her as his spouse.

18. Regarding Edith Wanjiru, it is common that she and the deceased did not go through any form of ceremony of marriage, neither under customary law nor statutory law. She does not assert herself as a wife married to the deceased under either of the two systems. It is not disputed that she did have a child with the deceased, a fact that was apparently well-known to the family. Her liaison with the deceased was clearly a matter that was well-known. The impression I get from the evidence is that she did not quite live with the deceased, but stayed with him briefly during a period when he and Nancy Wairimu were not on good terms. The deceased did not settle her in any of his houses as he had done with Nancy Wairimu, instead she and the deceased stayed in rented premises. No evidence was provided as who between the two rented the house in question, so as to determine whether the same could be considered his or her house. Only two things link her to the deceased, the child that they had together and the fact that the larger family was aware of the liaison. Applying the principles stated in Hortensia Wanjiku Yawe vs. The Public Trustee(supra), I am tempted to hold that the presumption of marriage could not arise in her case. However, the issue of the funeral programme and the eulogy disturbs me. As stated above, the same is usually made at the behest of the larger family. The fact that she is recognized in there as a spouse of the deceased is a clear pointer as to the view that the community had of her. I am prepared, on that ground, and on the fact that she and the deceased had a child between them, to hold that marriage could be presumed between her and the deceased.

19. Let me end the discussion on this by stating that my view of presumption of marriage in cases where there is a subsisting civil or statutory marriage is that the presumption ought not to arise. A statutory or civil marriage is viewed as strictly monogamous. A person who is party to it would have no capacity to contract any other valid marriage so long as the statutory or civil monogamous marriage subsists. I also hold the view that the doctrine of presumption of marriage has its foundation in common law, which law embraces the monogamous marriage and shuns polygamy. Consequently, the common law principle cannot possibly be applied in a manner that embraces or condones or allows polygamy. That being the case, I ought in this case to find that Nancy Wairimu and Edith Wanjiru could not possibly be wives of the deceased by dint of prolonged cohabitation in view of the civil marriage that subsisted between the deceased and Cynthia Koitaba. That would mean that Nancy Wairimu and Edith Wanjiru were nothing more than mere cohabitees or girlfriends, or woman friends, of the deceased. Holding otherwise, in my very humble view, would make nonsense of the business of going through a civil or Christian ceremony of marriage. However, the Court of Appeal has, in a number of decisions, applied the doctrine of presumption of marriage in a manner that would suggest that the same is a not a rule of common law but of common sense, and it does not matter that its application would have the effect of reducing an otherwise statutory monogamous marriage into a polygamous one. I shall, therefore, not venture to contradict the Court of Appeal on this, and shall be content to leave the matter at that.

20. Section 3(5) of the Law of Succession Act was cited to advance the case of Edith Wanjiru. I was invited to invoke this provision so as to find that she was a wife of the deceased despite the fact that the deceased was married under statute to Cynthia Koitaba. With respect, the said provision cannot apply to the benefit of Edith Wanjiru. It applies to protect women married under customary law by men who are already married under statute to other women or who, after the customary law marriage, go on to contract marriage to another woman under statute. There is no evidence that Edith Wanjiru went through any ceremony of marriage with the deceased. She cannot therefore come under the protection of section 3(5) of the Law of Succession Act.

21. I need to address the case of the children of the deceased. Nancy Wairimu asserts that she is the sole surviving spouse and has listed herself and her children as the sole survivors. At the hearing she asserted that she was unaware of the other wives and their alleged children. To her therefore the said children are not survivors of the deceased. I have already held that Cynthia Koitaba and Edith Wanjiru were wives of the deceased. From the material before me, it is plain that Cynthia Koitaba had two children with the deceased, while Edith Wanjiru had one. The three children are therefore survivors of the deceased and are entitled to a share from the estate. Nancy Wairimu had one child with the deceased. She brought the other child that she had gotten from a previous relationship into her arrangement with the deceased. Evidence places the deceased, Nancy Wairimu and the two children together in one of his assets. I shall presume that he assumed parental responsibility over the child that she had had previous to meeting him. The said child has therefore to be considered as a child for purposes of succession in terms of section 3(2) of the Law of Succession Act.

22. In view of what I have stated above, it is my finding that the deceased was survived by three widows, namely Cynthia Koitaba, Nancy Wairimu Ndara and Edith Wanjiru Magondu; and five children, being Erika Wanoii Koibita, Jason Mongae Koibita, Faith Ann Muthoni, Abelmos Mungai Ndara and Michael Mungai Ndara.

23. I should consider next who I should appoint as administrators of the intestate estate of the deceased. By dint of section 66 of the Law of Succession Act, surviving spouses have priority followed by surviving children and other relatives. The persons who seek appointment herein are two surviving spouses, a person holding a power of attorney donated by a surviving spouse, and a sibling of one of the surviving spouses. It goes without saying that the two surviving spouses have priority and ought to be appointed. However, it should be noted that the court is not bound to appoint them, for it enjoys some discretion in cases where it feels that it should overlook a spouse for whatever reason.

24. Regarding Edith Wanjiru, I find no inhibition to her appointment as administrator. Nothing has been placed before me which would suggest that she would not be competent or suitable for appointment. Cynthia Koitaba has not herself sought appointment, but she has donated power to Mary Njeri Kamenwa. Nothing has been placed before me which suggests that the donee of the power is not competent or unsuitable for appointment. Nancy Wairimu has proposed herself for appointment. Her suitability has been questioned. She has been accused of disobeying or disregarding court orders, and of giving false information in her pleadings. I will not dwell on whether or not that she gave false information in any of her pleadings, but I am conscious of the fact that she has not been keen on complying with the orders that the court had made requiring her to operate joint estate accounts with the other parties, and the orders requiring her to render an account of the rents that she was collecting from the estate. She took the position that the houses were not occupied by tenants and even where they were the tenants had refused to pay rent, and therefore even after opening the joint account there was no money that could be deposited into that account. The court was compelled to direct the Deputy Registrar to go to the ground and establish the true position. In the end, it was established that the houses had tenants who had been paying rent to her. The court found her to be in contempt of court and sentenced her therefor. I shall accordingly find that Nancy Wairimu is not suitable for appointment. I shall instead, in the circumstances, appoint her co-petitioner, who is also her brother, as administrator to represent her interests and those of her children.

25. I have mentioned here above that Nancy Wairimu was found guilty of contempt of court and sanctioned therefor. She has brought an application dated 19th December 2017 seeking suspension of the sentence pronounced against her, on 14th December 2017, pending appeal. The said application has been responded to by the other parties. All the parties have filed their respective submissions thereon, which I have read through and noted the arguments advanced.

26. The sanction pronounced by the court herein is penal in nature, in the sense that it takes away the freedom and property of the person sanctioned. The contemnor has a right to challenge the same on appeal. She is entitled to a second opinion from the appellate court before the sanction takes effect. Her appeal would be rendered academic should the sanction become effective before the same is heard and determined. I note that interim relief has since been granted. I believe it would be mete and just if the sanction is suspended to await the outcome of the proposed appeal, subject, of course, to such conditions as the court shall find appropriate.

27. The final orders that I shall make in this case are as follows-

a) That it is hereby declared that the deceased was survived by the following individuals Cynthia Koitaba, Nancy Wairimu Ndara, Edith Wanjiru Magondu, Erika Wanoii Koibita, Jason Mongae Koibita, Faith Ann Muthoni, Abelmos Mungai Ndara and Michael Mungai Ndara;

b) That the estate of the deceased shall be distributed to the persons named in (a) above in such terms as shall be determined by the court at the confirmation of the grant to be made by the court in this judgment;

c) That I hereby appoint Edith Wanjiru Magondu, Mary Njeri Kamenwa and Manase Maina Kiritu administrators of the estate of the deceased;

d) That a grant of letters of administration in intestacy shall issue to the persons appointed in (c) above, who shall apply for confirmation of their grant in the next ninety (90) days of date hereto;

e) That Nancy Wairimu Ndara is hereby directed to surrender all the title documents relating to the estate’s assets to the administrators appointed above to facilitate administration of the said estate;

f) That the orders made herein on 14th December 2017 are hereby suspended pending appeal, subject to Nancy Wairimu Ndara depositing the sum of Kshs. 100,000. 00 in court within the next fourteen (14) days of date hereof;

g) That costs shall be in the cause; and

h) That any party aggrieved by the orders made herein shall be at liberty to challenge the same at the Court of Appeal within twenty-eight (28) days of date hereof.

DATED, SIGNED and DELIVERED at NAIROBI this 5TH DAY OF OCTOBER, 2018.

W. MUSYOKA

JUDGE