[2022] KEHC 423 (KLR)

In re Estate of the Sandislau Murianki Mutwiria (Deceased) (Miscellaneous Succession Cause 49 of 2018) [2022] KEHC 423 (KLR) (16 March 2022) (Ruling)

Neutral citation: [2022] KEHC 423 (KLR)

Republic of Kenya

In the High Court at Chuka

Miscellaneous Succession Cause 49 of 2018

LW Gitari, J

March 16, 2022

IN THE MATTER OF THE ESTATE OF THE SANDISLAU MURIANKI MUTWIRIA (DECEASED)

Between

Antony Muchiri Miriti

Applicant

and

Sabastian Njeru Stanely Murianki

Protestor

Ruling

1. This matter relates to the estate of Sandislau Murianki Mutwiria (deceased) who died intestate while domiciled in Kenya on 3/1/2003. A grant of letters of Administration Intestate was issued to the Petitioner Sabastian Njeru Stanley M’Murianki, a son of the deceased. The estate of the deceased was comprised in land Parcel No. Karingani/Muiru/165. A grant of letters of administration intestate was issued to the Petitioner on 17/9/2013 and later confirmed on 9/7/2014. The whole share of the estate of the deceased being land parcel No. Karingani/Ndagani/165 was distributed to the petitioner

2. A summons for revocation of and/or annulment of the said grant was filed by Antony Muchiri Miriti on 19/11/2018. The contention by the applicant was that the grant was obtained fraudulently by the making of a false statement or by concealment of something material to the case, making untrue allegations of fact essential in a point of law to justify the grant not withstanding that the allegation was made in ignorance or inadvertently. On 13/2/2020, Justice Limo allowed the application for revocation of grant and reversed all consequential orders. He further directed that the estate shall revert back to the name of the decease pending the determination of the cause. In addition, a fresh grant was issued to the Petitioner and the applicant Antony Muchiri Miriti who were ordered to apply for confirmation of grant jointly or individually before the expiry of six months. Antony Muchiri Miriti filed a summons for confirmation of grant dated 28/8/2020. He listed the following as the dependants.i.Sebastian Njeru - sonii.Octavian Nyaga - soniii.Paul Miriti - soniv.Ambrose Mbae - son (deceased) but survived by Antony Muchiri.v.Ester Kanyua Murianki- daughter

3. The applicant contended that the deceased had transferred some of his properties to his two sons in his lifetime.These are:- Octavian Nyaga Mutua -Mwimbi/Murugi/4151

Paul Miriti- Karingani/Ndagani/6452

4. It is the contention by the applicant that the two having benefited from the estate of the deceased by way of gift ‘intervivos, they were not supposed to get a share of the remaining net estate of the deceased. He proposes that Land Parcel No. Karingani/Ndagani/165 be distributed as follows:-1. Sebastian Stanley Njeru Murianki - 0. 74 Acres2. Antony Muchiri Miriti - 0. 74 Acres3. Ester Kanyua Murianki - 0. 74 Acres

5. The second Administrator opposed the proposed mode of distribution of the estate and filed an affidavit of protest sworn on 19/10/2020. His contention is that the applicant Anthony Muchiri Miriti is a grandson of the deceased and his father is Paul Miriti and not Ambrose Mbae Murianki as he has alleged. That Paul Miriti had benefited from the deceased during his lifetime and the applicant being a son of the Paul Miriti is not entitled to a share of the estate which is comprised Karingani/Ndagani/165. It is the contention by the administrator, Sebastian Njeru that land parcel No. Karingani/Ndagani/165 was bequeathed to him. He further contends that the late son of the deceased, Ambrose Murianki was given a parcel of Land at Muthambi where he settled with his children.Octavia Nyaga Mutua, a son of the deceased also swore an affidavit on 19/10/2020 asserting that Antony Muchiri Miriti is not a dependant as he is a grandson of the deceased and his father Paul Miriti was provided for through the gift inter vivos.

6. The applicant Antony Muchiri swore affidavit on 6/1/2020 reiterating that he is a son of Ambrose Mbae. Paul Miriti Murianki swore an affidavit on 5/2/2021 and avers that the applicant Anthony Muchiri Miriti is his son who is not entitled to the estate of the deceased. He further deposes that the estate of the deceased, that is Land Parcel No. Karingani/Ndagani/165 is supposed to be inherited by Sebastian Njeru. He avers that Anthony Muchiri Miriti is lying to this court and denouncing him as his father in broad day light.The protest proceeded to hearing in open court and parties adduced evidence.

Applicant’s Case 7. PW1, Anthony Muchiri stated before court that the deceased is his grandfather. He went on to state that his father is one Ambrose Mbae. That the deceased left a piece of land which was not subdivided (LR Karingani/Ndagani/165) measuring 2. 32 acres. He went on to state that he has divided the land in the following order: Ambrose Mbae, Sebastian Njeru and Esther Kanyua and each of the three 0. 74 acres. That Paul Miriti and Octavia Nyaga were bequeathed property by the deceased intervivos mainly LR Karingani/Ndagani/6452 and LR Mwimbi/Murugi/4151 respectively. On cross examination, he informed court that his Identity Card Number 22161554 reads Anthony Muchiri Miriti. He denied being Paul Miriti’s son in that Ambrose Mbae fathered him but since Ambrose never had a home, he gave them away to one Paul Miriti.

8. PW2, Lucy Muthoni Mbae stated before court that the deceased is her grandfather and she is the daughter of Ambrose Mbae Murianki and that Ambrose had other children as well including Anthony Muchiri, Idah Njeri and Benson Muchangi. She informed court that there was a time when PW1 was brought to their home and that he was introduced as her brother; and that he stayed for some time and thereafter left for the home of Paul Miriti. She further informed court that the estate of the deceased should go to PW1 since they got land which Ambrose Mbae was given by his uncle to his mother and that the land did not belong to the deceased herein. That PW1 had distributed the estate and left out Paul Miriti and Octavian Nyaga since they had been provided for intervivos; she supported the mode of distribution by PW1.

9. PW3, Emily Kagendo stated that the deceased is her father in law and that Anthony Muchiri is her son. She further stated that Ambrose Mbae was the father of her son; that she met Ambrose Mbae while still in school when she conceived. That she did not stay with Ambrose since he never had a home and so he took her to the deceased herein’s home. That PW1 was born t the home of Paul Miriti whereupon they became lovers and so she ended up marrying Paul Miriti. That they were further blessed with three more children but later on Paul Miriti became abusive more so to PW1. She explained that PW1 has the surname Miriti because Paul Miriti went to the hospital when she delivered PW1 and said that his name be included and so she could not resist since she was only fifteen years of age.

Respondent’s Case: 10. DW1, Sebastian Njeru Murianki stated that, PW1 is the son of his brother. That LR Karingani/Ndagani/165 belongs to the deceased but has been changed and now reads the name of PW1 and another person. He further stated that the transfer was done way back in the year 2013 and yet there was no succession. On cross-examination, he said that he is claiming Karingani/Ndagani/165 but also acknowledged that he would sit down with his brothers to determine what to give to their sister Esther Kanyua. He acknowledged that Ambrose did not get a share of the estate of the deceased and that since Anthony Muchiri is the son of Paul Miriti, he should inherit from Paul Miriti instead.

11. DW2, Paul Miriti stated that, PW1 is his son and that the deceased herein had given him land intervivos. That PW1 lives some 100 metres away from his home. That Ambrose was given family land at Muthambi, Octavian Nyaga was given LR Mwimbi/Murugi/4151, he was equally given land in Chuka while DW1 was to get Karingani/Ndagani/165. That PW1 has no claim on the suit land since he has given him a portion. On cross examination, he reiterated that PW1 is his son and that he had given him a portion of land already. That Ambrose had his home and at no particular time did he ever request him to have his wife stay with DW2. That he did not chase PW1’s and his mother. That Ambrose was survived by seven children. That the land that Ambrose got was not given by the deceased but it was from the side of his mother. That the property belonged to his parents and even him, he could claim it. Finally, that Sebastian to give their sister a share of the suit land.

12. The parties informed the court that they will file written submissions.

13. On 29th July 2021, the parties confirmed to the court that they had filed their submissions.

Analysis and Determination: 14. I have considered the summons, the supporting affidavits by both parties the evidence tendered and the submissions. There are two issues which arise for determination.1. Whether the applicant is a dependant who is entitled to the estate of the deceased.2. Distribution of the estate.

Whether the applicant is a dependant of the deceased. 15. The Law of Succession Act (Cap 160Laws of Kenya to be referred to as the Act, defines who is a dependant.At Section 29 of the Act provides:-“(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;(b)such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and (c) Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.”

16. There is no dispute that the deceased was survived by three sons and a daughter. The applicant is a grandson of the deceased. The above section qualifies two categories of the dependants. The first category under Section 29(a) of the Act are dependants who are not supposed to prove that they were maintained by the deceased immediately prior to his death. That is to say they were dependants as of right.

17. The second category under Section 29(b) are supposed to prove dependancy, that is, they are supposed to prove that they were being maintained by the deceased immediately prior to his demise. The applicant who is a grandson of the deceased was to prove that he was being maintained by the deceased prior to his death.

18. The applicant claims dependency as he is a son of one of the sons of the deceased by name Ambrose Mbae who is deceased. This however was disputed by the respondent who called a son of the deceased, Paul Miriti whose testimony is that the applicant is his son. My view is that the applicant did not discharge the burden to prove that he is a son of Ambrose Mbae. It is also a fact that the applicant was not being maintained by the deceased prior to his death. In the applicant’s affidavit sworn on 6/1/2020 the applicant stated he had purchased a piece of land where he resides. That he went to his father’s land, that is Ambrose Mbae who directed him to go to the land of deceased, paragraph 13 & 14. The applicant concedes that he had his own property and that his alleged father had a piece of land. The applicant was not being maintained by the deceased and only went to use the land of the deceased when he was an adult. By his own admission, his alleged father owned land and he is supposed to claim from the estate of his deceased father. The fact of one being allowed to use land does not make one a dependant. The law requires that one proves that he was a dependant as defined. It is trite that grandchildren don’t inherit from their grandparents. They inherit what their parents inherit unless they prove dependancy as pointed out above. The applicant admitted that his father owned land. According to DW1 and 2 Ambrose was given the land by the deceased during his lifetime.

Intermeddler: 19. Section 45 of the Law of Succession Act provides as follows:**1. “Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.2. Any person who contravenes the provisions of this section shall- (a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and (b) be answerable to the rightful executor or administrator to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.”

20. This section prohibits dealing in the properties belonging to a deceased person before obtaining a grant.

21. Indeed, Section 47 of the Law of Succession Act**vests court with wide discretion in granting protective powers for purposes of safeguarding the estate of a deceased person. It provides:-“The High Court shall have jurisdiction to entertain any applicationand determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.”

22. Similarly, Rule 73 if the Probate and Administration Rulesprovides that:-“73. Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

23. In Veronica Njoki Wakagoto, (Deceased) [2013] eKLR ,Musyoka J reasoned that;“The effect of [Section 45] .. is that the property of a dead person cannot be lawfully dealt with by anybody unless such a person is authorized to do so by the law. Such authority emanates from a grant of a representation and any person who handles estate property without authority is guilty of intermeddling. The law take a very serious view of intermeddling and makes it a criminal offence.”

24. It did come to the attention of this court that L.R Karingani/Ndagani/165 had been sub-divided by one Anthony Muchiri- the 2nd Administrator herein.

25. On page 23 and line 5 of the court record notes, “I have distributed that shamba to three people. Ambrose Mbae -0. 74 acres , Sebastian Njeru – 0. 74 acres , Esther Kanyua – 0. 74 acres”

26. In the same breadth, an interested party by the name of Joram Nyaga Mutegi allegedly bought a portion of the Deceased estate from one Sebastian Njeru Stanley and despite him having been served failed to turn up for the hearing of the matter. An issue that arises is the legality of this transaction.

27. In the case of Muriuki Hassan-v- Rose Kanyua and 4 others[2014] eKLR , when faced with a situation of sale of property belonging to an estate before succession was undertaken, Makau J held:-“The interested parties are not direct creditors of the deceased befor his death but purchasers from one of the deceased’s beneficiaries and the sale of land to them is challenged in this application. In such circumstances, the interested parties’ interest cannot be considered in this matter and the remedy for them lies elsewhere.”

28. It follows that any action taken by a person whose effect would be to interfere with a property of a deceased intestate without being authorized to do so by the court amounts to intermeddling.

29. The applicant was therefore intermeddling with the estate of the deceased when he purported to distribute the estate.

Inter vivos 30. Section 28 of the Law of Succession Act which provides that:“In considering whether any order should be made under this Part,and if so what order, the court shall have regard to--………….(d)whether the deceased had made any advancement or other gift to the dependant during his lifetime.”

31. The provisions in Sections 29 and 42 of the Law of Succession Act embraces elegant principles of equity, equality and fairness in the distribution of the estate of the deceased to beneficiaries; it avoids double-portion syndrome and reins on greed of beneficiaries.

Gift must be proved: 32. Importantly, gift inter vivos must be established by evidence. See the case of In re- Estate of the Late Gedion Manthi Nzioka (Deceased) [2015] eKLR where it was held that:-“For giftsinter vivos_…… gifts of land must be by way of registered transfer or if the land is not registered it must be in writing or by a declaration of trust in writing. Gifts_inter vivos be must complete for the same to be valid….. See in this regard Halsbury Laws of England 4th Edition Volume 20 (1) at paragraph 32 to 51. ”

33. Section 42 provides that during the distribution of the estate, previous benefits or gifts inter vivos be taken into consideration when determining the share of each child.

34. There are certain elements which must be demonstrated to prove that indeed a deceased person gave out a gift inter vivos. Section 42 of the Law of Succession Act is instructive on this, it provides:-Where:-a.An intestate has, during his lifetime or by will paid, given or settled any property for or the benefit of a child, grandchild or house; or taken had he not predeceased the intestate. That property shall be taken into account in determining the share of the net intestate finally accruing to the child, grandchild or house.

35. There appears to be consensus on the fact that the following beneficiaries were gifted_inter vivos:-Octavian Nyaga - LR. Mwimbi/Murugi/4151-0. 089HaPaul Miriti -LR. Karingani/Ndagani/6452- HaAmbrose Mbae Muthambi Ndagani

36. The 2nd administrator reasons that he is the son of Ambrose Mbae (Deceased) and that the land that Ambrose Mbae was given did not belong to the deceased herein but instead was given from his uncle’s side; the brother to his mother; from his reasoning, he believes that the family of Ambrose Mbae is still inclined to inherit from the deceased’s estate.

37. Section 107 of the Evidence Act Cap 80 Laws of Kenya** provides that;(1)“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”Further, Section 108:The burden of proof in a suit or proceedings lied on the person who would fail if no evidence at all were given on either side.

38. The Court of Appeal in the case of Mbuthia Macharia v Annah Mutua & another [2017] eKLR discussed the burden of proof and stated thus:-The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden.

39. In this case, the incidence of both the legal and evidential burden was with the applicant. It is not convincing to claim that he is the son of Ambrose Mbae (Deceased). The same has been controverted and there is prove that he is the son of Paul Miriti. Either way, her remains a grandson of the deceased.

40. I am inclined to believe the explanation offered by DW1 and DW2 as convincing. In my view the explanation given by PW1, PW2 and PW3 simply is misplaced since they are riddled with a host of misconceptions. As a grandson the applicant has no right to the estate, has no priority and lacks capacity to file the succession cause where the deceased is survived by his children.

41. No documentary evidence was placed before the court to support Ambrose Mbae’s gift, but I shall uphold it as there is no contest on it. It is not in dispute that the land given to Ambrose Mbae did not belong to the deceased herein but it was property that belonged to the side of the deceased’s wife.

42. I am inclined to believe that this property could have been an inheritance that was bequeathed to the wife of the deceased herein. And if that was the case, then any of the five children of the deceased could have inherited the property since it formed part of the estate that was owned by both the deceased herein and his wife.

43In that regard, then it only leaves two beneficiaries (Sebastian Njeru Murianki and Esther Kanyua Murianki) who have not received any share of the estate o the deceased either inter vivos or through succession.

44. Section 38 of the Law of Succession Act the Act provides that:“Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of Section 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.”

45. In the case of Stephen Gitonga M’Murithi v Faith Ngira Murithi [2015] eKLR where the Court of Appeal noted that:Cap 160 of Laws of Kenya, Section 38 of the { Law of Succession Act enshrines the principle of equal distribution of the net intestate estate to the surviving children of the deceased irrespective of gender and whether married and comfortable in their marriage or unmarried. Also see Rono v Rono & another [2008] 1 KLR G&F) 803.

46. I am equally content to cite Article 27 of constitution the Constitution}} which provides for equality and freedom from discrimination and consequently find that all the children of the deceased are entitled to inherit equal shares of their father’s estate.

47. International law applies in Kenya, and it is relevant to this discussion. Kenya has signed many International instruments which provide for equal treatment of men and women. Article 2(5) of constitution the Constitution has made thee international instruments part of Kenya law, and the principles stated in them are of application in Kenya without the necessity of their being domesticated through local legislation.

48. It therefore shows that even the deceased daughter one Esther Kanyua Murianki is equally entitled to inherit from the deceased. The court notes the 1st administrator’s reasons that they will sit down and decide on what happens to her sister Esther Kanyua Murianki.

49. The property of a deceased is not there for the sons to give out to the daughters of the deceased as they please or at their will or whim. Daughters are entitled to a share in the estate of their late father as a matter of right.

CONCLUSION: 50. In view of the foregoing, I order as follows:-i.That the application for summons for revocation dated November 16, 2018 is not merited and is dismissed. The applicant Anthony Muchiri Miriti is removed as administrator of the estate of the deceased.ii.LR Karingani/ndagani/165 to go to Sebastian Njeru Stanley Murianki the 1st administrator herein.iii.I note that Esther Kanyua Murianki did not adduce evidence and has not laid claim in the estate. It is presumed that she has re-nounced her claim in the estate which is allowed under the Act.iv.Each party to bear its own costs.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 16TH DAY OF MARCH, 2022. L.W GITARIJUDGE16/3/2022The ruling has been read out in open court.L.W. GITARIJUDGE16/3/2022