[2017] KEHC 2247 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 1521 OF 2011

IN THE MATTER OF THE ESTATE OF WALLACE MUTUNGWA MATOLO (DECEASED)

1. ROBERT MULI MATOLO

2. MOFFAT NZUSYO MATOLO

3. LAWRENCE KISENGU MATOLO.........................................................................................PETITIONER

AND

1. SUSAN KAVATA MUTUNGWA

2. MARTIN KIOKO

3. PHILIP MULILI & RACHAEL MUMBUA KITAKA on behalf of the estate of Stephen Kitaka Muli

4. MAGDALENE MUTETE MAKAU.........................................................................................OBJECTORS

JUDGMENT

1. On the 14th June 2007, Alice Nthenya Mutungwa and Robert Muli petitioned for letters of Administration Intestate for the estate of Wallace Mutungwa Matolo as wife and son of the deceased. The petitioned was filed at Machakos High Court. Later on the said Succession Cause was transferred to this court by an order dated 11th July 2011. On the 24th November 2011 a grant of letter of Administration Intestate was issued to Robert Muli Matolo, Moffat Nzyusyo Matolo and Lawrence Kisengeu Matolo. By this time Alice Nthenya Mutungwa had passed on the 14th September 2010.

2. Whilst the Succession Cause was at Machakos High Courts the Objectors Susan Kavata Mutungwa and Moffat Nzyusyo Matolo filed an application to revoke the grant that was issued to Alice Nthenya, Mutungwa and Robert Muli Matolo. The said application was not determined at Machakos High Court. On the 26th March 2013 Robert Matolo applied to have the grant issued on the 24th October 2011 confirmed. In his affidavit he names the surviving beneficiaries as; Susan Mumbi, Agnes Kamene, Sammy Manza, Robert Muli, Moffat Nzyusyo, Rose Mateta and Lawrence Kisangau. The schedule of properties listed the following assets; Makueni/Kivani/576, Makueni/Kivani/520 and Makueni/Kivani/809. On the 11th June 2013 Susan Kavata filed a summons to revoke the grant issued to Robert Muli Matolo, Moffat Nzyusyo Matolo and Lawrence Kisengu Matolo issued on 21/10/2011. Her application is supported by her affidavit. Moffat Nzyusyo Matolo a petitioner filed an affidavit of objection dated 10th June 2013. More affidavits of protest were filed by Magdalene Mutete Makau, Martin Kioko, Philip Muli Mulili and Rachael Mumbua Kitaka (on behalf of the estate of Stephen Kitaka Muli).

The Objector’s

3. Susan Kavata evidence in her affidavit and in court is that she is the 2nd wife of the deceased. She got married to him in August 1970 under Kamba customary law and got 10 children with him namely; Mwanza Mutungwa, Mwikali Mutungwa, Ndunge Mutungwa, Ndanu Mutungwa, Mwendwa Mutungwa, Peter Mutungwa, Mary Mutungwa, Matolo Mutungwa, Muuo Mutungwa and Mumbua Mutungwa. She lived with the deceased up to the time he died. That the petitioner’s mother Alice Nthenya moved out of her matrimonial home and went to stay with her son Robert. The grant was obtained secretly without her consent and her children. Whilst married to the deceased she had her home within Makueni/ Kivani/576. That before the deceased died he had sold parcels of land to several people and the portion of the parcel of land could not be transferred because she was told that the land had a restriction done by the Land Registrar. That the purchasers were permitted by the deceased to be on the land before Land Adjudication was finalized and the deceased allowed them to build and farm on the land. That Kamba customs were followed when she got married. Mumbi Mangau and Kibaka her husband’s siblings witnessed the ceremony. They have since died. Lawrence and Moffat the deceased’s children took her dowry and the 1st wife accepted the marriage. During cross-examination she said that goats and money was paid as dowry. That 4 of children were not of the deceased but the rest are. That Joakim was her husband before the deceased but he died. Thereafter she got 4 children with Mutungwa. She recalled that there was a court case over her 2nd marriage but the dowry was returned. She had 4 children with the deceased. That after the deceased died the samba she was staying in was taken by the deceased. She stays with Mumbua.

4. Moffat Nzyusyo Matolo in his affidavit and evidence in court stated as follows; that his father had two wives Susan Kavata being one of them. She has ten children and is entitled to a share of the estate of the deceased. That Robert Matolo secretly organized the Letters of Administration without his knowledge and consent and that of his stepmother and her children. That his mother had eight children including Mumu Mutungwa who was married but is now deceased. That at the time his father died he had debts totaling to Kshs. 100,000/= owed by Mr. Kitiku, Civil suit No. 357 of 2000, Machakos Law Courts and their father had sold parcel of land No. Makueni/Kivani/576 to the following purchasers; Martin Mutie Kioko and Stephen Kitaka Muli who have settled on the land and build houses and are therefore entitled to their share of parcels of land. That the purchasers were chased from the land when his father died. He stated that he took goats as dowry for Susan and that their mother too attended the celebration. That his father divided the samba before he died. That Robert took their mother and went to stay with her. He remained and stayed with his father and Susan and the 2 lived for 45 years. He explained that he did not sign the consent as Susan had been left out neither did Lawrence. That he does not agree with the mode of distribution as stated by Robert. That parcel no. 576 is 36 acres, 809 is 0. 44 hectares and 920 is 0. 39 hectares. During cross-examination he testified that he was not aware of the succession cause. That his mother lived away from his father but they did not separate. That his father gave parcels number 920 and 809 to Sammy the rest of them live in no. 576. That Robert chased away the sons of Susan. He explained to sales to the purchasers thought he did not witness it. He admitted that they have had cases over the alleged land sold to other persons. He denied that Susan was his maid

5. Magdalene Mutete Makau in her affidavit dated 25th June 2013 which she adopted as her evidence avers she bought parcel land no. Makueni/Kivani 576 for Kshs.80, 000/- by an agreement dated 6th April 1997. She has been using the said parcel from 1997 to December 2008 when Robert Matolo the 1st Respondent forcefully evicted her, cut down all her trees and plantations. The deceased did not effect transfer into her name because there was a caution that had been placed on it because of a clan dispute. She claimed she should be included in the list of beneficiaries since she had purchased the said land and the Respondent should subsequently effect the transfer of the land to her upon confirmation of the grant. She reiterated her evidence during cross-examination

6. Philip Muli Mulili in his affidavit dated 5th July 2013 which he adopted as his evidence depones that; Rachael Mumbua Kitaka and him were granted letters of administration to the estate of Stephen Kitaka Muli who died on 9th September 2008. That the deceased had sold the portion of land known Makueni/Kivani/576 to the deceased Stephen Muli for Kshs. 135,000/- by an agreement dated 10th November 1998. The deceased Stephen was allowed to develop the land and build a house. By the time the deceased passed on the late Stephen Muli was living on the land although no transfer had been done because the land adjudication had not been finalized and there was a caveat against the title. He produced pictures to show the status of the land, the house on it, a granny and cows being fed. During cross-examination he testified that he did not witness the agreement but he knows that his step brother bought the said land and that the family is still in active possession of the land they bought.

7. Martin Kioko in his affidavit dated 3rd July 2013 which he adopted in court as his evidence deposes that; the deceased by an agreement dated 13th April 2004 sold a portion of land Makueni/Kivani/576 and he was allowed to develop and build by the deceased. He has a house on the said portion and lives there. That no transfer had been done because there was a caveat at the lands office. He sought to have his claim taken into account when the grant is being confirmed. During cross-examination he admitted that they are in court over the matter and that there is an injunction that he stops the construction on the said portion of land.

8. Kibaba Nyataa brother to Susan Kavata in his replying affidavit filed on the 12th April 2016 avers that; his sister Susan got married to Joakim Ngunya through a church wedding in 1958 and the said Joakim died 6 days after the wedding. She had one child with Joakim. Mwanza Mutungwa Thereafter she married Mutunga Kimeu and they got 3 children Jane. Pauline and Janet Mutungwa. Kimeu paid dowry to the family of Joakim as per the Kamba customs. Susan’s marriage to Kimeu ended and she returned to their home. In 1970 she married Mutungwa Matolo and they had 8 children, Josephine, Mweandwa, Peter, Mary, John, Judah, Abraham and Rose. In 1986 Kimeu claimed his dowry from Mutungwa Matolo and in a meeting held Matolo paid dowry of Kshs. 1,143/55 to Kimeu thereby making her sister his wife. That since then the sister has been the wife of Wallace Matolo and they stayed together and the deceased gave her plot No. 576 to develop.

9. Robert Matolo filed various affidavits, the one dated 22nd March 2013 in support of the application to confirm the grant, a further affidavit dated 5th September 2013 in response to the affidavits of Philip, Martin and Magdalene and an affidavit in opposition to the summons for revocation dated 1st July 2011. His response is as follows; he is the 1st administrator of the deceased estate together with 2nd and 3rd administrators. That the objector Susan Kavata was never a wife the deceased. Susan claimed to have been married by the deceased in August 1970 under Kamba Customary Law whilst she had been married statutory on the 7th December 1957 by one Joachim Nguno Mututu. Susan again married Mutunga Kimeu under Kamba Customary Laws on the 3rd September 1975 and under this marriage she begot all her 10 children. That the said marriage is to date in the process of dissolution in Makueni SRMCC No. 162 of 2006 Simon Maithya Linda & Mutunga Kimeu Linda – Vs. Kivava Nyata & Susan Kavata Mutunga. That Susan cannot be by any standard a wife of the deceased, she did not attend the deceased’s burial or treatment. She is only out to enrich herself. That the deceased having contracted a statutory marriage with Alice Nthenya and not having dissolved the marriage there was no way he could have married Susan in August 1970. That the letter that was obtained by Susan dated 9th October 2006 from the Assistant Chief was discovered as a fraud. Susan has no matrimonial home in the deceased’s land and her continued stay has been aided by the 2nd administrator in a bid to defraud the other beneficiaries. That her matrimonial home is in Mutunga Kimeu Linda’s home at Kyangungi Village and not the deceased’s at Iteta Village which villages are more than 3 Kms apart. That after the death of the deceased the 2nd administrator forcefully caused Susan to enter the land and start claiming interest in the deceased’s estate. The estate is owed Kshs. 100,000/- by Mr. Kitiku but he was not aware of any sale by the deceased to Martin Mutie Kioko and Stephen Kitaka Muli. That the said purchasers entered the land after the death of the deceased in the strength of Moffat Nzyusyo who is a police officer who used to intimidate everyone such that no one could raise his voice as they illegally constructed on the deceased’s land. That there is a restriction registered in parcel No. 576 and no dealings can be registered against the titles without the order of the Chief Registrar and therefore persons claiming they purchased portions of the land have acted illegally. That The developments on the land were illegally done and this prompted them to file CMCC 949 of 2008 against Rachael Kitaka and Mulili Muli, High Court Succession Cause no 34 of 2006 was filed to stop Stephen Muli from Erecting illegal structures and a caveat against the title in issue was introduced by objection no. 352 of 1983 by the Director of Lands Adjudication and Settlement. That on the authenticity of Magdalene’s agreement is questionable as the deceased did not have his usual signature. That at the time of the alleged sale their family which has adult sons and a wife were not asked to give their consents. That allowing the said purchasers to be recognized as beneficiaries would cause injustice to the estate.

10. Robert’s evidence as summarized above is his affidavit evidence and whilst testifying in court he adopted the said affidavits adding the following; that his father did not build for Susan currently she lives with Moffat. A boy cannot be sent to pay dowry. That there was no agreement between his father and the protestors. That parcel no 576 is clan land it’s about 500 acres. That he was not aware of any consent given at the land control board. During cross-examination he admitted that he had not provided for Moffat and Susan. That since his father’s death they have had a bad relationship with Moffat. He denied knowledge of the book referred to by Moffat on the sales of portions of the deceased’s land. That the purchasers came to the land after his father.

SUBMISSIONS

11. I have read and considered the submissions. The 2nd petitioner, 1st, 2nd , 3r and 4th Objectors submitted as follows; the 1st petitioner did not include the 1st Objector Susan as a wife of the Deceased neither did Moffat Lawrence sign consent to the mode of distribution. There is evidence that the 1st Objector was the wife of the deceased and stayed with him for 34 years. The results for evidence that the protestors bought land from the deceased and supported by the proceedings of HCC No. 72 of 2009 which was filed by the 1st Petitioner and his mother. Reference was made to Section 29 of the Law of Succession Act on who should be considered as a dependent. Reference was also made to two cases filed at Machakos High Court HCC 72 of 2009 and HCC 34 of 2006 involving Alice Nthenya Mutungea and Rober Muli Matolo Vs. Susan Kavata Mutunga and others. Magdeline one of the protestors filed similar submissions to the 2nd petitioner and other objectors adding that she stated further that she purchased parcel no. 576 on 6/4/1997 from the deceased and enjoyed peaceful use of the parcel of land until December 2008 when she was informed that the 1st petitioner had cut down mature trees from her land. The 1st and 3rd petitioners analyzed the evidence and the law in their submissions and submitted as follows; Sections 3(5) of the Law of Succession Act cannot come in the aide of the objector as both parties systems of marriage do not permit polygamy that a woman married under Statutory Law cannot conduct a Customary Law Marriage to the deceased. The section could have protected Susan for the purposes of succession had she been married. On presumption marriage it was submitted that the objector no longer lives in the land neither do her children. She did not call evidence to prove that dowry was paid for her. Under Kamba Customary Law dowry is payable by elders and not boys. None of the objector’s children appeared in court to buttress her claim that they were sired by the deceased nor were any birth certificates or national identification cards produced in Court. No evidence was adduced to confirm the deceased supported her and the children nor was she recognized as a wife at the funeral therefore the community had no knowledge of her being a wife. Reference was made to HCCC 57 of 2011 NUFR V. MSC eKLR where Justice Musyoka elaborated on what can be presumed as a marriage as follows;

“…….A presumed marriage is often referred to as marriage by reputations. One of the considerations is how the couple is viewed and treated by their community. Community here would mean the families of the two parties, their friends, neighbors and acquaintances. The public element of marriage again comes to the fore. A determination as to whether a marriage may be presumed from cohabitation will of necessity be dependent on the portrait the parties have painted in the eyes of the community around them”.

It was further submitted that the evidence of Kibaba Nyata contradicted that of Susan and Moffat evidence that the 2nd petitioner was present when dowry was paid and that the evidence of Kibaba remains hearsay and is inadmissible as to the contents of agreement and circumstances under which it was drawn. That the objector has not discharge the burden of proving she was a wife and that she is a trespasser. On the protestors who allege they bought the parcel of lands it was submitted as follows; Magdalene Mutate Makau’s claim that she bought land for Kshs.80,000/- on the 6th April 1997 is not specific as there was no evidence on the size of land she claims from the estate. There was no evidence to corroborate her evidence nor a consent from the Land Control Board and that she has never occupied the land. On Philip Muli it was submitted that it was alleged Stephen Kitaka Muli bought the land from Susan Kitaka. That the court should note that the said land was not mentioned in the grant of the late Stephen Muli. The size of the parcel of land claimed is not shown and the agreement does not mention the deceased as the vendor nor the parcel number. That there was no witness to support his claims nor was there consent from the Land Control Board. On Martin Kioko it was submitted that his evidence is at variance with his documents and is not clear the size of land he purchased nor was there witness called to corroborate his evidence.

DETERMINATION

12. I have considered the evidence, the submissions and the law, the issues for determination are;

i. Whether Susan was a wife of the deceased?

ii. Who are the beneficiaries?

iii. Whether the purchasers have a beneficial interest in the deceased’s land.

iv. What is the mode distribution of the deceased’s estate?

On whether Susan is the wife of the deceased. Susan claims that she was married under Kamba customary law. This has been vehemently denied by the respondent Robert Matolo. Susan has to prove her claim. It is claimed by the respondent that the deceased conducted a statutory marriage with one Alice Thenya Mutungwa and that the marriage was never dissolved and that the objector conducted a statutory marriage that was not dissolved. Susan in her evidence stated that she wedded Joakim on the 7th of December 1957 Joakim unfortunately died 6 days after their wedding. After the death of her first husband Susan was free to marry age. Marriage vows are taken and remain in force until death of a spouse or a divorce. Susan thereafter married Mutunga Kimeu. This marriage did not work out and Susan left. The marriage ended after the deceased paid dowry to Kimeu. According to Susan she married the deceased in 1970 and stayed with him for over 34 years and that at the time of her marriage, the deceased’s first wife went to stay with the 1st respondent her son, the latter was not denied by the 1st petitioner. In cross-examination she stated that dowry was paid goats and money and that the deceased sent the boys with the goats. Susan’s evidence that she was married to the deceased was supported by the evidence of the 2nd petitioner/ protester and her brother Kibaba. I take note that the 1st and 2nd petitioner are not on good terms hence I must treat their evidence with caution. There is also the evidence of the protestors who stated that the deceased had two wives. According to them the deceased lived in the said land. These are persons within the community who stated they knew the deceased well. Upon evaluating the said evidence am persuaded that Susan was married to the deceased she is his widow. Susan had the capacity to marry the deceased she cohabited with the deceased for over 34 years. In the case of Njoki v Mutheru (1985) Justice Nyarangi held as follows on presumption of marriage, “Beforea presumption of marriage can arise a party need to establish long cohabitation and acts showing general repute… performance of some ceremony of marriage would be strong evidence of the general repute that the parties were married.’ There was evidence that the 1st petitioner took away his mother and stayed with her. According to Susan she had children with the deceased. The respondent’s evidence that Susan was just a help in their home and not a wife was not persuasive. The respondent even alleged that Susan is the wife of the 2nd petitioner no evidence adduced to support this allegation. The 2nd petitioner denied it in court. The deceased married one Alice the mother of the petitioners and later married Susan according to the protestor. Based on the evidence adduced am persuaded that the deceased married Susan after paying dowry to Kimeu. Susan’s status is falls within the ambit of Section 3 (5) of the Law of Succession which protects her for purposes of succession. Her objection that she was not included as a wife of the deceased has merit. She was the deceased’s 2nd wife and a dependent of the deceased’s estate as provided under Section 29 of the Law of Succession Act.

On who are the beneficiaries; Robert has listed his siblings and that has not been challenged. They are Susan Mumbi, Agnes Kamene, Sammy Manza, Robert Muli, Moffat Nzyuko, Rose Mateta and Lawrence Kisangau. Moffat and Lawrence did not sign the consent filed by the administrator. I have found Susan was a wife and therefore she is a beneficiary in the deceased’s estate, as provided under Section 29 of the Law of Succession Act. Susan claims that she had children with the deceased, her evidence was supported by Moffat’s evidence and her brother Kibaba, though am persuaded that there are children Susan should have called further evidence to support the issue of the children she had with the deceased.

On the purchasers claims I find as follows; Magdalene claims she bought land from the deceased. I agree with the respondent that her claim is not specific that alleged parcel of land that she bought has no size or dimensions and it’s difficult to tell her claim. She can pursue her claim for the land she claims she bought from the deceased from the Environmental and Land Court (ELC). On the claim by Philip Muli am unable to determine the portion that was sold to him. Let him pursue his claim in the ELC Court. On the claim by Martin Kioko there is a sale agreement that states that he bought a portion of land parcel no. 576. This portion of land should be transferred to Martin Kioko as it appears that there was a sale agreement with the deceased. From the evidence adduced there is a restriction that was placed on the land, the purchasers should take up the issue with the appropriate court.

On the mode of distribution I find that there is variance of evidence of the acreage of the parcel of land no. 576 the only asset for distribution. Moffat stated it was 36 acres and Robert stated it was clan land and is about 500 acres. Moffat and Lawrence’s portion too is not indicated. Now that I have made a finding that Susan is a beneficiary she is entitled to a portion of it. To enable this Court make a final determination on the mode of distribution the 1st petitioner and the objectors and Moffat each party shall file an affidavit on the mode of distribution within 45 days . The court shall consider the said affidavits and make a determination on the mode of distribution. The grant shall not be revoked. The 3 administrators shall remain administrators for the purpose of administering the deceased’s estate. Each party to bear its own costs.

Dated signed and delivered this 6th Day of October 2017.

R. E. OUGO

JUDGE

In the presence of;

Miss Muasya h/b for Mr. Masika For the Objectors

Miss Muasya h/b for Mr. Bundi For the Respondent

Ms Charity Court/ clerk