[2017] KEHC 1278 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSES NO. 235 AND 236 OF 2009

IN THE MATTER OF THE ESTATES OFKIOKO MUSYA (DECEASED) AND KITHEMBE MUSYA(DECEASED)

1. NELSON MAKAU YUMBU

2. MULEI YUMBU……………………………..………………...PETITIONERS

VERSUS

1. DAVID MWANIA

2. BONIFACE ISAAC MUTINDA KITETA……………………….OBJECTORS

RULING

Introduction

The Petitioners herein applied for grant of letters of administration intestate in both Machakos Succession Causes No. 235 of 2009 and No. 236 of 2009. The two Succession Causes were consolidated for hearing by a court order made on 4th November 2011. Succession Cause No. 235 of 2009 was in respect to the estate of Kioko Musya and Succession Cause No. 236 of 2009 was in respect to the estate of Kithembe Musya.

The Petitioners are nephews of Kioko Musya and Kithembe Musya (hereinafter referred to as the Deceased persons). The Petitioners’ father, Yumbu Musya, was a brother to the two Deceased Persons. The Objectors are also nephews of the Deceased Persons, being the sons of Mutuku Musya and Kiteta Musya, who were also brothers of the Deceased Persons. The only asset in both succession causes is the land parcel Mwala/Kyawango/336, which was held by the two Deceased persons as proprietors in common in equal shares (hereinafter referred to as “the suit property”).

After a grant of letters of administration was issued to the Petitioners on 15th June, 2009, they filed a summons for confirmation of grant on 24th March, 2011, in which they proposed that the suit property be registered in their joint names. The Petitioners contended that although the property was registered in the joint names of their uncles Kioko Musya and Kithembe Musya, the said was held in trust for them by virtue of their relationship. They relied on two letters, one from the Euanie clan dated 24th March 1973, and the other of a family meeting held on 5th April 1980, in which they claim they were given the said land by the said clan and the Objectors’ fathers.

The Objectors thereupon filed an affidavit of protest sworn by the 1st Objector on 9th August 2011, contending that the Petitioners had concealed material facts from the court and failed to disclose all the beneficiaries for the said land, and in particular that the Deceased Persons had other nephews surviving them.

When the summons and protest first came up for hearing, Mutende J. after considering the affidavit evidence by the Petitioners and Objectors delivered a ruling herein on 3rd April 2014, wherein it was held that it would important to hear other beneficiaries of the estate of the Deceased persons before making final orders. The learned Judge then directed that summons do issue requiring attendance of all the surviving children, brothers, spouse of the deceased persons, the chief, Kyawango Location and the Chairman of Euanie clan. The hearing then proceeded by viva voce evidence.

The Petitioners’ Case

The Petitioners called five (5) witnesses to testify on their behalf. The Chief of Kyawango Location, Jonathan Mutua Mwanzili was PW1, and he confirmed writing a letter dated 7th June, 2010 in respect of Kioko Musya and Kithembe Musyoka. He however stated that he did not know the two prior to their death. Further, that he was approached by David Mwani, Kioko Musya, James Mwalwa Kithembe and Mutua Nthumbu on 7th June, 2010 requesting him to write the letter. He stated that he wrote the same on the basis of the information the four gave him. He stated that the land adjudication in his area was done in the year 1973.

On cross examination he stated that he had proposed in his letter that the suit property be divided equally upon being approached by Musya Kyai’s grandchildren. He said he was aware their fathers were given their shares of the Deceased’s land, and that he was not aware that Nelson Makau Yumbu and Mulei Yumbu settled on Land Parcel Mwala/Kyawango/236.

Mue Kithembe Musya (PW2) testified that he is the son of Kithembe Musya who died in the year 1977. That his siblings are Mutisya, Kimilu, Muli and Mulwa Ngui and that his father had two wives. He stated that he does not know the parcel number of the land he lives in but that it is 3 ½ acres, and that the land was sub-divided among his father’s two wives and each of his siblings got their portions. He stated that Yumbu Musya is his uncle, and his sons are Makau Yumbu, Kiteta Yumbu, Mulei Yumbu and Mutua Yumbu. That Yumbu Musya too had two wives, Mumbua who was mother to Kiteta and Mutua, and Meli who was mother to Makau and Mulei. Further, that they two wives had land which is now occupied by their children.

On cross examination, PW2 stated that Mumbua and Meli each got a portion of the ancestral land, and that Kiteta and Mutua occupy the ancestral land. That Nelson Makau lives on a parcel he purchased, and that Mulei is based on the suit property which all the beneficiaries are entitled to. He stated that his brother David Mwania was given the ancestral land and that that Kiteta was also given land belonging to Musya. PW2 stated that he too was entitled to the suit property, and that Mulei had got into the land in the year 1973.

PW2 admitted to being present at a family meeting, but stated that he did not know if it was agreed that Kiteta Musya be given land at Athi river. He confirmed that the suit property belonged to their grandfather Musya, and was registered in the names of the Deceased persons as first born sons of Musya. Further, that all the sons of Musya had been given ancestral land belonging to Musya, which is where he was living, and where the Objectors also had their homes. In addition that Yumbu Musya was also given ancestral land which was given to his two wives. It was PW2’s evidence that they should all get the land in issue.

Kinyele Yumbo (PW3) who is the son of Yumbu Musya stated that his father died in the year 1945. He stated that the land was sub divided by members of the clan and given to him. Further, that his land is different from the suit property, which was in the names of Kioko and Kithembe who were to hold it in trust for Mulei and Makau. On cross examination, he stated that the land was sub-divided by Mutua Ingoka who was the vice chairman. He stated that his mother got land at Kyawango, David Mwania got land from Mutuku and Isaac Mutinda Kiteta got his portion. That the suit property was a forest and people refused to take it, and that only Mulei and Makau agreed to take it.

PW3 testified that as per the meeting of 5th April, 1980 it was decided that Mulei and Makau do take the land. He did not see Kithembe Musya document anything, but that the land was handed over to the two to hold in trust for the rest. He further stated that the suit land was registered in the names of Kithembe and Kioko because they were to hold in trust for the rest. That they were the eldest in each house and were the ones to subdivide amongst their siblings. Kioko was to give Mutunga, Kiteta and all their siblings. However, that Mulei and Makau were given the land.

PW3 also confirmed that Yumbu Musya got a portion which all his family occupies and which is where he too lives, and that Yumbu Musya ought to have sub-divided the portion to his whole family since all the land was sub-divided among the family. Makau was said to be in occupation of the suit land at some point and Nelson Yumbu stays on another land nearby but cultivates a portion of the suit land. James Kiteta’s house was said to have been found to be partly on Yumbu’s portion. He later moved and went to his portion.

Mutua Ingoka (PW4) who was the Chairman of Euanie clan testified that he held the position since 1957 to date. He termed Musya Kyai as a clan mate but that he could not remember the year that he passed on. He stated that he had three wives, Syomutuni wa Musya, Mwikali and Kivalia to who he subdivided the land. He only knew Syomutuni’s children while he was not able to differentiate Mwikali’s and Kivalia’s children. He stated that he knew Nelson Makau Yumbu and Mulei Yumbu as Musya’s sons, for reasons that Syomutini married a concubine who sired her children namely Makau and Mulei, and as per the Kamba traditions they were considered as legitimate sons of Musya Kyai.

PW4 further testified that David Mwania and Boniface Isaac Mutinda Kiteta were Musya Kyai’s grandchildren.

On cross examination, he stated that Musya Kyai had various parcels of land, and that the land at Kyawango was divided amongst Mutuku, Kiteta, Kithembe, Kitheli and Yumbu. Further, that he gave Mulei and Makau land in the year 1973 and there was no dispute. He confirmed that Kithembe and Kioko were present during the sub-division but Mutuku and Yumbu were dead by then. He stated that other family members did not get any portions at Kyawango since the land was given to Nelson Makau Yumbu and Mulei Yumbu with no objection from family members. That to his knowledge the land at Kyawango Athi belongs to Syomutuni.

Upon cross examination on the clan meeting held on 24th March 1973, he stated that he was not present at the meeting. He stated that Paul Manthi was the General Chairman and he the vice chairman of the Euanie Clan in 1973. Further, that the general chairman had custody of the records of meetings. He stated that the general chairman should have records signed by all members of the family that had a dispute and those present. On cross examination by the court, he stated that the General Chairman was mandated to appoint the other chairman, but which should be reduced into writing. The Court at this point ordered that summons be issued for the Chairman of Euanie clan to produce the minutes of the clan meetings of 1973, which appeared not to have been done

Joseph Musyoka Kioko (PW5) testified that he is the first born son of Kioko Musya, and that Kithembe Musya is his uncle and his grandfather was Musya Kyai. Further, that Musya Kyai had land in Kyawango in Mwala which he did not distribute but his children divided it among themselves. In addition that Mwala/Kyawango/336 was given to the 3rd household – Nelson Makau Yumbu and Mulei Yumbu. That was according to how the elders decided. Further, that they were not given any other land.

According to PW5, the Protestors’ father were given land belonging their grandfather and that when their fathers were alive they never claimed a portion of Mwala/Kyawango/336. PW5 testified that Mwala Kyawango/336 was in the name of Kioko Musya who was PW5’s father and Kithembe Musya his uncle, and they were the first two sons who were registered as trusties of Nelson and Mulei. According to PW5, Kioko and Kithembu already had their land which they had been given.

On cross examination PW5 stated that they moved from Kyawango to Kwamulai where his father was given land. His father later sold Kwamulai due to debts and they moved to Kithyoko. His father was then left with no share in the suit property. His father later died in 1975 at Maringa Kithyoko. He stated that Kioko was Musya’s son. Musya had 3 wives, Mumbua, Mwikali and Kibalia. The mother of Yumbu Musya and Mutuku was said to be Mwikali. Further, that the 1st home did not have a male child and the mother of Mulei and Nelson was an ‘iweto’. He stated that he never saw Mumbua, and that he only heard of her and that the disputed land was given to the 3rd house of Musya.. He confirmed that his father and uncle were given the land because they were first born sons, to hold in trust for the children of Musya. Further, that they were told to relinquish their ownership to the other children of Musya.

The Objectors’ Case

The 1st Objector, David Mwania (DW1) and the 2nd Objector, Boniface Mutinda Kitheka (DW2) gave evidence in support of their case. DW1 stated that when Makau and Mulei were asked to go to the suit property, he was an army officer and could not come to court to defend himself. He wrote a letter dated 11th January 1980 to the Registrar of land which he produced as the Objectors Exhibit 1, and letter dated 12th January, 1980 (produced as Objectors Exhibit 2). He stated that his mother never mentioned to him that there was a Mumbua and he only heard of her in court.

On cross examination, DW1 stated that he knew of two wives of Musya Kyai namely, Mwikali and Kibalua. That he only knew of Mumbua Yumbu and never saw a wife of Musya called Mumbua. He stated that he is settled near the suit property. That his father had 3 wives who were are all settled on the land where his father bought, except for the 1st wife who is settled on the ancestral land. Further, that by the time the subdivision of the ancestral land was done his father was already dead.

DW1 testified that he was not satisfied with the division of suit property, and not of the ancestral land. He denied that in the meeting on 24th March 1973 although his name appears on the document. He further denied that they met as a family on 5th April, 1980. He stated that the Petitioners mother was called Tabitha Meli and was married by Yumbu Musya who was his uncle. He however said, he did not know if she was given any ancestral land.

DW2 on his part testified that there were 3 wives of Muysa Kyai. One had no children, and she did not marry an ‘iweto’ as has been claimed to get her children. The other 2 wives of Musya Kyai had seven sons who are all deceased leaving only the grandchildren who claim that they did not consent to the giving of the land to the Petitioners. He stated that before the death of his father, he had many cases with the Petitioners over the suit property although they did not end up in court, and that his elder brother took up this case, and DW2 took over the case when his brother died.

DW2 stated that he was in the family meeting and admitted that there are no signatures against the names, and the chairman of the clan used to use a stamp to sign meetings which was not done. Further, that not all the family of Musya Kyai was consulted. According to DW2, Kioko and Kithembwa Musya Kyai were registered as proprietors of the suit property in common, and were holding it in trust for all their brothers as they were first borne in their houses. Further, that since the land belonged to all sons, two of them could not give away the land without the consent of the other sons. He stated that he objects to the grant because he wants fairness in the matter, not only to him or his father but to every member of the Musya family.

On cross examination, DW2 stated that his father’s name was Kitheka Musya. Further, that he knew Mwikali and Kibalua but never met them. That the third wife of Musya had no son and she did not get any share of land according to Kamba custom, and that she did not marry a concubine. DW2 testified that the ancestral land was shared in the 1970’s when his father was alive, and no family was given the suit property. Further, that the family of Yumbu got their parcel of land of the ancestral land, and the suit property was registered in Kioko and Kithembwa Musya names to hold in trust for the family. He stated that his father did not challenge the registration of the land in Kioko and Kithembe’s name as they were holding the land in trust.

The Determination

After the parties closed their respective cases, the Court directed them to file their respective written submissions. The Objectors filed their submissions on 30th January 2017, while the Petitioners’ Advocate, Sila & Company Advocates, filed submissions dated 31st January 2017. The submissions were in large part a reiteration of the evidence given by the parties in Court, and the Petitioners averred in this respect that the bigger ancestral land at Kwayango was divided to all sons of Musya Kayi except Yumbu Musya, and the Court cannot order the suit property be divided among all beneficiaries of Musya Kyai as some of them will benefit twice.

The Objectors on their part averred that the Petitioner’s deliberately concealed crucial material facts from this court by failing to disclose all the beneficiaries as listed by the area chief, and thereby contravened section 51 (2)(g) of the Law of Succession Act which provides as follows:

“An application shall include information as to-…in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased.”

Further, that Yumbu Musya got his share of the larger Musya land just like his brothers, and his four sons by two wives were supposed to share the piece of land equally.

As the estate of the Deceased Persons is not in dispute, being the suit property herein, there are two issues left for determination arising from the evidence and arguments made by the Objectors and Petitioners. The first is who are the beneficiaries entitled to inherit from the Deceased’s persons estate, and secondly, what are the respective shares of the said beneficiaries in the said estate.

On the first issue, the Petitioners claim to be the only beneficiaries, and they rely on the two letters dated 24th March 1973 and 5t April 1980 they attached as Annexures “NMY1” and “NMY2” to their supporting affidavit for the summons for confirmation in which they claim they were given the suit property by the Euanie clan and their family. The chairman of Euanie Clan was never called as a witness to verify the authenticity of the letter dated 24th March 1973, or produce minutes of the clan meetings in which the decision was made to give the Petitioners the said land, despite Court orders to this effect.

Although PW2 and PW3 also testified that they were aware of the family meeting of 5th April 1980, PW2 stated that he could not remember the Objectors’ fathers stating that they had no opposition to the suit property being given to the Petitioners. The said meeting is disputed by the Objectors and no minutes of the said family meeting were produced by the Petitioners.

In addition, the Petitioners own witnesses particularly PW2, PW3 and PW5 gave contradictory evidence as to which family members were entitled to the suit property, with some of them acknowledging that the land was held in trust for the entire Musya Kyai’s family. Further, the said witnesses all testified that contrary to the Petitioners’ claims, the Petitioners’ father, Yumbu Musya, was also given part of the Musya Kyai’s ancestaral land, which the Petitioners’ step-brothers currently occupy. Contradictory evidence was also given by the Petitioners’ witnesses as to whether the Petitioners were given the said lands in their capacity as sons of Yumbu Musya or sons of Musya Kyai, with PW4 and PW5 alleging that the Petitioners were sons of Musya Kyai’s third wife through an iweto (woman-to -woman marriage). This Court cannot in light of the noted contradictions and inconsistencies make a finding that the Petitioners are the only ones entitled to the suit property.

It is in this regard also noteworthy that it is not in dispute as testified by the Petitioners, PW2, PW3, PW5, DW1 and DW2 that the suit property belonged to their grandfather, Musya Kyai, and was registered in the names of the Deceased persons as trustees on behalf of the other members of the family. The issue in dispute is whether it was to be held in trust only for the Petitioners; or for the larger Musya Kyai family.

The concept of a customary trust in relation to land held by a family member is recognized in law, and the fact that a person is registered as proprietor of land as absolute owner does not negate the possibility that he or she holds the land under a customary trust. In Kanyi vs. Muthiora, (1984) KLR, 712, it held that registration of land in the name of a proprietor under the Registered Land Act did not extinguish rights under Kikuyu customary law and neither did it relieve the proprietor of his duties or obligations as trustee. The Court further stated that the trustee referred to in section 28 of the Act included a trustee under customary law.

Likewise in Njuguna vs. Njuguna, (2008) 1 KLR 889, the Court of Appeal had occasion to consider the duties of a trustee in a customary trust when it considered the duties of a “muramati”in Kikuyu customary law, and his obligations and responsibilities. The respondent in that appeal, the eldest son in a family, was registered as owner of a parcel of land which he held under customary law trust for himself and his six brothers. The land was divided into eight pieces. The other brothers were given one piece each, but the respondent took two pieces ostensibly because he was a muramati.

The Court of Appeal held in the case inter alia, that the eldest son inherits land as a “Muramati” to hold it in trust for himself and the other heirs; that the “Muramati” has a duty to distribute the shares to the heirs in accordance with the wishes of the deceased or in accordance with the rules of intestacy; and that the “Muramati” is not entitled to any remuneration for his services because his duty is a moral obligation.

Therefore it is the position in law that in the absence of evidence of the wishes of the deceased as to how property held in trust by one or more of his heirs is to be divided, it is to be shared according to the rules of intestacy. In this respect, the beneficiaries of a property that is held under customary trust are the siblings of the trustees, in this instance the children of Musya Kyai. Therefore, each of the children of Musya Kyai is entitled to a share of the suit property.

On the second issue as regards the actual share of the suit property that each beneficiary is to inherit, the applicable rules of intestacy are found in section 38 of the Law of Succession Act, which governs the distribution of the property of an intestate who has no surviving spouse but has surviving children as follows:

‘Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children..”

In effect this section requires equal distribution among all the children while taking into account any gifts or settlements that may have been made by the deceased during his lifetime. In the present cause, there was evidence that Musya Kyai’s children had benefited from the sharing of his ancestral land, and consequently the land held in trust by the Deceased’s Persons therefore ought to be shared equally among all the beneficiaries.

I accordingly order as follows:

1. The land parcel Mwala/Kyawango/336 shall be distributed equally between the children of Musya Kyai, as it was held in trust for the said children by Kioko Musya and Kithembe Musya.

2. The survivors of all the children of Musya Kyai shall within 90 days of the date of this ruling file in Court and serve affidavits indicating the names of all the beneficiaries of each child of Musya Kyai for final orders of confirmation.

3. There shall be no order as to costs.

Orders accordingly.

Dated, signed and delivered in open court at Machakos this 9th day of October 2017.

P. NYAMWEYA

JUDGE